White House Condemns Court Ruling On 'Unconstitutional' Obama Appointments [Imperial Presidency!]

Guardian (UK) ^ | January 25, 2013

[Steelfish]

White House Condemns Court Ruling On 'Unconstitutional' Obama Appointments Spokesman says ruling heralded by Republicans' lawyers as 'stinging rebuke' to president is 'novel and unprecedented' 25 January 2013

The Obama administration is likely to appeal to the Supreme Court over its right to make direct appointments when Congress is in recess.

Barack Obama breached the constitution when he bypassed Congress to make appointments to a labour relations panel, a federal appeal court ruled on Friday in a decision that was condemned by the White House as "novel and unprecedented".

The judgement, from a three-judge panel of the US court of appeals for the DC circuit and regarding the filling of vacancies at the the National Labor Relations Board (NLRB), represents a significant legal victory for Republicans and big business. It could also severely restrict the president's use of a constitutional provision that permits him to directly appoint officials without congressional approval.

Successive presidents have used the provision to place hundreds of officials who have been rejected, or are likely to be rejected, by the Senate at confirmation hearings.

But in what lawyers for the Republican congressional delegation called a "stinging rebuke" to Obama, the court narrowed the president's authority considerably by ruling that the constitution only permits him to make those appointments when the vacancy occurs during a recess between individual Congresses, such as occurred earlier this month when a newly elected Congress took office. Any appointment must then be made during the same recess.

"The filling up of a vacancy that happens during a recess must be done during the same recess in which the vacancy arose," the court said.

The ruling struck down the president's appointment of three people to the NLRB a year ago, but if it stands it is likely to have much wider implications.

[plain talk]

"The filling up of a vacancy that happens during a recess must be done during the same recess in which the vacancy arose," the court said.

I thought the issue was that Congress was really not in recess. Or is that another one? I didn't know when the vacancy occurred made a difference. Let's say a vacancy occurs and a President tries to fill the vacancy but has problems. Congress goes into recess. Congress then comes back into session. The President tries to fill the vacancy but encounters rejection. The Congress goes into recess. Why can't a President fill the appointment. The vacancy could have first opened up 3 years ago or whatever. what difference does that make? Just wondering.

[onyx]

Aye

[Sivad]

How dare they! Pull out your pen, Barry, and Executive
Order that federal court right out of existence.

[Cboldt]

-- I thought the issue was that Congress was really not in recess. Or is that another one? I didn't know when the vacancy occurred made a difference. --

The way the court resolved the issue was to determine the meaning and function of the recess appointments clause. Not only did the court conclude that the Senate was not in recess, it also defined the circumstances that satisfy the recess appointments clause.

To wit, a recess happens, on average, once a year (adjourn sine die is the legal marker); and the only vacancies that are amenable to recess appointment are those that happen, occur, start, begin during a recess.

So, now, in the DC Circuit, the timing of when a vacancy occurs makes a difference.

[C210N]

Well, one reason would be that if Congress, collectively at least, does not want a position filled... it does not get filled. Remember, Congress and the Prez are partners in the process, each with a role. It’s like Congress has a veto.

A recess appt gives the benefit of the doubt to the prez to make a LIMITED appointment when they are out of town between sessions, because the previous appointment never got even the chance of being considered by the Congress.

[One Name]

No scholar here- but I would surmise that the intent of a recess appointment was to be a temporary measure when a vacancy occurred DURING a recess, not a way to place unapprovable candidates into offices, where vacancies had existed prior to recess...

Many more here at FR are schooled in this- I await illumination.

[virgil]

There is the text of the ruling that goes into detail about what constitutes a recess vs. THE recess. What’s an adjournment and what’s a session. They say the constitution was written at a time when Congress could go months without being in session. I hardly think that just because Congress doesn’t convene for 3 days means that it’s in recess. If the office has been vacant for 3 years like in your example, there’s no excuse for making an appointment during a recess. Presidents have been abusing the recess appointment thing for decades.

[Bshaw]

Mark Levin opened his program using Obama’s own words:

“If Congress will not act, I will.”

The court said you acted unconstitutionally Mr. President. But then, you excel at that.

[Cboldt]

-- Well, one reason would be that if Congress, collectively at least, does not want a position filled... it does not get filled. Remember, Congress and the Prez are partners in the process, each with a role. It's like Congress has a veto. --

Congress created the NLRB, and it can destroy the NLRB. The "partnership" exists only because Congress created it.

[VanShuyten]

Brits don’t understand Constitutional law. Ignore this article.

[rbmillerjr]

The BoyKing will be irate, as will sycophants like Joe Scarborough.

I look forward to Joe scolding the court on Monday morning.

[Michael.SF.]

"It could also severely restrict the president's use of a constitutional provision"

They really are not paying attention over there, are they?

[FredZarguna]

I agree with Cboldt. This is actually a very broad ruling, and now I think the Supreme Court will have to consider the ruling in its entirety on appeal. The original sticking point was: the appointment was made, and Congress was not actually in recess. In its decision the appeals court has basically swept aside as Unconstitutional a lot more than it was asked to consider.

If this is upheld by the SCOTUS, the use of recess appointments to temporarily get people such as John Bolton into office is now dead (unless you can persuade current officeholders to wait for recess.)

Much as I liked Bolton, I think it's actually a good thing.

[FredZarguna]

They don’t even understand the difference between the constitution and The Constitution. How do you expect them to keep up with anything serious?

[pepsionice]

We should make one comment here...this method of “not being in session” during the Xmas period....was invented by Harry Reid toward the last year or two of Bush’s period. Basically...some Senator would walk into the Senate...state some business, open a session, and do a carry-over till tomorrow, and the next day...etc. It was a fake session, but Bush and his legal team figured that it’d be legit enough for the court (he was right).

So what Harry Reid invented....worked, and sadly, it also affected President Obama.

Here’s the final piece of this mess...the people appointed....made decisions that affected people’s lives. You can figure at least 10k cases that will be brought over the next year that center back over this appointment issue. Lawyers stand to make at least $500 million in legal costs (my humble belief)....all because of what Harry Reid started.

[trailboss800]

Someone tell the Kenyon to STHU. We’re tired of his whining.

[Lazamataz]

"It could also severely restrict the president's use of a constitutional provision" .... They really are not paying attention over there, are they? ....

More that you know.

[Safetgiver]

I thought the issue was that Congress was really not in recess. ...That was the problem. The Congress WAS in session but were not meeting regularly. Obunghole saw this and jumped. It is not meant that if Congress takes a lunch break, the President can use this perogative.

[Eye of Unk]