Courts

Federal Court Rules Obama's Labor Board Appointments to be Unconstitutional

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A 3-judge panel of the United States Court of Appeals for the District of Columbia Circuit handed the Obama administration a major defeat today, ruling that President Obama's appointment of three members to the National Labor Relations Board last year violated the Appointments Clause of the Constitution, which says that the president "shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law."

Here's a key section from Chief Judge David Sentelle's majority opinion:

The [National Labor Relatinons] Board conceded at oral argument that the appointments at issue were not made during the intersession recess: the President made his three appointments to the Board on January 4, 2012, after Congress began a new session on January 3 and while that new session continued. Considering the text, history, and structure of the Constitution, these appointments were invalid from their inception.  Because the Board lacked a quorum of three members when it issued its decision in this case on February 8, 2012, its decision must be vacated.  [Citations omitted.]

The case stemmed from a canning company's challenge to a NLRB ruling, but the implications stretch well beyond one particular labor dispute. If the Supreme Court lets the D.C. Circuit's ruling stand, either by upholding it or refusing to hear the inevitable appeal from the Obama administration, nearly a year's worth of NLRB decisions will be rendered worthless.

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  1. This has got to be one of the most obvious cases of executive over-reach in recent history. When Obama appeals to SCOTUS is is conceivable that they will refuse the appeal? Or will they agree to hear it just as a courtesy to the One?

    1. Depends on whether one of the conservative justices dies in the meantime and is replaced by an Obama appointee. Right now, prolly a 5-4 decision against Obama.

      SCOTUS is a political court, not an unbiased interpreter of the actual wording of the constitution.

      1. You only need four justices to grant cert. The question is will any of the left justices have the intellectual honesty to defect from the One because of how cut and dry this is.

        1. Sotomayor does, I hope.

      2. That’s a little harsh. The administration has lost unanimously on cases less clear cut than this, because they’re just that lawless.

  2. If the Supreme Court lets the D.C. Circuit’s ruling stand, either by upholding it or refusing to hear the inevitable appeal from the Obama administration, nearly a year’s worth of NLRB decisions will be rendered worthless.

    Anyone have a good link listing that year’s worth of NLRB decisions? I just want to know if it’s worth celebrating with the good stuff…

    1. Weekly Summaries of Decisions: http://www.nlrb.gov/cases-deci…..-decisions
      Weekly Summary Archive: http://www.nlrb.gov/weekly-summary-archive

  3. Roberts will cover his ass.

    1. Tim| 1.25.13 @ 12:34PM |#
      “Roberts will cover his ass.”

      You bet! Why, if you hold your mouth the right way and squint, you can sorta see how the Constitution means whatever that asshole claims!

  4. “…nearly a year’s worth of NLRB decisions will be rendered worthless.”

    Void or worthless? They could have years of worthless decisions but they’d still be enforcable.
    /pedantic

    1. That also assumes they were worth something to begin with.

  5. I have a love/hate relationship with the new Consumer Financial Protection Board, whose leadership was apparently filled unconstitutionally.

    On the one hand they are actually doing a pretty decent job in going after scumbag collection agencies that harass consumers illegally, and they are pushing around the credit bureaus more than anyone else has in a while.

    That being said, they are doing the job that the FTC is supposed to be doing, and has failed at miserably over the last several years.

    The problem of the failure of a particular federal agency that was designed to enforce consumer laws should not be to create a new agency. You should fix the one you have, fire the people not doing their job. Instead the CFPB was created to do what the FTC was supposed to be doing in the first place.

    1. It’s failed agencies all the way down.

    2. The CFPB’s mandate is broader than the FTC’s. So of course they will fail more broadly as well.

  6. “Considering the text, history, and structure of the Constitution, these appointments were invalid from their inception.”

    What happens when Obozo the 1st says ‘So what?’ Who will force the man to comply with the decision?

    1. It means those who face any sort of decision from the NLRB that were made in this time frame can point and laugh. I don’t expect O! to do anything other than run the same clowns in there again, maybe this time he will actually take them to Congress – I am sure Harry Reid can find two or three minutes to schedule for a vote.

      1. LTC(ret) John| 1.25.13 @ 1:35PM |#
        “It means those who face any sort of decision from the NLRB that were made in this time frame can point and laugh.”

        I’d wish it were so, but if Obozo says ‘tough’, what’s to stop the executive branch from enforcing laws the courts find unconstitutional?
        Not sure I’m being clear here: I’m pretty sure Obozo doesn’t give one hoot about what the constitution allows him to do, and I’m pretty sure it will take some sort of physical force to keep him from the royal prerogative. Who is to stop him?

    2. What happens when Obozo the 1st says ‘So what?’ Who will force the man to comply with the decision?

      Better known as “pulling a Jackson.”

  7. It’s always good to see our wannabe Supreme Dictator get smacked down.

  8. Do we get to reclaim their salaries?

      1. I would think not as they actually showed up for work. OBAMA should be the one reimburse the government.

  9. As far as I’m concerned, this

    The [National Labor Relatinons] Board conceded at oral argument that the appointments at issue were not made during the intersession recess…

    should be considered cause for dismissal for any executive counsel who pursues an appeal.

    1. Why? The gov’s argument was that intrasession recess appointments were permissible, and they have precedent from 3 other circuits supporting it. DC Circuit was the first one to say only intersession appointments are valid.

  10. And from the luminaries at HuffPo:
    http://www.huffingtonpost.com/…..50788.html

    Vicki Trusselli
    178 Fans Become a fan
    1 minute ago ( 2:48 PM)
    The GOP has once again stacked the cards against our President. I* CAN NOT STAND TEA PARTY PEEPS CROOKED REPUBLICANS….EVER EVER….THEY ARE STACKING CARDS AGAINST WHATEVER….POLITICS IS A FREAKING MADDENING GAME AND WAGGING THE DOG…..BAA HUMBUG…….BAA HUMBUG…..

    1. She’s a loooony.

  11. I’ll put this news in the “Pleasant Surprise” file.

  12. It gets better if I understand the whole ruling correctly. They are restricting “recess” to only between sessions, and only for the appointments that arise in that time. In other words…what the Constitution actually says. I’m shocked.

    1. I know, weird.

      Recess appointments are authorized by Article II, Section 2 of the U.S. Constitution, which states:

      The President shall have power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.

      No straight-face reading of the English language can really support the claim that a vacancy that occurs during a session is one that “happens” during a recess. Although this is what Obama (and I’m sure previous Presidents) have claimed.

      This raises the question “what counts as “the Recess” of the Senate”.

      According to the Senate:

      A temporary interruption of the Senate’s proceedings, sometimes within the same day. The Senate may also recess overnight rather than adjourn at the end of the day. Recess also refers to longer breaks, such as the breaks taken during holiday periods, pursuant to concurrent resolution.

      http://www.senate.gov/referenc…..recess.htm

      Not much help there, unless you want to put a great deal of weight on the definite article “the” to say it refers to adjournment sine die.

      1. Some of the good parts…from page 17…

        The appointment may be made in “the Recess,” but it ends at the end of the next “Session.” The natural interpretation of the Clause is that the Constitution is noting a difference between “the Recess” and the “Session.” Either the Senate is in session, or it is in the recess. If it has broken for three days within an ongoing session, it is not in “the Recess.”

        It is universally accepted that “Session” here refers to the usually two or sometimes three sessions per Congress. Therefore, “the Recess” should be taken to mean only times when the Senate is not in one of those sessions.

        …and page 23

        To avoid government paralysis in those long periods when senators were unable to provide advice and consent, the Framers established the “auxiliary” method of recess appointments. But they put strict limits on this method, requiring that the relevant vacancies happen during “the Recess.” It would have made little sense to extend this “auxiliary” method to any intrasession break, for the “auxiliary” ability to make recess appointments could easily swallow the “general” route of advice and consent. The President could simply wait until the Senate took an intrasession break to make appointments, and thus “advice and consent” would hardly restrain his appointment choices at all.

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