Recess appointments ruled unconstitutional (1 Viewer)

[DaveXA]

Interesting ruling handed down by Court of Appeals in DC. They basically said Obama's appointments during Congress' recess was unconstitutional. I imagine it will get appealed to SCOTUS. I know it's Fox News, but an interesting development nonetheless.

Court: Obama appointments to labor panel are unconstitutional | Fox News

Edit: FWIW, after further review, the appointments were ruled unconstitutional because the vacancies occurred when Congress was in session and also the subsequent appointments were also made while Congress was still in session. Recess appointments are still Constitutional. The vacancies must both occur and be filled during the recess for them to be valid though.

 

[JimEverett]

Wow

That has been used for a while hasn't it?

 

[JimEverett]

Never mind. Read the article and it is not a big deal

 

[DaveXA]

Wow

That has been used for a while hasn't it?

I'm pretty sure previous Presidents have done this myself. Not sure what's different. That's why I thought it was an interesting development. I was surprised at the court's ruling. Curious to see SCOTUS' take on it.

 

[DaveXA]

Never mind. Read the article and it is not a big deal

Really? Can you elaborate?

 

[sinner mike]

Interesting ruling handed down by Court of Appeals in DC. They basically said Obama's appointments during Congress' recess was unconstitutional. I imagine it will get appealed to SCOTUS. I know it's Fox News, but an interesting development nonetheless.

Court: Obama appointments to labor panel are unconstitutional | Fox News

It's not a big deal, this tactic has been used by presidents since the beginning to circumvent an intransigent legislative body. You gotta let Fox news go, it's pure propaganda (so is msnbc and cnn).

 

[TechDawg09]

The difference seems to be that Congress actually in session at the time.

 

[JimEverett]

Really? Can you elaborate?

I guess its a big deal to some degree. But the court is not ruling that recess appointments are unconstitutional. It is ruling that the senate was not in recess.

Its important from that angle.

All of this, of course, assuming the article is factually correct

 

[superchuck500]

Really? Can you elaborate?

I'm not sure what our learned colleague Jim Everett was getting at but the article seems to indicate that the ruling was not that recess appointments themselves are unconstitutional but that for these appointments, there was actually no recess in which to make recess appointments.

Obama claims he acted properly in the case of the NLRB appointments because the Senate was away for the holidays on a 20-day recess. But the three-judge panel ruled that the Senate technically stayed in session when it was gaveled in and out every few days for so-called "pro forma" sessions.

Court: Obama appointments to labor panel are unconstitutional | Fox News

So I suppose the idea is that if there actually was no recess, you can't make the appointment without Senate confirmation.

That's quite a different result than saying that the recess appointment practice itself is unconstitutional. But also, its generally a bad idea to take a news outlet's version of a court ruling (especially an outlet like Fox) for reasons of both bias and ignorance (journalists often misinterpret rulings). We need to read the actual decision.

 

[DaveXA]

I'm not sure what our learned colleague Jim Everett was getting at but the article seems to indicate that the ruling was not that recess appointments themselves are unconstitutional but that for these appointments, there was actually no recess in which to make recess appointments.


Court: Obama appointments to labor panel are unconstitutional | Fox News

So I suppose the idea is that if there actually was no recess, you can't make the appointment without Senate confirmation.

That's quite a different result than saying that the recess appointment practice itself is unconstitutional. But also, its generally a bad idea to take a news outlet's version of a court ruling (especially an outlet like Fox) for reasons of both bias and ignorance (journalists often misinterpret rulings). We need to read the actual decision.

I appreciate the explanation from you and JE. I didn't read the ruling, and I guess I should know better considering all that happened with the Vilma/Goodell case. Gonna check out the ruling.

FWIW, here is the pdf of the ruling released today.

http://www.cadc.uscourts.gov/internet/opinions.nsf/D13E4C2A7B33B57A85257AFE00556B29/$file/12-1115-1417096.pdf

 

[DaveXA]

I think it's a significant ruling in that the President overstepped his limits placed by the Constitution.

So I read the ruling and essentially, the court ruled that the Congress was indeed not in "the Recess" (related to the Recess Appointments clause in the Constitution) and that Obama's appointments were unconstitutional. Were it done during a valid Recess there would be no issue.

The NLRB's orders post-appointments were thus ruled invalid because the board didn't have a quorum. It looks like Obama will have to get Congress to approve the appointments. The positions vacated due to retirement did not occur during a recess and the actual appointments were also technically not made during a recess covered by the recess clause in the Constitution.

The Court states "we hold that the President may only make recess appointments to fill vacancies that arise during the recess...we further hold that the relevant vacancies did not arise during the intersession recess of the Senate." Page 39-40.

Their conclusion states, "For the reasons set forth above, we grant the petition of Noel Canning and vacate the Board’s order. We deny the crosspetition of the Board for enforcement of its invalid order." Page 46

After reading much of the ruling, I don't see SCOTUS changing anything. The ruling looks solid IMO.

 

[DaveXA]

I guess its a big deal to some degree. But the court is not ruling that recess appointments are unconstitutional. It is ruling that the senate was not in recess.

Its important from that angle.

All of this, of course, assuming the article is factually correct

Well, I went ahead and read most of the ruling. It's fairly long, but well thought out. Recapped in the above post.

 

[superchuck500]

I think it's a significant ruling in that the President overstepped his limits placed by the Constitution.

So I read the ruling and essentially, the court ruled that the Congress was indeed not in "the Recess" (related to the Recess Appointments clause in the Constitution) and that Obama's appointments were unconstitutional. Were it done during a valid Recess there would be no issue.

The NLRB's orders post-appointments were thus ruled invalid because the board didn't have a quorum. It looks like Obama will have to get Congress to approve the appointments. The positions vacated due to retirement did not occur during a recess and the actual appointments were also technically not made during a recess covered by the recess clause in the Constitution.

The Court states "we hold that the President may only make recess appointments to fill vacancies that arise during the recess...we further hold that the relevant vacancies did not arise during the intersession recess of the Senate." Page 39-40.

Their conclusion states, "For the reasons set forth above, we grant the petition of Noel Canning and vacate the Board’s order. We deny the crosspetition of the Board for enforcement of its invalid order." Page 46

After reading much of the ruling, I don't see SCOTUS changing anything. The ruling looks solid IMO.

Without having read it but based on your recap, that sounds like a reasonable decision. If the Senate was not, in fact, recessed, then the President cannot use the recess appointment process. Therefore, any recess appointment when there is no recess is void . . . and because this process derives from the Constitution (the branch system and balances), the unauthorized action was therefore unconstitutional.

It likewise follows that if the appointments were void, any action taken by those officials subsequent to the appointment was likewise void and should be vacated.

But I'm not sure how significant of a ruling it is on the constitutional bounds of presidential authority. It just seems the product of some gamesmanship on both sides. The president has recess appointment authority (which the decision seems to actually underscore) but members of the Senate can actually manipulate whether or not they ever get recessed as to trigger that authority. It doesn't strike me as an insidious attempt to circumvent the Constitution - the Senate was certainly not in session "proper" but rather in these gavel-based "pro forma" sessions . . . and the court came down on the side that that's still "in session" and therefore no recess appointment.

 

[DaveXA]

Without having read it but based on your recap, that sounds like a reasonable decision. If the Senate was not, in fact, recessed, then the President cannot use the recess appointment process. Therefore, any recess appointment when there is no recess is void . . . and because this process derives from the Constitution (the branch system and balances), the unauthorized action was therefore unconstitutional.

It likewise follows that if the appointments were void, any action taken by those officials subsequent to the appointment was likewise void and should be vacated.

But I'm not sure how significant of a ruling it is on the constitutional bounds of presidential authority. It just seems the product of some gamesmanship on both sides. The president has recess appointment authority (which the decision seems to actually underscore) but members of the Senate can actually manipulate whether or not they ever get recessed as to trigger that authority. It doesn't strike me as an insidious attempt to circumvent the Constitution - the Senate was certainly not in session "proper" but rather in these gavel-based "pro forma" sessions . . . and the court came down on the side that that's still "in session" and therefore no recess appointment.

Yeah, while voiding the President's actions, the ruling doesn't change any law, but rather validates and clarifies the existing language in the Recess Appointments clause in the Constitution.

Thanks for your take.

 

[dtc]

Interesting ruling handed down by Court of Appeals in DC. They basically said Obama's appointments during Congress' recess was unconstitutional. I imagine it will get appealed to SCOTUS. I know it's Fox News, but an interesting development nonetheless.

Court: Obama appointments to labor panel are unconstitutional | Fox News

Edit: FWIW, after further review, the appointments were ruled unconstitutional because the vacancies occurred when Congress was in session and also the subsequent appointments were also made while Congress was still in session. Recess appointments are still Constitutional. The vacancies must both occur and be filled during the recess for them to be valid though.

And, since Congress wants to do nothing more than obstruct, they've mastered the art and figured that by technicality they can avoid being in recess so that nothing can happen.

Well, I'll tell you what needs to happen. The whole stupid mess needs to be wiped out and started over. Congressional rules and maybe even the entire Constitution. We've made it so convoluted and taken so much time pushing the rules that anything or nothing is possible.

Take VA for instance. They're going to disenfranchise the majority of voters. The recess appointments presidents have been using for 150 years are now Unconstitutional. What happens? Can they go back and invalidate everything since? Or, are we just going to spawn another million lawyers?

 

[superchuck500]

And, since Congress wants to do nothing more than obstruct, they've mastered the art and figured that by technicality they can avoid being in recess so that nothing can happen.

I thought that at first, but actually I think the recess appointment authority is best seen as an exception to the appointments rule that exists for expediency (to keep those posts functional in the event that the Senate is not in session) but not supposed to be an end run around confirmation. So its a bit perverse to call it obstruction when the Senate stays in session . . . presuming that they would do what they're supposed to do with the appointment (of course they can't because it isn't a real session, which begs the question of whether these pro-forma sessions should be considered sessions at all for the purpose of the appointments authority).

The other shoe, however, is that if the Senate is in "pro forma session" what else comes with that? Are there unintended consequences? And if they're in session and the president sends the appointment over, then what happens?