Friday, January 25, 2013

President Obama's Recess Appointments Run Afoul of Constitution

President Obama once taught constitutional law at the University of Chicago prior to entering politics. Perhaps his former students should ask for their money to be refunded.

In that regard, consider the following as ample evidence to support such a claim of overreach and hubris by the Obama administration in Court rejects Obama recess appointments, ruling them unconstitutional:

"The Obama administration may have to rethink how it goes about trying to bypass the traditional Senate approval process for filling slots at top government agencies.

That’s because a three-judge panel in a federal appeals court on Friday unanimously ruled that the White House violated the constitution and did not have the power to make recess appointments and fill vacancies in 2012 to the National Labor Relations Board, the U.S. agency responsible for safeguarding workers’ rights.

Because the NLRB nominees could not receive the filibuster-proof 60 votes needed to be approved by the Senate, Obama last year employed a rarely used presidential maneuver to appoint his candidates. Obama argued that the White House acted appropriately because the appointments were made during a recess while the Senate was away for the holidays for 20-days.

However, seeking to block the appointments Republicans set up so-called pro forma legislative sessions of Congress — sessions that are sometimes only seconds long and in which no business is conducted. The three-judge panel ruled that the Senate technically stayed in session during the pro forma sessions and was not in recess.

The Obama administration reportedly is expected to appeal the decision, which is viewed as a major setback for Obama, in part, because it also throws into question the appointment last year of Richard Cordray to head a recently formed consumer mortgage and credit product watchdog agency set up after the financial crisis. Cordray was also nominated during one of these pro-forma sessions.

Donald Lamson, partner at Shearman & Sterling in Washington, said the decision will clearly impact the Cordray appointment last year because the consumer bureau chief was also appointed during a pro forma session. However, Lamson added that it could also have a broader impact on recess appointments in general.

“If you allow recess appointments when there isn’t really a recess, then the Congress wouldn’t have an opportunity to exercise its advise and consent authority,” Lamson said. “There has to be a point where a recess appointment is not available. The question is where is that point and here the court said the recess the White House chose is not valid.”. . .

The decision could also have an impact on rules made by the labor relations board. A National Association of Manufacturers vice president, Joe Trauger, said in a statement that the organization will be ” reviewing the opinion thoroughly to determine what impact this significant development will have on any and all decisions made by the [labor relations] board over the past year.” Any rejection of Cordray’s appointment could have a similar impact on the consumer bureau’s rules.

The appeals court, the U.S. Court of Appeals for the D.C. Circuit, has already been a thorn in the side of the Obama administration in the past."

Summing Up

And that's what the separation of powers among the three branches of our government is all about.

And that's also why we can still say, at least for now, that we're a nation of laws and not of men.

Score one for We the People and constitutional law.

And score one against hubris and an omnipotent executive branch.

In the end, it's frequently the little things that add up to a lot.

Thanks. Bob.

1 comment:

  1. Pedro the Camel DriverJanuary 26, 2013 at 10:19 AM

    Nice try again by a federal court but Barack Hussein Oblahblah "doesn't need no stinkin Constitution" and, will NOT bow to any court that declares his actions "unconstitutional." (They're still NOT drilling in the Gulf are they???!!!...a federal judge said Dear Leader's edict after the BP spill banning same was also "unconstitutional" no??? Si.)Maybe "The Hildebeast" put it best at her "why didn't you do something???!!!" non-hearing in Congress this week...."WHAT DIFFERENCE, AT THIS POINT, DOES IT MAKE???!!!...for "The Constitution is no threat to our present form of government" and hasn't been for quite some time now. (adios and RIP Joe Sobran