Posted on 12/05/2012 2:45:12 PM PST by Nachum
What does it mean for the Senate to be in recess? Today, the D.C. Circuit Court of Appeals was challenged to figure that out.
This stems from President Obama bypassing the Senate in appointing three nominees to the National Labor Relations Board (NLRB). The Wall Street Journal sets it up:
[I]n January Mr. Obama named three new members of the National Labor Relations Board along with Richard Cordray as the head of the Consumer Financial Protection Bureau when the Senate wasn't in recess. While Congress was conducting pro forma sessions, Mr. Obama pulled this end run around the Senate's advice and consent power.
In Noel Canning v. NLRB, a Washington state Pepsi bottler claims that the NLRB lacked a three-member quorum when it decided a labor case because the recess appointments were illegitimate. In order for the President to make a recess appointment, the Senate must adjourn, and under Article I, Section 5 of the Constitution neither house of Congress can adjourn for more than three days without the other's permission.
On January 4, the day Mr. Obama packed the NLRB, Congress considered itself to be in session. But the White House claimed the pro forma session didn't count because the Senate wasn't really available to do confirmations except by unanimous consent.
The editorial crushes this argument:
The Senate happens to do much of its business by unanimous consent, including confirmations of executive branch employees and even federal judges, including (then attorney and now Chief Justice) John Roberts's 2003 confirmation to the D.C. Circuit. Mr. Obama himself has signed legislation passed during pro forma sessions, including the Senate's 2011 payroll tax extender and the Airport and Airway Extension Act.
(Excerpt) Read more at freeenterprise.com ...
The list, Ping
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Mark Levin’s firm Landmark Legal was one of the plaintiffs in this case, which was a nice win today.
Where in that article does it say they won.
The way I read it the decision is pending, and I wouldn’t bet on a win.
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