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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:
Published in GeneralA 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.
Smack down!!
Good to know the system occasionally still works.
On a chilly and foggy friday morning here in Fresno CA this just warmed my heart right up and cleared the fog away.
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.
Did the NLRB enact anything while this review was taking place? If so, does this ruling invalidate those NLRB actions?
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.
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.
What about the Cordray appointment to CFPB? Are they shut down for the time being as well?
For what it’s worth, the AP story includes the following:
Cordray’s appointment has been challenged in another case.
More from the Times story:
I think this takes us back to the original intent of recess appointments. Huzzah! Roberts will never let this stand though.
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.
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.
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:
The whole decision seems to turn on the difference between “recess” and “the Recess” in the original wording. Glorious.
“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.
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.
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.
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!
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.
And I’ll also give Judge Sentelle a thumbs up for his opinion.
Who brought the suit; ie, who had standing?
Patrick, the issue of the recess appointments came up in the normal course of NLRA litigation, which is unique from run of the mill civil litigation. Basically, the NLRB alleged Noel Canning, a Pepsi bottler, committed an unfair labor practice by violating Section 8(a)(5) of the NLRA. The case was heard before an administrative law judge, and was then appealed to the NLRB, which found a violation of the Act. Noel Canning appealed the Board’s decision to the DC Circuit Court of Appeals; at the same time, the NLRB applied to the DC Circuit to enforce its order (that’s the normal course for cases like this; they bypass the US District Courts). In addition to the arguments about Noel Canning’s alleged violation of the Act, the company argued that the NLRB did not have the authority to issue the order it did. That was how the issue came before the Court, and it carried the day.
The NLRB responds, damn the torpedoes, full speed ahead!
Important work, indeed.
KP, that’s hardly out of character. The Board has a habit of ignoring Appeals Court opinions it finds nettlesome. My law school labor law professor related an amusing story out of the Eleventh Circuit Court of Appeals. One day, a three judge panel heard oral argument in a pretty garden variety Board appeal. The Board’s lawyer rose and began his oral argument, but one of the judges immediately cut him off to ask whether the Board still took the position that it did not need to adhere to Circuit Court decisions that were at odds with the Board’s interpretation of the Act. The Board lawyer confirmed that, yes, that was their policy. The judge then instructed the lawyer to sit down and did not permit him to give any of his prepared argument.
@Matthew Gilley #25. Very interesting. Thanks for the info.
if we are not able to rid ourselves of these unconstitutional agencies yet, rendering them impotent is the next best thing.
Did the NLRB enact anything while this review was taking place? If so, does this ruling invalidate those NLRB actions? ·2 hours ago
The opinion specifically invalidated the NLRB ruling in this case, but who knows if that will invalidate every other action taken by the board without more specific cases filed against it. When this goes to SCOTUS they will have a major problem on their hands. I can see them ducking the issue and allowing each illegal action taken by the board to stand until challenged directly rather than sweeping away a year’s work by the tyrrants. If SCOTUS upholds the circuit, this case lays the next brick in the path back to a constitutionally limited government.
If the decisions stands, and isn’t reversed by the Supreme Court, this potentially jeopardizes actions taken by Cordray under his current appointment. Of course, Obama is now trying to get Cordray appointed the proper way.
The whole decision seems to turn on the difference between “recess” and “the Recess” in the original wording. Glorious. ·1 hour ago
This is indeed a huge endorsement of the “original public meaning” school of originalism. Of course, it won’t change the Living Constitution philosophy of people like Sotomayor and Kagan, but every appellate endorsement of original meaning is significant.