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Fri Jan 25, 2013, 11:41 AM

Appeals court: Obama's recess appointments to labor board are unconstitutional

Appeals court: Obama's recess appointments to labor board are unconstitutional

by Laura Clawson

President Barack Obama's recess appointments to the National Labor Relations Board last year were unconstitutional, the U.S. Court of Appeals for the D.C. Circuit has ruled:

Obama claims he acted properly because the Senate was away for the holidays. But the court says the Senate technically stayed in session when lawmakers gaveled in and out every few days for so-called "pro forma" sessions.

The recess appointments were necessary for the NLRB to function at all, since it cannot make decisions without a quorum. Obama is likely to appeal to the Supreme Court.

http://www.dailykos.com/story/2013/01/25/1181984/-Appeals-court-Obama-s-recess-appointments-to-labor-board-are-unconstitutional

Republicans get to keep using gimmicks to block the President's nomination and also get to keep the filibuster.

Looking for a silver lining on filibuster reform? (updated)
http://www.democraticunderground.com/10022257507


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Reply Appeals court: Obama's recess appointments to labor board are unconstitutional (Original post)
ProSense Jan 2013 OP
unblock Jan 2013 #1
ProSense Jan 2013 #2
PoliticAverse Jan 2013 #3
ProSense Jan 2013 #4
PoliticAverse Jan 2013 #5
ProSense Jan 2013 #6
nick of time Jan 2013 #8
Meaniepants Jan 2013 #14
nick of time Jan 2013 #15
onenote Jan 2013 #9
Lone_Star_Dem Jan 2013 #7
JHB Jan 2013 #10
ProSense Jan 2013 #11
Lone_Star_Dem Jan 2013 #12
ProSense Jan 2013 #13
Lone_Star_Dem Jan 2013 #16
JHB Jan 2013 #18
lynne Jan 2013 #17

Response to ProSense (Original post)

Fri Jan 25, 2013, 11:56 AM

1. contrast with republican behavior in the virginia redistricting

for republicans to get their way, they don't need to be really present. they merely need to "gavel in" and "gavel out" for "pro forma" sessions.

but in virginia, one democrat's physical absence was all republicans needed to get their way. then, it suited them to require physical presence for the democrat to vote against their redistricting plan.

there's zero principle behind this people. it's all about whatever they can get away with, however they can get away with it.

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Response to unblock (Reply #1)

Fri Jan 25, 2013, 12:05 PM

2. What the hell is going on?

These people are subverting the democratic process and whining each time anyone does anything to try to get the government functioning again.

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Response to ProSense (Original post)

Fri Jan 25, 2013, 12:11 PM

3. Actually this ultimately has nothing to do with Republican gimmicks...

if you read the decision:

Link in this DU post: http://www.democraticunderground.com/?com=view_post&forum=1014&pid=380559

the 'pro forma' sessions the Republicans were doing don't even matter as the only 'recess'es that count
for the purpose of 'recess appointments' are those between sessions not those within sessions. Thus the
'pro forma' sessions weren't even necessary under the appeal court's decision (thanks to DUer 'onenote'
for pointing this out).



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Response to PoliticAverse (Reply #3)

Fri Jan 25, 2013, 12:18 PM

4. Sorry, that's bunk!

Bush's 171 recess appointments were not made "between sessions"

President Obama Has Made Far Fewer Recess Appointments Than Any Recent President | Despite the inevitable conservative complaints that President Obama is engaged in some kind of massive overreach by recess appointing Richard Cordray as the nation’s chief consumer financial protection watchdog, the truth is that Obama has used his recess appointment power very sparingly. After today’s appointment, President Obama will have made a total of 29 recess appointments. By comparison, George W. Bush made 171 recess appointments; Bill Clinton made 139 recess appointments; George H.W. Bush made 77 recess appointments; and Ronald Reagan made 243. When you divide these numbers by the number of years each man spent in the White House, it reveals that Obama is far and away the least likely president to invoke this power:



http://thinkprogress.org/justice/2012/01/04/397589/president-obama-has-made-far-fewer-recess-appointments-than-any-recent-president/


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Response to ProSense (Reply #4)

Fri Jan 25, 2013, 12:21 PM

5. Under the appeal court's decision the intra-session Bush appointments would also be invalid

recess appointments. This was a far reaching decision that goes against what
has been considered proper for a long time. The Supreme Court will have to
ultimately decide this.


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Response to PoliticAverse (Reply #5)

Fri Jan 25, 2013, 12:28 PM

6. So in other words,

"Under the appeal court's decision the intra-session Bush appointments would also be invalid recess appointments. This was a far reaching decision that goes against what has been considered proper for a long time. The Supreme Court will have to ultimately decide this."

...rules only apply to President Obama?

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Response to ProSense (Reply #6)

Fri Jan 25, 2013, 12:32 PM

8. No.

 

The rules will apply to all future President.
Onenote, in another thread, explains it pretty good.

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Response to nick of time (Reply #8)

Fri Jan 25, 2013, 01:06 PM

14. bush judicial appointment s

So if any judicial appointments bush made were during recess, does that mean they will be removed and any decisions they made invalid ?

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Response to Meaniepants (Reply #14)

Fri Jan 25, 2013, 01:09 PM

15. That's a helluva good question,

 

and one for the SCOTUS to figure out. In my opinion, if it invalidates Pres. Obama's appointments, then it should apply to all past app..
But what the hell do I know, I'm no constitutional scholar.

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Response to ProSense (Reply #6)

Fri Jan 25, 2013, 12:33 PM

9. This interpretation applies only to the DC Circuit

Other courts in other circuits have reached contrary interpretations about the Recess clause, finding that it applies to intrasession recesses and/or to vacancies that occur before as well as after the recess begins. But under our judicial system, those circuit decisions do not bind other circuits. And thus you sometimes get splits in the circuits, which almost guarantees Supreme Court review.

So in the end, this is going to be decided by the SCOTUS.

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Response to ProSense (Original post)

Fri Jan 25, 2013, 12:30 PM

7. This one is heading for the Supremes.

This would invalidate several appointments by previous presidents as well. I'm not sure this ruling will stand in light of that.

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Response to ProSense (Original post)

Fri Jan 25, 2013, 12:41 PM

10. Why look: it's David Sentelle again!

A panel of Republican-appointed judges struck down President Obama’s appointment of three members to the National Labor Relations Board during the winter 2012 congressional recess. The ruling will now likely be appealed to the U.S. Supreme Court, but has the potential to also affect Obama’s concurrent appointment of Richard Cordray to lead the Consumer Financial Protection Bureau. The author of the opinion, Judge David Sentelle, has a particularly radical view of the Constitution, and has suggested that all business, labor and Wall Street regulation is constitutionally suspect.
http://thinkprogress.org/justice/2013/01/25/1496001/federal-appeals-court-invalidates-obamas-recess-appointments-to-nlrb/

Sentelle was a protege of Jesse Helms, conservative partisan and avid Reaganite (was a convention delegate for Reagan, and named his daughter "Reagan"). Appointed by Reagan to the Court of Appeals in 1987 (replacing Antonin Scalia), he voted to overturn the convictions of Oliver North and John Poindexter, and was added to the panel overseeing Ken Starr (after Rehnquist ousted more moderate George MacKinnon) and thus allowed Starr to go on his wide-ranging witch-hunt against Bill Clinton (while investigations of Republicans were tightly limited in scope).
http://www.consortiumnews.com/1990s/consor42.html
http://en.wikipedia.org/wiki/David_B._Sentelle



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Response to JHB (Reply #10)

Fri Jan 25, 2013, 12:47 PM

11. LOL!

Figures!

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Response to JHB (Reply #10)

Fri Jan 25, 2013, 12:48 PM

12. The fact that he's a Reaganite is kind of funny when you consider Reagan also made intra-session

appointments.

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Response to Lone_Star_Dem (Reply #12)

Fri Jan 25, 2013, 12:59 PM

13. Being a Reaganite appears to be the most minor of his issues.

He's a tool, through and through.

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Response to ProSense (Reply #13)

Fri Jan 25, 2013, 01:18 PM

16. All three judges were appointed by Republican presidents who used inter-recess appointments.

Judges Karen Henderson and Thomas Griffith were the other two. She was appointed by Reagan and he by George W Bush.

Three Republican tools.

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Response to ProSense (Reply #13)

Fri Jan 25, 2013, 03:33 PM

18. He's a radical activist in a Washington-friendly "conservative" suit

Who does that sort of thing: naming your kid after your personal idol while that person is still an active force in politics? Not an inspiring historical figure, but someone for whom the person is still an active fanboy?

What would conservatives say if Obama nominated a judge who had named their kid "Barack"?

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Response to ProSense (Original post)

Fri Jan 25, 2013, 01:30 PM

17. The problem seems to be with the recess, not the appointments -

- from the Washington Post article attributed to AP:

"A three-judge panel of the U.S. Court of Appeals for the D.C. Circuit said that Obama did not have the power to make three recess appointments last year to the National Labor Relations Board because the Senate was officially in session — and not in recess — at the time. If the decision stands, it could invalidate hundreds of board decisions."

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