Skip to comments.Court to Obama: What Part of ‘The’ Do You Not Understand?
Posted on 01/25/2013 2:13:55 PM PST by jazusamo
(CNSNews.com) - The U.S. Court of Appeals for the District of Columbia ruled today that if the word the in the U.S. Constitution carries its customary meaningwhich the court forcefully affirmed it doesthan President Barack Obama violated the Constitution and usurped power from Congress by appointing persons to federal office without securing the constitutionally required consent of the Senate.
On Jan. 4, 2012, Obama unilaterally named three people to the National Labor Relations Board (NRLB). The Senateby a unanimous agreement of all 100 senatorshad said that it was in fact still in session that day and not in the recess.
Yet despite the Senates unanimous declaration that it was in session, Obama unilaterally determined the Senate was in fact in recess on Jan. 4, 2012 and that he could therefore use the Constitutions recess appointment power to directly appoint his three choices to the five-member National Labor Relations Board, thus denying the Senate its constitutional power to confirm or reject them.
Obamas action was challenged in federal court by Noel Canning, a Pepsi distributor. The company argued that when the NRLB ruled against it in a dispute decided in February 2012, the board did not have its legally-required quorum of three members because Obamas three recess appointments were not constitutional.
Three key passages in the Constitution governed the case.
Article 2, Section 2, Clause 2 says the president shall nominate, and by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States.
Article 2, Section 2, Clause 3 says: The President shall have power to fill up all vacancies that may happen during the Recess of the Senate, by granting commissions which shall expire at the end of their next session.
Article 1, Section 5, Clause 2 says: Each House may determine the rules of its proceedings.
In an amicus brief submitted to the court, Mark Levins Landmark Legal Foundation argued that because the Constitution gives the House and Senate sole power to set their own rules of proceedings, Obama has no power to say when the Senate is in or out of session.
The President improperly arrogated to himself the power to declare the constitutional significance of the Senates proceedings, notwithstanding the prerogative to make its own rules, Landmark told the court.
If, as the Obama administration argued to the court, Obama could unilaterally determine when the Senate was in session and when it was not for purposes of making recess appointments, than the Senates power to confirm federal officials was meaningless.
Indeed, if the president has the power to determine for himself when the Senate is in recess, he can declare it in recess on a whim, during any lunch break, weekend, or even when he believes that the Senators debate has stalled and they are not working efficiently and effectively as a body, Landmark said in its brief.
So, did the court believe the president could declare the Senate in recess every weekend the members went homeor any time they broke for lunch?
In his opinion, Chief Judge David Sentelle systematically analyzed the actual constitutional language in question and what it meant to the Framers.
He pointed to the obvious: The Constitution did not talk about recesses, but about the Recess.
When interpreting a constitutional provision, we must look to the natural meaning of the text as it would have been understood at the time of the ratification of the Constitution, wrote Judge Sentelle.
Then, as now, the word the was and is a definite article. See 2 Samuel Johnson, A Dictionary of the English Language 2041 (1755) (defining 'the' as an 'article noting a particular thing' (emphasis added)), said the judge. Unlike a or an, that definite article suggests specificity. As a matter of cold, unadorned logic, it makes no sense to adopt the [National Labor Relations] Boards 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.
All this points to the inescapable conclusion that the Framers intended something specific by the term the Recess, and that it was something different than a generic break in proceedings, wrote Sentelle.
Again, the Framers have created a dichotomy, Judge Sentelle said. 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, wrote the judge. Therefore, the Recess should be taken to mean only times when the Senate is not in one of those sessions.
Judge Sentelle gave examples of statements and actions by the Framers that demonstrated this was the case. He then explained that when the Recess Appointment Clause says that presidents may fill up vacancies that may happen during the Recess it means exactly thatnamely that if a vacancy happens during the Recess the president may fill it with a recess appointment made during the Recess without a Senate confirmation vote, and that person may serve only until the end of the next "session."
A vacancy that does not happen during the Recess cannot be filled by a recess appointment, said the judge.
In the case of Obamas three NRLB appointments, the vacancies Obama sought to fill happened while the Senate was in session and Obama unilaterally appointed his people to those vacancies while the Senate was in session.
Thus Obama violated the Constitution on both scores as he usurped the Senates power to consent to the appointment of federal officials.
As discussed above, the appointments structure would have been turned upside down if the president could make appointments any time the Senate so much as broke for lunch, Judge Sentelle wrote in a passage echoing the Landmark Legal Foundation's brief.
Not only logic and language, but also constitutional history supports the interpretation advanced by Noel Canning, not that of the Board, concluded the judge.
Were very pleased that the court agreed with our position that no president is above the law, said Landmark Legal Foundation President Mark Levin. The Senate was meeting in pro forma sessions every three days when President Obama announced his appointments. They even conducted business during those sessions. This president doesnt get to tear up and toss aside the Constitution just because he disagrees with the limitations it imposes on him.
The NLRB says they intend to ignore the court ruling.
I saw that right after I posted this article, this is going to get interesting.
Thanks for linking.
Ya hear that Bill Clinton, it all depends on the meaning
The NLRB is certainly proving their union cred with their contempt for the law and constitution.
There is a fourth "key" passage that nobody is talking about.
Article I Section 5 Clause 4:
Neither House, during the Session of Congress, shall, without the Consent of the other, adjourn for more than three days, nor to any other Place than that in which the two Houses shall be sitting.
Everyone is making a big deal about whether the Senate was in recess and whether Obama can decide when the Senate is in recess. However, the Constitution says that the House of Representatives gets to decide when the Senate is in recess, and the House did NOT consent. The House remained in session, forcing the Senate to conduct pro forma sessions.
People need to put more emphasis on the House's role in this. The Senate's pro forma sessions were not a "gimmick" that excuses Obama from acting unconstitutionally
Music to my ears
Excellent point that I had forgotten also.
“The NLRB says they intend to ignore the court ruling.”
This is where states need to step forward and declare the NLRB a rogue and illegal organization. They could add some spunk by declaring that any federal bureaucrat or federal judge trying to enforce an illegal NLRB ruling is subject to arrest, fines and imprisonment.
How dare they lecture the great and powerful ObamaOZ on the Constitution! Don’t they know that he taught Constitutional law? Note I said he taught it not that he had tiniest understanding of it. Maybe that’s the problem for Obama, he is used to just making sh*t up as he goes along with out question and now some people are calling him on it.
Personally I think Michigan should step up and declare that they don’t intend to honor the appeals court ruling that overrode the will of the voters on affirmative action until the NLRB complies with the court.
You bet it is and has been for some time.
Obama wants the argument to be about the holiday breaks. I'm arguing a point against Obama's argument.
Note that the news stories are only focusing on whether the Senate was in recess or not, as if that's the end of it. If the House was not in recess, the Senate could not constitutionally be in recess. That is what is needed to rebut Obama's small argument.
But I am glad that Landmark argued the Big Argument.
How DARE that judge question the President! Doesn’t he know that Mr Soetoro was a law instructor specializing in Cloward Piven and he taught the excellent theory that the pesky Constitution is a “charter of negative liberties “?
Law abiding Senators and Representatives should request, in conference, the impeachment, by the House, and the conviction, by the Senate, of President Barak Hussein Obama for this egregious violation of the document that he swore an oath to preserve, protect, and defend. If that is not a high crime, nothing is?
I believe so, I noticed several typos in the piece.
Lets hope they apply that same measure to “...shall not be infringed”
in·fringe [in-frinj] Show IPA verb, in·fringed, in·fring·ing.
verb (used with object)
to commit a breach or infraction of; violate or transgress: to infringe a copyright; to infringe a rule.
verb (used without object)
to encroach or trespass (usually followed by on or upon ): Don’t infringe on his privacy.
“I saw that right after I posted this article, this is going to get interesting.”
Why interesting? Wouldn’t holder be the one to act on the court’s ruling? Who do you think in DC has any balls or authority to prevent obama and the nlrb from moving ahead and ignoring the court?
You’re right..DOJ already released statement:
Appointments “Constitutionally Sound”
Did you expect anything less from this POS administration, they’re just going to ignore ruling & dare the GOP to try to stop.
The GOP better grow a set & not lay down on this one but considering what we’ve seen with Boner & gang, that’s wishful thinking. Only hope is the States.
Also, for the legal eagles..
Can SCOTUS refuse to take case? Does it depend on who is next in line to review? If court does take & split decision, then appeals is upheld, correct?
“This is where states need to step forward and declare the NLRB a rogue and illegal organization.”
OR the House can underfund the NLRB’s operation. Seriously underfund it.
hahaahha at 7:12pm, Levin said that same thing: defund them
“OR the House can underfund the NLRBs operation. Seriously underfund it.”
Seriously, this is where conservatives wear myopic glasses. Not all laws are generated from the fascist federal government. States and localities can generate laws as effective, mean and soul-shattering as the pig federal government.
If stupid conservatives understood that, we could take back the country in three months or less.
It’s a start - now if we can nail Obama for illegally bankrupting the bondholders in his GM takeover, illegally violating courtorders to lift moratoria on Gulf oil drillig, illegally changing the definitions of work in the Welfare laws, and ignoring his duties in enforcing the immigration laws, we’ve got a strong case on impeachment for abuse of power......
Someone should arrest the illegal, union-loving Board. They hate the Constitution. Commodity bastar*s.
The states should ignore NLRB dictates.
ICE agents won a ruling against Obama today.
>>Ten U.S. immigration officers won a court ruling allowing them to challenge an Obama administration directive that lets some undocumented immigrants who arrived in the country as children avoid deportation.<<
Good job Mark.
Most of the discussion has been about whether the Senate was in recess at the time the appointments were made but I would argue that the above quotation is the most important aspect of this ruling. Congress was essentially a part time body when the Constitution was adopted and this provision was included to provide for continuity of government functions when the Senate was not physically present to consider appointments. When the Congress became a full time body, this provision became essentially meaningless.
Commodity should be communist...da** auto correct on Fire.
I agree with you in total.
If this ruling is appealed to SCOTUS and upheld it will return recess appointments to the original intention which will in effect negate them. Only under very specific circumstances could they be implemented in the future.
Suppose “recess” means what Obama says it means - a lunch break, for example. If so, then the “session” starts when they come back in the afternoon. The “session” ends when they break for dinner - and so does the recess appointment.
Great - another plank in the impeachment platform.....
The NLRB says they intend to ignore the court ruling.
They can ignore the ruling, but the businesses that they try to regulate can ignore the ‘board’ and/or even challenge them in court since the court has ruled that they have no authority to regulate the businesses at all!
At this point, the administration has two choices—within 45 days they can file a petition with the US Court of Appeals for the DC Circuit for the case to be re-heard by an “en banc” panel of all of the sitting judges of the court (at present, there are 8 full-time judges seated at the DC Circuit, and 5 “senior status” judges, meaning that there are 3 vacancies there at the present time (the judiciary act allows 11 full-time judges on the DC Circuit). Of the 8 judges, five are GOP appointments (Chief Judge Sentelle was appointed by Reagan, Judge Henderson was appointed by GHW Bush, and the other three (Brown, Griffiths and Kavanagh) were apponted by GW Bush), and three are Clinton appointees (Tatel, Rogers and Garland). Of the “senior status” judges, Harry Edwards (a Carter appointee) is a Dem, the other 4 (Stephen Williams, Raymond Randolph, Douglas Ginsburg and Laurence Silberman) were Reagan appointees. Seeking “en banc” consideration of the ruling below seems to be a time wasting choice only, as it seems there is no way that Obama could get the remaining 5 full-time judges to reverse the 3 judge panel of C.J. Sentelle, and JJ. Henderson and Griffiths.
The other alternative is that the Obama regime has 90 days (if I remember my civil procedure correctly) to file a Petition for Issuance of a Writ of Certiorari with the Supreme Court. It takes the affirmative vote by statute of four justices on the US Supreme Court to grant such a petition. Therefore, the 4 ‘Rat appointees on the Supreme Court could vote to grant the petition, forcing the entire 9 member court to consider the case on its merits. What happens next is that the court sets down a schedule for briefs (the Regime would file the brief-in-chief, the winning parties at the DC Circuit would file an opposition brief, any intervenors and all of the parties allowed in as “friends of the court” (i.e., amici) would have a date certain to file “amicus curiae” briefs, and then the Regime would have a date to file a Reply Brief.
The Supreme Court can then either order an oral argument to be held before all 9 justices in the famous courtroom on First Street in DC, or can actually hold a vote to decide the case on the briefs. They don’t have to write their own opinion, but could adopt the DC Circuit’s opinion as their own. More likely, they will order that an oral argument be held, and each side will get somewhere between 30 and 60 minutes to argue their respective positions (the Regime is allowed to reserve time, such as 5 minutes, for rebuttal argument, at the end of the proceedings). The argument ends. At the next private conference of all nine justices (usually the Friday morning after the argument), the justices discuss the case among themselves and vote. The Chief Justice announces the vote; if he is in the majority, he decides who writes the opinion; if not, the most senior justice who is in the majority decides who writes the opinion. Each justice is free to write his or her own concurring or dissenting opinion, which is released at the same time that the opinion of the court is released.
However, if three or fewer justices vote in favor of the certiorari petition, the petition is denied, and the case is over.
I think that since this is such an important federal question that deals with the essence of the separation of powers, the Supreme Court is going to take up this case. If this were a normal case, it would not be heard until the next term of the Court which starts in October, 2013, and would not be decided until June, 2014. However, I think that this is a case of unique importance (research the Youngstown Sheet Tube case decided during the Truman administration when HST tried to nationalize the steel industry and was shot down by the federal courts—the late Justice Rehnquist offers a first hand account of the handling of this case in his wonderful book about the Supreme Court) that, since the administration has rattled its swords about not being bound by the DC Circuit opinion, the court could take this up on an expedited basis and lay down the law in a no uncertain terms fashion.
SCOTUS will just declare that congress approved the appointments. That makes it legal.
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