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[Neo]

Hahahaha! Some legal scholar huh? HA!


Court says Obama appointments violate constitution

By SAM HANANEL


WASHINGTON (AP) - President Barack Obama violated the Constitution when he bypassed the Senate last year to appoint three members of the National Labor Relations Board, a federal appeals court ruled Friday in a far-reaching decision that could severely limit a chief executive's powers to make recess appointments.

The decision of the U.S. Court of Appeals for the D.C. Circuit marked a victory for Republicans and business groups critical of the labor board. If it stands, it could invalidate hundreds of board decisions over the past year, including some that make it easier for unions to organize.

When Obama filled the vacancies on Jan. 4, 2012, Congress was on an extended holiday break. But GOP lawmakers gaveled in for a few minutes every three days just to prevent Obama from making recess appointments. The White House argued that the pro forma sessions - some lasting less than a minute - were a sham.

The court rejected that argument, but went even further, finding that under the Constitution, a recess occurs only during the breaks between formal year-long sessions of Congress, not just any informal break when lawmakers leave town. It also held that presidents can bypass the Senate only when administration vacancies occur during a recess.

White House press secretary Jay Carney said the administration strongly disagrees with the decision and that the labor board would continue to conduct business as usual, despite calls by some Republicans for the board members to resign.
"The decision is novel and unprecedented," Carney said. "It contradicts 150 years of practice by Democratic and Republican administrations."

Under the court's decision, 285 recess appointments made by presidents between 1867 and 2004 would be invalid.

The Justice Department hinted that the administration would ask the Supreme Court to overturn the decision, which was rendered by three conservative judges appointed by Republican presidents. "We disagree with the court's ruling and believe that the president's recess appointments are constitutionally sound," the statement said.

The court acknowledged that the ruling conflicts with what some other federal appeals courts have held about when recess appointments are valid, which only added to the likelihood of an appeal to the high court.

"I think this is a very important decision about the separation of powers," said Carl Tobias, a constitutional law professor at Virginia's University of Richmond. "The court's reading has limited the president's ability to counter the obstruction of appointments by a minority in the Senate that has been pretty egregious in the Obama administration."

The ruling also threw into question the legitimacy of Obama's recess appointment of Richard Cordray to head the Consumer Financial Protection Bureau. Cordray's appointment, made on the same date, has been challenged in a separate case.
Carney insisted the court's ruling affects only a single case before the labor board and would have no bearing on Cordray's appointment. Obama on Thursday renominated Cordray for the job.

The case challenging the recess appointments was brought by Noel Canning, a Washington state bottling company that claimed an NLRB decision against it was not valid because the board members were not properly appointed. The D.C. Circuit panel agreed.

Obama made the recess appointments after Senate Republicans blocked his choices for an agency they contended was biased in favor of unions. Obama claims he acted properly because the Senate was away for the holidays on a 20-day recess. The Constitution allows for such appointments without Senate approval when Congress is in recess.

But during that time, GOP lawmakers argued, the Senate technically had stayed in session because it was gaveled in and out every few days for so-called pro forma sessions.

GOP lawmakers used the tactic - as Democrats had done in the past - specifically to prevent the president from using his recess power to install members to the labor board and the consumer board. They had also vigorously opposed the nomination of Cordray.

The three-judge panel flatly rejected arguments from the Justice Department's Office of Legal Counsel, which claimed that the president has discretion to decide that the Senate is unavailable to perform its advice and consent function.
"Allowing the president to define the scope of his own appointment power would eviscerate the Constitution's separation of powers," Chief Judge David Sentelle wrote in the 46-page ruling. He was appointed by President Ronald Reagan.
The court ruled that during one of those pro forma sessions on Jan. 3, 2012, the Senate officially convened its second session of the 112th Congress, as required by the Constitution.

Sentelle's opinion was joined by Judge Thomas Griffith, appointed to the court by President George W. Bush, and Karen LeCraft Henderson, who was appointed by President George H.W. Bush.

"With this ruling, the D.C. Circuit has soundly rejected the Obama administration's flimsy interpretation of the law, and (it) will go a long way toward restoring the constitutional separation of powers," said Sen. Orrin Hatch, R-Utah.

GOP House Speaker John Boehner welcomed the ruling as "a victory for accountability in government."

If the ruling stands, it would invalidate more than 600 board decisions issued over the past year. It also would leave the five-member labor board with just one validly appointed member, effectively shutting it down. The board is allowed to issue decisions only when it has at least three sitting members.

Obama used the recess appointment to install Deputy Labor Secretary Sharon Block, union lawyer Richard Griffin and NLRB counsel Terence Flynn to fill vacancies on the labor board, giving it a full contingent for the first time in more than a year. Block and Griffin are Democrats, while Flynn is a Republican. Flynn stepped down from the board last year.

All three vacancies on the labor board had been open for months before Obama acted to fill them.
Sen. Tom Harkin, D-Iowa called the ruling "a radical departure from precedent" and argued that Obama had no choice but to act.
"Throughout his presidency, Republicans have employed unprecedented partisan delay tactics and filibusters to prevent confirmation of nominees to lead the NLRB, thus crippling the board's legal authority to act," Harkin said.

If Obama's recess appointment of Cordray to the newly created consumer board is eventually ruled invalid, it could nullify all the regulations the consumer board has issued, many of which affect the mortgage business.

http://apnews.myway..../DA41HUAO0.html

[SECorBust]

So these are the things republicans sit around and think about when they are not doing their jobs.  Jesus Christ man, what bullshit.

[cocky4ever]

Another day, another thread by Neo grasping at straws in hopes of Obama becoming powerless. I think he's been a bad president too, but may as well get used to it. We have 4 more years ahead of us.

[OmahaBound]

Props to the Republicans on a way to legally work around the rules.    Obama tried to get around it and lost (at least this round...will probably go to the Supreme Ct).   You can pretty much say goodbye to recess appointments now as the Dems will just pull the same trick when a Rep. is in office next.

[PuddingTime]

Whatever your opinion may be, Obama was in violation.  This isn't really something that's up for debate.

[smokeyone]

cocky4ever, on 26 January 2013 - 09:05 AM, said:

Another day, another thread by Neo grasping at straws in hopes of Obama becoming powerless. I think he's been a bad president too, but may as well get used to it. We have 4 more years ahead of us.

it looks like the straws are well in hand dude.

[Squealliam Fatner]

PuddingTime, on 26 January 2013 - 09:59 AM, said:

Whatever your opinion may be, Obama was in violation.  This isn't really something that's up for debate.

As well as every president since the sixties, apparently. Why act now? Every day the gulf gets wider between the Democrats and Republicans- to the detriment of the country. And rather than find common ground that would benefit all Americans, they continue to bicker over the bones of this once-great country, and have the balls to act indignant when We The People complain about having to fight for the crumbs from their tables. Obama. Boehner. this two-party joke of a system that continues to cripple this country with its corruption and inability to make a single decision without a ing Mexican Showdown (no offense Benny ) ensuing.

[cocky4ever]

smokeyone, on 26 January 2013 - 10:15 AM, said:

it looks like the straws are well in hand dude.

Actually no, because its going to be over turned. There were over 300 of these appointments before Obama ever took office, and now a few conservative judges have a problem with it. I don't see it standing. That's not to say I want it to stand, because I'd love to see a huge blow dealt to unions. But this obviously very partisan, which means if it stands it will come back to favor the other side later.

Plus it states that there is only one real recess/year. Congress already does little to nothing, and does a horrible job with what little it actually does accomplish. This ruling just makes it easier for them to accomplish even less( if thats possible)

Edited by cocky4ever, 26 January 2013 - 10:46 AM.

[OmahaBound]

Squealliam Fatner, on 26 January 2013 - 10:34 AM, said:

As well as every president since the sixties, apparently. Why act now? Every day the gulf gets wider between the Democrats and Republicans- to the detriment of the country. And rather than find common ground that would benefit all Americans, they continue to bicker over the bones of this once-great country, and have the balls to act indignant when We The People complain about having to fight for the crumbs from their tables. Obama. Boehner. this two-party joke of a system that continues to cripple this country with its corruption and inability to make a single decision without a :lanekiffin:ing Mexican Showdown (no offense Benny ) ensuing.

Because this time they technically never went into recess.   That's how the Republicans worked around the rules.   When they would normally be in recess they made sure someone went to the floor each work day and asked if there was any business.  "Nope?  Okay we're done for the day."   The sole purpose was to avoid recess appointments.   The courts say it worked.   Unless the rules change the Dems are going to do the same damn thing when there's a Rep. in the White House.

I completely agree with the sentiment of your post though.

Edited by OmahaBound, 26 January 2013 - 10:44 AM.

[smokeyone]

cocky4ever, on 26 January 2013 - 10:39 AM, said:

Actually no, because its going to be over turned. There were over 300 of these appointments before Obama ever took office, and now a few conservative judges have a problem with it. I don't see it standing. That's not to say I want it to stand, because I'd love to see a huge blow dealt to unions. But this obviously very partisan, which means if it stands it will come back to favor the other side later.

Plus it states that there is only one real recess/year. Congress already does little to nothing, and does a horrible job with what little it actually does accomplish. This ruling just makes it easier for them to accomplish even less( if hats possible)

we shall see. The non confirmed appoints or recess appointments have been abused for too long and the fact something is being done about it is a lil ray of sunshine on the worst, most corrupt administration in my life time.

[Squealliam Fatner]

OmahaBound, on 26 January 2013 - 10:43 AM, said:

Because this time they technically never went into recess.   That's how the Republicans worked around the rules.   When they would normally be in recess they made sure someone went to the floor each work day and asked if there was any business.  "Nope?  Okay we're done for the day."   The sole purpose was to avoid recess appointments.   The courts say it worked.   Unless the rules change the Dems are going to do the same damn thing when there's a Rep. in the White House.

Exactly. And what does it profit either party? Or us? Not a damn thing. Our government is broken beyond belief, and a large number of the populace have joined in the finger-pointing and partisan bullshit; rather than fixing the problems, they've chosen to join the contingent of politicians who've exacerbated said problems for their personal gain. I will never vote for either party, as I believe they are both too filled with corruption to lead this country out of the hole THEY HAVE DUG.

[cocky4ever]

smokeyone, on 26 January 2013 - 10:45 AM, said:

we shall see. The non confirmed appoints or recess appointments have been abused for too long and the fact something is being done about it is a lil ray of sunshine on the worst, most corrupt administration in my life time.

Yeah, let's make it easier for them to take vacations and screw off in Washington. How about this for a solution: make them stay in DC and do the job they were elected to do instead taking a vacation every two weeks.

God forbid they actually work together to come up with solutions. This ruling just makes it easier for both sides to stall the other when we need to be forcing them to be more effective.

[SECats]

How dare you question King Obama.

[cocky4ever]

SECats, on 26 January 2013 - 11:40 AM, said:

How dare you question King Obamapresidents from 1867-present.

ftfy

[PuddingTime]

Squealliam Fatner, on 26 January 2013 - 10:34 AM, said:

As well as every president since the sixties, apparently. Why act now? Every day the gulf gets wider between the Democrats and Republicans- to the detriment of the country. And rather than find common ground that would benefit all Americans, they continue to bicker over the bones of this once-great country, and have the balls to act indignant when We The People complain about having to fight for the crumbs from their tables. Obama. Boehner. this two-party joke of a system that continues to cripple this country with its corruption and inability to make a single decision without a :lanekiffin:ing Mexican Showdown (no offense Benny ) ensuing.

I agree with that.

Some people don't understand that some of us think the current and past president both sucked.  I may be more conservative than liberal on many issues, but I don't blindly follow whoever gets elected to office if they represent my party.  "My" party doesn't really represent my ideals anyway, and the dems sure as hell don't either.