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Federal appeals court rules Obama recess appointments to labor board are unconstitutional
WaPo ^ | 01.25.13 | A.P.

Posted on 01/25/2013 8:03:48 AM PST by green iguana

A federal appeals court has ruled that President Barack Obama violated the Constitution when he bypassed the Senate to fill vacancies on a labor relations panel.

The U.S. Court of Appeals for the D.C. Circuit says Obama did not have the power to make recess appointments earlier this year to the National Labor Relations Board.

(Excerpt) Read more at washingtonpost.com ...


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Ha Ha!

Any bets on whether this is appealed on not?

1 posted on 01/25/2013 8:03:59 AM PST by green iguana
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To: green iguana

Well, it will definitely be appealed, but I think this is a positive sign. Watch for Obama to redouble his attacks on the judiciary.


2 posted on 01/25/2013 8:05:42 AM PST by livius
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To: livius

Love it!


3 posted on 01/25/2013 8:07:05 AM PST by sheikdetailfeather (Yuri Bezmenov (KGB Defector) - "Kick The Communists Out of Your Govt. & Don't Accept Their Goodies.")
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To: green iguana

Will Obama have a national statement & blame everyone except himself?


4 posted on 01/25/2013 8:07:55 AM PST by existentially_kuffer
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To: green iguana

Even if they appeal this, it’s likely they would lose. This is regarding governmental structure, not some political issue. I doubt even the liberals would agree that the president has the power to just decide that the senate is in recess.


5 posted on 01/25/2013 8:13:03 AM PST by cotton1706
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To: green iguana

How does one get “standing” to challenge such an appointment in court? Who filed? It clearly wasn’t the DOJ.


6 posted on 01/25/2013 8:14:24 AM PST by the_Watchman
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To: cotton1706
I doubt even the liberals would agree that the president has the power to just decide that the senate is in recess.

Liberals feel that this president has the power to decide anything he wants.

7 posted on 01/25/2013 8:15:18 AM PST by GreenHornet
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To: the_Watchman
An entity that was bound by a NLRB ruling sued, and argued the board lacked authority because its quorum was established by unconstitutional means.

I assume the company that sued lost its case before the trial court, and appealed to the DC Circuit, which has now reversed the trial court.

Guess it's time to find a copy of the decision.

8 posted on 01/25/2013 8:17:26 AM PST by Cboldt
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To: green iguana

Of course it will be appealed, and of course it is our money that will p[ay for the appeal.

With any luck on Obama’s side this will drone on until he is out of office.

The question is this-— Does anyone actually think any one of those appointments will be canceled?

Next question. With this decision in hand does anyone think that the House will cut off the money to pay those who were appointed illegally?

Next question does anyone believe in the Easter Bunny?


9 posted on 01/25/2013 8:20:01 AM PST by Venturer
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To: Cboldt

The Kenyan is not going to like this...”who are they to question my edicts”


10 posted on 01/25/2013 8:20:52 AM PST by Mouton (108th MI Group.....68-71)
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To: green iguana

No appeal. Reason? That would indicate that hussein gives 2 craps about the constitution. He doesn’t. (But flies sure like a hot steamin’ pile of manure when they smell one.)


11 posted on 01/25/2013 8:23:16 AM PST by rktman (Live the oath you took or get out of office!)
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To: green iguana

“Any bets on whether this is appealed on not?”

Time for the bear in the woods picture.

We better send over a contingent of FBI agents to keep tabs on the five members who are inclined to vote yes on the SC.
Send over a food taster too.


12 posted on 01/25/2013 8:26:37 AM PST by Mouton (108th MI Group.....68-71)
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To: green iguana

Is there an injunction against the ruling while it’s appealed?


13 posted on 01/25/2013 8:28:35 AM PST by Cyber Liberty (Obama considers the Third World morally superior to the United States.)
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To: the_Watchman

Standing. Haha. Good question. “You weren’t individually harmed therefor you have no standing”. Such BS.


14 posted on 01/25/2013 8:28:50 AM PST by Ray76 (Do you reject Obama? And all his works? And all his empty promises?)
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To: GreenHornet

In reality, the SC probably won’t decide to hear the case, leaving the DC decision as prevailing opinion on the matter.


15 posted on 01/25/2013 8:29:38 AM PST by cotton1706
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To: green iguana

How come, when the court finds that Obama expressly and purposefully violated the Constitution, he is not automatically impeached?


16 posted on 01/25/2013 8:30:14 AM PST by Lazamataz (LAZ'S LAW: As an argument with liberals goes on, the probability of being called racist approaches 1)
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To: livius
Watch for Obama to redouble his attacks on the judiciary.

That is why Reed got Bohener to cave on the appt issue so that Obama can put more liberal judges on the SC. Th

17 posted on 01/25/2013 8:31:09 AM PST by IllumiNaughtyByNature ($1.84 - The price of a gallon of gas on Jan. 20th, 2009.)
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To: green iguana

Ha Ha! was my initial reaction upon hearing this.

If upheld (the most likely outcome) it will invalidate *all* decisions made by the board. It also scotches Richard Cordray appointment to head the Consumer Financial Protection Bureau. A double Ha! Ha!


18 posted on 01/25/2013 8:32:15 AM PST by No Truce With Kings (Ten years on FreeRepublic and counting.)
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To: Lazamataz

Because the Senate will never convict him.


19 posted on 01/25/2013 8:37:46 AM PST by onedoug
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Noel Canning v. NLRB, Case No. 12-1115 (DC Cir., Jan 25, 2013)

The court takes a narrow definition of "recess," that undercuts many appointments that have been made, historically.

A third alternative interpretation of "the Recess" is that it means any adjournment of more than three days pursuant to the Adjournments Clause. See U.S. Const. art. I, AS: 5, cl. 4 ("Neither House, during the Session of Congress, shall, without the Consent of the other, adjourn for more than three days . . . ."). This interpretation lacks any constitutional basis. The Framers did not use the word "adjournment" in the Recess Appointments Clause. Instead, they used "the Recess." ...

In short, we hold that "the Recess" is limited to intersession recesses.

This is a MASSIVE change. There is a split among circuits, so SCOTUS might take it up.

The opinion is well reasoned, and I think it is a correct interpretation and application of the recess appointment power expressed in the constitution. Presidents have taken unconstitutional liberties in the face of a dysfunctional senate.

20 posted on 01/25/2013 8:39:20 AM PST by Cboldt
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To: green iguana
It's about time Obummer was cut off at the knees for one of his unconstitutional actions.
21 posted on 01/25/2013 8:43:39 AM PST by jazusamo ("Mercy to the guilty is cruelty to the innocent." -- Adam Smith)
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To: green iguana
My best guess....Obama doesn't want this board operating. It gives him room for another backroom czar...which does not need approval.

It's all about keeping secrets.

22 posted on 01/25/2013 8:44:08 AM PST by Sacajaweau
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To: Cyber Liberty
-- Is there an injunction against the ruling while it's appealed? --

The plaintiff below is not bound by the decision of the NLRB. The board's order is vacated.

The DC Circuit has done a great job here. This case will be studied in law school con-law classes.

Although our holding on the first constitutional argument of the petitioner is sufficient to compel a decision vacating the Board's order, as we suggested above, we also agree that the petitioner is correct in its understanding of the meaning of the word "happen" in the Recess Appointments Clause. The Clause permits only the filling up of "Vacancies that may happen during the Recess of the Senate." U.S. Const. art. II, Sec. 2, cl. 3. Our decision on this issue depends on the meaning of the constitutional language "that may happen during the Recess." The company contends that "happen" means "arise" or "begin" or "come into being." The Board, on the other hand, contends that the President may fill up any vacancies that "happen to exist" during "the Recess." It is our firm conviction that the appointments did not occur during "the Recess." We proceed now to determine whether the appointments are also invalid as the vacancies did not "happen" during "the Recess." ...

Our understanding of the plain meaning of the Recess Appointments Clause as requiring that a qualifying vacancy must have come to pass or arisen "during the Recess" is consistent with the apparent meaning of the Senate Vacancies Clause. The interpretation proffered by the Board is not. ...

In light of the extensive evidence that the original public meaning of "happen" was "arise," we hold that the President may only make recess appointments to fill vacancies that arise during the recess.


23 posted on 01/25/2013 8:49:50 AM PST by Cboldt
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To: cotton1706
Even if they appeal this, it’s likely they would lose...

Agreed. They'd "lose" 5 - 4. Which means they are one judge shy of not losing, given that there are 4 leftist rubber-stampers who cannot even recuse themselves when it's obvious they should recuse.

24 posted on 01/25/2013 8:52:23 AM PST by C210N (When people fear government there is tyranny; when government fears people there is liberty)
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To: Ray76

“Standing” is a very appropriate legal requirement to bring suit. How would you like it if I could bring a suit on behalf of your neighbor against you without even having your neighbor’s consent? It is intended to keep nosy people out of other people’s business.

The problem is when courts will not acknowledge that if a President is not qualified to hold the office then EVERYONE is harmed and therefore, ANYONE, should be able to bring suit. Thus, the interpretation of “standing” is where we have our beef.


25 posted on 01/25/2013 8:55:17 AM PST by the_Watchman
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To: jazusamo
-- It's about time Obummer was cut off at the knees for one of his unconstitutional actions. --

Application of this precedent would invalidate nearly ALL of the recess appointments made in the last three decades. Seriously. Judges, boards, etc. The DC Circuit says that the recess appointment power is only applicable to a vacancy that is created during a recess (few are, given that "the recess" is typically a few weeks of the year, at most); and may only be exercized during the recess. Once the Senate is in session (no adjournment sine die), there is no recess.

Anyway, I agree with your sentiment, that it is about time a Court actually followed the constitution; and too bad for Obama. [insert Nelson Luntz "Ha Ha" here]

26 posted on 01/25/2013 8:55:42 AM PST by Cboldt
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To: cotton1706
-- In reality, the SC probably won't decide to hear the case, leaving the DC decision as prevailing opinion on the matter. --

There is a split among the circuits, and this decision is a RADICAL rejection of long-standing unconstitutional practice. I think SCOTUS will take it up.

27 posted on 01/25/2013 8:58:31 AM PST by Cboldt
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To: livius

And Justice Roberts is his guy now.


28 posted on 01/25/2013 8:59:30 AM PST by arthurus (Read Hazlitt's Economics In One Lesson ONLINE www.fee.org/library/books/economics-in-one-lesson)
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To: green iguana

My guess is they were tipped and knew this was coming. Hilda Solis suddenly bailed over the holidays for a reason.


29 posted on 01/25/2013 9:02:56 AM PST by Buckeye McFrog
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To: Cboldt

This decision would effectively eliminate recess appointments. In years past, congress would be out of session for months at a time, but that certainly isn’t the case now.

Obama’s biggest abuse of power here was to himself declare the senate was in recess, even though it was still holding pro forma sessions. No other president has done that.


30 posted on 01/25/2013 9:05:07 AM PST by Arthurio
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To: Cboldt

Where did you read there was a split? The DC Circuit usually has original jusrisdiction on these types of matters.


31 posted on 01/25/2013 9:05:16 AM PST by cotton1706
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To: rktman

Thw White House has already said they’ll appeal.

This also affects Richard Cordray’s appointment to the Consumer Financial Protection Bureau - done on the same day.


32 posted on 01/25/2013 9:09:12 AM PST by green iguana
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To: LucyT; null and void

ping


33 posted on 01/25/2013 9:10:17 AM PST by Brown Deer (Pray for 0bama. Psalm 109:8)
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To: Lazamataz

He’s a constitutional scholar. The court obviously has it wrong...


34 posted on 01/25/2013 9:10:45 AM PST by green iguana
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To: cotton1706
-- Where did you read there was a split? --

The opinion itself dissects and rejects an 11th circuit case that differs from the rule of law laid down in this case.

See too, DC Circuit Strikes Down President Obama's Recess Appointments - John Elwood @ Volokh Conspiracy

Still reviewing the opinion, but it appears that the Court invalidated the use of intrasession recess appointments, which have been in pretty heavy use since WWII, and were used for a number of high-profile recess appointments, including John Bolton and Judge William H. Pryor, Jr.

This is in pretty clear conflict with an Eleventh Circuit opinion and is a broader basis for invalidating the recess appointments than I anticipated. I suspect this one is destined for the Supreme Court.

There are additional links from that Volokh Conspiracy report, presenting arguments on both sides.

I think the DC Circuit got this one right, but, we can run it through Scalia's "long standing unconstitutional acts become constitutional" thingamajig.


35 posted on 01/25/2013 9:12:55 AM PST by Cboldt
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To: arthurus

I suspect Justice Roberts will be getting a phone call pretty soon.


36 posted on 01/25/2013 9:14:39 AM PST by red-dawg
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To: green iguana

Obama will ignore the ruling.

Laws and court rulings are for the little people.

Now go pay your taxes - your government is broke.


37 posted on 01/25/2013 9:14:48 AM PST by Tzimisce (The American Revolution began when the British attempted to disarm the Colonists.)
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To: Arthurio
-- This decision would effectively eliminate recess appointments. --

Yes, it would. The case even evaluates the recent intrasession interval of mere seconds. Adjourn sine die, and then gavel in the next session.

-- Obama's biggest abuse of power here was to himself declare the senate was in recess, even though it was still holding pro forma sessions. No other president has done that. --

Sometimes it takes a big abuse to uncover and unravel a long-standing deviation from the constitution.

38 posted on 01/25/2013 9:16:20 AM PST by Cboldt
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To: green iguana

“What difference does it make at this point?”

If the SC hears it, they’ll rule in favor of the Administration. If they should uphold it or not hear it, Obama will simply say, “the Appeals Court made their decision, let them enforce it”.


39 posted on 01/25/2013 9:19:17 AM PST by damper99
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To: green iguana

What difference does it make!

40 posted on 01/25/2013 9:19:43 AM PST by BulletBobCo
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To: the_Watchman
“Standing” is a very appropriate legal requirement to bring suit. How would you like it if I could bring a suit on behalf of your neighbor against you without even having your neighbor’s consent? It is intended to keep nosy people out of other people’s business.

In this scenario you have not demonstrated that you have been harmed.

The problem is when courts will not acknowledge that if a President is not qualified to hold the office then EVERYONE is harmed and therefore, ANYONE, should be able to bring suit. Thus, the interpretation of “standing” is where we have our beef.

Agreed. Hence my sarcasm.

41 posted on 01/25/2013 9:19:43 AM PST by Ray76 (Do you reject Obama? And all his works? And all his empty promises?)
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To: green iguana
Ha! Ha!...That pesky Constitution again, Obozo!
42 posted on 01/25/2013 9:20:13 AM PST by AngelesCrestHighway
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To: Cboldt

Bump for Luntz. :-)


43 posted on 01/25/2013 9:20:55 AM PST by jazusamo ("Mercy to the guilty is cruelty to the innocent." -- Adam Smith)
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To: green iguana
not going to be an easy bet, but like a lot of people said here, i say yes.
44 posted on 01/25/2013 9:22:30 AM PST by johnsondavid841
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To: Cboldt

I think the NLRB is like other agencies such as the FCC; its “final decisions” are appealable by statute to the DC Circuit. No trial court would be involved in that event.


45 posted on 01/25/2013 9:42:51 AM PST by nd76
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To: green iguana

Here is a link to the slip opinion:

http://www.cadc.uscourts.gov/internet/opinions.nsf/D13E4C2A7B33B57A85257AFE00556B29/$file/12-1115-1417096.pdf


46 posted on 01/25/2013 9:44:36 AM PST by nd76
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To: nd76

The decision below was by an administrative law judge. So, yes, you are correct, this decision is not an appeal from a District (Article III) Court.


47 posted on 01/25/2013 9:45:13 AM PST by Cboldt
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To: Tzimisce
I think you're right. Obama will ignore the judgment. If it goes to the USSC and they rule against him, he will ignore that also. Those that were appointed in this manner will stay in their posts. Nothing will happen because nobody will care other than a few lone voices in the wilderness (like here) who will either be ignored, marginalized, or shouted down. The sheeple will be the least of all to care because they will never hear of it (the media won't take it up because they want to protect Odouchebag). Even if the sheeple heard about it they either would not understand it or wouldn't care. They'll just shake their stupid heads and say, oh, it's just those Obammy-hating Republicans again.
48 posted on 01/25/2013 9:53:38 AM PST by chimera
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To: Cboldt

This appears to be an issue of interpretation so clear that even Roberts will have difficulty ruling in the President’s favour. But of course we said that before Roberts decided that an acknowledged punitive fine was in reality a “tax”, even though Obama didn’t claim it was a tax. it will all depend on what the meaning of “arISe” IS.


49 posted on 01/25/2013 9:54:57 AM PST by littleharbour
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To: nd76

Thanks for the link.


50 posted on 01/25/2013 9:59:35 AM PST by green iguana
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