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25 January 2013

Court In Unanimous Decision: Obama Recess Appointments Are Unconstitutional And Were An "Abuse Of Power"

Not so fast, Buster!

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.

He also “recess appointed” Richard Corday to be the Director of the new Consumer Financial Protection Bureau.

What is very important to know is, if the court follows the precedent set by the Supreme Court in New Process Steel v. NLRB, 130 S. Ct. 2635 (2010), then ALL of the rules, regulations, and decisions of the NLRB since the unconstitutional appointments WILL BE RENDERED NULL AND VOID. 
The same would be true of those made by Corday at the Consumer Financial Protection Bureau.  In New Process Steel, the Supreme Court found that the NLRB had been operating without a quorum. THE COURT INVALIDATED MORE THAN 600 DECISIONS MADE BY THE NLRB, AS A RESULT. 

Remember that the real crux of the matter is NOT the Senate’s pro forma sessions, but Article I, Section 5, Clause 4, the Adjournments Clause, which says that neither chamber can take a break of more than three days without the consent of the other:

“Neither House, during the Session of Congress, shall, without the Consent of the other, adjourn for more than three days, nor to any other Place than that in which the two Houses shall be sitting.”

The House NEVER passed a resolution consenting to a Senate recess.

Further, the Court has ruled that recess appointments cannot be made during a 3-day recesses:

"The appointment may be made in “the Recess,” but it  ends  at  the  end  of  the  next  “Session.”  The  natural interpretation of the Clause is that the Constitution is noting a difference between “the Recess” and the “Session.”  Either the Senate is in session, or it is in the recess.  If it has broken for three days within an ongoing session, it is not in “the Recess.”...It is universally accepted that “Session” here refers to the  usually two  or  sometimes  three sessions  per Congress.  Therefore, "The Recess" should be taken to mean only times when the Senate is not in one for those sessions."

Further, the Court also ruled that the vacancies had to arise during "The Recess" (see page 23):

"To avoid government paralysis in those long periods when senators were unable to provide  advice and  consent,  the  Framers  established  the “auxiliary” method of recess appointments.  BUT THEY PUT STRICT LIMITS ON THIS METHOD, REQUIRING THAT THE RELEVANT VACANCIES HAPPEN DURING "THE RECESS."  It would have made little sense to extend this “auxiliary” method to any intrasession break, for the “auxiliary”  ability to make recess  appointments  could  easily swallow  the  “general”  route  of  advice and  consent.  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."
Then, there is this EPIC slapdown:

"The power of a written constitution lies in its words. It is those words that were adopted by the people. When those words speak clearly, it is not up to us to depart from their meaning in favor of our own concept of efficiency, convenience, or facilitation of the functions of government. In light of the extensive evidence that the original public meaning of “happen” was “arise,” we hold that the President may only make recess appointments to fill vacancies that arise during the recess."

As for the arguments being made by the Left that Obama HAD to act unconstitutionally - "We can't wait!!!" - because of Senate Republicans' "unreasonable use of the filibuster," it should be noted that Obama nominated the 3 individuals to the NLRB on 14 December 2011 and then made the "non-recess-recess" appointments on 4 January 2012...BEFORE THE NOMINEES HAD EVEN COMPLETED THE REQUISITE DOCUMENT SUBMISSIONS AND HARRY REID EVEN HAD A CHANCE TO SCHEDULE HEARINGS OR A CONFIRMATION VOTE. 
That's a mere THREE WEEKS!!!

Quick:  Which President became synonymous for "abuse of power"?  Nixon.  

Heckva job, Barry!   We've always known that you were Nixonian in your machinations, agitation, and divisiveness, but now your actions have also been labeled "an abuse of power" by a Federal Appellate Court...UNANIMOUSLY.


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