Supreme Court

Obama Asks Supreme Court to Uphold His Controversial Recess Appointments


In January 2013, the U.S Court of Appeals for the District of Columbia Circuit sparked a legal firestorm by ruling that President Barack Obama's three purported recess appointments to the National Labor Relations Board violated the Constitution because they did not actually occur when the Senate was in recess. According to the D.C. Circuit, Obama's actions "would demolish the checks and balances inherent in the advice-and-consent requirement, giving the President free rein to appoint his desired nominees at any time he pleases, whether that time be a weekend, lunch, or even when the Senate is in session and he is merely displeased with its inaction. This cannot be the law."

In a brief submitted today, the Obama administration has asked the U.S. Supreme Court to overturn that decision and place its stamp of approval on Obama's use of executive power. "The court of appeals' decision would dramatically curtail the scope of the President's authority under the Recess Appointments Clause," the administration's brief states. "It would deem invalid hundreds of recess appointments made by Presidents since early in the Nation's history.  It potentially calls into question every order issued by the National Labor Relations Board since January 4, 2012, and similar reasoning could threaten past and future decisions of other federal agencies."

The Supreme Court is likely to take the case. In 2004, the U.S. Court of Appeals for the 11th Circuit upheld President George W. Bush's similar use of the recess appointment power, meaning the federal circuits are split on this major constitutional issue. In addition, as the Obama administration observes, a year's worth of NLRB actions have been thrown into doubt by the D.C. Circuit. It won't be easy for the justices to avoid entering the thicket on this one.

(Thanks to SCOTUSblog for the link to the Obama administration's brief.)

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  1. In addition, as the Obama administration observes, a year's worth of NLRB actions have been thrown into doubt by the D.C. Circuit. It won't be easy for the justices to avoid entering the thicket on this one.

    If there is anything SCOTUS hates, its getting messy. I bet they don't take it up and defer to the lower court's ruling.

    1. Whether the NLRB's actions are thrown into doubt, or not, seems completely irrelevant to the Constitutionality of Obama's "recess" appointments. If I were on the court, I wouldn't even entertain the argument. It seems akin to the old saw about the man who kills his parents, then begs the mercy of the court because he's an orphan.

    2. If they defer to the lower court's ruling, then the appointment doesn't stand and the 16 months of NLRB actions since would likely be challenged in court. To avoid the this, SCOTUS has to take up the case AND rule in favor of the Obama administration, overturning the DC Circuit. It's going to be messy no matter what they do.

  2. Il Duce demands compliance.

    1. +1 Il Internettos

  3. Doesn't the Constitution provide for an 'advise and consent' function for the Senate? Notice it doesn't provide for an 'advise and dissent' function. By failing to approve Obama's nominees, the Senate is refusing to perform its' Constitutional mandate, requiring the President to take extraordinary steps to Get Things Done.

    It is tough for the President to do not only his own job, but the jobs of 535 Senators and Congressmen. Requiring him to follow the Constitution on top of everything else makes the job nearly impossible.

    This is why we have the generally accepted definition of 'Constitutionality' - the government must follow the Constitution unless it is too difficult, or they have a good reason not to, or they just don't feel like it. Or fuck you, that's why. What difference, at this point, does it make?

    1. This is silly. I'm sure the public safety exception applies here.

  4. Is it just me or does it seem like every fucking day there's a new story/situation regarding this administration's regulatory overreach and constitutional end runs?

      1. He thinks Obama works 365 days a year and you think that's racist?

        1. Yes, because everyone gets a day off except for a slave, so him implying Obama is a slave is racist because he's the first black President.

          1. John Hanson wasn't first? What about Rufus Jones? For post-AoC America, Andrew Jackson was first according to the Virginia Magazine of History.

    1. Yes. He doesn't think like a leader, or even your standard-issue politician. He thinks like an activist. It's all about embarrassing the opposition, getting your slogans everywhere, and keeping the pressure on. In his worldview, we're the city council, and he's the head of the Free Clean & Accessible Public Toilets for Incontinent Women Quadraplegics League.

      1. Incontinent Women Quadraplegics

        Easy, dude. You're gonna give Warty a boner.

    2. It is not just you, Epi is every sentient human being

  5. How do we know that Obama and the Supreme Court actually exist? Aren't they all government propaganda?

  6. This awesomely validates everything I've been saying for years. Let's see how the feminists and cosmos try to rationalize it.

    1. What is there to rationalize?

    2. It's so appropriate that a scumbag like you reads that drivel. You deserve it.

      1. I believe everyone deserves to be made aware of the truth, even you, Epi.

        1. Tucker Max returns!


    3. Well at least he's not hiding any more

  7. And we all know how staunchly the Supreme Court resists pressure from the Obama White House.

    1. I was hoping someone would snap a picture this time when Roberts starts blowing Captain Zero. It could be used as a model for a huge sculpture placed at the foot of the steps of the Court.

  8. "Obama Asks Supreme Court to Uphold His *Illegal* Recess Appointments"

    1. I was going to type that exact thing when I finished reading the comments.

  9. Legally speaking, this is a slam dunk. It's absolutely and facially unconstitutional. Naturally, that means nothing at all. I tend to think the court might say that, but they've contorted reality before to avoid difficult decisions. Like the penaltax.

    1. For which CJ Roberts's name will be held in eternal infamy.

      1. The Dread Taxer Roberts, please.

    2. Here's the clause: "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."

      Of course, that was supposed to cover vacancies that came open during recesses, but that's been, ahem, embroadenified to include vacancies that happen to exist during recesses. Which, of course, sidesteps the whole intent of the advise and consent power. If the Senate doesn't approve someone before a recess, then the president can appoint him during the recess. Complete bullshit.

      1. "Complete bullshit."
        Only if a rethuglican does so. Obozo can do as he pleases.

        1. Comeuppance is coming, I fear.

      2. The clause was written at a time when a meaningfully long Senate recess was a logistical necessity because of travel times. Now, the Senate is, for practical purposes, constantly in session and confirmation of appointments is not meaningfully held up by recesses, but for other reasons. It is of course the other reasons Obama is trying to sidestep and the recess appointments are an exploitable loophole.

  10. "The court of appeals' decision would dramatically curtail the scope of the President's authority under the Recess Appointments Clause..."

    This is an argument? Call me crazy, but I thought that was the whole point of the clause.

    Has the Shitweasel made a single argument before the court yet that doesnt boil down to 'fuck you, thats why'?

    1. I've always thought of these circular arguments as indicative of the way the admin insults others' intelligence, whether they're commoners, the press, or the other federal branches. It's worked for them more or less until recently, but their arguments are getting weaker and being scrutinized by those with more authority:

      "Don't rule against our past abuses of X because it would limit our power to do future abuses of X."

      I can't imagine how pissed off the SCOTUS justices might feel when presented with this murdered logic.

      The admin lawyers must be feeling really cocky lately.

  11. The court of appeals restricted the recess appointment power too far, while the Obama and Bush administration have been way too cute with it. Hopefully we'll come up with something sensible.

  12. "It potentially calls into question every order issued by the National Labor Relations Board since January 4, 2012,..."

    As if orders coming from such a body are not inherently questionable in the first place, for any number of reasons.

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