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Name: MADDOG10
Location: Beautiful Florida
Country: United States
Interests: restoring old cars, winning the lottery, avid football fan, and riding my motorcycles... Both (Harleys)...!!

Friday, January 25, 2013

Oh My, How dare they do this.

Obama recess appointments unconstitutional

    By Stephen  Dinan

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The Washington  Times

Friday, January 25, 2013

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In a case freighted with major constitutional implications, a federal   appeals court on Friday overturned President Obama’s controversial  recess appointments from  last year, ruling he abused his powers and  acted when the Senate was not actually in a recess.

The three-judge panel’s ruling is a major blow to Mr.  Obama. The judges  ruled that the appointments he made to the National  Labor Relations  Board are illegal, and hence the five-person  board did not have a quorum  to operate.

But the ruling has even broader constitutional significance, with the  judges  arguing that the president’s recess appointment powers don’t  apply to  “intra-session” appointments — those made when Congress has  left town for a few days or weeks.  They said Mr. Obama erred when he  said he  could claim the power to determine when he could make  appointments.

“Allowing the president to define the scope of his own appointments  power  would eviscerate the Constitution’s separation of powers,” the  judges said in  their opinion.

The judges said presidents’ recess powers only apply after Congress has  adjourned a session permanently, which in modern times usually means  only  at the end of a year. If the ruling withstands Supreme Court  scrutiny, it would dramatically  constrain presidents in the future.

And the court ruled that the only  vacancies that the president can use  his powers on are ones that arise when the  Senate is in one of those  end-of-session breaks.  That would all but eliminate the list of  positions the president could fill  with his recess powers.

White House dissent

White House press secretary Jay  Carney called the ruling “novel and  unprecedented,” and said it contradicts  150 years of practice by  presidents of both parties.

“We respectfully but strongly disagree with the rulings,” he said.

But Noel Francisco, a lawyer at Jones  Day who argued the case for the  company that challenged the NLRB appointments, said the court had  returned  to the Constitution’s intent, which was to make the recess  appointment an  emergency power for use only when Congress was  not  available.

“Issues like this — it’s not about protecting the Congress from the  president and the president from  Congress,” Mr.  Francisco said. “The  Constitution draws these lines ultimately to limit the  government to  protect the people.”

In their ruling the judges said their duty is not to speed up the  workings  of government, but to hold to constitutional principles.

“If some administrative inefficiency results from our construction of  the  original meaning of the Constitution, that does not empower us to  change what  the Constitution commands,” the judges wrote.

The judges said the recess power was created for a time when Congress  met only a few months out of the year, and was designed for the  president to  fill vacancies during the long periods when Congress was  not meeting. In modern times, when Congress is almost always capable of  meeting, the  recess powers should be more circumscribed.

In the short term, the ruling invalidates one NLRB decision. But over  the longer term it could invalidate a year’s worth of  decisions by the  independent agency, could undercut Mr.  Obama’s new consumer watchdog  agency set up in the 2010 Wall Street reform  law, and could even call  into question decisions made by some judges who were  given recess  appointments.

Defining recess

The case is likely to end up before the Supreme Court, and will likely  on the  definition of what the Constitution means when it says “recess.”

Last January Mr. Obama named union lawyer  Richard Griffin and Labor  Department official Sharon Block, both Democrats, and  a Republican, NLRB  lawyer  Terence Flynn, to the labor  board using his recess powers. He  also named Richard Cordray to head the  new Consumer Financial Protection  Bureau, using those same powers.

Noel Canning, a bottling company, sued the NLRB,  arguing that a rule  issued by the new  board was illegal since the recess appointments were  unconstitutional. Senate Republicans, led by Minority Leader Mitch  McConnell, joined in the suit.

The appeals court panel, which sits in Washington, D.C., was skeptical  of Mr. Obama’s case during oral argument in early  December, with Chief  Judge David B. Sentelle and Judge Thomas B. Griffith  peppering the  administration lawyers with questions.

The Constitution gives the president the power to nominate judges and   executive branch officials, but the Senate must  vote to confirm them  before they take office. Article II, Section 2 of the  Constitution  grants the president powers “to fill up all vacancies that may  happen  during the recess of the Senate.”

Those powers have produced centuries of give-and-take, with senators   regularly slow-walking nominees and the White  House looking for ways to  get its nominees in place — including the recess  appointment.

Mr. Obama, though, appeared to break new  ground by acting at a time when  the Senate was  meeting every third day, specifically to deny him the  chance to make  appointments.

The problem is the word “recess” has several meanings in  legislative-speak.  It can mean a short break during the day, it can mean  a break of days or weeks  for a holiday, or it can mean the end of a  yearly session.

The president argued that even though the Senate was convening every  three days, the pro forma  sessions didn’t allow any business, and nearly  every senator was absent from  the chamber, signaling that the Senate  wasn’t  able to perform its confirmation duties and should be considered  essentially in  recess.

His opponents had warned that if Mr.  Obama’s stance prevailed, then  presidents could make appointments when the  Senate takes its midday  recess for weekly party  caucus lunches.

The judges on Friday ruled that the only clear bright line is when the Senate recesses at the end of the year.

“The dearth of intra-session appointments in the years and decades  following  the ratification of the Constitution speaks far more  impressively than the  history of recent presidential exercise of a  supposed power to make such  appointments,” the judges wrote. “Recent  presidents are doing no more than  interpreting the Constitution. While  we recognize that all branches of  government must of necessity exercise  their understanding of the Constitution  in order to perform their duties  faithfully thereto, ultimately it is our role  to discern the  authoritative meaning of the supreme law.”

Victor K. Williams, an assistant  professor at Catholic University School  of Law who filed briefs arguing that  the court should reject the case  as a  political question between Congress and the  president, called the  judges’ ruling “historically wrong.”

“This panel of the D.C. circuit has accomplished what Minority Leader  Mitch McConnell failed to do. Minority  Leader McConnell said that his  No. 1  objective was defeating Barack Obama and Barack Obama’s attempt to  govern. This D.C.  circuit panel has been successful where McConnell  failed. they have really,  effectively challenges the president’s ability  to govern,” Mr.  Williams said.

The judges’ ruling puts them at odds with several other federal appeals   courts that have ruled the other way. And another case is making its way   through the D.C. circuit and could be heard by another three-judge  panel.

Mr. Williams said the Justice  Department faces an interesting choice: It  could allow those other cases to  work their way through the rest of the  courts, or it could appeal immediately  to the Supreme Court.

The administration could also ask the full D.C. circuit to re-hear the  case.

Read more: http://www.washingtontimes.com/news/2013/jan/25/federal-court-obama-broke-law-recess-appointments/#ixzz2J1b7rXhO Follow us: @washtimes on Twitter

4 Comments:

MADDOG10 said...

Thanks to Em, for the link to this story...!

4:33 PM
emilyg said...

Thanks. I meesed up the copy and paste.   Glad u posted.

4:42 PM
rdgrnr said...

There oughta be some kind of fine or penalty for these crimes he's committing.
Automatic Impeachment would be better.

5:13 PM
sully16 said...

Prison would be better, all of them, everyone who betrayed us for the dollar, that they themselves are destroying,

6:52 PM

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