Tag Archives: United States Court of Appeals for the District of Columbia Circuit

Playing Politics With The National Labor Relations Board

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Yesterday The Washington Examiner posted an article about Lafe Solomon, the former acting general counsel for the National Labor Relations Board (NLRB) from 2011 through 2013. Evidently his service violated the law that applies to federal appointments.

The article reports:

Solomon, a long-time board lawyer, was appointed acting general counsel by Obama in June 2010 and officially nominated to the position, which requires Senate approval, the following January. However, the Senate, then under Democratic control, never held a vote on his nomination. Solomon continued to serve through November 2013, when the current general counsel, Richard Griffin, was confirmed by the Senate.

That same year, SW General, Inc., an Arizona-based ambulance company, challenged a NLRB complaint against it, alleging that Solomon was serving in violation of 1998 law called the Federal Vacancies Reform Act. The law says that once the president nominates someone for a position that requires Senate confirmation, that nominee cannot serve until they are confirmed. It includes an exception if the nominee had previously been “first assistant” to the last person to hold the office. On Friday, the federal court sided with the company and against the board.

“Because Solomon was never a first assistant and the President nominated him to be General Counsel on January 5, 2011, the FVRA prohibited him from serving as Acting General Counsel from that date forward,” the court found.

Lafe Solomon was the person behind the NLRB’s move against Boeing when they built a plant in South Carolina.

The article comments on the Boeing case:

The case prompted loud complaints from business groups and Republican lawmakers, who argued the board was trying to make a business decision to locate in a right-to-work state like South Carolina itself evidence of a labor rights violation. The NLRB complaint was withdrawn after Boeing and the union reached a settlement in 2011.

President Obama has not been the President of the entire country. He has been the President of the special interest groups he likes–among them big labor. Remember that in the bailout of Chrysler, he favored retired union workers over secured bond holders. (rightwinggranny.com). The only hope for the survival of America is to elect a President who will faithfully uphold the Constitution and follow the law. There are a few candidates who fit that description, and hopefully the American people will realize the danger their country is in and elect one of them.

The Internal Revenue Service And ObamaCare

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Yesterday Kim Strassel posted an article at the Wall Street Journal entitled “The ObamaCare–IRS Nexus.” It is subscriber content, but if you google the title, you can read the entire article.

The article details the role of the IRS in the implementation of ObamaCare and the questionable steps the agency has taken in that implementation.

The article reports:

The D.C. Circuit Court of Appeals ruled in Halbig that the administration had illegally provided ObamaCare subsidies in 36 insurance exchanges run by the federal government. Yet it wasn’t the “administration” as a whole that issued the lawless subsidy gift. It was the administration acting through its new, favorite enforcer: the IRS.

And it was entirely political. Democrats needed those subsidies. The party had assumed that dangling subsidies before the states would induce them to set up exchanges. When dozens instead refused, the White House was faced with the prospect that citizens in 36 states—two-thirds of the country—would be exposed to the full cost of ObamaCare’s overpriced insurance. The backlash would have been horrific, potentially forcing Democrats to reopen the law, or even costing President Obama re-election.

The White House viewed it as imperative, therefore, that IRS bureaucrats ignore the law’s text and come up with a politically helpful rule. The evidence shows that career officials at the IRS did indeed do as Treasury Department and Health and Human Services Department officials told them. This, despite the fact that the IRS is supposed to be insulated from political meddling.

It gets worse. The article tells us that in late summer of 2010, after ObamaCare was signed into law, the IRS assembled a working group—made up of career IRS and Treasury employees—to develop regulations around ObamaCare subsidies. The early group followed the text of the law and declared that subsidies were for exchanges established by the States.

The article explains what happened next:

Yet in March 2011, Emily McMahon, the acting assistant secretary for tax policy at the Treasury Department (a political hire), saw a news article that noted a growing legal focus on the meaning of that text. She forwarded it to the working group, which in turn decided to elevate the issue—according to Congress’s report—to “senior IRS and Treasury officials.” The office of the IRS chief counsel—one of two positions appointed by the president—drafted a memo telling the group that it should read the text to mean that everyone, in every exchange, got subsidies. At some point between March 10 and March 15, 2011, the reference to “Exchanges established by the State” disappeared from the draft rule.

…To summarize: The IRS (famed for nitpicking and prosecuting the tax law), chose to authorize hundreds of billions of illegal subsidies without having performed a smidgen of legal due diligence, and did so at the direction of political taskmasters. The agency’s actions provided aid and comfort to elected Democrats, even as it disenfranchised millions of Americans who voted in their states to reject state-run exchanges. And Treasury knows how ugly this looks, which is why it initially stonewalled Congress in its investigation—at first refusing to give documents to investigators, and redacting large portions of the information.

Congratulations. We have become a banana republic. The law is what the political party in power says it is. The IRS is an organization to be used to silence and suppress political opposition. The use of the IRS for political purposes was the second article in the Articles of Impeachment against Richard Nixon.

Another Significant ObamaCare Court Case

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Yesterday National Review Online posted an article about a current court case that represents a significant threat to ObamaCare. Halbig v. Sebelius (since renamed Halbig v. Burwell, for the current HHS secretary) was argued before a three-judge panel of the U.S. Court of Appeals for the D.C. Circuit Court in March. The case involves the government subsidies paid by the exchanges included in ObamaCare.

The article states:

If the Supreme Court ultimately finds that the Obama administration violated the law in doling out those subsidies, it could force a wholesale revision of Obamacare. In January, The Hill quoted a key Obamacare supporter as saying that Halbig was “probably the most significant existential threat to the Affordable Care Act.” Jonathan Turley, a noted liberal constitutional-law expert at George Washington Law School, recently agreed, writing in the Los Angeles Times that Halbig “could leave Obamacare on life support.”

…The Halbig plaintiffs — individuals and small businesses in six states that didn’t establish state exchanges — argue that the Obama administration is breaking the law by offering those tax subsidies in all 50 states. The plaintiffs argue that if the subsidies hadn’t been offered in their states, they would have been exempted from the individual-mandate penalties of Obamacare because they couldn’t have afforded to pay for health coverage.

I have no idea how this case will be decided. The writer of the article believes that if the case is decided against ObamaCare it will force Congress and the President to make positive changes in the law (particularly if a Republican Congress is elected).

The U.S. Court of Appeals for the D.C. Circuit is expected to rule on this case within the next week.

 

Good News For Religious Freedom

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Ed Morrissey at Hot Air posted an article today about a recent decision by a divided three-judge panel of the Court of Appeals for the District of Columbia Circuit. The ruling states that forcing business owners to fund and facilitate contraception and sterilization services against the tenets of their faith encroaches on their free exercise of religious belief, and that the government’s argument that protecting womens’ health trumped that right was absurd.

The article reports:

…What Judge Janice Rogers Brown wrote in her decision was that corporations themselves, whether for-profit or non-profit, do not have First Amendment standing for religious exercise.  However, those who own or run them do, and even though the Gilardis’ businesses are corporations, the net effect of the HHS mandate is to penalize the Gilardis individually for living their faith.

The argument the Obama Administration has made for the requirement that companies provide contraception and abortion services is that these services need to be covered in order to protect women’s health. The Court seems to be saying that providing insurance for these services does not necessarily protect a woman’s health and should not override the religious freedom granted in the First Amendment.

This case or a similar case will eventually make its way to the Supreme Court.

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What Good Are Laws If The Government Ignores Them?

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Yesterday George Will posted a column at the Washington Post about a court decision that is an attempt to make the executive branch of government follow the laws Congress passes.

The article reports:

…last week, the U.S. Court of Appeals for the District of Columbia instructed the Nuclear Regulatory Commission (NRC) to stop “flouting the law.” Judge Brett M. Kavanaugh said: “It is no overstatement to say that our constitutional system of separation of powers would be significantly altered if we were to allow executive and independent agencies to disregard federal law in the manner asserted in this case.”

So what is this all about? In 1982, the Nuclear Waste Policy Act of 1982 stated that the Nuclear Regulatory Commission (NRC) “shall consider” the Yucca Mountain application to become a repository, and “shall” approve or disapprove the application within three years of its submission. The application was submitted in 2008.

The NRC has no intention of complying with the law–former (NRC) Chairman Gregory Jaczko had previously served on the staff of Nevada Senator Harry Reid and was placed at the NRC to prevent the storage at Yucca Mountain from taking place. He resigned last year.

The NRC is considered part of the executive branch. It has no legal right to disregard a law enacted by Congress.

The article concludes:

This episode is a snapshot of contemporary Washington — small, devious people putting their lawlessness in the service of their parochialism and recklessly sacrificing public safety and constitutional propriety. One can only marvel at the measured patience with which the court has tried to teach the obvious to the willfully obtuse.

Until we elect different people to office in Washington, we can expect more of this.

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Should The President Be Allowed To Ignore The Constitution ?

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Yesterday the Washington Examiner posted an article by Michael Barone on President Obama’s tendency to ignore the law when he decides he wants to do something. The article cites a number of examples.

In January 2012 President Obama made some recess appointments–three members of the National Labor Relations Board and the head of the Consumer Financial Protection Bureau (CFPB). Unfortunately the Senate did not happen to be recess at the time.

The article reports:

Last month the U.S. Court of Appeals for the District of Columbia ruled unanimously that the NLRB recess appointments were unconstitutional.

…decisions of the NLRB are the CFPB are in legal limbo, pending a Supreme Court decision. Hundreds of thousands of people and are affected and millions of dollars are at stake. There is a price for not observing the rule of law.

The article goes on to list a few more examples:

For several years the Obama administration has refused to obey a law requiring the president’s budget to be submitted on a certain date. As budget director, Treasury nominee Jack Lew refused to obey the law requiring him to issue a report in response to the trustees’ report on Medicare.

During the 2012 campaign the Pentagon told defense contractors not to inform employees that they may be laid off if the sequester took effect as required by the WARN Act.

They were even told that the government would pay any fines for not complying. What law authorizes that?

…In spring 2009 we got our first glimmers of this modus operandi. In arranging the Chrysler bankruptcy administration, officials brushed aside the rights of secured creditors in order to pay off the United Auto Workers.

This represents a pattern–there are no isolated incidents here. Unfortunately we have almost four more years to get through before we can get back to the Constitution.Enhanced by Zemanta

A Wise Decision By A Court

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The Daily Caller is reporting today that the United States Court of Appeals for the District of Columbia has ruled that the Environmental Protection Agency cannot force refiners to use cellulosic biofuels, which aren’t commercially available.

The article reports:

The court sided with the country’s chief oil and gas lobby, the American Petroleum Institute, in striking down the 2012 EPA mandate that would have forced refineries to purchase more than $8 million in credits for 8.65 million of gallons of the cellulosic biofuel. However, none of the biofuel is commercially available.

The decision applies to the cellulosic biofuel which is currently not commercially available–it does not apply to  EPA regulations regarding other renewable fuels, like ethanol and biodiesel.

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If This Decision Stands, What Happens Next ?

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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.