“This Will Not Do”

Let me just add to Tim’s excellent observations below about today’s NLRB decision, in which a unanimous Court of Appeals held that the president violated the Constitution by making “recess appointments” when the Senate was not, in fact, in recess.

This might sound dry, but it is very important.  The power to make recess appoinments is the only exception to the Constitution’s requirement of Senate “advice and consent” for presidential appointments.  The more you expand recess appointments, the less you have to deal with Senate confirmation, and — poof! — there goes checks and balances.

At the Court, the administration argued that the President should have the sole, unfettered discretion to determine when the Senate is in “recess,” constitutionally speaking.  Under Obama’s legal theory, he could literally wait until the Senate is on a lunch break, and then quickly appoint Chuck Hagel to the Pentagon — and nobody could second guess him.  This assertion was so brazen that a shocked Court of Appeals declared: “This will not do . . . This cannot be the law.”

But Obama’s argument  — that the Constitution means whatever he says it means — should come as no surprise to those of us who have watched the decline of the Rule of  Law these last four years: the Chrsyler bankruptcy, the shoddy attempts to intimidate the Supreme Court, the refusal to defend DOMA, blanket amnesty via executive order, etc.

And for the record, W never made a recess appointment while the Senate was in session, even in “pro forma” session.

  1. Mark Harrison

    “This will not do . . . This cannot be the law.”

    Is that an actual quote from the Court of Appeals?

  2. SpinozaCarWash

    This much is clear: if there is a tether ball, then it’s definitely a recess.

  3. Crow

    Often court decisions are written in abstruse legalese that takes some time to parse.

    Having read this decision through now in its entirety, I must say it is commendable for its clarity, as is exemplified in the sentence you’ve highlighted.

    Others that stand out:

    As a matter of cold, unadorned logic, it makes no sense to adopt the Board’s proposition that when the Framers said “the Recess,” what they really meant was “a recess.” This is not an insignificant distinction. In the end it makes all the difference.

    And:

    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.

    To adopt the Board’s proffered intrasession interpretation of “the Recess” would wholly defeat the purpose of the Framers in the careful separation of powers structure reflected in the Appointments Clause.

    Ouch, Mr. President.

  4. SpinozaCarWash

    Not necessarily, Prawn.  The D.C. Circuit’s ruling doesn’t bind other Courts of Appeals, and this decision sits in tension with a ruling from the 11th Circuit CoA.  Judge Sentelle’s interpretive method–focusing on the original public meaning to define “recess”–is already popular among conservative judges, and is scorned by many others.  I don’t think this is path-breaking in that sense.

    The King Prawn: Does this ruling, especially its reliance on Heller, possibly indicate the first tentative step the path to a more constitutional government? Will other courts follow suit in following “the words of the founders?” · 6 hours ago

  5. Nick Stuart

    Every day the Senate is in session looks like recess at the asylum to me so it’s not hard to see how Obama could get confused, especially in a way that is to his advantage.

    I’ll take Adam and Tim’s assertion for it that this ruling is a good thing.

    But the left-wise ratchet taking us toward a totalitarian state continues to move, click by click. Even if the country retains an outward semblance of it’s former self four years hence, the voters took the left fork in the road in 2012. In ten or twenty years this country will be unrecognizable.

  6. Devereaux
    Nick Stuart: Every day the Senate is in session looks like recess at the asylum to me so it’s not hard to see how Obama could get confused, especially in a way that is to his advantage.

    I’ll take Adam and Tim’s assertion for it that this ruling is a good thing.

    But the left-wise ratchet taking us toward a totalitarian state continues to move, click by click. Even if the country retains an outward semblance of it’s former self four years hence, the voters took the left fork in the road in 2012. In ten or twenty years this country will be unrecognizable. · 24 minutes ago

    To an old curmudgeon like me, it’s getting pretty unrecognizable now.

  7. Macsen
    The King Prawn: Does this ruling, especially its reliance on Heller, possibly indicate the first tentative step the path to a more constitutional government? Will other courts follow suit in following “the words of the founders?” · 10 hours ago

    We will have to see if our Supreme Court has anything to say on the matter.  I would bet against the Coward, John Roberts, doing the right thing. 

  8. RedRules

    I haven’t seen anyone talking about what the ruling means! Do the people Obama illegally appointed get immediately sent packing? Does Obama get impeached? What?

  9. The King Prawn
    RedRules: I haven’t seen anyone talking about what the ruling means! Do the people Obama illegally appointed get immediately sent packing? Does Obama get impeached? What? · 16 minutes ago

    The administration is blowing off the ruling. They’re just pushing forward as though it doesn’t exist. It will take the SCOTUS affirming this ruling to actually get anything done. It will be a wild ride if they uphold it.

  10. The King Prawn

    Does this ruling, especially its reliance on Heller, possibly indicate the first tentative step the path to a more constitutional government? Will other courts follow suit in following “the words of the founders?”

  11. Dave Roy

    I think I read that it essentially makes every decision made by the LRB since the appointments moot and rescinds them.

    However, that won’t happen until the Supreme Court ultimately rules. If they do follow suit, there could be a lot of chaos.

  12. The King Prawn
    Dave Roy: However, that won’t happen until the Supreme Court ultimately rules. If they do follow suit, there could be a lot of chaos. · 10 minutes ago

    This is part of the bigger problem. The SCOTUS can be consequences minded sometimes. Yes, it will be chaos to undo a year’s worth of illegal orders and rulings, but it’s still the right thing to do.

  13. Starve the Beast

    It’s gratifying that the press has been so diligent in tracking this important story. The day that a president can operate so far outside his constitutional authority and the press won’t tell the people about it, we are indeed heading for a dictatorship.

    Luckily, that won’t happen because our news media are on the job. Yes siree.

  14. dittoheadadt

    “But Obama’s argument  — that the Constitution means whatever he says it means — should come as no surprise to those of us who have watched the decline of the Rule of  Law these last four years: the Chrsyler bankruptcy, the shoddy attempts to intimidate the Supreme Court, the refusal to defend DOMA, blanket amnesty via executive order, etc.”

    What I’d like to know is why, if he’s been doing this stuff for FOUR years, has it taken until NOW for him to be taken to task for it??  Where have the Constitution’s defenders been hiding for the past four years?

  15. SgtDad
    To adopt the Board’s proffered intrasession interpretation of “the Recess” would wholly defeat the purpose of the Framers in the careful separation of powers structure reflected in the Appointments Clause.

    Precisely His Obamatude’s intent, methinks.

  16. SgtDad

    Actually, something similar happened at NLRB just a few years ago.  SCOTUS had no problem unwinding the shebang.

    The King Prawn

    Dave Roy: However, that won’t happen until the Supreme Court ultimately rules. If they do follow suit, there could be a lot of chaos. · 10 minutes ago

    This is part of the bigger problem. The SCOTUS can be consequences minded sometimes. Yes, it will be chaos to undo a year’s worth of illegal orders and rulings, but it’s still the right thing to do. · 3 hours ago

  17. Crow
    Dave Roy: Yes, it is the right thing to do. Wasn’t saying they shouldn’t do it because of the chaos. In fact, it would be a glorious chaos, just because it would reinforce what a stupid thing it was to do.

    The King Prawn

    This is part of the bigger problem. The SCOTUS can be consequences minded sometimes. Yes, it will be chaos to undo a year’s worth of illegal orders and rulings, but it’s still the right thing to do. · 11 hours ago

    I agree that consequences will surely be in the justices’ minds as they look at the case, but I can’t see how, at least among the five center-right justices, they can prefer the smooth functioning and convenience of the bureaucracy–and even of the businesses who have taken action to implement the NRLBs decisions–over the consequences of gutting “advice and consent” provisions, a fundamental check and balance, for all future appointments.

    Then again, I’ve been wrong before….

  18. Israel P.

    Is this court decision more significant than other decisions that have gone against the government (regardless of party) because it says “You Mr President, personally, did something illegal?”

  19. SpinozaCarWash
    Israel P.: Is this court decision more significant than other decisions that have gone against the government (regardless of party) because it says “You Mr President, personally, did something illegal?” · 0 minutes ago

    Edited 0 minutes ago

    I don’t think so.  Why would it be more significant just because the court constrains the President, rather than one of his cabinet officers, or a congressman, or an Article III judge?

    Of course Obama’s NLRB appointments will push a progressive agenda, but their decisions don’t directly harm me, because I don’t have to appear before the Board. My grievance is merely general.  Besides, even if POTUS follows the Constitutional requirements for appointments, his nominees will still be radicals. And we’ll still be complaining.

    Compare the indirect injury (to our dignity? to our confidence in the rule of law) we feel when the President flouts the Constitution, to the direct harm that we suffer every day in TSA lines, or during traffic stops, or a stop-and-frisk.  The Court has completed abdicated its role as a guardian of our liberties against the police.  If Courts would start policing the police–now that would be significant.

  20. Devereaux
    Crow’s Nest

    Dave Roy: 

    The King Prawn

    This is part of the bigger problem. The SCOTUS can be consequences minded sometimes. Yes, it will be chaos to undo a year’s worth of illegal orders and rulings, but it’s still the right thing to do. · 11 hours ago

    I agree that consequences will surely be in the justices’ minds as they look at the case, but I can’t see how, at least among the five center-right justices, they can prefer the smooth functioning and convenience of the bureaucracy–and even of the businesses who have taken action to implement the NRLBs decisions–over the consequences of gutting “advice and consent” provisions, a fundamental check and balance, for all future appointments.

    Then again, I’ve been wrong before…. · 5 hours ago

    That is, of course, the biggest problem with all this – that the “ruling class”, which seems to include SCOTUS, have become so overbearing as to feel they are untouchable. One can’t go against even blatantly illegal acts because of the “chaos”. ?REALLY. The illegal act is chaos enough.

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