Obama’s Recess Appointment Power Grab Backfires And Hands Conservatives A Victory

2012-10-25T232704Z_1_CBRE89O1T5600_RTROPTP_2_USA-OBAMA

This is big for a lot of reasons.

Politically, it’s a major setback to President Obama. To pay off his organized labor friends, Obama jammed in some very union-biased appointments to the National Labor Relations Board. Those appointments have now been ruling on cases before the NLRB for more than a year, but if this ruling stands all of those decisions will be subject to lawsuits and reconsideration because some of the board members deciding them were appointed illegally.

In short, this is a huge mess, and it’s Obama’s fault.

What’s more, Obama provoking the legislative branch with these appointments has resulted in a federal appeals court seriously limiting the President’s recess appointments. Obama, and presidents before him, have made plenty of appointments during intra-session recesses. But thanks to Obama granting himself the authority to determine whether or not the Senate is in session, the Supreme Court has now limited the executive’s power for recess appointments to only the formal recesses between congressional sessions.

From the opinion:

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 of those sessions.

Oh, and the vacancies to which the president is making appointments have to have taken place during a recess too in order for the President to make a recess appointment:

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.

This is a major setback for executive power, and it puts both Obama and future presidents at the mercy of the Senate for making appointments.

Which, frankly, probably isn’t such a bad thing. This, coupled with the Senate’s filibuster, will ensure that Presidents make appointments more in keeping with the will of the people.

Obama overplayed his hand, and handed the limited government movement a pretty nice victory.

Rob Port is the editor of SayAnythingBlog.com. In 2011 he was a finalist for the Watch Dog of the Year from the Sam Adams Alliance and winner of the Americans For Prosperity Award for Online Excellence. In 2013 the Washington Post named SAB one of the nation's top state-based political blogs, and named Rob one of the state's best political reporters. He writes a weekly column for several North Dakota newspapers, and also serves as a policy fellow for the North Dakota Policy Council.

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  • DelawareBeachHouse

    I’d note than when the Dems did the same thing to Bush, i.e., hold those ridiculous 1 minute pro forma sessions, he abided by the law and did not make the supposed recess appointments than Obama deemed available to him.
    Anyway, great day for the rule of constitutional law.

  • opinion8ed

    A victory out of DC.. We will take it

  • LastBestHope

    Like everyone who loves our country’s historic commitment to individual freedom, I was disappointed by the November elections. But I’m seeing a very bright silver lining: The courts are going to dismantle Obama’s attempt to impose an imperial presidency on US. This ruling is only the beginning.

    The ObamaCare violations of our 1st Amendment rights of religious freedom are headed for a SCOTUS ruling. Claims of Executive Privilege re: the Fast & Furious crimes committed by his DOJ are being challenged. His immigration amnesty EO before the election is under review. The states are litigating against federal overreach in dozens of complaints in many areas including the EPA, labor relations, gas & oil exploration, voter ID laws, small business regulations and agriculture.

    The Founders understood power. They foresaw that there would be times when one branch of government would try to dominate US. They were especially aware that America needed protections from the tyranny of a King. That’s why a Bill of Rights was deemed mandatory by the collective wisdom of the individual states.

    • Wayne

      With Obama’s victory in November, we can expect one, maybe two, more liberal judges on the SC. I wish I shared your optimism.

      • camsaure

        Exactly, and we also need to very much worry about the “progressive” John Roberts. I am sure he will find every means possible to thwart the constitution and sell out our freedoms.

        • LastBestHope

          Roberts did not want to rule on ObamaCare based on the Commerce Clause. He won’t have any such reservations re: violations of the 1st Amendment. Neither Roberts nor his Court are done with this Executive Branch power grab.

          This ain’t instant coffee.

  • http://ndgoon.blogspot.com Goon

    This is a good slap to an imperial president.

    • Guest

      Yes, how dare Obama do what every President in the last two centuries has done! Outrageous!

      • Hal513

        Look at “guest” staying up all night, alone, on a blog typing with one hand. Are you closely related to hannitized?
        Brahahahaha!!!

        • http://ndgoon.blogspot.com Goon

          ha, ha, ha… Hannitized logs in under multiple log ins so it could be.

          • Guest

            ha, ha, ha… the best conservatards can do when pointing out every President has done what they’re so upset Obama has done is blindly guess at nomikers.

          • http://proof-proofpositive.blogspot.com/ Proof

            “nomikers” (sic) Certainly spells like Hanni!

          • http://ndgoon.blogspot.com Goon

            Same challenged though process. I haven’t been around here a lot lately, did Rob finally nuke his lame ass?

          • Guests

            In the spirit of Goof who gets a hard-on for misspellings:

            “Same challenged though (sic) process. I haven’t been around here a lot lately, did Rob finally nuke his lame ass?”

            Goon should know, he’s an expert on getting his ass pounded.

          • http://ndgoon.blogspot.com Goon

            You’re a disgusting piece of crap… You’re real brave hiding behind a face name.

          • two_amber_lamps

            “he likes to post under my five year old daughter’s name on my hockey blog as well.”

            So much for Guest…. turns out to be a cowardly imposter who passes itself off as a child??

            OMG that’s RICH!!! You can’t make this $%it up!!

            Lolz!!! now you can go kill yourself 3M contractor who stalks the interwebz under little girl’s names!

            F$%$kin perv! BWHAHAHAHAHAHAAHAHAHAAHAAAHHAAA!!!!!

          • Guest

            Although still dissapointed you haven’t done the right thing and killed yourself, as it will be one of the few actions that will postively impact the world, it’s still gratifying that you’ve chosen effectively the same end by wasting your life away posting uninspired insults! Keep posting, fat b*tch!

          • http://proof-proofpositive.blogspot.com/ Proof

            “wasting your life away posting uninspired insults!”

            …says the mental midget who has posted uninspired insults on my blog, sometimes twice a day, posts uninspired insults on Rob’s blog and impersonates a five year old girl to post uninspired insults on Goon’s blog.

            Your delusions are way beyond mere projection, Derpmeister.

            Seek professional psychiatric help.

          • Guest

            Yawn. Oh Goof, his senility is really showing now. I can only presume he’ll soon find a way to blame me for his impotence as he apparently thinks I’m the source of every bad or annoying thing in his pathetic life. Thank you for your post decrying insults with a post containing only insults. Your senility is way beyond projection, Goof. Please send a bullet through your skull on the off chance it might hit your decrepit mind to at least relieve us if its effects!

          • http://ndgoon.blogspot.com Goon

            Wow, you’re a bigger loser than I thought you were. A real internet tough guy. Hiding behind the screen of a computer.

          • http://proof-proofpositive.blogspot.com/ Proof

            I wonder how many other blogs and chatrooms he signs in as a prepubescent girl?

          • two_amber_lamps

            My guess would be…. all of em!

            Judging from his shifty habits and disgusting demeanor he’s probably a candidate for NBC’s “To Catch a Predator” show….

            What is it with leftists and preoccupation with children? I don’t know why I ask since libtards and their NAMBLA kin are working towards the legalization of sexual relations with young adults and children…

            Deviants.

          • http://proof-proofpositive.blogspot.com/ Proof

            Guest is only about one sophomoric rant away from a complete psychotic breakdown. I suspect none of his neighbors will tell police “he was a quiet fellow”.

          • http://ndgoon.blogspot.com Goon

            This guys also stalks the beat writer for the Herald, but he prefers young children and people dead mothers.

          • http://proof-proofpositive.blogspot.com/ Proof

            In all sincerity, I really feel sorry for you, chucklehead. You are so full of bitterness and hate. I’m the second person you’ve wished death upon tonight, all because your feeble mind is incapable of putting forth a rational or well reasoned argument.

            Go back to impersonating a five year old girl. Dress the part if you feel you must. Then try to summon the maturity to at least act like one.

          • Guest

            Poor Goof. He hasn’t provided any argument in this entire thread and still has the senility to accuse another of being incapable of putting together a rational argument. We’ve come to expect nothing less than Goof to be a paranoid, senile, pedophile whose life is apparently so pathetic the best he can do masturbate to misspelled words and hypocritically denounce others posting insults when that’s been his sole endeavor as well. What a Goof!

          • http://proof-proofpositive.blogspot.com/ Proof

            More projection from the gutless anonymous troll. (It’s funny that he calls me a pedophile, but he’s the one impersonating five year old girls on the Internet.) BTW, I noticed that some of your priceless (read: worthless) prose was written about one in the AM your time. You used to stop by my blog after midnight a lot, too. But, at least you’re not wasting your life, spending hours online, projecting all your faults and foibles onto those you have no prayer of matching in honest debate. /sarc

            Tell you what, Gusty. Go out and buy yourself a new training bra , so you can feel good about yourself. (Might help you stay in character.)

          • http://ndgoon.blogspot.com Goon

            You must have me confused with your sexual orientation.

          • Guest

            Did it really take you a whole day to come back with “I know you are but am I?” Sucking dick must really drain your creative process, among other things.

          • Guest

            At least he doesn’t dance on the graves of dead kindergartners like Goof!

          • http://proof-proofpositive.blogspot.com/ Proof

            If you weren’t such a cowardly troll hiding in your Mom’s basement I might do more than merely chuckle at your impotent rage, chucklehead.

          • http://ndgoon.blogspot.com Goon

            The guest in question is a contractor for 3M in Minnesota who also lives in Redwood Falls, MN and like to troll blogs. A real foam at the mouth dumbass.

            I wouldn’t be surprised if he’s actually Hanni’s gay lover. They’re similar because their both huge sock puppets who also post under numerous proxy servers and names, so beware, he’s hard to nail down but none the less is a massive buffoon and a gutless puke. He also like young children as well because he likes to post under my five year old daughter’s name on my hockey blog as well. He’s a real piece of work.

          • http://proof-proofpositive.blogspot.com/ Proof

            So, he tries to impersonate a five year old girl and fails? Why am I not surprised?

          • http://ndgoon.blogspot.com Goon

            Yeah, he’s a gutless puke and a fraud. A real loser too. Lowest of low.

          • http://proof-proofpositive.blogspot.com/ Proof

            Too bad! Back when I worked for 3M they had standards!

          • two_amber_lamps

            Whooo my God… that’s even better than the story I had him pegged for!! HILAROUS and thanks for sharing!

            You might have grounds for a restraining order against that sick f%$k?

          • Guest

            What hilarious is your pathetic life! Thanks for continuing to post and proving how much of a truly heinous, fugly b*tch you are!

          • Guest

            Had to break it too you moron but more than one person can think you’re a sh*thead dimwit! Seeing everyone guess at possible aliases just goes to show your profound stupidity and paranoida!

          • http://proof-proofpositive.blogspot.com/ Proof

            “just goes to show your profound stupidity and paranoida (sic)”

            Gusty, if you want to speak of profound stupidity, your own speaks volumes.

          • Guest

            Sorry Goof! I can assure you that any misspellings are solely a result of the small iPhone’s keyboard in addition to how little respect I have for you!

          • http://proof-proofpositive.blogspot.com/ Proof

            Poor witless Gusty! Blames his stupidity on his iphone. How lame! Like they say, a poor tradesman blames his tools. I have absolutely no respect for you, chucklehead, yet I still manage to spell words correctly.

            We take it that you dance on the graves of your dead brain cells, oblivious to their absence in your ability to put forth a cogent argument.

          • http://ndgoon.blogspot.com Goon

            You’re a putz….

          • Guest

            Oh no, Goof called me impotent! If I had a sh*tty website, I’d turn of unregistered commenting because I was so profoundly insulted like Goof did!

          • http://proof-proofpositive.blogspot.com/ Proof

            I may have to call you illiterate, or at least mind numbingly stupid, because I didn’t call you impotent. I said you had impotent rage. There’s a difference. Or are you confessing to sexual problems here as well? Not that anyone really gives a flying fling at a rolling doughnut about you or your problems. If English is not your first language, that can be forgiven as well. (And would explain a lot.)

            We understand that you yourself realize that everything you bleat here and on other high quality websites is so worthless you don’t care to claim any of your comments. Stupidity that profound is hard to be proud of! But, if you ever grow a pair of balls (stop laughing!) to where you are willing to actually stand behind whatever you say, let us know. Until then, go back to impersonating five year old girls. You may be better at it.

          • Guest

            Yawn. Oh Goof, if you wanted to insult me you should have simply compared me to yourself in anyway. That would truly hurt even the thickest-skinned among us. I’m still gratified that you resorted to changing your posting policies on your lame blog because you couldn’t handle the truth about your senility and impotence, but if you have the balls to revert them (you’re probably noticed a sharp pain when you sat on them!), let us know!

          • http://proof-proofpositive.blogspot.com/ Proof

            I don’t have to insult you, I have merely to describe you. And no honest person is denied making comments on my blog. Your inability to do so speaks more to your impotence than to mine. Your delusions are duly noted.

            But if your projection helps you make it through the night, you may continue to do so, in lieu of intelligent comments.

          • Guest

            Yawn. Oh Goof, his senility must be worsening or he must have sat extra hard on his balls. It’s rather sad to see that the best Goof could compose in response to the comment that a description of Goof was a truly cutting insult was that Goof thinks describing me is an insult. Your inability to think is prima facie evidence of your impotence and incompetence, so if nothing else, thank you for again demonstrating your total lack of capacity meaningful thought. But if simply mimicking me helps you get you through the night, you may continue. I await your “I know you are, but am I?” response.

          • two_amber_lamps

            “he likes to post under my five year old daughter’s name on my hockey blog as well.”

            Classic!! So cowardly you hide behind the name of a child??

            To think we gave you some credit for being amusing, then we find you’re nothing more than a sick b%$ard… at least your pedophile buddy Ellinasty proclaims how proud he is of his greek pederast lineage, you can’t even own up to your own name on a hockey blog!!

            BWHAHAHAHAHAHAHAHAHAHAAAA!

          • http://proof-proofpositive.blogspot.com/ Proof

            And the sad thing about it is, even though he hasn’t the balls to back up anything he says, all he does is regurgitate the same, tired, lame insults over and over again. I guess his claim to fame is that his parents let him live this long.

          • Guest

            What’s truly sad is Goof constantly recycles his lame insults like “Your delusions are duly noted” and than has the audacity (or perhaps more accurately, senility) to bemoan others of doing it.

          • http://proof-proofpositive.blogspot.com/ Proof

            Poor chuckleheaded Gusty! If I had a nickle for every time one of your insults included the words “senility” (which you may be), “impotent” which is also high on your fixation rate (I have five kids, how many do you have, chucklehead?), and “sh*tty blog”, which is a laugh riot, since you go around to everyone with the balls and the brains to actually produce one, something which you seem too…impotent to do yourself.

            That’s some world class projection you got going there, chucklehead*.

            *Not an insult, merely a descriptor of a mindless, spineless, ball-less, anonymous troll too cowardly to even assume a nom de cyber.

          • two_amber_lamps

            “he likes to post under my five year old daughter’s name on my hockey blog as well.”

            Guest impersonates little girls on the interwebs??

            DEEEEERRRRRRP!

          • http://ndgoon.blogspot.com Goon

            Not one president has decided that the senate is out of session. The president doesn’t have that power.

          • Guest

            Goon obviously hasn’t read the court’s decision which concluded that all recess appointments except those between different sessions of Congress violate the Constitution, which is something a vast majority of President’s have done. It’s okay though, reading and understanding things is hard for conservatives!

        • Guest

          Look at Hal513, staying up all nite with a butt-plug up his ass. Are you closely related to Jerry Sandusky?Brahahahaha!!!

  • two_amber_lamps

    No matter… since the court’s ruling doesn’t fit the ruling class’s opinion…

    IGNORE IT.

    TREASON.

    http://washingtonexaminer.com/nlrb-we-will-continue-to-act-despite-the-appeals-court-decision/article/2519736?custom_click=rss#.UQMPw2dghZp

    • Dirty Harry

      Yes, he’ll try to ignore it, and try to win an appeal. Politics. Sickmaking.

      • two_amber_lamps

        That seems to be the way of things… drag everything to the supreme court if necessary.

        Who suffers? The taxpayer. But when did the left ever care about frivolous misuse of tax dollars?

  • LastBestHope

    This ruling is a change of the political tide:
    (Excerpt from NRO)

    “Today, a unanimous ruling by a three-judge panel of the D.C. Circuit Court of Appeals struck down President Obama’s purported “recess appointments” of three members of the NLRB — and went further in rebuking the administration in three important respects.

    First, today’s ruling is much broader than expected — it severely limits the president’s recess-appointment power. Two days after the illegal recess appointments were made, Ed Meese and I wrote an op-ed in the Washington Post explaining an important but narrow ground on which a court might overturn them. We also warned of the effects that litigation could have:

    President Obama’s flagrant violation of the Constitution not only will damage relations with Congress for years to come but will ultimately weaken the office of the presidency. There eventually may be litigation over the illegal appointments, but it will be a failure of government if the political branches do not resolve this injustice before a court rules.

    Our constitutional-law-professor-in-chief ignored this advice and is now hoist on his own petard. He is worse off than he was when he started, because the court’s ruling invalidates all appointments made during recesses that occur in the middle of a Senate session. Under the ruling, appointments will be possible only in the recesses between sessions of the Senate, which are unlikely to occur, at least until the end of this year, without unusual Senate action.

    Moreover, two of the three judges also ruled on an even broader constitutional ground, holding that the vacancy to be filled must actually arise during such an intersession recess, not prior to that period. The third judge expressed no opinion on this last issue.

    The second setback is that 13 months’ worth of rulings, regulations, and other actions by the NLRB are now in question, because without the illegal recess appointments the NLRB lacked a quorum to act during all that time. The White House is disputing this, or at least Jay Carney is trying to, but it is hard to see how today’s ruling is limited to “once case, one company.” The courts have doctrines that might ameliorate some harsh results regarding pay and such, but most of the board’s actions are at least in doubt. Thus, not only must the president secure proper Senate confirmation for these officials, but the NLRB likely must start over when it has a quorum.

    The third setback for the administration is that many of the actions of the Consumer Financial Protection Board (CFPB) are in doubt as well. Richard Cordray, who received a purported recess appointment on the same day and in the same manner as the three invalid NLRB members, would have been the first head of that agency. Thus, no prior head of the agency could have made lawful delegations of authority. Moreover, the CFBP’s organic statute provides that no acting head may issue regulations. The eventual effect of today’s decision on pending and future CFPB actions will take many months to sort out, but the rest of the D.C. circuit is bound by the ruling today unless the entire appeals court (as opposed to the three-judge panel) or the Supreme Court reverses it.

    Todd Gaziano is the director of the Center for Legal and Judicial Studies at the Heritage Foundation and a former lawyer in the Justice Department’s Office of Legal Counsel, which advises the president on recess-appointment matters.

  • mickey_moussaoui

    More please :)

  • $8194357

    But the Bush did it too defense will get them of the hook with the MSM
    bully pulpit going to bat for all things liberal.

    • LastBestHope

      Bush did not do what Obama did. MSM can’t make that claim.

      By Edwin Meese III and Todd Gaziano,January 05, 2012

      “President Obama’s attempt to unilaterally appoint three people to seats on the National Labor Relations Board and Richard Cordray to head the new Consumer Financial Protection Bureau (after the Senate blocked action on his nomination) is more than an unconstitutional attempt to circumvent the Senate’s advise-and-consent role. It is a breathtaking violation of the separation of powers and the duty of comity that the executive owes to Congress.

      Yes, some prior recess appointments have been politically unpopular, and a few have even raised legal questions. But never before has a president purported to make a “recess” appointment when the Senate is demonstrably not in recess. That is a constitutional abuse of a high order.”

      • $8194357

        Yes but he was Republican so the press will twist it,
        spin it, and decry to the masses the deception as gospel.

      • http://ndgoon.blogspot.com Goon

        You might want to tell that to that dumb ass Guest, he seems to think that all of the presidents did that.

  • Carter Wood

    Hi, Rob. Last night at the National Review Institute event, Rich Lowry interviewed Charles Krauthammer. The two biggest applause lines were when Krauthammer decried the failure of public education and the system’s abandonment of poor, inner-city black kids, and when he hailed the court’s ruling on the NLRB. People here really care about the abuse of executive authority by President Obama.

    • http://sayanythingblog.com Rob

      Thanks for the insight Carter.

  • schreib

    Can we all form a line taking turns beotch slapping him. Sweeeeet

  • Don Quixote

    You people should wait until the supreme court speaks as this decision will likely be appealed. The decision was rendered by three conservative judges (appointed by republicans of course). If the Supreme court upholds the lower court, you can crow. If not, all your words here are for naught.

    • two_amber_lamps

      Uh… hate to say it but this is a “blog.” In other words the conversation here generally amounts to “naught.” Sorta like most other human conversations?

      Hate to burst your bubble… have a nice day!

    • http://sayanythingblog.com Rob

      We’ll see what happens, but I’m pretty confident this will be upheld.

      • Guest

        Rob’s a bona fide legal expert, dontchya know? Everyone remembers how he correctly called the Affordable Care Act’s unconstitutionality.

        • Hal513

          “guest” another bona fide pet troll of Rob’s.

          • Guest

            Hal513 is certainly a pet troll of mine!

        • http://sayanythingblog.com Rob

          I didnt predict anything about how the Supreme Court would rule. I simply stated my own view that the law is illegal.

      • http://ndgoon.blogspot.com Goon

        I am not sure why they would over turn it, if they do, they no longer respect the constitution either.

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