recess appointments

Supreme Court rejects Obama’s power grab: Justices unanimously invalidate NLRB recess appointments

The White House got a big reality check from the Supreme Court this morning. In a unanimous decision, the High Court invalidated recess appointments President Barack Obama made to the National Labor Relations Board in January 2012 because the Senate was technically in session.

The Constitution, in Article II, Section 2, allows a president to make appointments to fill vacancies when the Senate is not in session. These nominations are reviewed by the Senate when it reconvenes and must be approved by two-thirds of that chamber.

The issue at hand is that the Senate was in pro forma session — meaning that it had not formally adjourned — when President Obama made the appointments. The opinion in National Labor Relations Board v. Noel Canning, written by Justice Stephen Breyer, makes very clear that President Obama exceeded his constitutional authority by trying to sneak in bureaucrats who would rubber-stamp his and big labor’s agenda.

“In our view, however, the pro forma sessions count as sessions, not as periods of recess. We hold that, for pur­poses of the Recess Appointments Clause, the Senate is in session when it says it is, provided that, under its own rules, it retains the capacity to transact Senate business,” Breyer wrote. “The Senate met that standard here.”

“The standard we apply,” he continued, “is consistent with the Constitu­tion’s broad delegation of authority to the Senate to determine how and when to conduct its business.”

Obama likely to lose recess appointments case

While it’s predict the outcome of a case on oral arguments, the Supreme Court seems poised to strike down President Barack Obama’s appointments to the National Labor Relations Board (NLRB), via The Hill:

Nearly every justice on the nation’s highest adjudicating body questioned the constitutionality of his 2012 National Labor Relations Board picks, which bypassed Senate confirmation.

Even Justice Elena Kagan, an Obama appointee and part of the court’s liberal wing, said, “The history is entirely on the Senate’s side, not your side.”

Chief Justice John Roberts also defended the Senate’s role in approving nominees as an important check on presidential power, contending, “They have an absolute right not to confirm nominees that the president submits.”
[…]
But most of the justices appeared receptive to arguments that the court should uphold a lower court’s ruling that the nominations were unconstitutional and should be invalidated.

Such a decision, the government’s attorney warned, could deprive Obama and future presidents of authority that was expressly granted by the nation’s framers and has been used since George Washington’s administration.

At issue is whether President Obama overstepped his authority in January 2012 when he made three recess appointments to the NLRB. The problem is that the Senate was in pro forma session — meaning that it had not formally adjourned and that the recess appointments are invalid.

Supreme Court to hear NLRB case, weigh limitations on executive power

The Supreme Court will hear oral arguments this morning in case over what some argue are unconstitutional recess appointments made by President Barack Obama and limitations on executive power.

The case, National Labor Relations Board v. Noel Canning, deals with recess appointments to fill three vacancies on the National Labor Relations Board (NLRB). President Obama and his administration insist that the January 2012 appointments are valid because the Senate was in recess.

That argument, however, is specious, at best. The Senate was in pro forma session — meaning that it had not formally adjourned — when President Obama made the appointments. In other words, recess appointments could not actually be made.

The Constitution — in Article II, Section 2 — provides the president with the power to submit nominations for “Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States.” These nominations are reviewed by the Senate, though its “advice and consent” role, and must be approved by two-thirds of that chamber.

Article II, Section 3 states that when the Senate is not in session, a president can act “to fill up all Vacancies that may happen.” But the Senate would still need to approve the nomination during their next session, otherwise the appointee’s commission expires upon the next congressional adjournment.

Another court strikes down Obama’s NLRB appointments

NLRB

President Barack Obama’s controversial, pro-union recess appointments to the National Labor Relations Board (NRLB) have been struck down by a third appellate court.

The Fourth District Court of Appeals ruled on Wednesday that the appointments were unconstitutional because the Senate had not adjourned for recess when President Obama made the appointments in January 2012.

“In this case, the President’s three January 4, 2012 appointments to the Board were not made during an intersession recess because Congress began a new session on January 3, 2012. Consequently, ‘these appointments were invalid from their inception,’” wrote Judge Clyde Hamilton, citing the case pending before the Supreme Court. “Because the [NLRB] lacked a quorum of three members when it issued its 2012 unfair labor practices decisions in both the Enterprise and Huntington cases, its decisions must be vacated.”

The Constitution, in Article II, Section 2, provides the president with the power to submit nominations for various offices, including ambassadors, judges, and cabinet-level posts. In a crucial check on executive power, these nominations are reviewed by the Senate and must be approved by 2/3 of that chamber.

Article II, Section 3 notes that when the Senate is not in session, the president can use his power to “fill up all Vacancies that may happen.” But the Senate would still need to approve the nomination during their next session, otherwise the commission expires upon adjournment. And therein lies the problem with the moves made by President Obama — the Senate was in pro forma session, meaning that it had not adjourned.

Supreme Court to take up Obama’s questionable recess appointments

The Supreme Court will weigh into whether President Barack Obama stepped outside of his constitutional constaints early last year when he made “recess appointments” to fill three vacanies on the National Labor Relations Board (NRLB).

Lyle Denniston of SCOTUSBlog reported yesterday that the High Court will take up National Labor Relations Board v. Canning when it returns for its next term, after the summer recess.

“The specific issue is the scope of the Constitution’s grant of presidential power to put an official temporarily into office without Senate approval – a power that arises when the Senate is not on hand to review that appointment,”noted Denniston. “Answering that could require the Court to define when the Senate, in a legal sense, goes into recess.”

“The issue goes as far back as recess appointments by George Washington, but it also is as new as the latest partisan jousting between President Obama and Senate Republicans over his appointment power,” he added. “The gridlock over Obama nominees has threatened to make one government agency – the NLRB – unable to function.”

The Constitution, in Artlcle II, Section 2, provides the president with the power to submit nominations for “Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States.” These nominations are reviewed by the Senate, though its “advice and consent” role, and must be approved by 2/3 of that chamber.

Another Federal Court Finds NLRB Appointments Unconstitutional

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.

House Seeks to Temporarily Shut Down National Labor Relations Board

NLRB

Back in January, the DC Circuit Court of Appeals ruled that President Barack Obama acted outside of his constitutional authority when he made three recess appointments to the National Labor Relations Board (NLRB), a relic of the New Deal, in January 2012.

While the Constitution does provide a president with the power to make recess appointments, the Senate was in pro forma session, and hadn’t formally adjourned.

On Friday, the House of Representatives passed HR 1120 — the Preventing Greater Uncertainty in Labor-Management Relations Act — which would prevent the NRLB from taking any action until either the Supreme Court settles the legal case on the recess appointments or until Congress adjourns for the year:

The legislation would force the National Labor Relations Board to cease making any rulings until the Supreme Court rules on the validity of two recess appointees the White House made to five-member board.

The effort is mostly symbolic since the Democrat-majority Senate is unlikely to take up the bill.

Sen. Mike Lee on Lawless “Recess Appointments”

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