In what appears to be the start of a recurring feature here at United Liberty, reporters David Ingram and Aruna Viswanatha at Reuters completely, totally, and I wonder if deliberately, mess up the entire situation around President Obama and his NLRB appointments, which were declared unconstitutional last week by the DC Circuit Court of Appeals. This is what they wrote:
While President Barack Obama considers his next move in one high-stakes legal fight to fill vacant jobs, his lawyers expect to go to court at least twice more to argue for his power to appoint when the U.S. Senate is not meeting.
Federal appeals courts in both Philadelphia and Richmond, Virginia, are likely to hear the issue of recess appointments in March, possibly during the same week.
The hearings will be an opportunity for Obama’s lawyers to rebound after a blockbuster ruling on Friday, when a court in Washington, D.C., held that three recess appointments to the National Labor Relations Board (NLRB) were invalid.
Although the three-judge ruling on Friday upturned 190 years of understanding about how a president may fill vacant jobs, it will not take effect immediately.
Except there is one major, major flaw with their story: The United States Senate was in session.
That means that these were not true recess appointments; since the Senate was in session, Obama had no authority to just appoint these officers, they had to be confirmed by the Senate.
If you live inside the beltway, you may have heard that Rep. Walter Jones (R-NC) has put forward a bill that would make any instance of the executive using the military without going through Congress an impeachable offense:
In a House Resolution introduced last week, Rep. Walter B. Jones (R-NC) put forward use of the military by the executive branch without explicit authorization from Congress as an impeachable offense: one which some conservatives believe President Barack Obama has already committed.
The bill’s author, Rep. Jones, was once a Democrat who switched parties before seeking congressional office in the 90s. He endorsed former Rep. Ron Paul (R-TX) for president in 2008, and has been one of the Republican Party’s loudest critics of the presidency’s warmaking powers.
“When you talk about war, political parties don’t matter,” he told The New York Times last year.
While not directly calling for impeachment, the bill would declare “that it is the sense of Congress that, except in response to an actual or imminent attack against the territory of the United States, the use of offensive military force by a president without prior and clear authorization of an act of Congress violates Congress’s exclusive power to declare war… and therefore constitutes an impeachable high crime and misdemeanor under Article II, Section 4 of the Constitution.”
In other words, the bill would, in effect, serve as a trigger mechanism for impeachment proceedings.
There’s an old saying, “What’s good for the goose is good for the gander.” For the metaphorically impared among you, it means that if something is acceptable for one person to do, then it should be equally acceptable when another does the exact same thing. Failure to adhere to this is generally called hypocrisy.
So, now that President Obama has made three recess appointments - you know, without Congress actually being in recess or anything - there is a factor out there that’s not really being discussed. Sure, many people are arguing against the constitutionality of his actions, and rightly so. However, the question I have is whether Democrats who are applauding this move now will do so when a Republican president tries it a few years down the road?
For the record, I’m going to guess that they won’t be as understanding.
This isn’t a new phenomenon in politics in the least. Look at arguments against President Clinton getting us involved in Kosovo. They look remarkably like arguments made against President Bush getting us involved in Iraq (including the idea that we should get United Nations support). The only difference was the speakers. On the flip side, the arguments for going into Kosovo were mirrored by the other side leading up to our invasion of Iraq.
The thing is, these kinds of moves only create a precedent by which the other side can try the exact same thing next time around. However, many progressives are applauding the action. Many conservatives are denouncing it. I’m willing to bet that the next time around, the roles will be a complete 180 from where they are now and I would laugh if it wasn’t so tragic.
The Third Circuit Court of Appeals has delivered another blow to President Barack Obama, who has had an incredibly rough week due to a series of very serious scandals, by finding a recess appointment to the National Labor Relations Board (NLRB) to be unconstitutional:
The 3rd U.S. Circuit Court of Appeals on Thursday said an appointment President Barack Obama made to the National Labor Relations Board was invalid, becoming the second circuit to question the validity of the labor board’s decisions.
The 102-page opinion, in a case called National Labor Relations Board v. New Vista, focused on the appointment of Craig Becker, a former board member who was appointed by Obama during a two-week Senate break in March 2010. (Becker stepped down from the board in 2012.) These breaks are often referred to as “intrasession” breaks, as opposed to intersessions, when the Senate is between sessions.
“We hold that the ‘recess of the Senate’ means only intersession breaks, and so we conclude that Member Becker’s appointment was invalid,” Judge Brooks Smith of the 3rd Circuit wrote in a 2-1 decision that Judge Franklin Van Antwerpen joined and Judge Joseph Greenaway dissented from.
There were actually three recess appointments made by President Obama to the NLRB in January 2012, but the appellate court only focused on one. In a decision earlier this year, the DC Circuit Court of Appeals found all three to be unconstitutional.
In a new video from the Heritage Foundation, Sen. Mike Lee (R-UT) explains why President Barack Obama’s recent recess appointments of Richard Cordray to the Consumer Financial Protection Bureau and three new members to the National Labor Relations Board are both unconstitutional and an abuse of Executive Power*:
*Many of us here at United Liberty are wondering where the Heritage Foundation was when George W. Bush was abusing Executive Power, but we digress.
“[T]he Holy Grail of universal coverage in the United States may remain out of reach unless, through rational collective action overriding some individual self-interest, we can reduce per capita costs.” - Donald Berwick, President Obama’s nominee to head the CMS
President Barack Obama has announced that he will appoint Donald Berwick to head the Centers for Medicare and Medicaid Services when Congress adjourns for the summer break next month.
His appointment, as Philip Klein explained back in May, is concerning:
“Cynics beware, I am romantic about the (British) National Health Service; I love it,” Berwick said in a July 2008 speech at England’s Wembley stadium. “All I need to do to rediscover the romance is to look at health care in my own country.”
While Berwick would not have the authority to impose a British health care system on the United States in one fell swoop, as head of CMS, he would be running both Medicare and Medicaid. Given that the two programs alone account for more than one out of every three dollars spent on health care in America (all government programs combined account for 47 percent), private players tend to follow CMS’s lead. Berwick himself has made this point.
Shortly after the Congress went out of session for the Easter Break, President Obama named fifteen people to positions that had not made it through the confirmation process yet:
WASHINGTON — President Obama, making a muscular show of his executive authority just one day after Congress left for spring recess, said Saturday that he would bypass the Senate and install 15 appointees, including a union lawyer whose nomination to the National Labor Relations Board was blocked last month with the help of two Democrats.
Coming on the heels of Mr. Obama’s big victory on health care legislation, Saturday’s move suggests a newly emboldened president who is unafraid to provoke a confrontation with the minority party.
Just two days ago, all 41 Senate Republicans sent Mr. Obama a letter urging him not to appoint the union lawyer, Craig Becker, during the recess. Mr. Obama’s action, in defiance of the Republicans, was hailed by union leaders, but it also seemed certain to intensify the partisan rancor that has enveloped Washington.
“The United States Senate has the responsibility to approve or disprove of my nominees,” Mr. Obama said in a statement. “But if, in the interest of scoring political points, Republicans in the Senate refuse to exercise that responsibility, I must act in the interest of the American people and exercise my authority to fill these positions on an interim basis.”