Court Rules Obama NLRB Appointments Unconstitutional.....

President Obama’s recess appointments to the National Labor Relations Board violated the Constitution, a federal court of appeals ruled today, also raising questions about Obama’s pick for head of the Consumer Financial Protection Board.



The court called the appointment of three members to the National Labor Relations Board in January 2012 “an unconstitutional act,” because it took place when the Senate was in an “intrasession” recess, rather than an “intersession” recess. President Obama appointed Richard Cordray to be head of the CFPB at the same time.

The recess was considered intrasession because of pro-forma sessions that Republican senators held during the Senate’s recess that month. Washington College of Law Professor Stephen Vladeck characterized those sessions as “congressional dysfunction and congressional obstructionism,” as they prevented the president from making his pick for those positions.

The Justice Department pushed back on the ruling.

“We disagree with the court’s ruling and believe that the president’s recess appointments are constitutionally sound,” a DOJ spokesperson said.

Republicans praised the ruling today.

House Speaker John Boehner called it “a victory for accountability in government.”.....snip~

Court Rules Obama NLRB Appointments Unconstitutional - ABC News

Another defeat for Obama and the Democrats.....amidst his scandals. This is the second time the court has ruled against him. Looks like it will go to the SCOTUS if Team Obama Challenges. Thoughts?

Yeah, I figured the left wouldn't like seeing Team Obama take another hit. Loses on Gun Control and now is losing the way he made his appointment to the NLRB. Although, myself I would rather see some balance with the Executive Office as the Power of the Office is heading to an Imperial Presidency. Which we don't need to have running with any Parties.

MMC said:

President Obama’s recess appointments to the National Labor Relations Board violated the Constitution, a federal court of appeals ruled today, also raising questions about Obama’s pick for head of the Consumer Financial Protection Board.



The court called the appointment of three members to the National Labor Relations Board in January 2012 “an unconstitutional act,” because it took place when the Senate was in an “intrasession” recess, rather than an “intersession” recess. President Obama appointed Richard Cordray to be head of the CFPB at the same time.

The recess was considered intrasession because of pro-forma sessions that Republican senators held during the Senate’s recess that month. Washington College of Law Professor Stephen Vladeck characterized those sessions as “congressional dysfunction and congressional obstructionism,” as they prevented the president from making his pick for those positions.

The Justice Department pushed back on the ruling.

“We disagree with the court’s ruling and believe that the president’s recess appointments are constitutionally sound,” a DOJ spokesperson said.

Republicans praised the ruling today.

House Speaker John Boehner called it “a victory for accountability in government.”.....snip~

Court Rules Obama NLRB Appointments Unconstitutional - ABC News

Another defeat for Obama and the Democrats.....amidst his scandals. This is the second time the court has ruled against him. Looks like it will go to the SCOTUS if Team Obama Challenges. Thoughts?

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As everyone probably knows, this is the most corrupt administration in the history of the republic. Obama and his cult followers have a strong disdain for our laws and our liberties.

It's about time the courts rise up to assert their co-equal footing.

The press and the courts and the Libs all seem to think that if Obama loses, they lose. What they don't seem to understand is that when obama wins, the rest of us lose.

Stockholm Syndrome?

code1211 said:

As everyone probably knows, this is the most corrupt administration in the history of the republic. Obama and his cult followers have a strong disdain for our laws and our liberties.

It's about time the courts rise up to assert their co-equal footing.

The press and the courts and the Libs all seem to think that if Obama loses, they lose. What they don't seem to understand is that when obama wins, the rest of us lose.

Stockholm Syndrome?

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Well that and not to mention.....those Obamabots and the Left can't say much when he loses. But you can bet if a Repub pulled it.....you would hear about 5 times more than what we do with Obama doing so.

MMC said:

The recess was considered intrasession because of pro-forma sessions that Republican senators held during the Senate’s recess that month. Washington College of Law Professor Stephen Vladeck characterized those sessions as “congressional dysfunction and congressional obstructionism,” as they prevented the president from making his pick for those positions.


Court Rules Obama NLRB Appointments Unconstitutional - ABC News

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Actually, from my understanding of it, there is only one "intersession' recess, which occurs between enumerated sessions of congess, and does not constitute the intra-session breaks.

From Findlaw:


Those "pro-forma sessions that Republican senators held" had nothing to do with the fact that the intra-session break was not THE intersession recess.


Unfortunately the Republicans were forced to have those intra-session pro-forma sessions to prohibit the Criminal in Chief from engaging in deliberately dishonest appointments, which he did anyway, still claiming it was a Recess.

Trip said:

Actually, from my understanding of it, there is only one "intersession' recess, which occurs between enumerated sessions of congess, and does not constitute the intra-session breaks.

From Findlaw:

Intrasession or Intersession?

The president has the power to make appointments during "the recess of the Senate." However, the D.C. Circuit, and now the Third Circuit, both agreed that there is a difference between intrasession and intersession appointments, and only the latter are valid. Intrasession breaks are brief and happen while the Senate is still technically in session. Intercession breaks are longer, and occur after an enumerated session of the Senate.​

Those "pro-forma sessions that Republican senators held" had nothing to do with the fact that the intra-session break was not THE intersession recess.


Unfortunately the Republicans were forced to have those intra-session pro-forma sessions to prohibit the Criminal in Chief from engaging in deliberately dishonest appointments, which he did anyway, still claiming it was a Recess.

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Heya Trip. :2wave: Yeah.....but do you think Team Obama will challenge now that this is the second time they have been shut down by the Court?

I'm surprised that the "strict constitutionalist" types actually defend Congress' blatant attempt to take away a power specifically granted to the President by the US Constitution. Recess appointments are specifically identified as something the President can do, so Congress decided to block that power by creating a fake session in which no actual work was done. It lasted like 45 seconds. Founding fathers' intent! Unless that goes along with Obama, then screw it.

The constitution didn't make a distinction between "intersession" and "intrasession." I'm glad Obama picked this fight, because it's a dirty tactic that has been around Congress for way too long. I'd bet that Democrats pulled this stunt under Bush and Republicans freaked out about it at the time.

Deuce said:

I'm surprised that the "strict constitutionalist" types actually defend Congress' blatant attempt to take away a power specifically granted to the President by the US Constitution. Recess appointments are specifically identified as something the President can do, so Congress decided to block that power by creating a fake session in which no actual work was done. It lasted like 45 seconds. Founding fathers' intent! Unless that goes along with Obama, then screw it.

The constitution didn't make a distinction between "intersession" and "intrasession." I'm glad Obama picked this fight, because it's a dirty tactic that has been around Congress for way too long. I'd bet that Democrats pulled this stunt under Bush and Republicans freaked out about it at the time.

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Actually the Constitution did indeed make a distinction between the intersession breaks, and the intrasession recess. The Constitution specifically grants the power to the president appoint persons in "THE recess" of the Senate <Article II, Section 2, Clause 3>, not just any recess, and not just a "break".

The Congress only recesses in between enumerated sessions. Intrasession breaks are brief and happen while the Senate is still technically in session. The NLRB appoint, and others, occurred during a two-week Senate break in March 2010, in the midst of the 2nd session of the 111th Congress, which went from Jan 5, 2010, to Dec 22, 2010. This wasn't even a break between the first and second session of the 111th Congress!

As reported, the 3rd Circuit's opinion heavily referenced the D.C. Circuit's Canning decision and also drew on original source material from the days of the founding fathers, including citing Thomas Jefferson's manual on parliamentary practice, the Federalist Papers and colonial-era state constitutions [SUP]1[/SUP]... so claiming that it was contrary to the Constitution is just not at all accurate.


IN fact, as indicated, the Republicans kept up a proforma session just to prohibit the unconstitutional act of this repeatedly constitution-defying administration, anticipating Obama's intention to bypass the Senate's constitutional authority of "advice and consent" on such appointments.

MMC said:

Heya Trip. :2wave: Yeah.....but do you think Team Obama will challenge now that this is the second time they have been shut down by the Court?

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I think he's going to push this all the way to the Supreme Court, and in the meantime try to push out as many pro-union decisions as possible, made by union members in the NLRB, and try to pass this off as legitimate, objective judgment by the federal government, regarding a power the federal government really does not have.

But that's fine; he's just adding to the long list of impeachable offenses begun with his first days in office.

I'm pleased when the Constitution wins against grabbers of unconstitutional power.
Somebody should explain to Mr Obama, the power of president most clearly lies in the VETO, not in wielding the government checkbook, or royal decrees.

As much as I don't like the idea of a President using recess appointments to get around a Senate review process, I also don't like the Senate holding fake sessions to pretend its still "in session" as the article says

In an overt attempt to prevent the President from exercising his authority during this period, Republican Senators insisted on using a gimmick called “pro forma” sessions, which are sessions during which no Senate business is conducted and instead one or two Senators simply gavel in and out of session in a matter of seconds.

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Ya that shouldn't count as being in session, and does not follow the Constitutional intent of what a session should be, neither does however conducting appointments in recess of the Senate for no other reason than to get around their confirmation process. Both sides need to grow up, and get along with the job of running the country. At least I can give Obama some credit here for at least trying to get something done.

Trip said:

I think he's going to push this all the way to the Supreme Court, and in the meantime try to push out as many pro-union decisions as possible, made by union members in the NLRB, and try to pass this off as legitimate, objective judgment by the federal government, regarding a power the federal government really does not have.

But that's fine; he's just adding to the long list of impeachable offenses begun with his first days in office.

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I also think he has impeachable offenses, but impeachment isn't possible under democratic control of the Senate.
Maybe after 2014, the right will have the votes, but I expect BOTH major parties to take a shellacking. I expect a large influx of 3rd party congressmen and senators 2014.

often, as an independent, I find my self voting more AGAINST a candidate, than FOR his opponent.
If your looking for a career in politics, run as a 3rd party candidate 2014. Lots of folks will be voting AGAINST both parties!

yobarnacle said:

I'm pleased when the Constitution wins against grabbers of unconstitutional power.
Somebody should explain to Mr Obama, the power of president most clearly lies in the VETO, not in wielding the government checkbook, or royal decrees.

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I hate when highly technical legal disagreements come about, and the partisans come out of the wood work and will pretend they've always had a pincipled stand on the issue of intrasession or intersession of the Senate. When in reality of course they've problem never heard of "Senate recess" before but they know they dislike Obama so out come the standard rhetoric about why they don't like Obama.

Wiseone said:

I hate when highly technical legal disagreements come about, and the partisans come out of the wood work and will pretend they've always had a pincipled stand on the issue of intrasession or intersession of the Senate. When in reality of course they've problem never heard of "Senate recess" before but they know they dislike Obama so out come the standard rhetoric about why they don't like Obama.

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Highly technical... you mean the fact that "THE recess" is actually the recess between sessions of congress, and not breaks within those sessions? And the idea that this appointment serves as a opportunity for a temporary appointment to vacancies that arrive during that extended recess, and not as a means for the President to bypass Constitutional authority of the Senate and that body's refusal to accept his seriously corrupt appointments of union persons to Labor Relations Board intending to mediate disputes? How do you rationalize this?

For clarification, the vacancy did not just occur during the recess, as the Constitution stipulates, but beforehand, and yet Obama was using a non-recess vacancy and a non recess break to try and fill it, even though that break was being filled by pro-forma Republican session. Naa, no corruption here!

Do you have any evidence whatsoever that this reasonable and Constitutionally supported argument by anyone here is not "principled"?

And what of those "partisans" that come out of the woodwork intending to validate corrupt appointments to the NLRB and other positions, accusing others of partisanship?

I'm guessing that the two Courts that have spoken on the issue know about the distinction of "THE Recess", and that the vacancy must occur during the recess, and not just be a non-filled vacancy occurring not even during a break, that the Senate could not agree to fill, or are you assuming that their decisions are partisan too?

Hmmm, maybe we should all just relent, and grant him Imperial powers, and just tear up that dusty old parchment.

Trip said:

Highly technical... you mean the fact that "THE recess" is actually the recess between sessions of congress, and not breaks within those sessions? And the idea that this appointment serves as a opportunity for a temporary appointment to vacancies that arrive during that extended recess, and not as a means for the President to bypass Constitutional authority of the Senate and that body's refusal to accept his seriously corrupt appointments of union persons to Labor Relations Board intending to mediate disputes? How do you rationalize this?
For clarification, the vacancy did not occur during the recess, as the Constitution stipulates, but beforehand, and yet Obama was using a non-recess break to try and fill it, even though that break was being filled by pro-forma Republican session. Naa, no corruption here!
Do you have any evidence whatsoever that this reasonable and Constitutionally supported argument by anyone here is not "principled"?
And what of those "partisans" that come out of the woodwork intending to validate corrupt appointments to the NLRB and other positions, accusing others of partisanship?
I'm guessing that the two Courts that have spoken on the issue know about the distinction of "THE Recess", and that the vacancy must occur during the recess, and not just be a non-filled vacancy occurring not even during a break, that the Senate could not agree to fill, or are you assuming that their decisions are partisan too?
Hmmm, maybe we should all just relent, and grant him Imperial powers, and just tear up that dusty old parchment.

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I'm not saying Obama is right in what he did, waiting until a recess or in this case what they thought they could get away with calling a recess. But I doubt most people here who have an opinion, one way or another, have ever taken the time to really develop a principled stance on Senate recess rules and that any opinion they have will most likely be a result of their pre-existing prejudices, whether that opinion is for or against Obama.

Also, I already said I don't think its right to use recess time to do appointments to avoid the Senate's ability to do a confirmation process, so lets lose the dramatics about imperial powers and all that other nonsensical rhetoric.

Wiseone said:

I'm not saying Obama is right in what he did, waiting until a recess or in this case what they thought they could get away with calling a recess. But I doubt most people here who have an opinion, one way or another, have ever taken the time to really develop a principled stance on Senate recess rules and that any opinion they have will most likely be a result of their pre-existing prejudices, whether that opinion is for or against Obama.

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Yes, you got that part across the first time. For people to understand the purpose of "advice and consent" of the Senate, and the Separation of Powers, and Checks and Balances, all of which are the philosophy behind vacancies <not appointments> having to occur during the actual extended recess, do must these persons have taken a previous stance on these appointments?

Is there any actual foundation to your belief that these positions held by "partisans" are not principled? Since I don't want to pick on anyone else commenting in this thread, how about with myself?

Wiseone said:

Also, I already said I don't think its right to use recess time to do appointments to avoid the Senate's ability to do a confirmation process, so lets lose the dramatics about imperial powers and all that other nonsensical rhetoric.

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This wasn't even the recess, and the vacancy didn't occur during the recess, but setting that aside, do you have any problem at all with a President, any President, occupying a mediation board with persons who are conspicuously from one side of the table, notably labor, and the union itself?


And what about for a NLRB <even one not so corruptly stacked> actually imagining it has the authority to dictate where companies may, or may not, relocate?

Do you yourself take a "principled stand" on any of this?

Trip said:

Yes, you got that part across the first time. For people to understand the purpose of "advice and consent" of the Senate, and the Separation of Powers, and Checks and Balances, all of which are the philosophy behind vacancies <not appointments> having to occur during the actual extended recess, do must these persons have taken a previous stance on these appointments?

Is there any actual foundation to your belief that these positions held by "partisans" are not principled? Since I don't want to pick on anyone else commenting in this thread, how about with myself?



This wasn't even the recess, and the vacancy didn't occur during the recess, but setting that aside, do you have any problem at all with a President, any President, occupying a mediation board with persons who are conspicuously from one side of the table, notably labor, and the union itself?

Craig Becker has been Associate General Counsel to the AFL-CIO and the Service Employees International Union (SEIU).

Other Recent Obama Nominees:
Lafe Solomon, NLRB General Counsel, in 2011 was the NLRB attorney who issued an unfair labor practice complaint against Boeing, alleging the company violated the NLRA "by deciding to transfer [from Puget Sound, Washington] a second production line to a non-union facility in South Carolina for discriminatory reasons". Solomon found himself in more hot water last year when the NLRB inspector general found he violated the agency’s ethics standards by participating in a case involving a company in which he had a financial stake.
​

And what about for a NLRB <even one not so corruptly stacked> actually imagining it has the authority to dictate where companies may, or may not, relocate?

Do you yourself take a "principled stand" on any of this?

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I can't speak for specific people, but I would have a hard time believing that prior to this story breaking that most people who have an opinion on this issue weren't even aware that the appointments to the National Labor Relations Board normally had Senate confirmations. I doubt most people even knew there was such a thing as the National Labor Relations Board and even less knows what it does, including myself, who can only speculate on its function. That's just based on my experienced with talking to people about government, I mean do you honestly believe your average partisan, whether Republican or Democrat, knows what the National Labor Relations Board is?

So no I don't have a pincipled stand on his appointments, or attempted appointments to the National Labor Relations Board because I don't know what the NLRB does or what would make a good board member for that organization. I don't have anywhere near the amount of information I'd need to make an opinion on his appointments

Wiseone said:

I can't speak for specific people, but I would have a hard time believing that prior to this story breaking that most people who have an opinion on this issue weren't even aware that the appointments to the National Labor Relations Board normally had Senate confirmations. I doubt most people even knew there was such a thing as the National Labor Relations Board and even less knows what it does, including myself, who can only speculate on its function. That's just based on my experienced with talking to people about government, I mean do you honestly believe your average partisan, whether Republican or Democrat, knows what the National Labor Relations Board is?

So no I don't have a pincipled stand on his appointments, or attempted appointments to the National Labor Relations Board because I don't know what the NLRB does or what would make a good board member for that organization. I don't have anywhere near the amount of information I'd need to make an opinion on his appointments

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One can surmise what the purpose of the NLRB is from its title alone, however if that is not sufficient, and one has not listened to the new over the last several years, there might even be sufficient information in this thread alone to recognize a "principled position".

From NLRB at Wikipedia:


What we have is a federal organization, largely focused on promoting unions and union activities - a biased Kangaroo Court. Add to that the ability of a President to further stack that body, with entirely pro-union members in disregard of corporate interests, without even the approval of the Senate, and you have a stacked, corrupt kangaroo court acting with the full authority of the federal government, while denying companies even the ability to act in their own interest and relocate.

Good thing we've not seen this President act with any bias toward unions, in stark disregard for corporate interests and private ownership interests, abusing even tax dollars for the benefit of unions. Obviously there's no cause for concern about "principles".

What could possibly go wrong in this!

Deuce said:

I'm surprised that the "strict constitutionalist" types actually defend Congress' blatant attempt to take away a power specifically granted to the President by the US Constitution. Recess appointments are specifically identified as something the President can do, so Congress decided to block that power by creating a fake session in which no actual work was done. It lasted like 45 seconds. Founding fathers' intent! Unless that goes along with Obama, then screw it.

The constitution didn't make a distinction between "intersession" and "intrasession." I'm glad Obama picked this fight, because it's a dirty tactic that has been around Congress for way too long. I'd bet that Democrats pulled this stunt under Bush and Republicans freaked out about it at the time.

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Heya Duece. :2wave: Were you glad when Reid screwed the Pooch and carried the session over? You are aware this was caused by the Demos themselves. Also Obama let that vacancy for the Board sit there for over 2 years......or close to it.

Do you think Strict Constitutionalists have figured out how the Office of the Presidency has increased in Power. That is headed for an Imperial Presidency unless Reigned in soon. Especially with todays technologies.

yobarnacle said:

I'm pleased when the Constitution wins against grabbers of unconstitutional power.
Somebody should explain to Mr Obama, the power of president most clearly lies in the VETO, not in wielding the government checkbook, or royal decrees.

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You should read what the constitution actually says about recess appointments!

MMC said:

Heya Duece. :2wave: Were you glad when Reid screwed the Pooch and carried the session over? You are aware this was caused by the Demos themselves. Also Obama let that vacancy for the Board sit there for over 2 years......or close to it.

Do you think Strict Constitutionalists have figured out how the Office of the Presidency has increased in Power. That is headed for an Imperial Presidency unless Reigned in soon. Especially with todays technologies.

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A strict constitutionalist doesn't have this vague sense of "too much" or "too little" power. They have specific things they believe the government can and cannot do, and oppose or support the power to do those things on that basis.

In my opinion, a real strict constitutionalist would be against Congress attempting to block a power the constitution gives to the president. Those who call themselves that but are against Obama on this anyway are really just Republicans. They're for big government, just big government in their way, and anything a Democrat does they're automatically against.

yobarnacle said:

I also think he has impeachable offenses, but impeachment isn't possible under democratic control of the Senate.
Maybe after 2014, the right will have the votes, but I expect BOTH major parties to take a shellacking. I expect a large influx of 3rd party congressmen and senators 2014.

often, as an independent, I find my self voting more AGAINST a candidate, than FOR his opponent.
If your looking for a career in politics, run as a 3rd party candidate 2014. Lots of folks will be voting AGAINST both parties!

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Name an impeachable offense.

NLRB, looks like a great place to hide union thugs. Let's see, who got lots of union campaign funding? Hmmmm... who would that be?

Deuce said:

You should read what the constitution actually says about recess appointments!

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Did the vacancies happen during the recess of the Senate?

Deuce said:

Name an impeachable offense.

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In October 2011, Obama instructed the Justice Department to no longer enforce the 1996 Defense of Marriage Act, saying it was unconstitutional.

WHAT! He thinks he's the supreme court?

President Barack Obama has resorted to bypassing the legislative branch to implement tighter gun control laws.

"Where they won't act, I will," he said in October 2011 as part of a "We Can't Wait" campaign.

He thinks he is more powerful than congress?

He directed the Department of Homeland Security not to deport undocumented immigrants.

UnConstitutional surveillance and discriminatory targeting of political enemies by government agencies with unfettered power.

He thinks HE is the law?

Court ruled the President himself violated the Constitution when he made appointments to the National Labor Relations Board.

I'll come up with more, but the PATTERN is clear!

When Obama acts to circumvent congress and RULE by royal style edicts.

He isn't KING no matter What he thinks!

All above are definitely impeachable!

The one that bothers me the MOST borders on treason.

In a 30-page report justifying continued military involvement in the NATO-led strikes in Libya, the Obama administration claims that U.S. military involvement is “legitimated” by the UN Security Council – saying that therefore no congressional authorization is needed.

He doesn't need advice and consent from congress? He gets his authority from FOREIGNERS?
Who does he serve? Who elected him? He has some STRANGE ideas of presidential power!