Justice

Even though it’s only been about a year, it seems that most Americans have forgotten about this little exercise in executive overreach. Thankfully, the federal courts haven’t. From the Washington Times:

A federal appeals court has overturned President Obama’s controversial recess appointments from last year, arguing he abused his powers and acted when the Senate was not actually in a recess.

The three-judge panel’s ruling is a major blow to Mr. Obama. The judges ruled that the appointments Mr. Obama made to the National Labor Relations Board are illegal, and the board no longer has a quorum to operate.

  1. karenwtn

    Smack down!!

  2. Fred Cole

    Good to know the system occasionally still works.

  3. bernai

    On a chilly and foggy friday morning here in Fresno CA this just warmed my heart right up and cleared the fog away.

  4. Matthew Gilley

    Good. The longer the NLRB lays fallow, the better. They’ve been acting as if Section 7 of the NLRA gives the federal government carte blanche to regulate private employment relationships.

  5. Aaron Miller
    The judges ruled that the appointments Mr. Obama made to the National Labor Relations Board are illegal, and the board no longer has a quorum to operate.

    Did the NLRB enact anything while this review was taking place? If so, does this ruling invalidate those NLRB actions?

  6. Fred Cole
    Aaron Miller

    The judges ruled that the appointments Mr. Obama made to the National Labor Relations Board are illegal, and the board no longer has a quorum to operate.

    Did the NLRB enact anything while this review was taking place? If so, does this ruling invalidate those NLRB actions? · 0 minutes ago

    I was curious about that myself.

    And I’m eager for the Law Talk where they discuss this.

  7. Whiskey Sam
    Aaron Miller

    The judges ruled that the appointments Mr. Obama made to the National Labor Relations Board are illegal, and the board no longer has a quorum to operate.

    Did the NLRB enact anything while this review was taking place? If so, does this ruling invalidate those NLRB actions? · 5 minutes ago

    You beat me to it.  I would think any rulings they made would have no legitimacy if they were illegally appointed.

  8. Trace

    What about the Cordray appointment to CFPB? Are they shut down for the time being as well?

  9. Basil Fawlty

    For what it’s worth, the AP story includes the following:

    The Obama administration is expected to appeal the decision to the U.S. Supreme Court, but if it stands, it means hundreds of decisions issued by the board over more than a year are invalid. It also would leave the five-member labor board with just one validly appointed member, effectively shutting it down. The board is allowed to issue decisions only when it has at least three sitting members.

    Cordray’s appointment has been challenged in another case.

  10. The King Prawn

    More from the Times story:

    But the ruling has even broader constitutional significance, with the judges arguing that the president’s recess appointment powers don’t apply to “intrasession” appointments — those made when Congress has left town for a few days or weeks.

    The judges signaled the power only applies after Congress has adjourned sine die, which is a legislative term of art that signals the end to a long work period. In modern times, it means the president could only use his powers when Congress quits business at the end of a year.

    I think this takes us back to the original intent of recess appointments. Huzzah! Roberts will never let this stand though.

  11. DocJay

    I wish I could do a happy dance over the head of my slain enemy but alas he is a hydra and vigilance is ever needed.

  12. Joseph Paquette

    That was faster than I thought it would take.   Is Obama taking it to the supreme court?  I’m sure he will lose there also. 

  13. The King Prawn

    I’m reading the decision now (cause I’m a geek on lunch break), and I love (LOVE!) that they take the originalism in Heller as directive for future rulings. To wit:

    When interpreting a constitutional provision, we must look to the natural meaning of the text as it would have been understood at the time of the ratification of the Constitution. District of Columbia v. Heller, 128 S. Ct. 2783, 2788 (2008).

    The whole decision seems to turn on the difference between “recess” and “the Recess” in the original wording. Glorious.

  14. The King Prawn

    “We will not do violence to the Constitution by ignoring the Framers’ choice of words.”

    Full arousal…

    This decision reads like the Federalist Society penned it.

  15. Ross C
    Aaron Miller

    The judges ruled that the appointments Mr. Obama made to the National Labor Relations Board are illegal, and the board no longer has a quorum to operate.

    Did the NLRB enact anything while this review was taking place? If so, does this ruling invalidate those NLRB actions? · 1 hour ago

    I think they spent the majority of their efforts trying to convince Boeing to not build an non-union plant.

  16. The King Prawn

    But wait, there’s more!

    Not only can the president not appoint people during a non-recess, he cannot use the recess appointment provision to fill vacancies that carry over into a recess. No more waiting out the Senate and having his way. Granted, that would have meant no John Bolton at the U.N., but I’m willing to play by the rules if the dems are forced to do it too.

  17. SunnyOptimism

    Am I reading this opinion correctly (I am not a lawyer) – is the DC Circuit ACTUALLY saying that a recess appointment can ONLY be used when the vacancy occurs DURING an actual recess???

    Holy Cow!  If true, the DC Circuit just gut the last 200+ years worth of precedent on recess appointments?

    Paging Doctors’ Yoo and Epstein….paging Doctors’ Yoo and Epstein, you are needed in the Ricochet O.R. STAT!

  18. Matthew Gilley

    To address Aaron and Fred regarding the legitimacy of board actions since the “recess” appointments (again, assuming the Supreme Court doesn’t go another way), the Supreme Court’s prior opinion in New Process Steel would seem to direct the conclusion that, yes, any action the Board took in the absence of a quorom is invalid.

  19. Matthew Gilley

    And I’ll also give Judge Sentelle a thumbs up for his opinion.

  20. Patrick in Albuquerque

    Who brought the suit; ie, who had standing?

Want to comment on stories like these? Become a member today!

You'll have access to:

  • All Ricochet articles, posts and podcasts.
  • The conversation amongst our members.
  • The opportunity share your Ricochet experiences.

Join Today!

Already a Member? Sign In