Skip to comments.White House Condemns Court Ruling On 'Unconstitutional' Obama Appointments [Imperial Presidency!]
Posted on 01/25/2013 10:10:21 PM PST by Steelfish
White House Condemns Court Ruling On 'Unconstitutional' Obama Appointments Spokesman says ruling heralded by Republicans' lawyers as 'stinging rebuke' to president is 'novel and unprecedented' 25 January 2013
The Obama administration is likely to appeal to the Supreme Court over its right to make direct appointments when Congress is in recess.
Barack Obama breached the constitution when he bypassed Congress to make appointments to a labour relations panel, a federal appeal court ruled on Friday in a decision that was condemned by the White House as "novel and unprecedented".
The judgement, from a three-judge panel of the US court of appeals for the DC circuit and regarding the filling of vacancies at the the National Labor Relations Board (NLRB), represents a significant legal victory for Republicans and big business. It could also severely restrict the president's use of a constitutional provision that permits him to directly appoint officials without congressional approval.
Successive presidents have used the provision to place hundreds of officials who have been rejected, or are likely to be rejected, by the Senate at confirmation hearings.
But in what lawyers for the Republican congressional delegation called a "stinging rebuke" to Obama, the court narrowed the president's authority considerably by ruling that the constitution only permits him to make those appointments when the vacancy occurs during a recess between individual Congresses, such as occurred earlier this month when a newly elected Congress took office. Any appointment must then be made during the same recess.
"The filling up of a vacancy that happens during a recess must be done during the same recess in which the vacancy arose," the court said.
The ruling struck down the president's appointment of three people to the NLRB a year ago, but if it stands it is likely to have much wider implications.
(Excerpt) Read more at guardian.co.uk ...
I thought the issue was that Congress was really not in recess. Or is that another one? I didn't know when the vacancy occurred made a difference. Let's say a vacancy occurs and a President tries to fill the vacancy but has problems. Congress goes into recess. Congress then comes back into session. The President tries to fill the vacancy but encounters rejection. The Congress goes into recess. Why can't a President fill the appointment. The vacancy could have first opened up 3 years ago or whatever. what difference does that make? Just wondering.
How dare they! Pull out your pen, Barry, and Executive
Order that federal court right out of existence.
The way the court resolved the issue was to determine the meaning and function of the recess appointments clause. Not only did the court conclude that the Senate was not in recess, it also defined the circumstances that satisfy the recess appointments clause.
To wit, a recess happens, on average, once a year (adjourn sine die is the legal marker); and the only vacancies that are amenable to recess appointment are those that happen, occur, start, begin during a recess.
So, now, in the DC Circuit, the timing of when a vacancy occurs makes a difference.
Well, one reason would be that if Congress, collectively at least, does not want a position filled... it does not get filled. Remember, Congress and the Prez are partners in the process, each with a role. It’s like Congress has a veto.
A recess appt gives the benefit of the doubt to the prez to make a LIMITED appointment when they are out of town between sessions, because the previous appointment never got even the chance of being considered by the Congress.
No scholar here- but I would surmise that the intent of a recess appointment was to be a temporary measure when a vacancy occurred DURING a recess, not a way to place unapprovable candidates into offices, where vacancies had existed prior to recess...
Many more here at FR are schooled in this- I await illumination.
There is the text of the ruling that goes into detail about what constitutes a recess vs. THE recess. What’s an adjournment and what’s a session. They say the constitution was written at a time when Congress could go months without being in session. I hardly think that just because Congress doesn’t convene for 3 days means that it’s in recess. If the office has been vacant for 3 years like in your example, there’s no excuse for making an appointment during a recess. Presidents have been abusing the recess appointment thing for decades.
Mark Levin opened his program using Obama’s own words:
“If Congress will not act, I will.”
The court said you acted unconstitutionally Mr. President. But then, you excel at that.
Congress created the NLRB, and it can destroy the NLRB. The "partnership" exists only because Congress created it.
Brits don’t understand Constitutional law. Ignore this article.
The BoyKing will be irate, as will sycophants like Joe Scarborough.
I look forward to Joe scolding the court on Monday morning.
They really are not paying attention over there, are they?
If this is upheld by the SCOTUS, the use of recess appointments to temporarily get people such as John Bolton into office is now dead (unless you can persuade current officeholders to wait for recess.)
Much as I liked Bolton, I think it's actually a good thing.
They don’t even understand the difference between the constitution and The Constitution. How do you expect them to keep up with anything serious?
We should make one comment here...this method of “not being in session” during the Xmas period....was invented by Harry Reid toward the last year or two of Bush’s period. Basically...some Senator would walk into the Senate...state some business, open a session, and do a carry-over till tomorrow, and the next day...etc. It was a fake session, but Bush and his legal team figured that it’d be legit enough for the court (he was right).
So what Harry Reid invented....worked, and sadly, it also affected President Obama.
Here’s the final piece of this mess...the people appointed....made decisions that affected people’s lives. You can figure at least 10k cases that will be brought over the next year that center back over this appointment issue. Lawyers stand to make at least $500 million in legal costs (my humble belief)....all because of what Harry Reid started.
Someone tell the Kenyon to STHU. We’re tired of his whining.
More that you know.
I thought the issue was that Congress was really not in recess. ...That was the problem. The Congress WAS in session but were not meeting regularly. Obunghole saw this and jumped. It is not meant that if Congress takes a lunch break, the President can use this perogative.
Yep. He thought it was clever. Too clever by half. "Senate in session" was a sham. Pretty funny that Obama flew into the honey pot.
I do think the DC Circuit got it right, "recess appointment" was meant to be a narrow application. That is has come into so much use is a measure of the Senate's dysfunction.
-- Lawyers stand to make at least $500 million in legal costs (my humble belief)....all because of what Harry Reid started. --
Obama could have kept the chain from breaking too, by not making those NLRB appointments. I do agree, Reid's step is part of that chain, and had he not started the practice of sham sessions for the purpose of preventing recess appointments, this case would never have been heard. The Democrats initiate stretching the rules to (and sometime past) the breaking point. It's unusual for them to become ensnared in their own trap.
The Court was asked to consider whether or not the senate was in recess, and whether or not the appointment was within the recess appointments clause. From the tenor of the opinion, I think that plaintiff argued that "the recess" is associated with adjournment sine die, and that the words "vacancy happens during the recess" mean what they say. Not all vacancies are amenable to recess appointment, under the constitution. Just saying, the result is one that the court was asked to consider.
If upheld (and I don't trust SCOTUS to follow the constitution), this decision lights a bit of a fire under the senate. It has been shirking its constitutional duty for decades. All it has to do is reject, by vote, those nominees that it objects to.
MEMO TO MR. OBAMA: If you will not like the answer that you should expect, do not ask the question.
That became painfully obvious when they said this:
a significant legal victory for Republicans and big business.
any time the grey house is up set is just fine with me...
Imperialist Obama regime?
The Incompetent One needn’t worry, Justice Roberts will fix it for him.
If this gets appealed to the SCOTUS will Justice Roberts again vote with the liberals just to “get along” like he did on Obamacare?
You misunderstand, Roberts wasn't ruling with liberals, he was ruling with wall street crony capitalists when it came to obamacare. It just so happened that liberals and big insurance were on the same page that day.
Judges and politicians will display partisanship when it comes to the little things, but they - both sides of the aisle - are lockstep when it comes to increasing government and decreasing Freedom. Pretty much the Soros/Bilderberg agenda.
And they are freaked out right now about Rand Paul the way they were about Sarah Palin.
I see a conundrum...
In the case of these appointments, the Senate would have confirmed the appointees by a simple majority vote. But they were being held up by Filibuster. Are you suggesting the Filibuster should not be available for appointment nominees? Or does it become understood the threshold for nominees is now 60 votes?
Above is a link to Landmark’s Amicus Brief to the court which directly led to the decision. I am no lawyer but its easy to understand (begin at page 17, paragraph B of the Argument section). Bottom line is many past presidents had violated the spirit and intent of the “recess” clause yet none had ever declared the Senate in recess to open the way for appointments like this administration did; clear over reach and unconstitutional.
So, have the three been removed from their positions pending appeal? Didn't think so. I smell dog and pony poop.
The problem is that Obama is bahaving like Hugo Chavez without the street thugs to back him up (I am sure he is working on that).
The reality has been, for quite some time, that a minority of the body can prevent the body from acting. I think that is dysfunctional. If a minority of the senate can prevent confirmation, then a minority in the senate assumes more power than the majority, and steps on the president's power to nominate and appoint.
So, yes, I am suggesting that the filibuster is inappropriate when the action of the senate is part of the process of staffing the executive department. That 60 vote threshold is set by senate rule - what if it was set at 75?
The constitution does set up a supermajority requirement for ratification of treaties, for amending the constitution, and for overriding a presidential veto. But it does not have a supermajority requirement for confirmation.
When the subject is legislation, the congress can set up whatever it wants, except I think a rule that less than a majority can pass a law would not stand up.
We have a President who willfully violated The Constitution. He has been told as much by a federal court by unanimous decision. When do the impeachment hearings begin...........(crickets)....?
If I recall correctly isn’t BO still in contempt of court for the Gulf drilling moretorium?
I’ll be suprised if the SCOTUS reverses the 7th Distric Appeals Court. Suck it up Barry.
I think doing away with the filibuser invites a situation where the majority can simply steamroller the minority, and that’s what the rule is there to prevent. The rule resists changing because most of the majority understands that one day the shoe will be on the other foot.
We are a Republic, not a Democracy. Mob rule is to be resisted.
That’s just my humble opinion. A good case can be made for keeping the filibuster for statutes and removing it for staffing the Executive branch. But I’m not convinced yet. If this ruling from the court (assuming it stands up in SCOTUS) that only candidates that are nominated during *the* recess can be recess appointed, then this filibuster rule needs to be considered.
Actually, the nominal function of cloture (and there is a parallel in Roberts Rules of Order) is to prevent the majority from denying a minority from being heard. Deliberative bodies are supposed to deliberate, argue, present arguments, and then VOTE. Majority rules.
The parallel from Robert's Rules of Order Online ...
There has been established as a compromise between the rights of the individual and the rights of the assembly the principle that a two-thirds vote is required to adopt any motion that suspends or modifies a rule of order previously adopted; or prevents the introduction of a question for consideration; or closes, or limits, or extends the limits of debate; or limits the freedom of nomination or voting; or closes nominations or the polls; or deprives one of membership or office.The senate's use of the cloture rule to effectively impose a supermajority requirement for passage is dysfunction.
The use of a supermajority to limit the minority's right to debate is common. When a cloture motion fails, the procedural meaning is not that the subject has been rejected. The procedural meaning is that debate remains open.
Your point conforms with the plain language and original intent of the Constitution. The recess appointment was designed as a temporary measure to allow continuity of the government at times when the Senate was not available to consider appointments. It was not designed to get around the confirmation process or to allow the President to act unilaterally when the Senate refused to do as he wanted.
One of the major problems with contemporary society as well as modern government is our tendency to place a greater value on finding and exploiting loopholes than on accepting and complying with established rules even if we don't like them. The current administration is taking contempt for established order to a new high.
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