This is for Ed and the gang who held that Obama's appointments to said NLRB board were constitutional and held that, essentially, the President gets to decide when Congress is in session.
AP wrote: WASHINGTON (AP) -- President Barack Obama violated the Constitution when he bypassed the Senate to fill vacancies on a labor relations panel, a federal appeals court panel ruled Friday.
A three-judge panel of the U.S. Court of Appeals for the D.C. Circuit said that Obama did not have the power to make three recess appointments last year to the National Labor Relations Board.
The unanimous decision is an embarrassing setback for the president, who made the appointments after Senate Republicans spent months blocking his choices for an agency they contended was biased in favor of unions.
The ruling also throws into question Obama's recess appointment of Richard Cordray to head the Consumer Financial Protection Bureau. Cordray's appointment, also made under the recess circumstance, has been challenged in a separate case.
Judges wrote: 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.
Recent presidents are doing no more than interpreting the Constitution. While we recognize that all branches of government must of necessity exercise their understanding of the Constitution in order to perform their duties faithfully thereto, ultimately it is our role to discern the authoritative meaning of the supreme law.
Judges wrote: The appointment may be made in “the Recess,” but it ends at the end of the next “Session.” The natural interpretation of the Clause is that the Constitution is noting a difference between “the Recess” and the “Session.” Either the Senate is in session, or it is in the recess. If it has broken for three days within an ongoing session, it is not in “the Recess.”
It is universally accepted that “Session” here refers to the usually two or sometimes three sessions per Congress. Therefore, “the Recess” should be taken to mean only times when the Senate is not in one of those sessions.
....
To avoid government paralysis in those long periods when senators were unable to provide advice and consent, the Framers established the “auxiliary” method of recess appointments. But they put strict limits on this method, requiring that the relevant vacancies happen during “the Recess.” It would have made little sense to extend this “auxiliary” method to any intrasession break, for the “auxiliary” ability to make recess appointments could easily swallow the “general” route of advice and consent. The President could simply wait until the Senate took an intrasession break to make appointments, and thus “advice and consent” would hardly restrain his appointment choices at all.
....
In short, we hold that “the Recess” is limited to intersession recesses.
Opinion: Lawless President is lawless. And that is bad for a nation of laws, not men.
Opinion 2: Will the SCOTUS uphold (if they even hear the case or the others that stem from this decision)? Will this invalidate decisions by prior-presidental appointments? That would be...messy.
sublime LightWorks wrote: I'm sure many here in the SB left feel we don't need to have a Constitution anyway, just rule by decree. Or they will blame this on Obama haters.
Either way, fact remains, the Constitution stands and the appointments do not.
I'm glad to see the judiciary do it's job, just like it has with prior presidents.
Is it really a surprise that this happened since all three judges were appointed by Republican presidents? It's just one more reason why we need filibuster reform since it is abused by the Senate minority on a regular basis (principally the Repubs, but also the Dems). I guess we'll have to see what the Supremes have to say about it.
Tony-S wrote: Is it really a surprise that this happened since all three judges were appointed by Republican presidents? It's just one more reason why we need filibuster reform since it is abused by the Senate minority on a regular basis (principally the Repubs, but also the Dems). I guess we'll have to see what the Supremes have to say about it.
Have you read the opinion?
You're disparaging the reasoning ability of judges based solely because of whom the President was when they were appointed? Did your talking-points source tell you the make up of the Senate at the time? Why not? Isn't that important to the reasoning of the law? Or is it your reflexive partisanship that says a Democrat can never ever never be wrong?
All the nonsense could be solved with one simple law.
The President appoints someone to fill a vacancy. The person appointed assumes the job as "acting ______________" immediately. The Senate must vote on the appointment within 30 days of the appointment or within 30 days of returning from recess, whichever comes first. If the Senate rejects the person appointed, the President must appoint someone else within 30-days of the rejection. The process starts over.
ernst tischler wrote: All the nonsense could be solved with one simple law.
The President appoints someone to fill a vacancy. The person appointed assumes the job as "acting ______________" immediately. The Senate must vote on the appointment within 30 days of the appointment or within 30 days of returning from recess, whichever comes first. If the Senate rejects the person appointed, the President must appoint someone else within 30-days of the rejection. The process starts over.
A flaw in your logic. The reason for this thread, and the legal decision discussed herein, is that the President did not follow the supreme law of the land.
Another law would not make a this President (or Congress for that matter...separate thread) suddenly start caring about following the law or the Constitution.
Tonic Dog Studios wrote: This is for Ed and the gang who held that Obama's appointments to said NLRB board were constitutional and held that, essentially, the President gets to decide when Congress is in session.
Hmmm....that's not quite what I said. I didn't say that the President gets to decide when Congress is in session. What I did say was that I felt that the Congress' position on this was unreasonable (20 day vacation but gaveling in a pro forma session where no business is allowed to be conducted constitutes "being in session"). And that seems to be what you're defending--that a 20 day vacation where Congress is not allowed to introduce or vote on bills or conduct business or hold hearings is somehow a congress that's working.
1. Yep, the court threw out the NLRB appointments.
2. You are aware aren't you that other Federal courts have upheld Obama's appointments. You of course choose to then claim that he's "lawless". No, we've got an action in which the courts have different opinions on. Which means it's almost certainly going to the Supreme Court. But your standard is that anytime a President takes a position that ends up being reversed by the court or has to go to the Supreme Court they're "lawless"? Can you name ANY President in the past 100 years who didn't have a policy or decision reversed that ended up going to the Supreme Court at some point?
3. Step back and think about the position you're defending for a bit. Richard Cordray is a Republican with an outstanding reputation. He was already serving in the agency (CFPB) in a deputy role. When nominated by Obama, the GOP refused to consider his nomination or allow an up or down vote. So Obama then appointed him as a recess appointment.
I get that the intent is to prevent the President (any President) from appointing people without Congressional scrutiny. Can you justify to me why Cordray shouldn't have been a recess appointee?
sublime LightWorks wrote: I'm sure many here in the SB left feel we don't need to have a Constitution anyway, just rule by decree. Or they will blame this on Obama haters.
Either way, fact remains, the Constitution stands and the appointments do not.
They'll call you racist for even mentioning the court decision (or any of the other similar court losses he's had)
Tonic Dog Studios wrote: This is for Ed and the gang who held that Obama's appointments to said NLRB board were constitutional and held that, essentially, the President gets to decide when Congress is in session.
afplcc wrote: Hmmm....that's not quite what I said. I didn't say that the President gets to decide when Congress is in session.
That's why I deliberately said "essentially". (Feel free to link to your comment/thread.)
afplcc wrote: What I did say was that I felt that the Congress' position on this was unreasonable (20 day vacation but gaveling in a pro forma session where no business is allowed to be conducted constitutes "being in session"). And that seems to be what you're defending--that a 20 day vacation where Congress is not allowed to introduce or vote on bills or conduct business or hold hearings is somehow a congress that's working.
If 20 days is "a recess" for purposes of a "recess appointment", is a 3-day weekend? how about a 2-day weekend? How about overnight from 5pm-8am?
The judges disagree with you.
afplcc wrote: 1. Yep, the court threw out the NLRB appointments.
Good.
afplcc wrote: 2. You are aware aren't you that other Federal courts have upheld Obama's appointments.
I was and am. You make assumptions not in evidence.
afplcc wrote: You of course choose to then claim that he's "lawless".
Because he, and his administration, is. On this and many other issues.
And the judges in this case agree with me.
afplcc wrote: No, we've got an action in which the courts have different opinions on. Which means it's almost certainly going to the Supreme Court.
Most likely. See my Opinion 2 in the OP.
afplcc wrote: But your standard is that anytime a President takes a position that ends up being reversed by the court or has to go to the Supreme Court they're "lawless"?
On that issue, yes. Sometimes we expand that term for egregious and lengthy behavior. But that would expand this thread to too many of Obama's other extra-constitutional and illegal actions.
afplcc wrote: Can you name ANY President in the past 100 years who didn't have a policy or decision reversed that ended up going to the Supreme Court at some point?
Nope. All Congresses/Presidents pass unconstitutional laws. 25 wrongs don't make a right.
afplcc wrote: 3. Step back and think about the position you're defending for a bit.
::Steps back and ponders the Constitution and rule of law.:: Mmmm, rule of law...
afplcc wrote: Richard Cordray is a Republican with an outstanding reputation.
"Outstanding reputation." Opinion. Irrelevant to the legal discussion herein.
afplcc wrote: He was already serving in the agency (CFPB) in a deputy role. When nominated by Obama, the GOP refused to consider his nomination or allow an up or down vote. So Obama then appointed him as a recess appointment. I get that the intent is to prevent the President (any President) from appointing people without Congressional scrutiny. Can you justify to me why Cordray shouldn't have been a recess appointee?
Mike Kelcher
Posts: 11,626
Minneapolis, Minnesota, US
I felt for a while that Obama's appointments were unconstitutional, and I said as much in forum posts elsewhere, previously. Since I'm not a graduate of Harvard Law School, not a "Constitutional Scholar", and Eric Holder isn't on my team of legal professionals, and my political affiliates aren't mostly lawyers, my opinion didn't matter to some of the people who write in these forums.
I would like to say three things:
1. I thought a decision like this would eventually happen.
2. This isn't the end of Obama's troubles with the Constitution...he's doing a lot of "dancing in the gray areas".
3. The Constitution works. Our founding fathers were not idiots. The Constitution is a document that is much more than ink on parchment, it has provided an excellent framework for our country for over 200 years while our government has grown to the largest in the world.
Tonic Dog Studios wrote: A flaw in your logic. The reason for this thread, and the legal decision discussed herein, is that the President did not follow the supreme law of the land.
Another law would not make a this President (or Congress for that matter...separate thread) suddenly start caring about following the law or the Constitution.
Recess appointments have been used by Presidents long before Obama to put the President's guy in while Congress was out.
My proposal would require the Senate to hold a vote, which they have refused to do many times, thus almost forcing the hand of the President to appoint someone while they are out.
ernst tischler wrote: Recess appointments have been used by Presidents long before Obama to put the President's guy in while Congress was out.
My proposal would require the Senate to hold a vote, which they have refused to do many times, thus almost forcing the hand of the President to appoint someone while they are out.
I'm saying the rule of law has clearly broken down in significant areas.
Scenario:
1) Obama (Dem) makes a "recess" appt outside of a recess. (Support for hypothetical illegal action: see the OP)
2) Congress does not vote on it. (Support for hypothetical illegal action: Harry Reid (Dem) violating the law and not passing a budget for years)
3) Obama says his appointment is valid and continues issuing edicts and sics the DOJ on people who don't obey. (Support: See 2008-2012)
When the President and Congress (Dems this time) have repeatedly demonstrated that they will not follow a law they don't want to follow, I find your excitement about a new hypothetical law/process puzzling.
Where are the teeth to hold the government accountable? How many divisions does the Supreme Court have?
Tonic Dog Studios wrote: I'm saying the rule of law has clearly broken down in significant areas.
Scenario:
1) Obama (Dem) makes a "recess" appt outside of a recess. (Support for hypothetical illegal action: see the OP)
2) Congress does not vote on it. (Support for hypothetical illegal action: Harry Reid (Dem) violating the law and not passing a budget for years)
3) Obama says his appointment is valid and continues issuing edicts and sics the DOJ on people who don't obey. (Support: See 2008-2012)
When the President and Congress (Dems this time) have repeatedly demonstrated that they will not follow a law they don't want to follow, I find your excitement about a new hypothetical law/process puzzling.
Where are the teeth to hold the government accountable? How many divisions does the Supreme Court have?
There are many things in how our Executive and Legislative branches of government operate that lend themselves to abuse...the appointments process is a prime example. The Senate stonewalls confirmation of appointments so the President makes recess appointments. It's a tit for tat game they play, each side gets their political points or political cover while neither are doing their jobs.
I'm saying take the bullshit out of the process. President appoints, the person becomes interim in the job immediately, Senate has 30 days to hold a vote, if Senate does not confirm, President has 30 days to appoint someone else, start over at step 1.
Vivus Hussein Denuo wrote: Good decision for corporate America. Bad decision if you work for a living.
Edit: I should say ANOTHER good decision for corprate America.
A great decision for the rule of law over an Imperial President who thinks the Constitution is an inconvenient document when it thwarts His Will.
Many of us had this interpertation from the beginning and if you take the politics out of it is the ONLY decision the court could have come to.
Puts Obama in an untenable position. If he does not appeal every decision the NLRB made will go to court and slowly be overturned and end up at the SC. Or he can appeal moving it more quickly to the Court where he will invariably lose quickly. The Death of a Thousand Cuts or a swift quick kill?
Tony-S wrote: Is it really a surprise that this happened since all three judges were appointed by Republican presidents? It's just one more reason why we need filibuster reform since it is abused by the Senate minority on a regular basis (principally the Repubs, but also the Dems). I guess we'll have to see what the Supremes have to say about it.
Of course you would say this. Appointed by a republican president means they will set aside all rule of law just to vote against the president. You really believe that which makes this all the more funny and sad. Must be really dark in that basement you live in.
Longwatcher
Posts: 3,635
Newport News, Virginia, US
I am agreement with that court in general principle, depending on specifically which "recess" the appointment was made, however, congress was UNAVAILABLE to be consulted on during at least some of those appointments, despite any play-acting by Congress to pretend otherwise. So therefore as far as I would be concerned congress was in de facto recess and at least some of the appointments should be valid.
If congress would actually do its job none of this would be necessary.
You know what's really funny? When Bush appointed John Bolton to the UN Ambassador post in a recess appointment, then Senator Obama said "It's the wrong thing to do."
What a bunch of hypocrites you guys are. Say one thing but when you do it you mean another.
sublime LightWorks wrote: I'm sure many here in the SB left feel we don't need to have a Constitution anyway, just rule by decree. Or they will blame this on Obama haters.
Either way, fact remains, the Constitution stands and the appointments do not.
After 300 recess appointments you now celebrate the ruling. Did you question recess appointments before Prez Obama?
Want to bet that goes to theSupreme Court?
Mike Kelcher
Posts: 11,626
Minneapolis, Minnesota, US
Longwatcher wrote: I am agreement with that court in general principle, depending on specifically which "recess" the appointment was made, however, congress was UNAVAILABLE to be consulted on during at least some of those appointments, despite any play-acting by Congress to pretend otherwise. So therefore as far as I would be concerned congress was in de facto recess and at least some of the appointments should be valid.
If congress would actually do its job none of this would be necessary.
Onwards to the SCOTUS.
The problem with Obama's NLRB appointment is that Congress wasn't in "recess". It was just an unconstitutional appointment made with the intention of circumventing Congress.
You make a very valid point and shows why we have too many lawyers in government.
Presidents and Members of Congress take an Oath to UPHOLD the Constitution not think of clever lawerly was to subvert it.
Speaking of which the GOP is looking into allocating votes by district instead of winner-take-all at the state level. That way, they can more easily win the Presidency even if most Americans vote for the Dem candidate.
A great decision for the rule of law over an Imperial President who thinks the Constitution is an inconvenient document when it thwarts His Will.
Many of us had this interpertation from the beginning and if you take the politics out of it is the ONLY decision the court could have come to.
Puts Obama in an untenable position. If he does not appeal every decision the NLRB made will go to court and slowly be overturned and end up at the SC. Or he can appeal moving it more quickly to the Court where he will invariably lose quickly. The Death of a Thousand Cuts or a swift quick kill?
You're talking procedure. I'm talking policy. Policy-wise, Obama's appointments to the NLRB were not members who would rubber-stamp positions taken by corporation executives. Now, who knows? Sad. Like corporations needed still more power and influence in our country.
Speaking of which the GOP is looking into allocating votes by district instead of winner-take-all at the state level. That way, they can more easily win the Presidency even if most Americans vote for the Dem candidate.
Speaking of lawyering.
Oops, was that off-topic?
Not a position I favor but it is an issue for the States to decide.
I do not see that as lawyering to subvert but the use of politics to gain advantage. Problem is that advantage can shift so why change?
Vivus Hussein Denuo wrote: You're talking procedure. I'm talking policy. Policy-wise, Obama's appointments to the NLRB were not members who would rubber-stamp positions taken by corporation executives. Now, who knows? Sad. Like corporations needed still more power and influence in our country.
The Constitution is all procedure. Policy is for elected leaders to execute within its framework. IMO PBO does not like that framework, like a suit two sizes too small he finds it restricting.
congress won't approve any of his appointments lol
the consumer financial protection bureau is a new government agency that couldn't get a head approved 3 years after its inception. come on congress. I would expect the executive office to step in actually.
Vivus Hussein Denuo wrote: Speaking of which the GOP is looking into allocating votes by district instead of winner-take-all at the state level. That way, they can more easily win the Presidency even if most Americans vote for the Dem candidate.
Speaking of lawyering.
Oops, was that off-topic?
Not a position I favor but it is an issue for the States to decide.
I do not see that as lawyering to subvert but the use of politics to gain advantage. Problem is that advantage can shift so why change?
The Constitution is all procedure. Policy is for elected leaders to execute within its framework. IMO PBO does not like that framework, like a suit two sizes too small he finds it restricting.
There have been 280 recess appointments, of both parties, going back 150 years. Now, suddenly, they're unconstitutional. Another remarkable interpretation of Presidential action that never happened before Obama became our President. Like, suddenly we need voter ID laws. What a coincidence!
Michael Bots
Posts: 4,098
Kingston, Ontario, Canada
Tony-S wrote: Is it really a surprise that this happened since all three judges were appointed by Republican presidents? It's just one more reason why we need filibuster reform since it is abused by the Senate minority on a regular basis (principally the Repubs, but also the Dems). I guess we'll have to see what the Supremes have to say about it.
Senate majority leader Harry Reid saves the filibuster.
R A V E N D R I V E wrote: congress won't approve any of his appointments lol
the consumer financial protection bureau is a new government agency that couldn't get a head approved 3 years after its inception. come on congress. I would expect the executive office to step in actually.
Not all Americans actually want consumers to have financial protection.
There have been 280 recess appointments, of both parties, going back 150 years. Now, suddenly, they're unconstitutional. Another remarkable interpretation of Presidential action that never happened before Obama became our President. Like, suddenly we need voter ID laws. What a coincidence!
What is/was unconstitutional was making recess appointments when the Senate was still in session. What was and is unconstitutional is the POTUS deciding when Congress is in session. Neither position is opinion or interpertaion of obscure points of Constitutional law, it is simple reading of exactly what the Constitution says.
I would suggest you read the decision as the Circuit Court clearly lays out the legal precidents and historical record.
Not all Americans actually want consumers to have financial protection.
And others do not see where it fits in the Enumerated Powers of Government. Some just do not pay any attention to that Inconvenient Document, AKA US Constitution.
Robert Helm wrote: And others do not see where it fits in the Enumerated Powers of Government. Some just do not pay any attention to that Inconvenient Document, AKA US Constitution.
Commerce clause
Congress has always had the power to regulate interstate commerce, but there wasn't really much interstate commerce until the 20th century. And now everything is or affects interstate commerce, so the feds get to control everything LOL
There really is no question for the courts, the US Govt Agency will say their actions fall within the commerce clause, the plaintiff will not that the defendant is regulating something that affect interstate commerce, and the US Govt Judge won't have any question about it either.
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