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Sat Jan 26, 2013, 03:02 AM

Someone please explain how a Federal Appeals Court could suddenly decide to strike down Obama's

NLRB Recess appointments. Havenít recent Presidents been both republicans and democrats been doing this for years? Iím sure it was a 2/1 party line vote ( yea, like judges donít vote their party line) but isnít it rather peculiar that they did not question this until now. Isnít it obvious to everyone that this is just another partisan
attack? Can it hold up? The Supreme court might not strike the decision down since they gave into Obamacare
and Republicans on the court might feel they owe their base a fucking crazy wing nut decision.

20 replies, 1907 views

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Reply Someone please explain how a Federal Appeals Court could suddenly decide to strike down Obama's (Original post)
busterbrown Jan 2013 OP
Tx4obama Jan 2013 #1
John2 Jan 2013 #4
dsc Jan 2013 #7
LiberalFighter Jan 2013 #8
Tx4obama Jan 2013 #9
Tx4obama Jan 2013 #2
graham4anything Jan 2013 #3
onenote Jan 2013 #5
busterbrown Jan 2013 #6
Hippo_Tron Jan 2013 #11
onenote Jan 2013 #12
Hippo_Tron Jan 2013 #14
Hippo_Tron Jan 2013 #16
onenote Jan 2013 #18
Hippo_Tron Jan 2013 #10
onenote Jan 2013 #13
Hippo_Tron Jan 2013 #15
onenote Jan 2013 #17
Hippo_Tron Jan 2013 #19
onenote Jan 2013 #20

Response to busterbrown (Original post)

Sat Jan 26, 2013, 03:19 AM

1. Because The Senate was not adjourned and wasn't in an official recess, they were holding ...


... proforma sessions every three days - because The House would not agree to adjourn.

In order to be in an official recess (during holidays etc) both chambers of Congress have to agree to a adjournment resolution.

But the House Republicans had been obstructing and not agreeing to the resolution for a VERY VERY LONG TIME during MANY breaks when they'd been going home.

So, Pres Obama said something to himself like 'hey, these jerks are never ever going to go into an official recess and they are going to keep pulling this BS every time they leave D.C. and go home ... so 'F' them ... I'm going to make these appointments.

Something like that

.... also, I think I heard on the news (or read somewhere) that the Court said that the way they read/interpreted the text of the U.S. Constitution was that the only time recess appointments could be made by The President was when the actual 'opening/vacancy' occurred while the Senate was not in session.

In my opinion they read it wrong.

I think if it gets to the Supreme Court they will over turn the lower court's ruling,
but I don't really have a clue since I am not an attorney or a judge and sometimes don't know what the heck I'm talking about

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Response to Tx4obama (Reply #1)

Sat Jan 26, 2013, 05:24 AM

4. Your best answer

 

would be all three circuit judges were appointed by Republican Presidents even though it was the D.C. Circuit. The Press left out that information. That Court was political and stacked for the Republicans. All three judges are Southerners. One practiced law in South Carolina and another in North Carolina. The third got his Degree from Brigham Young and practiced in Utah. They went with a strict definition of Recess. If this was a Republican appointment, how much would you wage the Court would have went with a broader definition which the Obama team used from the Eleventh Circuit. The D.C. Circuit said in their opinion they don't respect the Eleventh Circuit's opinion and they were wrong.

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Response to Tx4obama (Reply #1)

Sat Jan 26, 2013, 05:24 PM

7. they went very far here and pretty much evicorated recess appointments

First they said that only the recess between sessions of Congress counts. Two, they said that only vacancies which actually occur during that recess could be filled. Frankly, I don't know if any appointees in my lifetime would have counted under this.

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Response to Tx4obama (Reply #1)

Sat Jan 26, 2013, 06:42 PM

8. The challenge that could be made for vacancies only occuring only during a recess

What happens if the vacancy occurs the day before the Senate recesses? Or even several weeks?

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Response to LiberalFighter (Reply #8)

Sat Jan 26, 2013, 06:46 PM

9. An interesting article on the link below

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Response to busterbrown (Original post)

Sat Jan 26, 2013, 04:28 AM

3. Because Ralph Nader was in cahoots with Repubs and W in 2000. Judges show Bush/Gore not the same

 

This is the part the naderites like to overlook

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Response to busterbrown (Original post)

Sat Jan 26, 2013, 09:32 AM

5. I've studied the recess appointment issue for a long time: my analysis

Last edited Sat Jan 26, 2013, 05:44 PM - Edit history (1)

I first was involved in providing legal guidance on the meaning and application of the recess clause more than 30 years ago and have followed those issues fairly closely thereafter. The short answer to your question is that there haven't been very many cases that challenged recess appointments. The DC circuit decision was not so much "sudden" as "different."

I only know of one bush recess appointment that was challenged in court -- judge pryor's appointment to the 11th circuit. The appointment was challenged in the 11th circuit and was upheld by that court. Which means there is a split in the circuits on interpreting the recess appointments clause, which means that the Supreme Court is nearly certain to review the DC Circuit decision. Plus, there were other challenges to NLRB decisions made by the recess appointees brought in other parts of the country that haven't been decided. Those cases are not bound by the decision in the DC Circuit. They could reach the same conclusion or an opposite conclusion.

This isn't over. However, my best guess as to the outcome in the supremes is that (1) the SCOTUS, by a 6-3 vote reverses the DC court's decision that a recess appointment can only be made to fill a vacancy that was first created after the recess began but (2) by a 5-4 vote upholds the DC circuit's decision that recess appointments can only be made during "intersession" recesses. That would still be a dramatic departure with decades of practice in which it was generally believed that recess appointments made during any adjournment of more than 3 days, whether between sessions or "intrasession," was valid. But upholding the DC Circuit on this issue would allow the SCOTUS to avoid having to decide the status of "pro forma" sessions.

If the SCOTUS doesn't uphold the second half of the DC circuit's decision, it will have to decide what constitutes a "recess" -- is there a minimum length of time that the Senate must not be in session and, if so, does the calling of pro forma sessions "restart" the clock each time? That's a hard one for the SCOTUS to decide since it more directly injects them in to the business of Congress. For example, the reason that the Senate was calling pro forma sessions rather than recess for more than three days is that the Constitution doesn't allow either house to adjourn for more than three days during a session of Congress without the consent of the other and the republican controlled house had made it clear it would not consent to the Senate adjourning for more than three days. In addition, neither party has "clean hands" in this fight: it was our side that started the practice of using pro forma sessions to block bush from making recess appointments (as was openly acknowledged by our side at the time).

Eventually we will know the result. But its hard to predict with certainty the outcome. My guess is that, one way or another, the result of the DC Circuit's ruling -- that the NLRB and Cordray appointments were invalid, is upheld by a 5-4 vote.

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Response to onenote (Reply #5)

Sat Jan 26, 2013, 04:45 PM

6. Thanks a lot.......Seems to me that this court by 2 to 1 is not interested in redefining recess

appts. but rather handing Obama a huge obstacle..This must be politically motivated with deep roots!.......
"Lets see............. how can we derail Obama a little?.....What court would favor thisĒ?

Your info, was truly helpful....

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Response to onenote (Reply #5)

Sat Jan 26, 2013, 10:18 PM

11. The political question doctrine is pretty fucking clear

The Supreme Court said that it's not the judicial branch's job to get in a dispute over whether Congress or the President has the authority to take the nation to war and thus they wouldn't rule on the War Powers Act.

How in god's name could the appeal's court look at that ruling and decide, "well the political question doctrine says we can't rule on disputes involving taking the nation to war, but we can totally rule on a dispute over whether three days constitutes a recess or not"?

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Response to Hippo_Tron (Reply #11)

Sat Jan 26, 2013, 10:43 PM

12. If its so clear how come its never been treated as a political question?

And how come that argument was not made in either brief filed by the NLRB and DOJ nor the amicus brief filed by the Teamsters.

Probably because if the political question doctrine has never been applied to an issue, then its clearly "not clear" that the doctrine applies. And its more likely than not that it doesn't..

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Response to onenote (Reply #12)

Sat Jan 26, 2013, 10:59 PM

14. I suppose the NLRB and the DOJ's attorneys should've listened to this guy, then

http://www.huffingtonpost.com/victor-williams/recess-appointments_b_2229426.html

Again, it's pretty evident that a dispute between the President and Congress over pro forma sessions is a political question.

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Response to onenote (Reply #12)

Sat Jan 26, 2013, 11:12 PM

16. Also, read the 11th Circuit's decision on this matter in Evans vs Stephens

www.ca11.uscourts.gov/opinions/ops/200216424ord2.pdf

The political question doctrine is very clearly cited in their ruling...

"This kind of argument presents a political question that moves beyond interpretation of the text of the Constitution and on to matters of discretionary power, comity and good policy. These matters are criteria of political wisdom and are highly subjective. They might be the proper cause for political challenges to the President, but not for judicial decision making: we lack the legal standards -- once we move away from interpreting the text of the Constitution -- to determine how much Presidential deference is due to the Senate when the President is exercising the discretionary authority that the Constitution gives fully to him."

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Response to Hippo_Tron (Reply #16)

Sat Jan 26, 2013, 11:28 PM

18. It is cited only with respect to one narrow argument

The 11th Circuit discussed the political question doctrine as to that one issue (i.e., whether the use of the recess appointments clause to get around the filibuster of a judge was impermissible), but decided the questions of whether the clause applies to judges, whether it applies to intrasession recesses, and whether vacancies occurring before the recess commenced trigger the clause. Those questions also relate to a dispute between Congress and the President, but there was no mention of the political question doctrine with respect to those issues.

I agree that the court reached out to address the questions discussed by the 11th circuit even though the parties focused not on those questions but rather on the issue of whether the pro forma sessions interrupted the intrasession recess and kept it from being of sufficient duration to constitute a recess for purposes of the recess clause. I agree that it would have been advisable to make an "in the alternative" argument that the issue of whether Congress had recessed is a political question. But it is a stretch to say that the answer to that question is "clear."

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Response to busterbrown (Original post)

Sat Jan 26, 2013, 10:13 PM

10. They completely ignored the political question doctrine

If the SCOTUS wants to overturn the political question doctrine that's their prerogative. But it's fucking ridiculous for an appeals court to do that.

And if the SCOTUS does overturn that doctrine, I'd love to send them the War Powers Act, so that we can clarify who has the authority to take the nation to war.

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Response to Hippo_Tron (Reply #10)


Response to onenote (Reply #13)

Sat Jan 26, 2013, 11:03 PM

15. The political question doctrine pretains to disputes between the President and Congress

It's a long standing practice that the judicial branch doesn't get involved in those disputes. If Congress feels that the President has usurped congressional authority then the recourse for that is impeachment, not taking it to court.

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Response to Hippo_Tron (Reply #15)

Sat Jan 26, 2013, 11:14 PM

17. Unfortunately the issues decided by the court are not political questions

I agree that an argument can be made that deciding whether Congress has recessed might arguably (but not "clearly" be treated as a political question). As I've noted in another post, for example, I don't think the courts would be comfortable deciding the argument that Congress has recessed sine die where there is no express statement by Congress indicating that it has recessed sine die.

However, the issue of whether the phrase "Vacancies that may happen during the Recess" applies only to intersession vacancies or to inter and intra session vacancies and whether it applies to vacancies that occur before the recess commenced or just those occurring after the recess commenced are garden variety questions of constitutional interpretation. Yes, it was a reach by the court to address those questions, but courts engaging in that sort of reaching is nothing new.

I think the court got it wrong on their interpretation of the recess clause. And it probably would have been a good idea to make the political question argument in the alternative. But it was not "clear" that the issues decided or the issues presented about whether a pro forma session interrupts a recess were political questions.


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Response to onenote (Reply #17)

Sat Jan 26, 2013, 11:31 PM

19. I respect your opinion, but here's my bottom line...

The Supreme Court has refused to weigh in on the War Powers Act because they deemed it a political question. In my opinion, that's a clear message to the lower courts that says that even on matters of vital national importance, such as determining which branch of government has the authority to wage war, the judicial branch does not get involved in disputes that involve a power struggle between the executive and the legislative branches.

Compared to deciding which branch has the authority to wage war, questions of inter-session vs intra-session recesses are of far less national importance. I think that the DC Circuit has stuck its nose into something when the SCOTUS has clearly set a precedent that says don't stick your nose in that.

Now if the SCOTUS wants to change their mind and issue a ruling on inter-session vs intra-session recesses, that's their prerogative.

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Response to Hippo_Tron (Reply #19)

Sun Jan 27, 2013, 11:33 AM

20. We'll have to agree to disagree on whether DC Circuit departed from applicable precedent

To my knowledge, the SCOTUS has never ruled on a question arising under the Recess Appointment clause and thus there is no applicable SCOTUS precedent on whether such questions are justiciable or are political questions that the courts should not be deciding.

As for the political question doctrine in general, it has been used fairly consistently by the courts to avoid deciding cases relating to foreign policy matters and/or the exercise of the war power. But those cases don't establish any precedent applicable to a case arising under the recess appointment clause. Indeed, in recent decades, the SCOTUS has been interpreting the political question doctrine rather narrowly in cases that don't involve foreign policy/war powers issues. For example, one would think that a dispute over the decision of the House not to seat a member would be as classic example of a political question as could be. But more than 40 years ago, in Powell v. McCormack, the SCOTUS concluding that the political question doctrine did not apply to such a case. And in 1974, a unanimous SCOTUS held that the political question doctrine did not apply to a case addressing the validity of Nixon's assertion of executive privilege.

Given the absence of any governing precedent arising in the context of a recess appointment case and the Court's narrow view of the political question doctrine in recent years, I continue to believe that it is far from "clear" that the doctrine would be generally applicable to the case at hand, although it might be applicable to certain issues that could arise (such as the issue the 11th Circuit treated as a political question in its decision in the Evans case.)

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