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Obama’s use of executive power faces reckoning at Supreme Court
The Hill ^ | 1/12/14 | Kevin Bogardus, Ben Goad

Posted on 01/12/2014 10:09:24 AM PST by Libloather

Nothing less than the boundaries of executive power are at stake Monday as the Supreme Court considers whether President Obama violated the Constitution during his first term.

Oral arguments slated for Monday will center on a trio of recess appointments to the National Labor Relations Board (NLRB) that were deemed unconstitutional by lower courts.

If they uphold the decision, experts say the justices could endanger hundreds of NLRB decisions.

Even more significant are the ramifications for future presidents, with the court poised either to bolster or blunt the chief executive’s appointment powers.

“Rulings like this have implications that last for centuries,” said Michael Lotito, an employment and labor attorney and co-chairman of Littler Mendelson's Workplace Policy Institute.

Presidents have for decades used recess appointment powers when the Senate is away to install judges and fill top federal vacancies that ordinarily would be subject to confirmation proceedings.

But with the disputed NLRB appointments, Obama became the first president to appoint nominees when the Senate was in a “pro-forma” session, when the upper chamber is briefly called to order and adjourned every few days.

The sessions are intended to prevent recess appointments, and usually only a handful of senators are present for them. In filling the NLRB posts, the Obama administration claims that the Senate is generally not available to conduct business during the sessions, so the president’s recess appointment power is in effect.

“The sham pro-forma sessions are nothing more than that,” said Catholic University law professor Victor Williams, who filed a brief backing the government’s position.

The impetus for recess appointments has faded now that Senate Democrats have changed their chamber’s rules to allow for a simple majority vote on presidential nominees. Nevertheless, the case could stunt Obama's and future presidents' authority when it comes to staffing administrations.

The case was brought by Noel Canning, an Oregon-based soft drink bottling and distribution company that challenged the appointments as unconstitutional.

In January of last year, the D.C. Circuit Court of Appeals agreed.

The appellate court ruling under now review at the Supreme Court found a narrow window for the president to make recess appointments. Under its decision, the president can only make such appointments when the Senate is in recess between sessions of Congress, and only if a vacancy occurred in that same time period.

That goes well against protocol adopted by past Democratic and Republican presidents. A Congressional Service Research report found 329 such appointments since 1981 that would not meet that criteria and would be ruled void if the appeals court decision was law.

Some see the fight against the labor board as a broader effort in which opponents have sought to stymie the Obama administration’s rules and regulations.

“I think the battle against the NLRB over the last few years has been a proxy war about the proper role and scope of government,” said Wilma Liebman, who served as chairwoman of the NLRB from January 2009 to August 2011.

The obscure agency has become ground zero in that war, pitting business against labor and Republicans against Democrats.

The private sector mobilized a massive lobbying campaign after Obama’s election, fearing a Democratic president might enact a host of policy changes favorable to unions.

The effort first targeted legislation that would ease union organizing, but shifted to the NLRB nominees and its decisions.

“There has been an especially rancorous degree of controversy whipped around the NLRB. It got swept up with the Employee Free Choice Act," Liebman said.

The NLRB has had its decisions overturned by the high court before. In 2010, the Supreme Court found the board lacked the authority to make decisions for more than two years because it only had two members — one short of a quorum.

About 600 NLRB decisions were made in that time period, and the board was forced to go back through about 100 of them.

Liebman said it was a time-consuming process, but one the labor board could do again.

“We issued new decisions in a relatively short period of time. We had a process in place and went methodically back through them,” Liebman said. “It took some time that we could have spent doing other things. It wasn't the end of the world.”

But having to turn its focus on previous decisions could sidetrack the NLRB from what is seen as an activist agenda at a critical moment, said Lolito, whose firm represents employers.

The board is now at full strength for the first time in years, and was expected to tackle numerous issues involving union elections.

“If this board has to spend the next good couple of years looking backward instead of forward, many in the employer community would say that's good news,” he said.

In Monday’s arguments, attorneys with the U.S. Chamber of Commerce will argue on behalf of Noel Canning that the NLRB operated without a quorum for well over a year, causing confusion for both employers and employees.

“We look forward to the much needed clarity that the Supreme Court’s decision will bring,” said Lily Fu Claffee, the Chamber's general counsel.

The Obama administration’s case hinges on winning three points, according to Georgetown University Law Center’s Nicholas Quinn Rosenkranz, who is arguing against the government.

First, it must convince the justices that presidents may make appointments during regular recesses and not, as the appeals court ruled, only during the breaks between numbered sessions on Congress.

Next, the court must agree that the appointments may include the filling of vacancies that existed before the recess began, rather than those that occurred during a recess.

Finally, it must conclude that the pro-forma sessions do not count as formal sessions of Congress.

Proving all three points, particularly the last, would be a tall order, said Rosenkranz, who predicted a 9-0 ruling in favor of Noel Canning.

“I don’t think this is a close case,” he said.


TOPICS: Crime/Corruption; Extended News; Government; News/Current Events
KEYWORDS: bho44; bhoeo; court; executive; lawsuit; nlrb; obama; ruling; scotus; supreme
If they uphold the decision, experts say the justices could endanger hundreds of NLRB decisions.

Sounds racist.

1 posted on 01/12/2014 10:09:24 AM PST by Libloather
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To: Libloather

The same supreme court that recently ruled that Obamacare is hunkey-dory?


2 posted on 01/12/2014 10:11:48 AM PST by 2ndDivisionVet (Jealousy is when you count someone else's blessings instead of your own.)
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To: Libloather

I predict that SCOTUS will sell America down the river once and for all.


3 posted on 01/12/2014 10:14:18 AM PST by BenLurkin (This is not a statement of fact. It is either opinion or satire; or both.)
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To: Libloather

The implication for the future is that a president has to appoint people that congress will approve. That’s the way the system was designed. No matter what race that president is...


4 posted on 01/12/2014 10:14:27 AM PST by kjam22 (my newest music video:http://www.youtube.com/watch?v=l7gNI9bWO3s)
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To: Libloather

“Chief Justice Roberts? I have here in my hand a file.....


5 posted on 01/12/2014 10:20:34 AM PST by VerySadAmerican (".....Barrack, and the horse Mohammed rode in on.")
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To: Libloather

The corrupt EXEMPT Court already deemed ObamaCARE
a tax for everyone ... except itself, its own families,
its staff, their families, the EXEMPT Congress
and their staff, mistresses, and families, and of
course Moslems, because they successfully bombed
the Pentagon and WTC on 911.


6 posted on 01/12/2014 10:21:21 AM PST by Diogenesis
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To: Libloather

The appointments will be upheld, because, after all, SCOTUS doesn’t exist to protect the citizens from the electoral decisions they make. Or something like that.


7 posted on 01/12/2014 10:24:52 AM PST by Jeff Chandler (Obamacare: You can't make an omelette without breaking a few eggs.)
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To: Libloather

I hope the clowns in black robes figure out that the Constitution does not allow a lawless, lying and thieving dictator to hold the office of the U.S. presidency.


8 posted on 01/12/2014 10:26:09 AM PST by FlingWingFlyer (Where are Holder's "po folks" getting the I.D.s to sign up for ObamaCare?)
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To: 2ndDivisionVet

In case anybody has any lingering questions about Roberts’ loyalty the decision of the court will be interesting.


9 posted on 01/12/2014 10:26:14 AM PST by ladyjane
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To: Libloather
Obama’s use of executive power faces reckoning at Supreme Court

Face it zer0 has the goods on Roberts. To quote the Dhimmicrat front runner. “What difference does it make”

10 posted on 01/12/2014 10:27:51 AM PST by Vaquero (Don't pick a fight with an old guy. If he is too old to fight, he'll just kill you.)
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To: Libloather
Rosenkranz, who predicted a 9-0 ruling in favor of Noel Canning

I predict that Noel Canning will be audited by the IRS while at the same be harassed by an EPA inspection team.

And then Noel Canning will consider moving operations overseas. And then liberals everywhere will denounce Noel Canning for being greedy.

11 posted on 01/12/2014 10:30:09 AM PST by Leaning Right (Why am I holding this lantern? I am looking for the next Reagan.)
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To: FlingWingFlyer

well said!


12 posted on 01/12/2014 10:31:10 AM PST by GOP Poet
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To: Libloather

Bull CRAP. Obamugabe and his punk Holder IGNORE THE JUDICIARY WHENEVER THEY DESIRE.

So nothing is on the line. This administration is LAWLESS.


13 posted on 01/12/2014 10:32:57 AM PST by SoFloFreeper
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To: Libloather
The Supreme Court will never allow a decision to go against our dictator, King Obama.

Not a damn chance and by their ruling will create new law.

14 posted on 01/12/2014 10:41:35 AM PST by Logical me
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To: Salvation

Oregon ping...

“The case was brought by Noel Canning, an Oregon-based soft drink bottling and distribution company that challenged the appointments as unconstitutional.”


15 posted on 01/12/2014 10:57:38 AM PST by Twotone (Marte Et Clypeo)
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To: Libloather; Lurking Libertarian; Perdogg; JDW11235; Clairity; TheOldLady; Spacetrucker; ...

FReepmail me to subscribe to or unsubscribe from the SCOTUS ping list.

16 posted on 01/12/2014 11:05:31 AM PST by BuckeyeTexan (There are those that break and bend. I'm the other kind. ~Steve Earle)
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To: Libloather

BTTT!


17 posted on 01/12/2014 11:08:52 AM PST by Salvation ("With God all things are possible." Matthew 19:26)
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To: Diogenesis

When Obama changes Obamacare through these numerous executive orders, does it make the Obamacare law invalid?


18 posted on 01/12/2014 11:10:26 AM PST by Salvation ("With God all things are possible." Matthew 19:26)
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To: Twotone; goodnesswins; PROCON; VeryFRank; Clinging Bitterly; Rio; Hieronymus

If you would like more information about Oregon, please FReepmail me. I lost my Oregon list when my computer crashed last month.

19 posted on 01/12/2014 11:13:50 AM PST by Salvation ("With God all things are possible." Matthew 19:26)
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To: Libloather

I have full and utmost confidence in SCOTUS Chief Justice Roberts to thrust his dagger once again into the backs of the American public and make the politically expedient, politically correct decision to screw us. I think he gets off on it!


20 posted on 01/12/2014 11:35:50 AM PST by broken_arrow1 (I regret that I have but one life to give for my country - Nathan Hale "Patriot")
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To: Libloather

!


21 posted on 01/12/2014 11:44:29 AM PST by skinkinthegrass (The end move in politics is always to pick up a gun..0'Caligula / 0'Reid / 0'Pelosi :-)
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To: Libloather

I think the good guys will win this one. The actions by Obama were outrageous. The appeals court ruling was simple, straightforward and obvious.


22 posted on 01/12/2014 11:49:01 AM PST by Mr Rogers (Liberals are like locusts...)
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To: Salvation

Not in Bizzarroworld.


23 posted on 01/12/2014 11:50:10 AM PST by SusaninOhio
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To: Libloather

If Bush did this the media would scream that we were on the road to a dictatorship. But since it’s Obama they’re worried that there are obstructions blocking the road to progress.


24 posted on 01/12/2014 11:50:14 AM PST by bonehead4freedom
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To: Libloather; All
Thank you for referencing that article Libloather. Please note that the following critique is directed at the article and not at you.

Regarding constitutionally undefined executive orders, please consider the following material which has been previously introduced on this message board.

To begin with, the Founding States had made the first numbered clauses in the Constitution, Sections 1-3 of Article I, evidently a good place to hide them from Constitution-ignoring presidents like Obama, to clarify that all federal legislative powers are vested in the elected members of Congress, not in the executive or judicial branches. In my opinion this means that Congress has a constitutional monopoly on federal legislative powers. So executive branch executive orders cannot be law because only Congress has the constitutional authority to make laws.

Next, the suspicious thing about the hearings concerning the constitutionality of Obama's executive orders is the following. The Supreme Court had previously clarified, in the case of Youngstown Sheet & Tube Co. v. Sawyer, 1952, that executive orders don't have the force of law unless they are based on laws made by Congress.

Executive order

So the White House's claims that Obama's executive orders are a way to bypass Congress not only have no basis in constitutional law, but are probably intended to impress low-information voters who don't understand legislative, executive and judicial powers.

So not only does the referenced article wrongly give the impression that the Supreme Court is breaking new ground in testing the constitutionality of executive orders imo, but I question if activist justices are planning to ignore case precedent which clarifies that executive orders don't intrinsincly have the force of law so that they can argue that Obama's executive orders are constitutional.

After all, activist justices had wrongly ignored that the Supreme Court had historically clarified that the states have never delegated to Congress, via the Constitution, the specific power to regulate, tax and spend for public healthcare purposes so that they could give the green light to unconstitutional federal Obamacare.

Are we having fun yet?

25 posted on 01/12/2014 12:02:16 PM PST by Amendment10
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To: ladyjane

The crows know that he knows everything they’ve done all the way back to having an unpaid library fine in middle school. Once again, nothing will be done and he’ll add another free pass to his collection.


26 posted on 01/12/2014 12:05:30 PM PST by bgill
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To: Amendment10

Excellent summary of the situation!

And because Obama has polarized the country, we will find that if Congress exercises its lawful authority, the Obama base will see that as obstructionist Republicans, rather than what it is: a destruction of our rule of law, which will eventually impact the Dems negatively as well as everyone else.


27 posted on 01/12/2014 12:34:56 PM PST by firebrand
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To: firebrand

Meant to say the Obama actions are the destruction of the rule of law, not Congressional assertion of its constitutional prerogatives.

I think everyone knew what I meant. Still a little too early for me . . .


28 posted on 01/12/2014 12:37:49 PM PST by firebrand
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To: Libloather

So if the SCOTUS says these recess appointments are unconstitutional, Obama simply ignores their ruling and thumbs his nose at the Constitution, NOTHING will happen. The RINOs would not even think about impeaching him and of course the Democrats will defend him no matter what. Obama has already trashed the Constitution and no one in Washington seems to care. Obama could declare himself dictator and the GOP would just whimper in the corner.


29 posted on 01/12/2014 1:52:29 PM PST by The Great RJ
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To: The Great RJ

So if the SCOTUS says these recess appointments are unconstitutional, Obama simply ignores their ruling and thumbs his nose at the Constitution, NOTHING will happen.

Something I don’t know, do impeachment charges have to
originate in the Congress or could they be brought by
the Judiciary, to the congress?


30 posted on 01/12/2014 3:07:05 PM PST by tet68 ( " We would not die in that man's company, that fears his fellowship to die with us...." Henry V.)
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To: tet68

The House brings charges by majority vote, the Senate holds the trial and votes to convict or acquit. A two-thirds vote in the Senate is necessary to convict. That’s it.


31 posted on 01/12/2014 3:10:09 PM PST by Publius ("Who is John Galt?" by Billthedrill and Publius now available at Amazon.)
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To: Publius

So the Judiciary could or could not go to congress
and say we believe what the President has done is
unconstitutional and feel that charges should be made?

Then I understand congress passing impeachment proceedings
to the Senate.


32 posted on 01/12/2014 3:20:43 PM PST by tet68 ( " We would not die in that man's company, that fears his fellowship to die with us...." Henry V.)
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To: tet68
Actions leading to impeachment are not the province of the courts because impeachment is a political process, not a legal process. No court would act in this way.

Because sitting presidents cannot be indicted, the most a grand jury could do would be to name the president as an unindicted co-conspirator, which is what a grand jury did to Nixon.

33 posted on 01/12/2014 3:54:42 PM PST by Publius ("Who is John Galt?" by Billthedrill and Publius now available at Amazon.)
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To: Publius

Thanks. Wasn’t sure.


34 posted on 01/12/2014 3:55:34 PM PST by tet68 ( " We would not die in that man's company, that fears his fellowship to die with us...." Henry V.)
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To: Twotone

Noel Canning is located in Yakima, WA.


35 posted on 01/12/2014 4:39:12 PM PST by Judy
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To: Judy

The article referenced it Noel’s business as ‘Oregon-based’ so that relates to us.


36 posted on 01/12/2014 5:18:21 PM PST by Twotone (Marte Et Clypeo)
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To: Libloather

If they reverse it will endanger the Constitution and finalize the destruction of the republic.


37 posted on 01/12/2014 6:55:11 PM PST by 1010RD (First, Do No Harm)
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To: Amendment10

Spot on. The Legislature can delegate the authority to the executive to investigate and formulate laws, but only the Legislature can pass laws. Only then do they have the “force of law” which is executed by the Executive Branch. It’s time to dismantle the Executive legislation via agency regulation and rules making.

I’d also like to see an end to all administrative law. It too is an unconstitutional usurpation of the judicial function by the executive. We have courts of law, we don’t need executive courts of law, no matter how “convenient”.


38 posted on 01/12/2014 7:04:01 PM PST by 1010RD (First, Do No Harm)
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To: The Great RJ

Wrong. He’d force a Constitutional crisis if he did that. Commerce is the business of America. He’d lose in court after court and his lawlessness would be public. He won’t ignore this ruling no matter what.

That’s why the treachery, if any, will occur at the level of SCOTUS just like with the idiotic ACA ruling.


39 posted on 01/12/2014 7:05:55 PM PST by 1010RD (First, Do No Harm)
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