A federal appeals court ruled that President Obama violated the Constitution last year when he made appoints to the labor board evoking the executive power of recess appointment. The reason the three-judge panel ruled against the President was simply the Senate was not in recess as defined by the Constitution. Appointments will be invalidated.
The Department of Justice made Obama's argument that the President has discretion to decide if the Senate is unavailable to perform its advice and consent function. The judges rejected this interpretation of the law. "Either the Senate is in session or it is in recess," wrote Chief Judge David Sentelle. "If it has broken for three days within an ongoing session, it is not in the 'recess' described in the Constitution." GOP lawmakers performed pro forma sessions thereby keeping the Senate in session status and not recess status.
Pro forma sessions have been used by both Democrats and Republicans to stall the President from making appointments during recess. The Senate is gaveled in and out of session. Some sessions have a duration of a couple of minutes. The White House called these sessions a sham. Recess is defined as the once a year break between sessions of Congress. Sentelle said one of these pro forma sessions officially convened the second session of the 112th Congress. The President can exercise recess appointment only if the openings arise during official recess.
The Senate taking two day breaks is not just cause for the President to exercise discretion. This could allow the Senate to be circumvented when they broke for lunch. "Allowing the president to define the scope of his own appointment power would eviscerate the Constitution's separation of powers," Sentelle wrote. "I think this is a very important decision about the separation of powers," said Carl Tobias, a constitutional law professor at the Virginia's University of Richmond. GOP have blocked the appointments to the National Labor Relations Board stating the nominations were too union heavy making the board biased. Other appointments made during this same period are under appeal and will be heard by separate court sessions. This ruling curtails a President's ability to circumvent obstruction of appointments.
By separate appeal, challenge has been issued on the appointment of Richard Cordray to head the Consumer Financial Protection Bureau. Cordray's appointment was made under the same conditions. If his appointment is also ruled in violation of the Constitution, then all regulations issued by the board would also be nullified. Cordray oversaw implementation of many regulations in the remake of the mortgage industry.
Sen. Tom Harkin, D-Iowa explained, "Throughout his presidency, Republicans have employed unprecedented partisan delay tactics and filibusters to prevent confirmation of nominees to lead the NLRB, thus crippling the Board's legal authority to act." He also urged the NLRB to conduct business until a Supreme Court ruling is issued.
What does this mean? White House press secretary Jay Carney isn't saying if the White House will appeal this decision. If the ruling stands, hundreds of decisions issued will be invalid. The board would have only one valid appointed member; three sitting members are required for decisions. The board would be shut down. The NLRB is an independent federal agency mediating disputes between management and labor unions or an organized workforce. They do not address unpaid wages, safety on the job, employment discrimination, workers' compensation, or a number of other work-related issues. One recent ruling to fall under validity is 359 NLRB No. 30 (2012). During contract negotiations, employers would cease to collect union fees once the contract expired. This ruling forces the employer to continue acting as the union's collection agency and providing the union with income even while there is no current contract between labor and management. This ruling by the NLRB overturned more than 50 years of precedent adding credence to the GOP claim the board is union bias.
Photo source: Wikipedia
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Comments: 52
It just happen that our president is President Barack H. Obama.
It is ironic that the cahllenge proceded in the Obama years, as he has used fewer recess appointments than any Presidnet in modern times (32).
The record was held by Dear Leader Bush II (171).
The racist mediocrity, Charles Pickering, was raised to a federal judgeship, and the dogmatic bully, John Bolton, was made the most-incompetent UN Representative we have ever had - by Bush with a Republican Senate.
It is you that needs to check your facts as to what is the topic at hand..
The appointments in question were done while the Democrat Senate was not in town, but were still in session.
Not disputing Bush - could not stand him either so please s saty on topic.
The probhlem was, these were NOT recess appointments.
Add to that, they were done when the DEMOCRATS in the Senate had told him in effect, they would not consider them.
I did not say whether the appointments are good or bad - but they are not legal.
You neecd to look at 1 question, and one question only: Was the Democrat controlled Senated in session?
Nice effort at diverting the discussion to opinion on the individuals, but no dice.
Disupting the conversation with facts that are not relevant to it, usually stops working beyond grade school debate.
It would be great to see the court decisions of the anti-gay, anti-choice, racists that Bush named to the courts through recess appointmetns be all overturrned.
He made EO appointments, while the Seante - HIS Dem controlled senate I might add, was still in session.
Not the first time he violated law, or the Constitution. His declared Moratoriums on drilling were overturned by the Supreme court also - and the Supreme Court ruled, Obamacare's penalties were only valid because it is actually a Tax - so they connfirmed hs ie a liar!
Every President, since George Washingtoin, has made recess appointments. Obama has actually made very few. Your remarks about the Democratic control of the Senate are irrelevant.
ALL of the recess appointments of George Bush were made while the Senate was in Republican hands.
Based on the archaic ways the Senate operates, Presidnetial appointments can be kept from a vote forever. That is why Presidents resort to the Recess Appointment.
Afraid it is you that looks like the fool.
The question here is based on the FACT, that the Senate WAS in Session.
If the Senate is in Session, a "recess" appointment is not possible.
Appointed on a recess appointment, he served as the U.S. ambassador to the United Nations from August 2005 until December 2006.[1] He resigned in December 2006, when the recess appointment would have otherwise ended,[2][3] because he was unlikely to win senate confirmation.[4][5] wiki
President Obama's appointment is as always apart of the landscape that is Washington a minor struggle between the two parties that is called power politics inside the beltway. My bet is the president will score another win on this issue.
One hopes that attention to this will drive a cleaner process for acting on Presidential nominations.
The senate is in Recess when they DECLARE themselves in Recess.
Do we need now to define what "is" is?
He proved a few years ago, he has no regard for Contract law, or Bankruptcy law in the auto bailouts.
His oil drilling moratortium was declared illegal - twice - so he simply manipulated the permit process so drilling on public land was effectively shut down.
Obamacare was ruled as unconstitutional, if teh fees charged were not a tax. then ruled they ARE a tax.
So what the SCOTUS did was document that he is a lair - claiming a tax is not a tax!
Now you DO have to be able to logically look at the un-spoken meaning.
Obama sated repeatedly before and since "IT IS NOT A TAX!".
Well ok - according to the majority opinion, if it is not a tax, then it is unconstitutional!
The law still stands, so either it is a tax, and Obama lie4d (again), or it is not a tax, and is invalid!
You cant have it both ways.
He either lied about it being constitutiona (if it is not a tax), or he laied about it being a tax (the only way it can stand).
Not that telling lies is anything new for him, or any number of past Presidents (Bush-lite included). But the "SAMMY did it TOO mom!" does not excuse any of them. And he does tell some whoppers!
Did you have a point other than a cheat's a cheat, no matter from which political party it first emanates?
I'm surprised it wasn't SENATOR Barack Obama!
The House has nothing to do with Presidential appointments - the Senate must "advise and consent".
Your hatred of smart and capable women is showing through again.
What on earth do you mean "blocking recess appointments"?
The recess appointment is an end-run around the refusal of the Senate to take a vote on the appointment. A recess appointment cannot be "blocked".
Obama should have spent more, and we would be much further on the road to recovery.