Sunday, January 27

Recess appointments

The Obama administration has repeatedly shown its utter contempt for U.S. law and the requirements of the Constitution.  To list a few examples:  the senate has refused to pass a budget for three years, in violation of the law, and Obama hasn't lifted a finger to enforce the law.  After an agency of the Justice Department was caught selling guns to Mexican drug cartels, and congress subpoenaed all the DOJ's documents about that program, Obama's hand-picked attorney-general (Eric Holder) refused...and asked Obama to invoke executive privilege to shield him from testifying.  Obama complied.

Obama overruled U.S. immigration law by executive order, in permitting illegals under a certain age to stay here indefinitely; and of course Obama directed that all employers must provide insurance that in turn must provide abortion-inducing drugs to employees.

But I suggest the blatant disregard for the law has barely started.

Specifically:  In January of 2012 Obama made four "recess appointments"--three to the National Labor Relations Board and one to head the newly-created Consumer Finance Protection Board.

One small problem:  the senate wasn't in recess at the time.

But of course, who would expect Obama would let such a trivial detail stop him from doing whatever he wanted?  And true to form, he went ahead with the bogus "recess" appointments.

A small-businessman (i.e. peon taxpayer like the rest of us) who had a case before the labor board and lost by the votes of Obama's recess appointees challenged the legality of the appointments, and the case went to a court of appeals.

Three days ago said court ruled--unanimously--that according to the clear language of the Constitution the appointments were indeed invalid.

Now, you'd think an administration that was slapped down so decisively would issue a statement along the lines of "Although we strongly believe the court's ruling is in error, and will appeal the ruling, we will abide by the ruling while the appeal proceeds."

But remember that we're dealing with a guy who has paid millions to ensure his records are sealed all the way up and down the line.  This is a guy who believes anything he does is right because he got elected.  (Nixon, anyone?)'s what the guy Ogabe appointed to head the NRLB said about the court's ruling.  It was taken from the NLRB's website:

Statement by Chairman Pearce on recess appointment ruling

January 25, 2013

Today, the U.S. Court of Appeals for the DC Circuit issued a decision finding that the Jan. 4, 2012 recess appointments of three members to the National Labor Relations Board were invalid. In response, Chairman Mark Gaston Pearce issued the following statement:

"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."
Unless you're familiar with that strange language called political gobblespeak you probably didn't get what Chairman Pearce really meant:  He essentially announced that the board would continue to rule on labor cases before it as if Obama's recess appointments were legal.

Here's what the NY Times said:
The current dispute can be traced back to 2007, when Democrats took control of the Senate. Hoping to block Mr. Bush from making any more recess appointments, they didn't formally recess before going home for Thanksgiving. Instead they held pro-forma sessions, meaning a member came into the nearly empty chamber every third day and banged the gavel. The idea was that the novel tactic would legally break up the long recess into a series of short ones believed to be too brief for recess appointments.
Senate Democrats repeated the move for the rest of the Bush presidency, and Mr. Bush did not challenge it.
Under Mr. Obama, Republicans turned the tables by using the power of the House to block the Senate from adjourning for more than three days. But last January Mr. Obama decided to challenge the new tactic by declaring the pro-forma sessions a sham and appointing the three labor board members, along with Mr. Cordray [as head of the Consumer Board].
The court rejected the Justice Department’s argument in brief but scathing language.
“An interpretation of ‘the recess’ that permits the president to decide when the Senate is in recess would demolish the checks and balances inherent in the advice-and-consent requirement, giving the president free rein to appoint his desired nominees at any time he pleases, whether that time be a weekend, lunch, or even when the Senate is in session and he is merely displeased with its inaction,” wrote Judge David B. Sentelle. “This cannot be the law.” 
 Now:  When an opinion uses clear language to reject the act on constitutional grounds with a unanimous decision, that's normally a very powerful signal.  But of course in our time politics trumps everything.  And in this case one of the weaknesses of the decision is that the three judges on the appeals panel were Republicans.

A second line of attack is that reportedly the court's language can be interpreted as narrowing the use of recess appointments to only filling vacancies that occurred during the recess.  This has not been raised before, and heretofore presidents have made recess appointments for vacancies that occurred at any time, provided the appointment was made during the recess.

But in any case, the Obama administration clearly has no thoughts of putting the NLRB on hold while the case is appealed.


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