If This Decision Stands, What Happens Next ?

The Daily Caller (along with many other news sources) is reporting today that the United States Court of Appeals for the District of Columbia Circuit has ruled that President Obama’s appointments to the National Labor Relations Board made during the time that the President declared that the Senate was in recess are unconstitutional. The President does not have the power to declare whether or not the Senate is in recess–that is up to the Senate.

The article reports:

The Jan. 25 ruling came after Republican senators filed a case arguing that Obama did not have the power to appoint top-level officials via a “recess appointment” if the Senate says it is in session.

Obama made that claim when he announced the appointment of two people to the National Labor Relations Board in January 2012.

The appointments allowed the board to subsequently issue a series of pro-labor, anti-business decisions. Following the court’s ruling, the board’s decisions are now vulnerable to a series of lawsuits.

Obama used the same claim to appoint Democratic lawyer Richard Cordray to head the new Consumer Financial Protection Bureau in January 2012.

The Landmark Legal Foundation further explains:

…three appointments to the five-member NLRB by President Obama made on January 4, 2012, under the Constitution’s Recess Appointments Clause (Article II, Section 2, Clause 3), were not valid  because the Senate was not in recess at the time the appointments were announced. 

There have been a number of rulings by the NLRB and the Consumer Financial Protection Bureau since these recess appointments. Theoretically all those actions will be nullified because the people making the decisions were not legally entitled to make them.

The specific case that was ruled on was Noel Canning v. National Labor Relations Board. I am sure that we have not heard the end of this.

When Is A Recess Not A Recess ?

One of the reasons I love Power Line Blog is that John Hinderaker, its main writer, is a lawyer and explains everything in a logical, lawyerly way. I don’t always understand what he is saying, but I appreciate the logical approach.

Today Mr. Hinderaker posted an opinion by Michael McConnell on the Justice Department’s statement that President Obama’s recess appointments, made when Congress was not really in recess, are legal.

The Opinion places enormous weight on the fact that the Senate’s resolution providing for pro forma sessions declared that there would be “no business conducted.” There are two problems with this, as a legal matter. First, as the Opinion concedes, the important question is whether at these sessions the Senate is “capable” of exercising its constitutional functions – not whether, on any particular occasion, it has chosen not to do so. Second, in actual fact the Senate has conducted major business during these sessions, including passing the payroll tax holiday extension during a pro forma session on December 23. The Opinion weakly responds that, notwithstanding this evidence of actual practice, the President “may properly rely on the public pronouncements of the Senate that it will not conduct business.” It is hard to see why the Senate’s stated intention not to do business takes legal and constitutional precedence over its manifest ability to do so. The President is well aware the Senate is doing business on these days, because he has signed two pieces of legislation passed during them.

Please follow the above link to the article to read the entire opinion. The article concludes with the following statement:

Given the extent to which Barack Obama and Eric Holder have politicized the Department of Justice, it is really not too surprising that in the view of Obama’s DOJ, the law really does depend on which party occupies the White House.

These appointments showed a total disregard for the Constitution and the separation of powers. The Republicans need to make a big deal of this. We don’t have a king–we have a President whose appointments are subject to the advice and consent of the Senate. The Senate needs to object to being ignored in this process. I have a feeling that if George W. Bush had done this, we might have heard a lot more about it.

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