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Appeals Court rules Barack Obama’s recess appointments to the NLRB were unconstitutional

January 25, 2013

  Back in January of last year Barack Obama made three recess appointments to the NLRB, which would not normally be newsworthy if it weren’t for the fact that the Congress was not in recess.

  The Congress was using a political gimmick known as pro forma:  the Congress adjourned but they held the Congress open, so the Congress was not in recess and the president did not have the authority to name appointees to these positions because some members of the Congress meet every few days to conduct “business.”

  This may be a gimmick but it is nothing new and in fact the Democrats used a pro forma Congress to prevent President Bush from making recess appointments. The difference is that President Bush honored the pro forma Congress while Barack Obama did not. I would guess that if President Bush had tried this there would have been calls for impeachment from the left.

    However, this met with very little consternation with the exception of conservative and libertarian blogs and websites, but today an Appeals Court ruled that Barack Obama’s non-recess recess appointments were indeed unconstitutional and an “abuse of power,” and according to this article the court has removed the appointees from their positions and voided all actions they have taken since they assumed power.

In Noel Canning v. NLRB, the U.S. Court of Appeals for D.C. Circuit held today that Obama’s three recess appointments are in fact unconstitutional. As such, the three seats on NLRB were never legally filled. Thus NLRB only had two members, while the law requires three members on the five-member Board in order to have a quorum to conduct business or issue orders.

The D.C. Circuit therefore concluded that all NLRB orders issued since these recess appointments were made are entirely void, and NLRB has no power to act at all unless and until the Senate votes to confirm Obama’s nominees.

  Jay Carney addressed the decision today and stated the White House strongly disagreed with the decision and called it “unprecedented.”  And he is right, this is an unprecedented decision, but the reason it is unprecedented is because this is the first time a president has so brazenly tried to usurp the power of the Congress by making recess appointments when the Congress is not officially in recess.

  This is now likely headed to the Supreme Court and I would guess the president will win a stay of the decision and the nominees will be allowed to hold onto their positions until a final decision is rendered.

  Normally I would bet anything that the Supreme Court would uphold this decision because it seems like a no-brainer but with the Chief Justice seemingly more concerned with his legacy and how he is portrayed in the media with the Obamacare decision rather than with upholding the constitution I would say that all bets are off.

  This is a major victory for the constitution, for now…..

7 Comments leave one →
  1. January 25, 2013 8:22 pm

    I love it. Obama is furious. Who could dare rule against The One. It may be a short lived victory, but we have so few, let’s enjoy this one for a while.


    • January 25, 2013 8:33 pm

      We get so few victories nowadays that we must relish the ones we get no matter how short-lived they end up being Jim.


  2. LD Jackson permalink
    January 26, 2013 3:58 am

    It would have been interesting to be in the room when Obama received this news. He isn’t used to someone standing up against him and winning. His reaction would have been priceless.


  3. January 26, 2013 4:54 pm

    I doubt the President will prevail with respect to the appointments, but the Court may, for the sake of everyone’s sanity, leave standing the acts of the NLRB while voiding the appointments.

    That said, it’s wrong for either party to leave posts unfilled for years on end, especially when they combine it with gimmickry – like the “pro forma” “in session” practice. When President Bush won his election, I said that he and his party should expect tough sledding because of the hard time the GOP gave President Clinton. Now the GOP is justifying their abuse of President Obama because of the tough sledding the Dems gave President Bush while they could.

    Some of us were hoping for a tigtening up of the filibuster rules, so that perhaps the Senate could get some work done this year, but that’s got to have been one of the loosest tightenings I ever saw.

    Take good care, and may God bless us all!



    • January 26, 2013 5:14 pm

      The article I used for this post stated that all the regs passed were also voided but that appears to be false. Apparently all these regs will end up going through the courts if they are challenged. I think you are right, in the end the appointees will be removed but I think the regulations will probably stand to avoid mass confusion. (Which by the way is the reason why I think Obamacare is here to stay.)
      As for the filibuster: We are now mired in gridlock and I don’t see it ever getting any better at this point unless one party holds the House, Senate, and presidency and I think that is very likely to happen in 2014.
      I may not like the idea of loosening the filibuster rules but I have not complained about Harry Reid’s attempt to do so because the constitution gives the House and the Senate the authority to write their own rules for carrying out business so there is nothing wrong with what he was trying to do even if I disagree.



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