Supreme Court

Will the Supreme Court Review Obama's Recess Appointments?


It's been a little over a week since the U.S. Court of Appeals for the District of Columbia Circuit ruled that President Barack Obama's three purported recess appointments to the National Labor Relations Board violated the Constitution because they were not in fact made when the Senate was in recess. Now, as Lyle Denniston reports at SCOTUSblog, the U.S. Supreme Court has received its first petition asking the justices to weigh in on the fallout from that decision. Denniston writes:

Arguing that the National Labor Relations Board has lost its power to take any action, lawyers for a Connecticut nursing home company on Monday asked the Supreme Court to forbid a lower court from enforcing a Board order arising out of a union strike.  The application (HealthBridge Management v. Kreisberg, docket 12A769) thus put before the Court for the first time the high-profile constitutional controversy over the President's authority to make temporary appointments of government officials — a power sharply restricted by the D.C. Circuit Court last month.

Meanwhile, the National Labor Relations Board has said it "respectfully disagrees" with the D.C. Circuit's ruling and is going to proceed with business as usual, believing that "the President's position in the matter will ultimately be upheld." As NLRB Chairman Mark Pearce announced in a statement, "In the meantime, the Board has important work to do. The parties who come to us seek and expect careful consideration and resolution of their cases, and for that reason, we will continue to perform our statutory duties and issue decisions."

If the Supreme Court does end up taking one or more of these cases, expect a major showdown over the proper scope of executive authority, with Barack Obama defending an interpretation of the recess appointment power that goes even further than the one embraced by George W. Bush.

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  1. As NLRB Chairman Mark Pearce announced in a statement, “In the meantime, the Board has important work to do…

    “Doin’ a heckuva job, Pearce-y.”

  2. Obviously, Barry’s cronies are FAR too important to worry about pesky little things like so-called “court rulings”. Those are for the little people to obey and mere suggestions for this administration.

    I’m curious, and also frightened, to find out exactly how far Obama can overreach before someone seriously steps up and slaps him back down.

    1. Why should recess appointment have to be while the Senate is in recess? The Interstate Commerce clause applies when it isn’t interstate. Hell, it doesn’t even have to be actual commerce.

      1. When the Senate is in recess, the Senators have crossed state boundaries to travel back to their jurisdictions. During those periods they are spending money, which makes those trips interstate commerce. This entitles Congress to authorize the President to make the appointments, which they do implicitly by going into recess and engaging in such commerce.

        1. BRILLIANT!

          Team Obama? wants to hire you.

          1. Isnt the Senate mandated to take a recess under Obamacare?

            1. It’s not a mandate. It’s a tax enforced if and only if they don’t take a recess.

    2. I think he learned the wrong lesson from the PPACA ruling. He thought that when the Court deferred to Congress that it was deferring to HIM. And thus expects that the Court would defer to him on other issues as well.

      But the conservative principle of judicial restraint holds that the Court should defer to the *legislature* not the executive branch.

  3. In the meantime, the Board has important work to do.

    Is there any government board that doesn’t have important work to do? If the recess appointments are overturned, would all of the important work by this board be erased?

    1. Is there any government board that doesn’t have important work to do?

      I’d say at least most of them.

  4. Pro Libertate to the SCOTUS: Sweep the leg. SWEEP THE LEG!

    1. I think you are underestimating Obama’s crane technique.

      1. That doesn’t work in real life, silly.

        1. In that case, get him a body bag!

  5. If I recall, during the alleged recess, the senate held pro-forma sessions and actually passed (non-controversial) legislation which was later signed into law by Obama himself. This was possible since the a quorum is always assumed to be present unless some senator suggests otherwise.

    Ideally the case that goes before the supreme court should address both the validity of the “recess” appointments and the validity of legislation passed by the senate during the alleged recess. Was the senate in session or not? Let’s nail it down.

    1. Not only was the Senate not in recess, the Constitution actively forbade it from being in recess, since it didn’t have the consent of the House to be in recess.

  6. …”Barack Obama defending an interpretation of the recess appointment power that goes even further than the one embraced by George W. Bush.”

    Yeah, well, Bush was a piker when it comes to being king.

    1. I blame Bush

  7. Isn’t there a conflict among the Circuit Courts on this?

    And, can SCOTUS afford to let a federal agency explicitly and overtly ignore a court’s decision?

    I think they take the case. Whether they man up and slap the NLRB down, I have no idea. But I suspect if there’s one thing the Court will defend, its the Court’s turf.

    1. I think they’ll take the case, but the resulting decision won’t be the sweeping ruling that many would hope for.

  8. A recess appoint made when the Senate is not in recess is legal and constitutional because it’s a tax. [/johnroberts]

    1. I hope the asshole lives long enough to be really embarrassed by that bit of sophistry.

  9. You cannot expect the nation’s businessmen to manage their own affairs without benefit of federal oversight. Were you raised by rabid badgers?

  10. It’s extremely likely that the SCOTUS will review this decision, if only to give the decision precedence over all district courts.

    Also, discussion whether the Senate was really in recess due to pro forma sessions has no bearing on the decision. The decision ruled that all intrasession recess appointments were unconstitutional. Given how radical a change in constitutional precedent that represents, (they have been happening for 150 years)I’d be pretty shocked if the supreme court didn’t grant cert.

    1. “The decision ruled that all intrasession recess appointments were unconstitutional.”
      Nothing of the sort, deidiot.

    2. Wow. There is no depth to which the dickrider will not sink to suck some obama cock. Just wow.

    3. BTW, dedipshit, look here:…..417096.pdf

    4. Actually the court ruled that the appointments were unconscitutional because they actually took place on Jan 4th, when the Senate was in a regular session that began on Jan 3rd, as it usually does.

      The court simply declared that it wasn’t a recess appointment of ANY KIND whatsoever, because legally the appointment did not take place until the day after the session officially began.

      Just because the President says “I appoint this guy!” on Christmas Eve, doesn’t mean that’s when the appointment legal takes place. if he didn’t file the paperwork until Jan 4th, the appointment didn’t take place until jan. 4th.

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    1. “1 weak-ago”
      Your brother made that much and you can’t afford spell-check?
      I’m gonna say you’re not who you claim to be. Just a hunch.

  12. lol, the Supreme Kangaroo Court cracks me up man!

  13. I expect it will be granted cert, but I also think SCOTUS is likely to uphold the ruling. I can’t guarentee anything, but’s not like the DC Circuit court is known for being a bastion of hardcore conservative partisans, and if they thought it was a gross violation of the constitution, then chances are pretty good that SCOTUS will too.

    Also remember that the “judiciam conservatism” doctrine that apparently saved ObamaCare holds that SCOTUS should defer to the *legislature* not the *executive*. There’s no SCOTUS tradition of deference to Presidential executive orders. And in this case, we’re talking about the Executive usurping power from the legislature composed of duly elected representatives.

    I’m betting that the liberal justices will argue something to the effect of “fillibuster, blah, blah, obstructionism, dysfunctional legislature, presidential perogative, blah blah”. But I doubt it will influence any of the conservatives.

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