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Recess appointments appear in jeopardy
The Hill ^ | January 13, 2014 | Ben Goad

Posted on 01/13/2014 11:36:00 AM PST by Cincinatus' Wife

Three of President Obama’s 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 Obama’s 2012 appointments to the National Labor Relations Board, signaling a ruling that could temper presidential authority and bolster the Senate’s 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 chamber’s consent.

“The history is entirely on the Senate’s side, not on your side,” Justice Elena Kagan, herself an Obama nominee, told the administration’s attorney during a rare extended session of oral arguments before the court.

Chief Justice John Roberts also defended Senate’s 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 court’s ruling that the nominations were unconstitutional and should be invalidated.

Such a decision, the government’s attorney warned, could deprive Obama and future presidents of authority that was expressly granted by the nation’s framers and has been used since George Washington’s administration.

“That’s 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 don’t really think we’re 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 Constitution’s 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 Senate’s 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 board’s 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 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.

The court’s 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 court’s opinion is upheld.

However, attorneys opposing the government’s 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.


TOPICS: Business/Economy; Crime/Corruption; Extended News; Government
KEYWORDS: bho44; nrlb; recessappointments; supremecourt

1 posted on 01/13/2014 11:36:00 AM PST by Cincinatus' Wife
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To: Cincinatus' Wife

This won’t be NEARLY enough to redeem Traitor Roberts.


2 posted on 01/13/2014 11:38:58 AM PST by Paladin2
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To: Cincinatus' Wife

I sense a very VERY exciting June Surprise!!


3 posted on 01/13/2014 11:39:35 AM PST by MeshugeMikey ( Help fight The Neo Stalinists! Donate to your Free Republic)
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To: MeshugeMikey

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 taxpayer’s 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 Reid’s Democrats recent voting to turn the US Congress into the US Parliament,
* Boehner’s refusal to appoint House Special Prosecutors for each of the Five Obama Administration Scandals,
* Obama’s four years of Imperial actions, and
* the recent history, ( Traitor Roberts’ Obamacare decision), of the US Supreme Court’s 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, America’s 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.


4 posted on 01/13/2014 11:41:36 AM PST by Graewoulf (Democrats' Obamacare Socialist Health Insur. Tax violates U.S. Constitution AND Anti-Trust Law.)
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To: MeshugeMikey

We have to wait for June for this one?


5 posted on 01/13/2014 11:41:56 AM PST by jersey117
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To: Cincinatus' Wife

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.


6 posted on 01/13/2014 11:42:25 AM PST by Jeff Chandler (Obamacare: You can't make an omelette without breaking a few eggs.)
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To: Cincinatus' Wife

What’s the diff since Dingey Harry killed the filibuster?


7 posted on 01/13/2014 11:42:29 AM PST by Argus
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To: Cincinatus' Wife

Scalia:

“You don’t really think we’re 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.


8 posted on 01/13/2014 11:44:18 AM PST by HamiltonJay
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To: HamiltonJay

I don’t even think it’s a nightmare. Call it job security. ;’)


9 posted on 01/13/2014 11:50:14 AM PST by rockrr (Everything is different now...)
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To: Cincinatus' Wife

If the High Court fails to put a stop to this, I’d say we’re done for.


10 posted on 01/13/2014 11:59:07 AM PST by Eric in the Ozarks ("Say Not the Struggle Naught Availeth.")
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Under the narrow ruling, more than 300 appointments since 1981 would not have been authorized, according to the nonpartisan Congressional Research Service.

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.

11 posted on 01/13/2014 12:02:03 PM PST by Henchster (Free Republic - the BEST site on the web!)
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To: jersey117

“The court’s 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


12 posted on 01/13/2014 12:02:37 PM PST by MeshugeMikey ( Help fight The Neo Stalinists! Donate to your Free Republic)
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To: Cincinatus' Wife; Lurking Libertarian; Perdogg; JDW11235; Clairity; TheOldLady; Spacetrucker; ...

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

13 posted on 01/13/2014 12:04:24 PM PST by BuckeyeTexan (There are those that break and bend. I'm the other kind. ~Steve Earle)
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To: BuckeyeTexan

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** !


14 posted on 01/13/2014 12:18:23 PM PST by Graewoulf (Democrats' Obamacare Socialist Health Insur. Tax violates U.S. Constitution AND Anti-Trust Law.)
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To: Cincinatus' Wife

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.


15 posted on 01/13/2014 12:25:03 PM PST by Mercat
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To: Graewoulf



16 posted on 01/13/2014 12:33:35 PM PST by MeshugeMikey ( Help fight The Neo Stalinists! Donate to your Free Republic)
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To: Cincinatus' Wife
Recess appointments are not in any jeopardy.

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.

17 posted on 01/13/2014 12:35:52 PM PST by Bubba_Leroy (The Obamanation Continues)
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To: Cincinatus' Wife

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.


18 posted on 01/13/2014 12:36:05 PM PST by DestroyLiberalism
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To: Cincinatus' Wife

The Hill: another administration mouthpiece. They talk about our Court as “wading in.” We’re the ones wading in when we confront their pronouncements.


19 posted on 01/13/2014 12:37:16 PM PST by firebrand
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To: MeshugeMikey

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.


20 posted on 01/13/2014 12:40:10 PM PST by Graewoulf (Democrats' Obamacare Socialist Health Insur. Tax violates U.S. Constitution AND Anti-Trust Law.)
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To: Eric in the Ozarks
If the High Court fails to put a stop to this, I’d say we’re done for.

Dude, that ship sailed a few years back. This ruling will do nothing to save us.

21 posted on 01/13/2014 12:44:19 PM PST by Lazamataz (Early 2009 to 7/21/2013 - RIP my little girl Cathy. You were the best cat ever. You will be missed.)
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To: Cincinatus' Wife

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.


22 posted on 01/13/2014 12:55:34 PM PST by RIghtwardHo
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To: Henchster

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.


23 posted on 01/13/2014 1:06:16 PM PST by Jim Noble (When strong, avoid them. Attack their weaknesses. Emerge to their surprise.)
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To: Argus
What’s the diff since Dingey Harry killed the filibuster?

Yep. The fix is already in.
24 posted on 01/13/2014 1:06:49 PM PST by Old Yeller
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To: MeshugeMikey

Won’t matter sine dingy Harry changed the rules of the senate !


25 posted on 01/13/2014 1:10:00 PM PST by Kit cat (OBummer must go)
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To: Paladin2

That’s about what happened when they looked at Obamacare but they let it pass anyway.


26 posted on 01/13/2014 1:14:53 PM PST by ImJustAnotherOkie (zerogottago)
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To: Cincinatus' Wife

Does this mean we get to undo three years worth of decisions and acts committed by these pretenders?


27 posted on 01/13/2014 1:44:04 PM PST by skeeter
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To: HamiltonJay

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.


28 posted on 01/13/2014 1:46:33 PM PST by 1010RD (First, Do No Harm)
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To: Jim Noble

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.


29 posted on 01/13/2014 1:50:26 PM PST by 1010RD (First, Do No Harm)
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To: Graewoulf
oh what the heck...


30 posted on 01/13/2014 1:55:35 PM PST by MeshugeMikey ( Help fight The Neo Stalinists! Donate to your Free Republic)
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To: MeshugeMikey

Fait le Bon Temps Rolait!


31 posted on 01/13/2014 2:01:48 PM PST by Graewoulf (Democrats' Obamacare Socialist Health Insur. Tax violates U.S. Constitution AND Anti-Trust Law.)
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To: Graewoulf
the haughty self absorbed types always over reach sometimes its a small thing some times...its quite egregious!!

barry may end up spending some time sitting in the corner facing the wall

Fait le Bon Temps Rolait




32 posted on 01/13/2014 2:04:47 PM PST by MeshugeMikey ( Help fight The Neo Stalinists! Donate to your Free Republic)
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To: Jim Noble
You didn't read either the article or my response correctly.

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.

33 posted on 01/13/2014 3:24:46 PM PST by Henchster (Free Republic - the BEST site on the web!)
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To: Henchster

I think the 300 include inter session recesses.


34 posted on 01/13/2014 3:38:10 PM PST by Jim Noble (When strong, avoid them. Attack their weaknesses. Emerge to their surprise.)
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To: Lazamataz
Separate divisions of government is critical to our republic. I'm not ready to write off America just because a majority of fools determined the last election.
35 posted on 01/13/2014 4:04:55 PM PST by Eric in the Ozarks ("Say Not the Struggle Naught Availeth.")
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To: Jim Noble
From the article:

Under the narrow ruling, more than 300 appointments since 1981 would not have been authorized,...

36 posted on 01/13/2014 4:25:02 PM PST by Henchster (Free Republic - the BEST site on the web!)
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