Posted on 01/25/2013 12:16:49 PM PST by Red Steel
White House press secretary Jay Carney on Friday blasted a court decision that nixed three recess appointments to the National Labor Relations Board as “novel and unprecedented,” but said that he did not expect any broader application of the ruling.
“It’s one court, one case, one company,” Carney said.
Carney said there has been “enormous frustration” at the White House with the Senate’s refusal to approve nominees. But the ruling Friday “contradicts 150 year of practice by Democratic and Republican administrations. … So we respectfully but strongly disagree with the ruling.”
Carney declined to say if the administration planned to appeal, referring questions about next steps to the Department of Justice. Justice Department officials said they had no immediate comment.
The U.S. Court of Appeals for the D.C. Circuit ruled that the appointments were unconstitutional since the Senate was not actually in recess when Obama appointed three members to the board.
“[T]he President made his three appointments to the Board on January 4, 2012, after Congress began a new session on January 3 and while that new session continued,” the court wrote in its decision. “Considering the text, history, and structure of the Constitution, these appointments were invalid from their inception.”
Implications of the decision are still being sorted out. One potential result raised immediately was that by invalidating the labor board appointments, the decision may have effectively invalidated all the board’s work since they were made, including orders and regulations issued.
The NLRB and the White House expressed confidence that this would not happen.
“This court decision does not effect this operation, their ability to function,” Carney said.
The decision also puts into question the appointment of Richard Cordray to lead the Consumer Financial Protection Bureau. That appointment was made at the same time as the NLRB appointments.
Carney said it also argued that the decision will have “no bearing” on Cordray, adding “It simply doesn’t as a legal matter.”
Republicans jumped on the ruling and held it up as an affirmation of their contention that the president should not be allowed to play fast and loose with the constitutional mandate that the Senate confirm his appointments.
“Today’s ruling reaffirms that the Constitution is above political party or agenda, despite what the Obama Administration seems to think,” said Sen. Orrin Hatch (R-Utah), who filed an amicus brief in the case with 41 other senators. “This wasn’t an activist decision or legislating from the bench.”
House Speaker John Boehner called the ruling “a victory for accountability.” By invalidating the labor board appointments, the decision effectively invalidated all the board’s work since they were made, including orders and regulations issued.
“We welcome today’s ruling as a victory for accountability in government and hope it will ultimately help employers and workers overcome excessive regulations,” Boehner said in a statement. “The Obama administration has consistently used the NLRB to impose regulations that hurt our economy by fostering uncertainty in the workplace and telling businesses where they can and cannot create jobs.”
Labor groups condemned the decision.
“Today’s decision by a panel of Republican judges on the DC Circuit is nothing less than shocking,” AFL-CIO President Richard Trumka said in a statement, adding that he fully expects “this radical decision to be reversed, and that other courts addressing this issue will uphold the President’s recess appointment authority.”
In its ruling on the case, Noel Canning v. NLRB, the court found that the board, in its defense, did not successfully make the argument that actions by recent presidents trumped the actions undertaken by presidents earlier in the country’s history, when recess appointments were rare.
“Their early understanding of the Constitution is more probative of its original meaning than anything to be drawn from administrations of more recent vintage,” the court wrote. “While the Board seeks support for its interpretation in the practices of more recent administrations, we do not find those practices persuasive.”
Just amazing how flippin’ the WH is the business of the nation!
I've never litigated a case under the defacto officer doctrine, but my 2 minutes research leads me to believe that the decisions and orders should be invalid. The defacto officer doctrine holds that, except for parties to a law suit seeking to have them declared invalid, the actions of an apparent office holder are valid. The rule provides for finality in actions, because the public doesn't have to go and conduct an extensive back ground check on every public officer, just in case there is something that would invalidate their appointment/election.
The portion of the defacto officer doctrine applicable here is:
the duties of the office were exercised under color of a known election or appointment, [and are]void because the officer was not eligible, or because there was a want of power in the electing or appointing body, or by reason of some defect or irregularity in its exercise, such ineligibility, want of power, or defect being unknown to the public.(emphasis added)
Here the "defect" in the appointment, it was a recess appointment while the Senate was not in recess, was well known, and was the cause of an immediate outcry. This is not a case where BO appointed somebody to an office, and he found out later that they got busted with 1/10 of an ounce of pot in 1969, and are a felon. Here BO deliberately claimed to make a recess appointment of a nominee that the Senate was considering, but had not approved of, while he knew the Senate was not in recess. Allowing that nominee to serve for a year strips the Senate of its power to approve Federal Officers. If the nominee's acts are valid until his appointment is ruled invalid by the Courts, BO can reappointment him this evening, while the Senate is in recess for the night, and just keep reappointing him every time he loses a law suit.
I’ll bet that Barry went ballistic.
= = = = = = = = = = = = = = = = = = =
I heard that he started stomping his feet and held his breath for so long he passed out - then they sent him to bed without his supper.
It is amazing how Obama can bash the other branches of government and the media stands mute - and even attacks a representative of the other branches when they fight back - witness the savaging of Alito’s reaction to Obama attacking the Supremes during a State of the Union address.
Mark Levin regularly reminds his audience of his admiration for Ed Meese.
The appointments were clearly unconstitutional. Our once House of Representatives, vs. our current House of Eunuchs, jealous of its constitutional prerogatives would have impeached Bam in a moment. How far we have fallen.
That says he “may, on extraordinary occasions,” and let’s just assume he has arbitrary power to characterize the occasion. Did he in this case either convene or adjourn Congress? No. Can he at the same time allow it to be in session to do whatever dirty work needs doing or save us at the last second from whatever phony crisis they’ve conjured this month? No.
Congress cannot not be in session for the purpose of confirming NLRB board members and at the same time be in session for everything else. If Obama wants to adjourn them for the minute or so it would take for appointment by fiat, then immediately reconvene them, he at least has to say so.
Oh, unless it shall be deemed that Congress wasn’t in session even though it was, like how they deemed Obamacare was legally passed even though it wasn’t.
Can he at the same time have it be and not be in session for different purposes was supposed to be my question in the last line of the first paragraph, which was muddled.
Things have been pretty grim since November. But I read this article and the similar others with a hugh smile on my face.
YES!!
The only question now is do the states start executing NLRB members or throw them in jail?
“Outrageous! Outrageous!”, bloviated Carney, “This foolish court has rejected the obvious historical fact that day *is* night, up *is* down, and wrong *is* right! Bah! It is obviously racism on their part! They just hate seeing a successful black man doing what He *wants* to do! They are not worthy to worship Him at His feet!”
Actually all businesses can just not abide by any of the 216 rulings and tell the shop steward he will be fired for insubordination if he raises a row
It is not required to obey a rule that isn’t
Since our King (Obama) has the constitutional authority to convene Congress to resolve this issue of the recess appointments, he instead just decided to bypass the laws...
Maybe pushing thought his pro union crony's on the NLRB wasn't extraordinary or didn't want to see the light of day..
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