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.”
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”
From Dictionary.com
in·fringe [in-frinj] Show IPA verb, in·fringed, in·fring·ing.
verb (used with object)
1.
to commit a breach or infraction of; violate or transgress: to infringe a copyright; to infringe a rule.
verb (used without object)
2.
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 NLRB’s 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.<<
http://www.bloomberg.com/news/2013-01-25/agents-can-challenge-u-s-deferred-deportation-plan.html
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.
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