Obama Labor Board Recess Appointments Are Unconstitutional, Federal Court Rules

  • musclmed

    Posts: 3284

    Jan 26, 2013 4:10 AM GMT
    http://abcnews.go.com/Politics/obamas-abuse-power-argument-recess-appointments/story?id=18317935

    Not covered by the nightly news, Obama's recess appointments today were struck down by a federal appeals court.

    IMHO it gets us back to what the purpose of recess appointment was for. This was for appointments when Congress was not in session and members were not coming back for months . A time when congress met for 4 months / year. Not bathroom breaks or federal holidays.


    The House was left in session every few days last January to prevent such recess appointments. The Obama Administration cried foul claiming recess appointments were some sort of "right" and the graveling in every 3 days was a sham. And just made the appointments saying they were "recess".

    The court did a right thing by sending a message to Obama, and G.W Bush and the Presidents before them that intentionally withholding nominees that have no chance of being confirmed "to recess" is an abuse of power.
  • Posted by a hidden member.
    Log in to view his profile

    Jan 26, 2013 5:52 AM GMT
    An opposing viewpoint:
    http://www.washingtonpost.com/blogs/wonkblog/wp/2013/01/25/court-decision-on-recess-appointments-could-make-america-harder-to-govern/

    Also, it didn't matter who was being nominated. The Republicans were and are not going to allow the NLRB and the CFPB to have ANY appointees if this pro forma session tactic is upheld.
  • musclmed

    Posts: 3284

    Jan 26, 2013 6:06 PM GMT
    q1w2e3 saidAn opposing viewpoint:
    http://www.washingtonpost.com/blogs/wonkblog/wp/2013/01/25/court-decision-on-recess-appointments-could-make-america-harder-to-govern/

    Also, it didn't matter who was being nominated. The Republicans were and are not going to allow the NLRB and the CFPB to have ANY appointees if this pro forma session tactic is upheld.


    I dont think this is a republican or democratic issue. Its a separation of powers issue. Despite the fact that Presidents have done this for a long time unchallenged it was illegal. The constitution intended appointments to be tempered by Consent of the Senate.

    The "tactic" as you say it was started by the democrats back with GW Bush after ambassador Bolton's recess appointment. I completely agree with what the Democrats did at the time.

    Whenever the Congress speaks out about a matter it has clear authority and the President strives to just "work around it". The President is at its weakest authority.

    The recess appointment clearly was intended for when Congress was not in Washington and the President would have to wait months for Senate action.

    To not even try to submit the nominees under regular order shows the intent to evade the normal process.

    Unfortunately for Obama he overreached this time and got smacked back. If the ruling stands which it likely will it limits the Executive power for the future. The silver lining is that he has to appoint less controversial nominees. Which likely will cool down the divide in Washington.

    The constitution by design is a moderating guide. We would be better off if we just followed it .
  • Posted by a hidden member.
    Log in to view his profile

    Jan 26, 2013 6:25 PM GMT
    In the future, the Senate will be in permanent session, if this stands up on appeal to the full Circuit and Supreme Court.
    The Constitution does not specify the amount of time the Senate needs to be recess for the President to make a recess appointment.
    This ruling flies in the face of numerous previous precedents.

    As a last resort, Roosevelt (Teddy, not FD) appointed people during a less than a day recess. Just adjourn Congress briefly:
    http://news.firedoglake.com/2011/06/21/nothing-can-stop-obama-from-adjourning-congress-making-recess-appointments/
  • musclmed

    Posts: 3284

    Jan 26, 2013 6:35 PM GMT
    q1w2e3 saidIn the future, the Senate will be in permanent session, if this stands up on appeal to the full Circuit and Supreme Court.
    The Constitution does not specify the amount of time the Senate needs to be recess for the President to make a recess appointment.
    This ruling flies in the face of numerous previous precedents.

    As a last resort, Roosevelt (Teddy, not FD) appointed people during a less than a day recess. Just adjourn Congress briefly:
    http://news.firedoglake.com/2011/06/21/nothing-can-stop-obama-from-adjourning-congress-making-recess-appointments/


    The constitution sets the Senate for making its own rules. Basically the president was saying " I say when you are in recess"

    The Senate can define when it is in recess. Because it has that authority in its own rule making. Having own branch of government defining the rules for another is a overstep.

    The clear point of recess appointments in the modern era is to short circuit Senate confirmation. Its clearly not the intent the framers had for recess appointments.

    The intent was when the Senate was in recess for Months, not during lunch or Bathroom breaks.

    Modern recess appointment makes a mockery of the constitution.

    Just because it happened for 180 years doesn't make it legal. It has been abused by Democrats and Republicans.


    The author of the link you provide ignores the fact the Constitution is telling the President what his job is. It is to send nominees to them for confirmation. To adjourn them just so he can get a recess appointment goes against that.
  • Posted by a hidden member.
    Log in to view his profile

    Jan 26, 2013 6:47 PM GMT
    Can you imagine the chaos if this ruling is allowed to stand? It also expansively rules that only those vacancies that arise during the break between Congressional sessions can be filled and only during that particular recess. Theoretically, a lot of the work done by judges and other government officials for the last 200 years can be overturned. E.g. Bush's William Pryor recess appointment (upheld in Evans. vs. Stephens) would be overturned. Roger Gregory (appointed by Clinton to a post empty for a decade) is another example. Even though both of these judges were later confirmed by the Senate, the work between their recess appointment and Senate confirmation would be in jeopardy.
  • Posted by a hidden member.
    Log in to view his profile

    Jan 26, 2013 6:50 PM GMT
    southbeach1500 saidIt's a shame my President doesn't understand the Constitution and separation of powers.


    It's too bad your last one didn't either. His record is 29. His Daddy's count was 171.

    ...and it's too bad you never read the article, either. icon_lol.gif
  • Posted by a hidden member.
    Log in to view his profile

    Jan 26, 2013 6:51 PM GMT
    recess-graph.png
    Actually, Obama is 29, GWB is 171.
  • musclmed

    Posts: 3284

    Jan 26, 2013 6:59 PM GMT
    q1w2e3 saidCan you imagine the chaos if this ruling is allowed to stand? It also expansively rules that only those vacancies that arise during the break between Congressional sessions can be filled and only during that particular recess. Theoretically, a lot of the work done by judges and other government officials for the last 200 years can be overturned. E.g. Bush's William Pryor recess appointment (upheld in Evans. vs. Stephens) would be overturned. Roger Gregory (appointed by Clinton to a post empty for a decade) is another example. Even though both of these judges were later confirmed by the Senate, the work between their recess appointment and Senate confirmation would be in jeopardy.



    Not really. Retroactive rulings by courts especially when it has expansive results are often tempered.

    The ruling vacates the specific case in front of the Circuit court. It doesn't necessarily vacate other recess appointments for 100 years. There is a wait and see part to this whole saga. But I bet Obama will not be appointing anyone during a recess until this is resolved by the Supreme Court.

    Last it shuts the door on the possibility of a recess Supreme Court judge. Dwight Eisenhower did this, however he received informal support before he did it to ensure later confirmation. Putting up graphs of how many were done by which President doesnt get to the point. Again every President has done this. Rarely for Controversial appointments. Most in the past were ultimately confirmed. TSo the graph is meaningless.

    Going forward it is better for the country, there is a collision course of partisanship with pressure on both sides to play this parliamentary game to avoid compromise.

    The House , Senate and Obama have to deal with each other.
  • mybud

    Posts: 11837

    Jan 26, 2013 8:50 PM GMT
    Funny these recess appointments have taken place for over 30 years..Now that Obama does it..it's unconstitutional.....He won...Republicans get your thumbs outta yo asses and try to figure out how you're gonna stop the minority exodus from your party......
  • rnch

    Posts: 11524

    Jan 26, 2013 9:07 PM GMT
    meninlove said
    southbeach1500 saidIt's a shame my President doesn't understand the Constitution and separation of powers.


    It's too bad your last one didn't either. His record is 29. His Daddy's count was 171.

    ...and it's too bad you never read the article, either. icon_lol.gif




    ignoring facts has been the usual practice for the conversaposse here.



    icon_exclaim.gif
  • mybud

    Posts: 11837

    Jan 26, 2013 9:21 PM GMT
    topathlete said
    mybud saidFunny these recess appointments have taken place for over 30 years..Now that Obama does it..it's unconstitutional.....He won...Republicans get your thumbs outta yo asses and try to figure out how you're gonna stop the minority exodus from your party......

    No, you missed the point. The issue is not whether recess appointments are constitutional, but whether the President can unilaterally determine when another branch of Government is in session. In other words, even though the Senate was holding pro-forma sessions, the President determined that their schedule was not full enough to his liking. A clear abuse of power.

    http://online.wsj.com/article/SB10001424127887323539804578263793332301584.html?mod=hp_opinion
    But here's the Obama kicker: He consciously made those "recess" appointments when the Senate wasn't in recess but was conducting pro-forma sessions precisely so Mr. Obama couldn't make a recess appointment. No President to our knowledge had ever tried that one, no doubt because it means the executive can decide on his own when a co-equal branch of government is in session.

    "An interpretation of 'the Recess' that permits the President to decide when the Senate is in recess would demolish the checks and balances inherent in the advice-and-consent requirement," wrote Chief Judge David Sentelle for the court, "giving the President free rein to appoint his desired nominees at any time he pleases, whether that time be a weekend, lunch, or even when the Senate is in session and he is merely displeased with its inaction. This cannot be the law."
    Bullshit...Reagan..Bush Sr. and Jr have done the same...Were you out raged then?????? Bye Bye
  • Posted by a hidden member.
    Log in to view his profile

    Jan 26, 2013 10:01 PM GMT
    topathlete said
    mybud saidBullshit...Reagan..Bush Sr. and Jr have did the same...Were you out raged then?????? Bye Bye

    I quoted the Wall Street Journal which said Obama's action was unprecedented to their knowledge. That doesn't mean they are right, but if you are so sure that Reagan and both Bushes did the same, that is issue Recess Appointments when the Senate was not officially in recess, then you should be able to provide examples. Otherwise, you are simply blowing smoke.


    Uh, read the article topathlete.
  • Posted by a hidden member.
    Log in to view his profile

    Jan 26, 2013 10:08 PM GMT
    meninlove said
    topathlete said
    mybud saidBullshit...Reagan..Bush Sr. and Jr have did the same...Were you out raged then?????? Bye Bye

    I quoted the Wall Street Journal which said Obama's action was unprecedented to their knowledge. That doesn't mean they are right, but if you are so sure that Reagan and both Bushes did the same, that is issue Recess Appointments when the Senate was not officially in recess, then you should be able to provide examples. Otherwise, you are simply blowing smoke.


    Uh, read the article topathlete.


    Uh, maybe you should.
  • Posted by a hidden member.
    Log in to view his profile

    Jan 26, 2013 10:12 PM GMT
    riddler78 said
    meninlove said
    topathlete said
    mybud saidBullshit...Reagan..Bush Sr. and Jr have did the same...Were you out raged then?????? Bye Bye

    I quoted the Wall Street Journal which said Obama's action was unprecedented to their knowledge. That doesn't mean they are right, but if you are so sure that Reagan and both Bushes did the same, that is issue Recess Appointments when the Senate was not officially in recess, then you should be able to provide examples. Otherwise, you are simply blowing smoke.


    Uh, read the article topathlete.


    Uh, maybe you should.


    I did. Then I did some online sleuthing. Aren't you supposed to be offshoring US jobs? icon_lol.gif
  • Posted by a hidden member.
    Log in to view his profile

    Jan 26, 2013 10:27 PM GMT
    meninlove said
    riddler78 said
    meninlove said
    topathlete said
    mybud saidBullshit...Reagan..Bush Sr. and Jr have did the same...Were you out raged then?????? Bye Bye

    I quoted the Wall Street Journal which said Obama's action was unprecedented to their knowledge. That doesn't mean they are right, but if you are so sure that Reagan and both Bushes did the same, that is issue Recess Appointments when the Senate was not officially in recess, then you should be able to provide examples. Otherwise, you are simply blowing smoke.


    Uh, read the article topathlete.


    Uh, maybe you should.


    I did. Then I did some online sleuthing. Aren't you supposed to be offshoring US jobs? icon_lol.gif


    And creating them in the US and Canada - oh how stupid you must be to think the benefits of trade only flow one way. I do hope everything you buy is only made in Canada. icon_wink.gif
  • Posted by a hidden member.
    Log in to view his profile

    Jan 26, 2013 10:39 PM GMT
    topathlete said
    mybud saidBullshit...Reagan..Bush Sr. and Jr have did the same...Were you out raged then?????? Bye Bye

    I quoted the Wall Street Journal which said Obama's action was unprecedented to their knowledge. That doesn't mean they are right, but if you are so sure that Reagan and both Bushes did the same, that is issue Recess Appointments when the Senate was not officially in recess, then you should be able to provide examples. Otherwise, you are simply blowing smoke.


    That is not the ruling by the court. It wasn't an issue about whether the Senate was in recess--it was what kind of recess it was.

    http://www.volokh.com/2013/01/25/dc-circuit-strikes-down-president-obamas-recess-appointments/The main thrust of the court’s opinion is that the recess appointment power extends only to intersession recesses–recesses between sessions of Congress–and not to intrasession recesses. Intrasession recess appointments have been made fairly commonly since WWII, and have been particularly common since the Reagan Administration. UN Ambassador John Bolton and Judge William H. Pryor, Jr. are two of the more high-profile intrasession recess appointments in recent years. The D.C. Circuit’s holding is is in acknowledged conflict with an Eleventh Circuit opinion from 2004. Intrasession appointments may be even more common than intersession appointments these days (because the appointment runs to “the End of [Congress's] next Session,” they last longer), so this is a very important ruling as a practical matter.
  • Posted by a hidden member.
    Log in to view his profile

    Jan 26, 2013 10:46 PM GMT
    http://www.motherjones.com/kevin-drum/2013/01/dc-circuit-court-rules-obama-misused-the
    Today, the DC Court of Appeals ruled that Obama exceeded his authority: he is allowed to make recess appointments only between congressional sessions, not during any other kind of recess. Their reasoning is based on a combination of originalism and the meaning of the word "the." Seriously:

    It is this difference between the word choice “recess” and “the Recess” that first draws our attention....[In 1787], as now, the word “the” was and is a definite article. [...] Unlike “a” or “an,” that definite article suggests specificity. As a matter of cold, unadorned logic, it makes no sense to adopt the Board’s proposition that when the Framers said “the Recess,” what they really meant was “a recess.” This is not an insignificant distinction. In the end it makes all the difference.

    ....Finally, we would make explicit what we have implied earlier. The dearth of intrasession appointments in the years and decades following the ratification of the Constitution speaks far more impressively than the history of recent presidential exercise of a supposed power to make such appointments.

  • Posted by a hidden member.
    Log in to view his profile

    Jan 26, 2013 10:58 PM GMT
    topathlete said
    q1w2e3 saidThat is not the ruling by the court. It wasn't an issue about whether the Senate was in recess--it was what kind of recess it was.

    Oh, but it was. The actual ruling was reported in the LA Times is what you should go by rather than an opinion from a blogger.

    http://www.latimes.com/news/politics/la-pn-court-obama-recess-appointments-unconstitutional-20130125,0,1401126.story

    In Friday’s decision, Chief Judge David Sentelle ruled for the challengers and said a “recess” refers to the break when Congress formally adjourns after a two-year session.

    “An interpretation of 'the Recess' that permits the President to decide when the Senate is in recess would demolish the checks and balances inherent in the advice-and-consent requirement, giving the President free rein to appoint his desired nominees at any time he pleases, whether that time be a weekend, lunch, or even when the Senate is in session and he is merely displeased with its inaction. This cannot be the law,” said Sentelle, an appointee of President Reagan. He was joined by Judges Karen Henderson and Thomas Griffith, who are also Republican appointees.


    That blogger, John Elwood:
    http://www.law.virginia.edu/lawweb/faculty.nsf/FHPbI/2220576
    probably has more experience than the LA Times reporter.

    And did you not read the quote from the Court itself?

    And if you agree with the Court's ruling of the word "the," you must agree that the Bush 141 intrasessional appointments are unconstitutional, and that the others that have been happening for the last 200 years have all been unconstitutional.
  • TheBizMan

    Posts: 4091

    Jan 27, 2013 3:20 AM GMT
    Republicans are once again pulling out their "How can we ensure that the Obama administration will fail" to do list. They are the most spiteful, tactless, "party" that our country has the misfortune of dealing with.
  • musclmed

    Posts: 3284

    Jan 27, 2013 3:43 AM GMT
    q1w2e3 said
    topathlete said
    q1w2e3 saidThat is not the ruling by the court. It wasn't an issue about whether the Senate was in recess--it was what kind of recess it was.

    Oh, but it was. The actual ruling was reported in the LA Times is what you should go by rather than an opinion from a blogger.

    http://www.latimes.com/news/politics/la-pn-court-obama-recess-appointments-unconstitutional-20130125,0,1401126.story

    In Friday’s decision, Chief Judge David Sentelle ruled for the challengers and said a “recess” refers to the break when Congress formally adjourns after a two-year session.

    “An interpretation of 'the Recess' that permits the President to decide when the Senate is in recess would demolish the checks and balances inherent in the advice-and-consent requirement, giving the President free rein to appoint his desired nominees at any time he pleases, whether that time be a weekend, lunch, or even when the Senate is in session and he is merely displeased with its inaction. This cannot be the law,” said Sentelle, an appointee of President Reagan. He was joined by Judges Karen Henderson and Thomas Griffith, who are also Republican appointees.


    That blogger, John Elwood:
    http://www.law.virginia.edu/lawweb/faculty.nsf/FHPbI/2220576
    probably has more experience than the LA Times reporter.

    And did you not read the quote from the Court itself?

    And if you agree with the Court's ruling of the word "the," you must agree that the Bush 141 intrasessional appointments are unconstitutional, and that the others that have been happening for the last 200 years have all been unconstitutional.



    Yes, its happened before. Presidential power has exploded in the last 100 years. During the initial ratification of the constitution it was clear that Senate confirmation was by design to limit Presidential power.

    Recess appointments were designed to allow the government to function when the senate was not in town. In a age when it took weeks to travel from one part of the country to the other.

    It was not designed for a President to hold the appointment until a " recess" that he determines only to appoint the nominee during a recess.

    I doubt any of the framers would think this was constitutional.

    Again it is a Practice that has been abused over and over by all the recent former Presidents, Republican and Democratic. The silver lining is that the ruling will tend to moderate the government. Something we sorely need.

    The Senate will be in the spotlight if it drags it feet on nominees. The President will have to negotiate and nominate individuals likely to be confirmed.

    I can remember some rumblings when John Bolton was was nominated during a recess. Senate Democrats were toying with passing a Senate resolution saying they stood ready to here Boltons confirmation. Such a resolution would have the effect of nullifying his confirmation. Throwing in a legal flag stating President Bush was acting in bad faith. They ABSOLUTELY should have passed that resolution and stood up to the President. It never materialized because both Parties enjoyed this unconstitutional loophole.

    Its sad most here just read from political party talking points. This is an issue that cuts against both parties and in the long run is a good thing.

    What good would a recess appointed Supreme court judge be? Not much at all. Because 1/2 of the country would call in question the rulings. This would further serve to polarize the country. ( that was coming and i am glad it was stopped by this ruling).

    Both parties have to grow up and start following the rules. Like paying our bills and negotiating with each other. Instead of dreaming up legal trickery to force the other side hand.
  • Posted by a hidden member.
    Log in to view his profile

    Jan 27, 2013 3:53 AM GMT
    The Court made it pretty clear (starting page 16) that the only recesses it allows for are the intersessional recesses for appointments. Whether the Senate was generally agreed to be in adjournment (their label for an intrasessional recess) was irrelevant, i.e. those pro forma sessions have no bearing on the case. The Senate could have left for several weeks and still be in session since 1/3/2012.

    They mention Evans v. Stephens to which they specifically assert the superiority of their definition of recess. If their argument is correct, Bush did act unconstitutionally in his Pryor appointment, and they would have in fact overturned Evans v. Stephens.

    And have you also thought about their opinion regarding appointments that can be only made while the vacancies occurred during "the Recess"? That is clearly overreach of an Originalist reading. Evans v. Stephens also specifically contradicts their reading here in allowing for vacancies to be filled whether it occurred before or during the recess.

    If this is allowed to stand, all kinds of lawsuits for intrasessional recess appointments could be filed in court. Bush and Clinton's appointees would have to be defended by the Justice Department.

    To use the example of the unseatbelted drivers, the driver that wasn't caught was not just notwearing his seatbelt, but it was found that he actually was drinking, ran a red light. Surveillance footage was just reviewed now and he is now due in court.
  • Posted by a hidden member.
    Log in to view his profile

    Jan 27, 2013 3:57 AM GMT
    musclmed said
    What good would a recess appointed Supreme court judge be? Not much at all. Because 1/2 of the country would call in question the rulings. This would further serve to polarize the country. ( that was coming and i am glad it was stopped by this ruling).


    http://en.wikipedia.org/wiki/William_J._Brennan,_Jr.Brennan was named to the U.S. Supreme Court through a recess appointment by Dwight Eisenhower in 1956, shortly before the 1956 presidential election. Presidential advisers thought the appointment of a Roman Catholic Democrat from the Northeast would woo critical voters in the upcoming election for Eisenhower, a Republican.[8]


  • rnch

    Posts: 11524

    Jan 27, 2013 3:57 AM GMT
    [quote][cite]musclmed said...Both parties have to grow up and start following the rules. Like paying our bills and negotiating with each other. Instead of dreaming up legal trickery to force the other side hand. [/quote]

    On this point we ALL should be able to agree on icon_exclaim.gif
  • Posted by a hidden member.
    Log in to view his profile

    Jan 27, 2013 4:24 AM GMT
    Yeah, if only the NLRB could be filled in a timely fashion, none of this would have happened. The lack of a quorum has already been a problem since 2007, and the Supreme Court has invalidated the decisions made from 2007 to 2009. Some of these decisions must have been redecided by the quorum since 2012. Now we're going to have even a bigger backlog if those decisions are called into question.
    Same thing can be said about the CFPB, who didn't have a director till 6 months into its operations. Cordray was nominated in 7/2012. Republicans have clearly stated they will not confirm any candidates until changes were made to the CFPB. Well, they did not have the votes to change the law for the CFPB, so obstructing its operations by refusing to confirm was their tactic.

    Legal trickery indeed.