Conservative activist judges chicanery to nullify executive authority


Posted by AzBlueMeanie:

The Friday news dump headline was that a panel of conservative activist judges of the D.C. Circuit Court of Appeals ruled that President Obama's recess appointments to the National Labor Relations Board last year exceeded his constitutional authority. Court Rejects Obama Move to Fill Posts.

Per usual, the lazy "lamestream media" followed the lead of the conservative media entertainment complex asserting that "President Obama violated the Constitution," a bright shiny object to distract from the real scandal of what these conservative activist judges had done — nullify a provision of the Constitution.

Brian Beutler at Talking Points Memo does an excellent job of explaining what really has occurred here. Will Conservative Judges Help Republicans Nullify The Recess Appointment Power?:

An expansive Friday decision by a three-judge D.C. Circuit Court of
Appeals panel threatens to cripple two government agencies and
significantly limit the president’s power to bypass the Senate
confirmation process by making recess appointments.

If ultimately upheld by the Supreme Court, the opinion in a case
involving the National Labor Relations Board will also strengthen the
Senate minority’s incentive to block top-level presidential appointments
— and empower a controversial GOP strategy of nullifying certain
executive branch agencies by refusing to allow their designated leaders
to be confirmed

Three judges — David Santelle, a Reagan appointee; Karen
Henderson, another Reagan appointee elevated to the circuit court by
George H.W. Bush; and Thomas Griffith, a George W. Bush appointee —
ruled that President Obama’s three recess appointments to the National
Labor Relations Board in January 2012 exceeded his constitutional recess
appointment power.

* * *

Friday’s decision will have no immediate effect on operations at the NLRB, according to NLRB chairman Mark Gaston Pearce.

“It should be noted that this order applies to only one specific
case, Noel Canning, and that similar questions have been been raised in
more than a dozen cases pending in other courts of appeals,” Pearce said
in a statement. “In the meantime, the Board has important work to do.
The parties who come to us seek and expect careful consideration and
resolution of their cases, and for that reason, we will continue to
perform our statutory duties and issue decisions.”

More broadly, the decision would severely curtail the use of the
recess appointment, which has been used frequently and with only modest
controversy for nearly a century

* * *

If Obama’s recess appointments were controversial, it was because he
executed them despite the fact that the Senate had taken steps to
prevent itself from technically entering what’s commonly identified as
recess. The administration ignored the pro forma sessions and
effectively concluded that it was within president’s ambit to define
whether or not the Senate is in recess, technicalities be damned.

But Friday’s opinion does much more than settle the question of
whether recess appointments made under those unique circumstances are
valid. The judges ruled that the founders only intended recess
appointments to occur during the period between the end of one session
of a Congress and the beginning of another — an “intersession recess”
that typically occurs between the end of one calendar year and the
beginning of the next. Furthermore, the judges ruled that Presidents may
only make recess appointments to fill vacancies that arise during the
same intersession recess.

Applying this standard retroactively would render invalid scores and
scores of recess appointments going back decades, and effectively
eliminate the practice in the future

In an exhaustive study of the issue in a 2006 law review article
(.pdf), Seton Hall University law professor Edward Hartnett, which the
judges cite in their opinion for narrow historical purposes, reached
essentially the opposite conclusion.

On the timing of the vacancy: “[T]he Recess Appointments Clause
should be interpreted to permit the filling of vacancies that first
arose before the recess of the Senate but continued to “happen” in the
recess,” Hartnett wrote. “We should not now abandon the interpretation
that has governed since at least the early 19th century simply because
some had a contrary view in the 1790’s, any more than we should
resurrect a federal common law of crimes despite their rejection in the
early 19th century simply because some had a contrary view in the

And on the legitimacy of intercession recesses, Hartnett concludes,
“[T]he recess appointment power is best understood as available during
both intersession and intrasession Senate recesses of more than three
days. … [A]ny attempt to distinguish between intersession and
intrasession recesses and limit recess appointments to the former
invites ultimately futile manipulation-or worse, escalation of battles
between the President and the Senate. If recess appointments can be made
only during intersession recesses, and not during intrasession
recesses, Congress might attempt to eliminate intersession recesses-and
the recess appointment power-by declining to adjourn a session until
immediately before the start of a new session, while taking as long an
intrasession recess as it pleases.”

In other words, if the DC panel’s opinion is upheld, it would empower
the Senate minority to nullify the president’s constitutional recess
appointment power, using technical peculiarities of the Senate’s own

The New York Times editorializes today A Court Upholds Republican Chicanery:

For most of President Obama’s first term, Republicans used legislative
trickery to try to prevent the functioning of two federal agencies they
hate, the National Labor Relations Board and the Consumer Financial
Protection Bureau. First they would filibuster the president’s nominees
to the agencies, knowing that neither agency could operate without board
members or a director. Then they would create fake legislative sessions
for the Senate during its recess, intended solely to prevent Mr. Obama
from making recess appointments as an end run.

Astonishingly, a federal appeals court upheld this strategy
on Friday. Mr. Obama had declared that Congress was not really open for
business during its one-minute, lights-on-lights-off sessions intended
only to thwart him, and he made recess appointments. A three-judge panel
of the United States Court of Appeals for the District of Columbia
Circuit said his N.L.R.B. appointments were unconstitutional, buying the
argument of Republicans that the Senate was really in session.

The court even broke with the presidential practice of 150 years by
ruling that only vacancies arising during a narrow recess period qualify
for recess appointments

White House officials said the administration would appeal the decision to the Supreme Court[.]

* * *

The administration’s lawyers made a solid argument
that a legislative session during which no business takes place, and
when no nominations can be considered, is not a real session. The vast
majority of senators, in fact, were out of town. Used in this way, the
administration said, sham “pro forma” sessions prevented two
executive-branch agencies from performing their lawful duties
. Both
agencies were created by majorities in Congress, but they were
undermined by minorities.

The court’s opinion
took no notice of the underhanded nature of these actions
: Senate
Republicans asked the House to remain in session solely to prevent Mr.
Obama’s recess appointments, and the Constitution prevents the Senate from adjourning
without the consent of the House, even if it meets only for a minute
every three days. Using a cramped definition of “recess,” the panel’s
Republican-appointed judges allowed a minority to abuse
the recess-appointments clause of the Constitution for political ends.

The situation demonstrates how dysfunctional Washington has become
because of these Republican abuses. Although Democrats also used pro
forma sessions for this purpose under President George W. Bush,
Republicans have blocked Mr. Obama’s appointments at a far higher rate,
and they have gone much further by trying to shut down executive
agencies through use of the filibuster.

Democrats could have changed this by agreeing to curb filibuster abuses
this week, particularly on high-level presidential appointments, but
they squandered the opportunity. The court’s decision demonstrates how
their timidity is being used against them. With no sign that Republicans
are willing to let up on their machinations, Mr. Obama was entirely
justified in using his executive power to keep federal agencies

I am reminded of a New York Times editorial in which it argued that tyranny "can come silently, slowly, like fog creeping in 'on little cat feet.'" That is how the conservative movement is gradually eroding the Constitution and our democratic Republic in favor of a corporatocracy, a plutocracy of wealthy corporate elites.