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.

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Members have made 28 comments.

  1. Profile photo of karenwtn Member

    Smack down!!

    • #1
    • January 25, 2013 at 9:35 am
  2. Profile photo of Fred Cole Member

    Good to know the system occasionally still works.

    • #2
    • January 25, 2013 at 9:37 am
  3. Profile photo of bernai Member

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

    • #3
    • January 25, 2013 at 9:37 am
  4. Profile photo of Matthew Gilley Member

    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.

    • #4
    • January 25, 2013 at 9:37 am
  5. Profile photo of Aaron Miller Member
    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
    • January 25, 2013 at 9:57 am
  6. Profile photo of Fred Cole Member
    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.

    • #6
    • January 25, 2013 at 10:06 am
  7. Profile photo of Whiskey Sam Inactive
    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.

    • #7
    • January 25, 2013 at 10:07 am
  8. Profile photo of Trace Inactive

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

    • #8
    • January 25, 2013 at 10:12 am
  9. Profile photo of Basil Fawlty Member

    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.

    • #9
    • January 25, 2013 at 10:19 am
  10. Profile photo of The King Prawn Member

    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.

    • #10
    • January 25, 2013 at 10:23 am
  11. Profile photo of DocJay Member

    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.

    • #11
    • January 25, 2013 at 10:24 am
  12. Profile photo of Joseph Paquette Inactive

    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. 

    • #12
    • January 25, 2013 at 10:49 am
  13. Profile photo of The King Prawn Member

    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.

    • #13
    • January 25, 2013 at 10:56 am
  14. Profile photo of The King Prawn Member

    “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.

    • #14
    • January 25, 2013 at 11:21 am
  15. Profile photo of Ross C Member
    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.

    • #15
    • January 25, 2013 at 11:35 am
  16. Profile photo of The King Prawn Member

    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.

    • #16
    • January 25, 2013 at 11:53 am
  17. Profile photo of SunnyOptimism Inactive

    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!

    • #17
    • January 26, 2013 at 1:08 am
  18. Profile photo of Matthew Gilley Member

    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.

    • #18
    • January 26, 2013 at 2:18 am
  19. Profile photo of Matthew Gilley Member

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

    • #19
    • January 26, 2013 at 2:19 am
  20. Profile photo of Patrick in Albuquerque Inactive

    Who brought the suit; ie, who had standing?

    • #20
    • January 26, 2013 at 2:32 am
  21. Profile photo of Matthew Gilley Member

    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.

    • #21
    • January 26, 2013 at 3:10 am
  22. Profile photo of The King Prawn Member

    The NLRB responds, damn the torpedoes, full speed ahead!

    The Board respectfully disagrees with today’s decision and believes that the President’s position in the matter will ultimately be upheld. It should be noted that this order applies to only one specific case, Noel Canning, and that similar questions have been raised in more than a dozen cases pending in other courts of appeals.

    In the meantime, the Board has important work to do. The parties who come to us seek and expect careful consideration and resolution of their cases, and for that reason, we will continue to perform our statutory duties and issue decisions.

    Important work, indeed.

    • #22
    • January 26, 2013 at 3:11 am
  23. Profile photo of Matthew Gilley Member

    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.

    • #23
    • January 26, 2013 at 3:23 am
  24. Profile photo of Patrick in Albuquerque Inactive

    @Matthew Gilley #25. Very interesting. Thanks for the info.

    • #24
    • January 26, 2013 at 3:30 am
  25. Profile photo of kesbar Inactive

    if we are not able to rid ourselves of these unconstitutional agencies yet, rendering them impotent is the next best thing.

    • #25
    • January 26, 2013 at 12:05 pm
  26. Profile photo of The King Prawn Member
    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? · 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.

    • #26
    • January 26, 2013 at 12:11 pm
  27. Profile photo of Adam Freedman Contributor
    Trace: What about the Cordray appointment to CFPB? Are they shut down for the time being as well? · 1 hour ago

    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.

    • #27
    • January 26, 2013 at 12:13 pm
  28. Profile photo of Adam Freedman Contributor
    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 inHeller 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. · 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.

    • #28
    • January 26, 2013 at 12:15 pm