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 meaning—which the court forcefully affirmed it does—than 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 Senate—by a unanimous agreement of all 100 senators—had said that it was in fact still in session that day and not in the recess.
Yet despite the Senate’s 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 Constitution’s 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.
Obama’s 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 Obama’s 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 Levin’s 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 Senate’s 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 Senate’s 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 home—or 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] 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.”
“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 that—namely 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 Obama’s 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 Senate’s 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.
“We’re 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 doesn’t 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
of “THE”.
Bwhahahahah.
The NLRB is certainly proving their union cred with their contempt for the law and constitution.
Terry,
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
-PJ
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.
-PJ
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 “?
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