The President vs. the Senate

The Wall Street Journal ^ | 1/2/14 | By DAVID B. RIVKIN JR. And LEE A. CASEY

[IndePundit]

Later this month the Supreme Court will hear a case that should resolve how much latitude presidents have to make recess appointments to federal offices that otherwise require Senate confirmation. The boundary of this power has never been decided by the high court. Yet the entire scheme of the U.S. Constitution—which is based on a separation of powers, enforced through checks and balances to safeguard individual liberty—is at stake.

Noel Canning v. NLRB involves several recess appointments President Obama made to the National Labor Relations Board on Jan. 4, 2012. The federal appeals court in Washington, D.C., correctly held that these appointments were unconstitutional both because they filled vacancies when the Senate was not in a true “recess” between Congress’s annual sessions, and because the vacancies had not actually opened up during the purported recess.

Article II, Section 2 of the Constitution states that “The president shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.” The federal appellate court’s decision hewed closely to the text and original meaning of this so-called recess appointments clause. Yet the ruling stunned many constitutional lawyers. That’s because the original limitations on the president’s power to make these appointments had long since been effectively discarded.

[IndePundit]

It's about time someone stands up to Obama's tyranny. This court case is just the first step of many. If we don't have separation of powers, our country will cease to be great.

[Graewoulf]

Impeach Obama in 2014. Period.

The US House of Representatives is analogous to a Police Force - - - they “arrest” the perp by Impeaching the perp.

The US Senate is analogous to a Jury of Peers who have the power to throw the Impeached perp off of the taxpayer gravy train, take away his residence, ban him from building a Library paid for by us, and ban him from using his personal Corporate Jet, Air Force One.

Most RINO Americans want to wait, Wait, WAIT! until they control the House, the Senate and the White House.

To those weak-kneeded summer soldier “patriots” I say “Enjoy the Obamanation that you have tolerated since January, 2009.”

Thus, we Summer Soldier Conservatives continue to tolerate a wimpy, hand-wringing, sobbing crybaby Speaker of the House Boehner as our sorry chief policeman.

“Oh, if only my best friends across the aisle would just play nicey nice - - - “ is the perfect quote that fire-in-the-belly Socialist-Democrats love to hear from their doormat, cowardly, Obamacrat RINOs.

Yes indeed, as long as we WAIT for things to be PERFECT we will never attack those whose goal is to destroy the US Constitution.

Suck it up you sorry House RINOs, and replace John “Benghazi Coverup” Boehner with SC Rep Trey Gowdey, or SC Rep Joe Wilson.

Without a fire-in-the-belly Republican Speaker of the House, Obamacrat RINOs will continue to cave in to “their best friends across the aisle,” to the unbridled glee of every Democrat voter in America!

Pretend that you are fighting to enforce the US Constitution, House RINOs.

Fight or go home, House RINOs.

FIGHT or we will send you home!

Impeach Obama in 2014. Period.

[Theoria]

From another article:

'The Congressional Research Service found a total of 329 intrasession recess appointments -- appointments that occurred when the Senate adjourned in the middle of a session -- since 1981. By the terms of Noel Canning v. NLRB, all of those appointments would have been invalid.'

Sweet. Taking away the self anointed power from any President is a good thing.

[oldbrowser]

. Yet the ruling stunned many constitutional lawyers.

The meaning of the plain language of the constitution stunned many constitutional lawyers.

That tells you how far we have drifted from the fundamental benchmark of our country.

[loveliberty2]

Thank you. The following two essays shed light on the subject matter discussed here and are available for download here

Separation of Powers

- the genius of America's Constitution

America's Founders had just declared themselves free of a tyrannical government. They were determined that such tyranny would never be repeated in this land. Their new charter of government - the Constitution - carefully defined the powers delegated to government. The Founders were determined to bind down the administrators of the federal government with Constitutional chains so that abuse of power in any of its branches would be prevented. The revolutionary idea of separation of powers, although unpopular at first, became a means by which this was to be accomplished.

John Adams, in a letter to Dr. Benjamin Rush, stated: "I call you to witness that I was the first member of Congress who ventured to come out in public, as I did in January 1776, in my 'Thoughts on Government,' ...in favor of a government with three branches, and an independent judiciary..." By the time the Constitution was adopted, the idea was supported by all of the members of the Convention. James Madison, the father of the Constitution, devoted five Federalist Papers (47-51) to an explanation of how the Executive, Legislative, and judicial branches were to be wholly independent of each other, yet bound together through an intricate system of checks and balances. Madison believed that keeping the three branches separated was fundamental to the preservation of liberty. He wrote:

"The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many... may justly be pronounced the very definition of tyranny."

George Washington, in his Farewell Address, reminded Americans of the need to preserve the Founders' system. He spoke of the "love of power and proneness to abuse it which predominates in the human heart" and warned of the "necessity of reciprocal checks of political power, by dividing and distributing it into different depositories and constituting each the guardian ... against invasions by the others." Of such checks and balances through the separation of powers be concluded, "To preserve them must be as necessary as to institute them."

---

Footnote: Our Ageless Constitution, W. David Stedman & La Vaughn G. Lewis, Editors (Asheboro, NC, W. David Stedman Associates, 1987) Part III:  ISBN 0-937047-01-5

______________

Checks And Balances

The Constitutional Structure For 
Limited And Balanced
Government

---

The Constitution was devised with an ingenious and intricate built-in system of checks and balances to guard the people's liberty against combinations of government power. It structured the Executive, Legislative, and Judiciary separate and wholly independent as to function, but coor­dinated for proper operation, with safeguards to prevent usurpations of power. Only by balancing each against the other two could freedom be preserved, said John Adams.

Another writer of the day summarized clearly the reasons for such checks and balances:

• "If the LEGISLATIVE and JUDICIAL powers are united, the MAKER of the law will also INTERPRET it (constitutionality).

• Should the EXECUTIVE and LEGISLATIVE powers be united... the EXECUTIVE power would make itself absolu te, and the government end in tyranny.

• Should the EXECUTIVE and JUDICIAL powers be united, the subject (citizen) would then have no permanent security of his person or property.

"INDEED, the dependence of any of these powers upon either of the others ... has so often been productive of such calamities... that the page of history seems to be one continued tale of human wretchedness." (Theophilus Parsons, ESSEX RESULTS)

What were some of these checks and balances believed so important to individual liberty? Several are listed below:

• HOUSE (peoples representatives) is a check on SENATE - no statute becomes law without its approval.

• SENATE is a check on HOUSE - no statute becomes law without its approval. (Prior to 17th Amendment, SENATE was appointed by State legislatures as a protection for states' rights - another check the Founders provided.)

• EXECUTIVE (President) can restrain both HOUSE and SENATE by using Veto Power.

• LEGISLATIVE (Congress - Senate & House) has a check on EXECUTIVE by being able to pass, with 2/3 majority, a bill over President's veto.

• LEGISLATIVE has further check on EXECUTIVE through power of discrimination in appropriation of funds for operation of EXECUTIVE.

• EXECUTIVE (President) must have approval of SENATE in filling important posts in EXECUTIVE BRANCH.

• EXECUTIVE (President) must have approval of SENATE before treaties with foreign nations can be effective.

• LEGISLATIVE (Congress) can conduct investigations of EXECUTIVE to see if funds are properly expended and laws enforced.

• EXECUTIVE has further check on members of LEGISLATIVE (Congress) in using discretionary powers in decisions regarding establishment of military bases, building & improvement of navigable rivers, dams, interstate highways, etc., in districts of those members.

• JUDICIARY is check on LEGISLATIVE through its authority to review all laws and determine their constitutionality.

• LEGISLATIVE (Congress) has restraining power over JUDICIARY, with con­stitutional authority to restrict extent of its jurisdiction.

• LEGISLATIVE has power to impeach members of JUDICIARY guilty of treason, high crimes, or misdemeanors.

• EXECUTIVE (President) is check on JUDICIARY by having power to nominate new judges.

• LEGISLATIVE (Senate) is check on EXECUTIVE and JUDICIARY having power to approve/disapprove nominations of judges.

• LEGISLATIVE is check on JUDICIARY - having control of appropriations for operation of federal court system.

• LEGISLATIVE (Peoples Representatives) is check on both EXECUTIVE and J U DICIARY through power to initiate amendments to Constitution subject to approval by 3/4 of the States.

• LEGISLATIVE (Senate) has power to impeach EXECUTIVE (President) with concurrence of 2/3, of members.

• The PEOPLE, through their State representatives, may restrain the power of the federal LEGISLATURE if 3/4 of the States do not ratify proposed Constitu­tional Amendments.

• LEGISLATIVE, by Joint Resolution, can terminate certain powers granted to EXECUTIVE (President) (such as war powers) without his consent.

• It is the PEOPLE who have final check on both LEGISLATIVE and EX­ECUTIVE when they vote on their Representatives every 2 years, their Senators every 6 years, and their President every 4 years. Through those selections, they also influence the potential makeup of the JUDICIARY.

It is up to each generation to see that the integrity of the Constitutional structure for a free society is maintained by carefully preserving the system of checks and balances essential to limited and balanced government. "To preserve them (is) as necessary as to institute them," said George Washington.

---

Footnote: Our Ageless Constitution, W. David Stedman & La Vaughn G. Lewis, Editors (Asheboro, NC, W. David Stedman Associates, 1987) Part III:  ISBN 0-937047-01-5

[Servant of the Cross]

Mother Anne Joseph Doyle of the Little Sisters of the Poor shows the little poseur in the WH how to play hardball ...

[Servant of the Cross]

oops .... wrong thread ....

[Organic Panic]

Obama has the dirt on Roberts. Obama’s illegal appointments will be A OK.

[Jacquerie]

FWIW, here is the DC Circuit Court of Appeals decision from a year ago. The analysis begins in Section IV.

Along the way of writing a great constitutional history lesson on the appointments clause, the court shredded Obama. Of course, it won't matter. To Him, the constitution is something to be scraped from the sole of his shoe.

What is almost as bad, many pubbies later on went along with Dingy Harry and consented to the appointments.

[loveliberty2]

Thank you. That is a stunning rebuff of the Administration’s claim. Too bad most Americans will never have the benefit of reading it.