Skip to comments.Recess appointments appear in jeopardy
Posted on 01/13/2014 11:36:00 AM PST by Cincinatus' Wife
Three of President Obamas recess appointments appeared in jeopardy Monday of being deemed unconstitutional, as the U.S. Supreme Court took up a case that could help define the limits of executive power.
Nearly every justice on the high court questioned the basis of Obamas 2012 appointments to the National Labor Relations Board, signaling a ruling that could temper presidential authority and bolster the Senates hand.
At issue is whether Obama overstepped by making the appointments during a limited pro-forma session of the Senate and, further, when exactly presidents can install judges and fill top federal vacancies without the upper chambers consent.
The history is entirely on the Senates side, not on your side, Justice Elena Kagan, herself an Obama nominee, told the administrations attorney during a rare extended session of oral arguments before the court.
Chief Justice John Roberts also defended Senates role in approving nominees as an important check on presidential power, contending, they have an absolute right not to confirm nominees that the president submits.
Most of the justices appeared receptive to arguments that the court should uphold a lower courts ruling that the nominations were unconstitutional and should be invalidated.
Such a decision, the governments attorney warned, could deprive Obama and future presidents of authority that was expressly granted by the nations framers and has been used since George Washingtons administration.
Thats the end of the recess appointment power, Solicitor General Donald B. Verrilli said. You write it out of the Constitution.
A ruling that severely restricts the authority would repudiate the legitimacy of thousands of presidential appointments, he charged.
Justice Antonin Scalia indicated that such a ruling would not, as some have suggested, call into question countless decisions made by judges and agency officials appointed under broader interpretations of presidential recess appointment power.
You dont really think were going to go back and rip out every (decision made), he said.
In wading into the dispute, the court is expected for the first time to make clear the bounds of a tool dating back centuries.
Democratic and Republican presidents alike have taken advantage of the Constitutions Recess Appointments Clause, which empowers commanders in chief to fill up all Vacancies that may happen during the Recess of the Senate.
Obama, however, was the first president to appoint nominees when the Senate was in a pro-forma session.
The sessions, in which the upper chamber is briefly called to order by a handful of lawmakers and adjourned every few days, are meant to avoid a formal recess. Critics say they are merely an obstructionist Senates way of keeping presidents from filling key vacancies.
Obama, in filling the NLRB posts, tested the validity of the pro-forma sessions.
Noel Canning, an Oregon-based soft drink bottling and distribution company unhappy with one of the labor boards subsequent decisions, challenged the appointments as unconstitutional.
In January of last year, the D.C. Circuit Court of Appeals sided with the firm, concluding that the president may only make recess appointments when the Senate is in recess between numbered sessions of Congress, and only then if a vacancy occurred in that same time period.
Under the narrow ruling, more than 300 appointments since 1981 would not have been authorized, according to the nonpartisan Congressional Research Service.
The Obama administrations case hinges on winning three points, according to Georgetown University Law Centers 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.
The courts ruling, expected by June, will likely cement the contours of the recess appointment powers.
Also hanging in the balance are hundreds of NLRB decisions that would have to be revisited if the lower courts opinion is upheld.
However, attorneys opposing the governments case downplayed the implications, noting that other legal mechanisms including a six-year statute of limitations on agency actions would keep vast numbers of decisions from being thrown into limbo.
Among them was attorney Miguel Estrada, arguing on behalf of Senate Minority Leader Mitch McConnell (R-Ky.), who intervened in the case and was present among the crowd packed into the court for the closely watched arguments.
Estrada brushed aside suggestions that a decision upholding in the D.C. Circuit decision would lead to a parade of horribles across the federal bureaucracy.
There will be no parade, and there will be no horribles, Estrada told the court.
This won’t be NEARLY enough to redeem Traitor Roberts.
I sense a very VERY exciting June Surprise!!
THE SUMMER OF 2014:
Today is the last watershed day for America, because it is the last chance for the US Supreme Court to exercise a Constitutional Check and Balance on the current rogue, tyrannical and oppressive Federal Administration.
Chief Justice John Traitor Roberts will probably again refuse to abide with the clear Constitutional Law, and again rewrite the US Constitution to his own liking, in similar manner to what Roberts did with the Constitutionality of the Obamacare Case when he un-Constutionally converted a legal fine into an illegal tax.
Today the US Supreme Court takes up the issue of whether or not an Administration can act without Congressional Approval on matters relating to personnel appointments.
The topic of bypassing the House on approving the spending of taxpayers dollars by the Administration will not be considered today, except tangentially, as the appointed personnel will be paid with taxpayer dollars, which would be a bypassing of the Constitutional Control of the Purse by the US House of Representatives.
We taxpayers view this as a clear cut case where we have Taxation Without Representation because our Representatives have not been part of the decision-making process.
Examples of a few Imperial matters of record include the following:
* Senator Reids Democrats recent voting to turn the US Congress into the US Parliament,
* Boehners refusal to appoint House Special Prosecutors for each of the Five Obama Administration Scandals,
* Obamas four years of Imperial actions, and
* the recent history, ( Traitor Roberts Obamacare decision), of the US Supreme Courts proven reluctance to provide their Constitutional duty of a Check and Balance on the other two Branches of the US Federal Government.
With the usual US Supreme Court private straw vote today that always follows the 30 minute Official Hearing before the Court, Americas future fate will be sealed, and later proclaimed between now and the Summer of 2014.
Either way that the NINE SUPREMES rule on this case, The Summer of 2014 will prove to be the Summer that decided whether or not our Founding Fathers fought King George the Third of England in vain - - - .
THE SUMMER OF 2014.
We have to wait for June for this one?
I think they should approves of the president’s unaffirmed appointments. After all, it’s not SCOTUS’s job to repair the damage resulting from the citizens’ electoral choices.
What’s the diff since Dingey Harry killed the filibuster?
You dont really think were going to go back and rip out every (decision made),
Why the hell not? Those decisions, every one of them were made in violation of the constitution, nothing they did should be considered binding or legal... EVERY SINGLE ACT they performed should be invalidated. I know its a pragmatic nightmare to do that, but that’s what should be done.
I don’t even think it’s a nightmare. Call it job security. ;’)
If the High Court fails to put a stop to this, I’d say we’re done for.
I would like to know how many of those are Reagan and Bush noms, and how many are Slick Willy and Obozo. My guess is despite having been in office less time, Slick and Obonghit have made many more recess appointments that fall into the unconstitutional category.
“The courts ruling, expected by June, will likely cement the contours of the recess appointment powers.”
I think we may get an inkling of what that decision might be before June, frankly
FReepmail me to subscribe to or unsubscribe from the SCOTUS ping list.
BTW, will THE NINE SUPREMES also consider imposing limits on Executive Orders?
Originally, George Washington was limited to using Executive Orders to instruct his Gardeners and Cooks.
My, my, in the last 200 years how our sorry Congress has been plumb ate up with the dumb a** !
The court can only rule on the specific appointments in front of them. It may have a ripple/trickle down effect but that’s not their concern. They are truly above all that. These can be distinguished and probably will be as being during “pro-forma” sessions. The key issue is who decides when the Senate is in session, the Senate does.
The only issue is whether the Supreme Court will permit blatantly unconstitutional "They are in Recess Because The King Says They are in Recess" appointments.
Geez, I really hate to throw cold water all over this but I absolutely do NOT trust this Supreme Court to do the right thing and rule Dictator Hussein’s recess appointments unconstitutional. Unfortunately, we’ve seen this crap before where each of the justices appear highly skeptical of the arguments brought before them (remember how they all verbally lampooned the defense’s arguments regarding Obamacare’s individual mandate, only to inexplicably end up ruling it Constitutional??). Sorry, but the Supreme Court has made so many HORRENDOUS decisions in recent years that it’ll probably always be forever tarnished in my eyes. I have ZERO faith in the U.S. judicial branch at this point.
The Hill: another administration mouthpiece. They talk about our Court as “wading in.” We’re the ones wading in when we confront their pronouncements.
But, but, where is his cup of hot cocoa?
You know as well as do that red Pj’s, great thoughts and hot cocoa go together.
Dude, that ship sailed a few years back. This ruling will do nothing to save us.
Big deal. Looks like even the Liberal Justices are on board with this. Won’t mean much.
What we SHOULD be screaming about is the SCOTUS denial of cert in the AZ abortion case. This is drivel. That is a catastrophe.
I bet most of them are appointments made within a legal, valid recess, and that the numbers for Bush-Bush and Clinton-Obama are the same.
Won’t matter sine dingy Harry changed the rules of the senate !
That’s about what happened when they looked at Obamacare but they let it pass anyway.
Does this mean we get to undo three years worth of decisions and acts committed by these pretenders?
Imagine he was talking about financial malfeasance. Wouldn’t we want to recover every dollar stolen?
These guys become agents of Big Government whenever they move to DC. We need to relocate the Supreme Court to ND and the Congress can communicate by Skype.
I bet you’re right. Obama loves to thumb his nose at a document he despises and the media carries water for him all the way to the River Styx.
Fait le Bon Temps Rolait!
The 300 appointments the article and I am talking about are the ones that WEREN'T made during a normal recess, and I still guess that a vastly greater number happened under Klink and Obamao.
I think the 300 include inter session recesses.
Under the narrow ruling, more than 300 appointments since 1981 would not have been authorized,...