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Obama’s NLRB appointments ruled unconstitutional

According to the February Patriot Post, the U.S. Court of Appeals for the DC Circuit ruled that Barack Obama’s Jan. 4, 2012, “recess” appointments to the National Labor Relations Board (NLRB) were unconstitutional because the Senate was actually in session when those appointments took place. Therefore, the president did not secure the required advice and consent of that body.

Excerpt:

Since the ruling leaves the NLRB without a quorum, it immediately vacates an NLRB decision against Noel Canning, the soda bottler and distributor who brought the lawsuit upon which the Appeals Court ruled. Some 200 other decisions the NLRB has made since the beginning of 2012 are also in danger of being tossed out.

The court also spoke about the behavior of the Obama administration for blatantly overstepping its constitutional boundaries. Chief Judge David Sentelle pointed out that the Constitution makes clear distinctions about what defines a recess and what defines a session:

“[T]he appointments structure would have been turned upside down if the president could make appointments any time the Senate so much as broke for lunch,” he wrote. Judge Sentelle argued that the president only has the power to make emergency appointments during clearly defined recesses, and they must be reviewed at the end of the current session.

The judge ruled the president can’t just postpone controversial or objectionable appointments until a recess and then push them through at his leisure.

Excerpt:

The White House will surely appeal to the Supreme Court. For its part, the NLRB is acting as if it’s business as usual. “The Board has important work to do … [and] we will continue to perform our statutory duties and issue decisions.”

In other words, courts are only to be obeyed when their decision agrees with Obama’s agenda, as with Supreme Court Chief Justice Robert’s ruling that Obamacare was a “tax” and was, therefore, constitutional.

The current NLRB seems not to be worried that any decisions they make from this point on, could be overturned with an unfavorable ruling from the Supreme Court.

The Obama administration and the bureaucracy it has created don’t seem to care what is constitutional, what laws are broken, etc., as long as they achieve their agenda.

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98 Comments

  1. Well Adam, you accused Ted of being a liar. Wilson brought Patti-Poo into the argument. I gave a great example of Patti-Poo actually lying and not just being wrong to support Wilson’s argument.

  2. Adam Faber

    Terry,

    That’s still a transparent attempt to sidetrack the conversation to a topic entirely unrelated to this conversation. Though I am glad that you remind us that it was Wilson who brought Pat into the discussion; that underscores how ridiculous it is for Wilson to accuse me of straying off topic.

  3. A bit off topic, or is it?

    So God made a Liberal…….

    http://www.youtube.com/watch?v=EUzMPlQb2G4&feature=player_embedded

  4. BTW, is the blogmeister ever going to fix the Opinions page?

    • Ted Biondo

      Snuss, the blogmeister has put in a request to the web people to investigate the problem. It might take a while. I check it also and it isn’t updating any of the community bloggers, not just me so it’s an inherent problem of some kind that occured.

    • Ted Biondo

      snuss, the Blogmeister has fixed the problem with the updates. Both the Insight blog and Insight Opinion are both updating. Thanks again for letting me know.

  5. Adam Faber

    Thanks for the update, Ted. Now, how about you actually address the issue that you have been steadfastly ignoring for more than 50 comments: why are you trying to paint this as if President Obama is the first President to make these recess appointments when his predecessors, including Presidents Reagan and George W. Bush made far more such recess appointments?

    Or were you just hoping that nobody here would be competent enough to cite the actual figures that demonstrate your error and now you have no response?

    • Ted Biondo

      I never said that the other presidents – I noticed that you didn’t include Democrat Clinton – Made more or less recess appointments, but these presidents made their recess appointments within the rules. Obama’s appointments to the NLRB and others were ruled unconstitutional by a federal judge [ that’s the issue I posted, not who appointed the most during recess?

  6. Adam Faber

    I included Clinton in my very first post on this topic that you conveniently ignored. Obama made these appointments within the same rules as prior presidents. This court ruling, if it stands, rewrites the rules. That’s what judicial decisions do, Ted, and this is a radical decision. Considering the principal of stare decisis, government must act in accordance with legal precedent. If this decision had been made during the Bush administration, it would have invalidated all of his intrasession recess appointments. This ruling, if it stands, will also prohibit future presidents from making intrasession recess appointments. I will grant you that any recess appointments are shady and not very appealing to either side of the aisle, but only after this ruling are specific types of these appointments now illegal, whereas beforehand they all were legal for both Democrats and Republicans.

    You’re demonstrating that, once again, you’re completely ignorant of the subject matter you have opted to write about. Of course this isn’t about who made the most recess appointments. That’s clearly not my point. My point is that you cannot make a valid argument that Obama broke the rules when the rules have now changed after decades of staying the same.

    Did you not understand that before or are you still trying to apply a double standard to Obama?

  7. The Comedian

    The Democrats held pro forma sessions during Bush’s last years to stop Congress from technically going into recess. Once they began doing that they forced Bush to refrain from making the recess appointments. Because Bush never made any recess appointments during the pro forma sessions his appointments were upheld. President Obama made his appointments while the Republicans were employing the same recess appointment blocking technique. That’s the difference Mr. Farber.

  8. Adam, you overlook the fact that the Senate rules were changed, (by Democrats) creating “pro forma” sessions, precisely for the ability to stop those recess appointments. Obama has “no compelling legal authority” to override Senate rules. Remember the “separation of powers”?

    So, even if the Court had not ruled that recess appointments could be done only between sessions, it STILL would have been illegal for Obama to make them, while pro forma sessions were being held.

  9. This is absolutely hilarious. The distinction between “intra-” and “inter-” session recess appointments has been the distinction made, by me, by Adam, by others, throughout this discussion thread. No, Adam did not “overlook” anything. He explicitly made the distinction between these types of recess appointments in his first or second comment on the matter.

    The Senate is, and has been, controlled by Democrats. The statement, “President Obama made his appointments while the Republicans were employing the same recess appointment blocking technique[…]” is both false and incomplete because Senate Democrats were in charge of the body when they engaged in pro forma sessions during the time in question. From The Hill, dated 9/29/10:

    Democratic leaders have agreed to schedule pro-forma sessions of the Senate every week over the next six weeks, a move that will prevent Obama from making emergency appointments, according to Senate sources briefed on the talks. Democrats agreed to the pro forma sessions to keep Republicans from sending Obama’s most controversial nominees back to him while lawmakers are out of town. Such a move would have forced the president to resubmit the nominees to the Senate and Democrats to start their confirmation processes (including hearings) all over again[…]

    Republican Leader Mitch McConnell (R-Ky.) had threatened to send Obama’s most controversial nominees back to the president if Democrats did not agree to schedule pro-forma sessions, according to a senior GOP aide[…]

    Under Senate rules, the chamber may only carry over pending nominees during an extended recess if senators agree by unanimous consent. Senators rarely invoke this rule, but McConnell threatened to object unless Democrats agreed to prevent Obama from making recess appointments. The deal saved several of Obama’s most controversial nominees from a reset[…]

    http://thehill.com/homenews/senate/121775-senate-blocks-recess-appointments

    The intention of the president was to have these appointees confirmed by regular order. Futhermore, the Noel Canning DC Circuit decision is in direct conflict with the Eleventh Circuit’s 2004 Evans v. Stephens, which previously held “the Constitution permitted both intrasession recess appointments and recess appointments to fill vacancies that “happened” prior to, rather than during, the congressional recess[…]” This ensures that the Supreme Court must act to decide which circuit ruling is law. To expect that this president – or any president – should engage in fortune telling by predicting how a hypothetical circuit court’s opinion might rule contrary to settled law is ridiculous. The president acted properly and could never have expected an opinion on this matter that entirely contradicts settled law.

  10. Adam Faber

    The Comedian and Snuss, you’re still not comprehending what the Noel Canning decision actually says: that intrasession appointments — whether the Senate held pro forma sessions or not — were unconsitutional because the word “the” before the word recess in the Constitution was determined to mean to limit it to only the intersession recess and it further limited the power by limiting it to only those vacancies that occur during the intersession break and not to vacancies that existed prior to the recess.

    It is this difference between the word choice “recess” and “the Recess” that first draws our attention. When interpreting a constitutional provision, we must look to the natural meaning of the text as it would have been understood at the time of the ratification of the Constitution. District of Columbia v. Heller, 128 S. Ct. 2783, 2788 (2008). Then, as now, the word “the” was and is a definite article. See 2 Samuel Johnson, A Dictionary of the English Language 2041 (1755) (defining “the” as an “article noting a particular thing” (emphasis added)). Unlike “a” or “an,” that definite article suggests specificity. As a matter of cold, unadorned logic, it makes no sense to adopt the Board’s proposition that when the Framers said “the Recess,” what they really meant was “a recess.” This is not an insignificant distinction. In the end it makes all the difference.

    Six times the Constitution uses some form of the verb “adjourn” or the noun “adjournment” to refer to breaks in the proceedings of one or both Houses of Congress. Twice, it uses the term “the Recess”: once in the Recess Appointments Clause and once in the Senate Vacancies Clause, U.S. Const. art. I, § 3, cl. 2. Not only did the Framers use a different word, but none of the “adjournment” usages is preceded by the definite article. All this points to the inescapable conclusion that the Framers intended something specific by the term “the Recess,” and that it was something different than a generic break in proceedings.

    The structure of the Clause is to the same effect. The Clause sets a time limit on recess appointments by providing that those commissions shall expire “at the End of their [the Senate’s] next Session.” Again, the Framers have created a dichotomy. 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.”

    http://www.cadc.uscourts.gov/internet/opinions.nsf/D13E4C2A7B33B57A85257AFE00556B29/$file/12-1115-1417096.pdf pp.17-18

    Thus, the difference that you both point out is irrelevant in light of Noel Canning. This ruling invalidates any intrasession recess appointment. Therefore, my point stands: since President Bush’s recess appointments would have also been invalidated by this ruling, you’re attempting to hold President Obama to a different standard than you are presidents of your preferred party. Simple as that.

  11. The Comedian

    Adam, what is my preferred party? Please enlighten me. Read my response again. I’m simply stating the facts surrounding the ruling. Quote all the stuff you want. The democrats blocked Bush’s appointments with pro forma sessions, Republicans did the same. President Obama should have followed suit and made no appointments during the pro forma sessions. But he didn’t so he got caught in a technicality. You’ll be dancing around naked in celebration when Republicans can’t make any recess appointments. It’s all a game of tit-for-tat. Get over it.

    And you want to talk about double standards? How about the complete silence from the left concerning the Patriot Act now that President Obama renewed and expanded it. How about the willingness to trust President Obama with his drone policy, but if it were Bush or some other evil Republican it would be consider war crimes.

    By the way, this may be hard for you small brain to comprehend, but I’m a registered independent. I’m not foolish enough to side line logic and reason to blindly follow ONE specific party. But I’m glad you prefer walking around with one hand placed firmly over your right eye.

  12. Adam Faber

    No, The Comedian, you did not state the facts surrounding the ruling. You didn’t even know which party held control of the Senate when Obama made these appointments. I’ll say it again: President Obama did not get “caught in a technicality” over pro forma sessions. The Court didn’t even address pro forma sessions because they decided the issue without regard to pro forma sessions. If you had read any of my posts or the actual opinion you would know this. You’re just regurgitating nonsense that is irrelevant and, perhaps, hoping that if you say it enough times it will somehow become relevant.

    “…this may be hard for you [sic] small brain to comprehend…”

    Your maturity is as strong as your argumentation and facts.

  13. The Comedian

    Thanks for correcting my typo there Adam, I appreciate it. Also, I’m well aware of who was in control of the Senate, but for brevity’s sake I typed it as I did. I figured you’d get the point and move on. Jake’s post details it better; I just didn’t care to get too long winded on a blog post.
    http://tpmdc.talkingpointsmemo.com/2013/01/will-conservative-judges-help-republicans-nullify-the-recess-appointment-power.php
    http://thehill.com/homenews/administration/203853-department-of-justice-defends-obamas-controversial-recess-appointments
    http://thehill.com/homenews/administration/203853-department-of-justice-defends-obamas-controversial-recess-appointments
    All of these articles mention the “controversial decision to make recess appointments during the pro forma sessions.” So, you see Adam, he got caught in a technicality. In all liklihood if he hadn’t made them during these sessions it wouldn’t have led to the court’s decision. Just get over it.

  14. Adam Faber

    “Also, I’m well aware of who was in control of the Senate, but for brevity’s sake I typed it as I did.”

    For brevity’s sake you typed it wrong? Sure.

    “All of these articles mention the ‘controversial decision to make recess appointments during the pro forma sessions.’ So, you see Adam, he got caught in a technicality.”

    Whether those articles mention the pro forma sessions or not is irrelevant and does not prove that “he got caught in a technicality”. The only thing that is relevant is the actual ruling which has does not address the legality of pro forma sessions but does address the legality of intrasession recess appointments. Your assertion otherwise is not supported by the Noel Canning decision. If you want to show that I’m wrong, then cite something from the decision itself. A bunch of articles about something else doesn’t bolster your argument.

    “In all liklihood if he hadn’t made them during these sessions it wouldn’t have led to the court’s decision. Just get over it.”

    This statement has no basis in fact. Given that the pro forma sessions have nothing to do with this decision, they have no bearing on the Court’s decision. Just get over it.

  15. In all liklihood [sic] if he hadn’t made them during these sessions it wouldn’t have led to the court’s decision. Just get over it.

    That’s not even remotely true. The DC Circuit could have merely overturned these intra-recess appointments based on the Senate’s definition of “pro forma” (which, incidentally, is not a legal (i.e., question of law) definition but an arbitrary definition used by the Senate parliamentarian). Instead, they went a step further, and ruled that all intra-session recess appointees are improper – including those not appointed during pro forma sessions.

    How are conservatives not troubled by this type of jurisprudence? This is a radical departure of settled law, parsing the definition of the word “the” as it pertains to “recess”, which will have radical implications for any future president – Republican or Democrat.

    The president wasn’t “caught” in a technicality, he was entrapped by one that was manufactured by a nefarious Senate minority who welched out on their declared commitments to perform their duty under the “advise and consent” clause of their constitutional responsibilities. That a complicit DC Circuit enabled this, by way of a slim majority, is what is pertinent here, and should be to any judicial conservative.

  16. The Comedian

    First of all, I never said the Republican controlled Senate. I just said Republicans used the same tactic–holding pro forma sessions–to continually keep Congress, TECHNICALLY, “in session.”

    Now, Adam. Let’s go through this together. First of all, you should probably ask yourself: What argument did Noel have to claim the appointments were unconstitutional? He certainly didn’t say he didn’t like the guy and the courts ruled in his favor. No, he argued that because the appointments, specifically Richard Corday, was made during a PRO FORMA SESSION, that Congress was TECHNICALLY in session, thereby making the recess appointments fall outside of the Recess Appointment Clause.

    The pro forma sessions were a gimmick that the democrats started under ole Dubya; it came back to bite them. So, yes. Get over it.

    As for the difference between “a recess” and “the recess,” well that’s pretty important. You can read all about this here: http://www.jdsupra.com/legalnews/noel-canning-v-nlrb-the-decision-its-81089/ and here: http://www.upi.com/Top_News/US/2013/02/03/Under-the-US-Supreme-Court-Obamas-nose-bloodied-on-recess-appointments/UPI-54041359880200/

    To you this isn’t a technicality, okay, that’s fine. It is, but I know sometimes liberals can get obstinate; and digesting facts that contradict their delusions is rather difficult.

  17. This weird focus on pro forma sessions really makes no sense. The only reason why pro forma was brought up in the first place was to demonstrate the mendacity of the Republican arguments against these specific NLRB recess appointments. McConnell, as a routine matter, threatens to send back pending nominees as extortion to Democrats to submit to pro forma sessions during adjournment, and then later, upon resuming active business, refuses to allow the votes to confirm these pending nominees. That’s parliamentary trickery, to be sure, but it’s not relevant to the specific case argued in Noel. You continue to conflate “pro forma sessions” with the routine adjournment of both houses of congress as if that pertains at all to the core of the Noel decision which makes no such distinction in its restriction on presidential power. The so-called “gimmick” by anyone, whether it was Democrats while Bush was president or Republicans while Obama is president, is not relevant to the Noel case. I don’t know how many times this has to be pointed out, but it clearly bears repeating. The decision invalidates all future intra-session appointments, whether or not the Senate engages in pro forma “technical” business or not, and sets aside the appointments made to NLRB (and possibly all action the board took subsequent to their appointments) as the vehicle for this decision. Under this decision, if this withstands SCOTUS review, the Senate could adjourn for summer recess, turn the lights off, and never show up again until September, and there can be no recess appointments. Not at any time in modern history, as has been repeatedly demonstrated here and elsewhere, has a restriction on presidential appointment power of this magnitude ever been ruled.

    This decision radically redefines the power of the executive to make executive appointments, a power that both party’s presidents have enjoyed for decades. Ad hominem attacks directed at anyone who dares to suggest that this decision is a radical departure from settled law does not negate this, no matter how much magical thinking you might wish to employ a flawed use of logic in doing so.

  18. Adam Faber

    “I know sometimes liberals can get obstinate; and digesting facts that contradict their delusions is rather difficult.”

    Ted, if you’re watching, this is an excellent example of an actual ad hominem attack that ¬adds nothing to the discussion.

    The Comedian, you are wrong about nearly everything. Let’s first clear up that the plaintiff is not a person named Noel or Mr. Canning but a division of Noel Corp. which is a contract canning and bottling facility. Richard Cordray is the director of the Consumer Financial Protection Bureau and he has nothing — nothing — to do with the NLRB. Mr. Cordray is entirely irrelevant to the case that is at bar here. Why would you bring him up and try to make it sound like he has any involvement here?

    Here is a link to the plaintiff’s brief: http://www.chamberlitigation.com/sites/default/files/cases/files/2012/Opening%20Brief%20of%20Noel%20Canning%20and%20Chamber%20–%20Noel%20Canning%20v.%20NLRB%20%28D.C.%20Circuit%29.pdf

    While you are correct that the plaintiff did, indeed, argue that these appointments to the NLRB should be void because, inter alia, the Senate was in pro forma session, the Court chose not to even address that and ruled that the appointments were void because no intrasession appointments were valid due to the Court’s parsing of the word “the”. I could argue in traffic court that people named Adam shouldn’t get speeding tickets and the judge could rule in my favor because there was no evidence that I was actually speeding; that does not, in turn, lend any credibility to my argument that people named Adam shouldn’t get speeding tickets. The Court did not rule on pro forma sessions. We may both wish that they had, but they did not. You would know this if you had actually read the opinion. You really have no excuse because I cited the relevant parts and provided a link to the PDF of the opinion.

    You keep saying “Get over it.” What do you want me to get over? That you’re continually wrong? That your argument is fallacious? That you keep attempting to muddy the waters by bringing up Richard Cordray and pro forma sessions that have nothing to do with the legal opinions we’re discussing? Your attempts to distract me will fail. The Court did not issue an opinion on Richard Cordray or pro forma sessions but on intrasession recess appointments. The point still remains that Ted has attempted to pass this off as some sort of inappropriate power grab on Obama’s part while failing to acknowledge, either intentionally or by virtue of simple incompetence, that this has been established procedure for decades and that the rules are now changing if this opinion stands.

  19. The Comedian

    Adam, you really need to go back and re-read my original post. My point, in a nutshell, was the appointments during the pro forma session led to the challenge of those appointments and thereby led to the court deciding againist the appointments. Why don’t YOU take a minute to read all 5 or 6 links I pasted here. They all affirm that the appointments were made during the PRO FORMA SESSION, which technically meant Congress was in session. That’s how Noel Canning argued against the appointment of Richard Corday; that is what led to the decision. You keep droning on and on and on about what they SAID in the ruling–well, big guy, I never SAID they mentioned pro forma sessions, did I? You are nit picking every little thing you can to hold on to what you believe is, erronously, is some form of intellectual high ground. Get over it and get over yourself.

    The reason they made a distinction between “THE RECESS” and “A RECESS” is because A RECESS can refer to ANY TIME Congress is away. THE RECESS refers to the one or two times a year when Congress actually is IN RECESS. But the Democrats during the Bush administration sought to undo this recess period to block his appointments. They did so with the PRO FORMA SESSION. Bush didn’t challenge that, Obama did. What are you not understanding? Are you seriously this dense? You’re stuck on one piece of the puzzle instead of focusing on the entire thing. There’s not even a point to arguing with you because you clearly only care about syntax, grammar, and semantics–not facts. If this was a college classroom I’d take more time in these posts to argue the actual reasoning behind the Court’s ruling, but unforntunately I have a job and a wife and cannot sit all day in my pajamas waiting for someone to respond to my obtuse posts so I can object, correct, and high five myself.

    I’m sorry you don’t fully understand the Court’s ruling, I really am. And I feel even worse that if this happend under Bush you’d have no complaints. The bottom line, and really the only thing that matters in this whole mess is this: The President made RECESS appointments during a time when Congress WAS NOT IN RECESS. This means what he did was UNCONSTITUTIONAL. If you want to continue claiming this isn’t what happened, then go take a look at what the President argued. He claimed he could decide when Congress was in recess and when they weren’t. That doesn’t sound too power grabby, you’re right.

    Go read the multitude of articles out there from various news agencies all telling you the EXACT SAME THING. These are the facts. I realize facts are anathema to someone like you, but if you want to continue arguing that Obama did nothing wrong and that the Court’s over stepped their bounds you better find something else to uphold your argument. I just wasted my lunch break arguing with you, which is just an exercise in futility. I won’t keep responding to your inane blabblings. So when you post again in the next 2 hours and don’t see anything else from me, go high five yourself and tell your mom you won. She’ll be almost as proud as you are.

  20. Comedian – why are you posting on this subject when you clearly don’t have any idea what you’re talking about? You obviously don’t have any intention whatsoever to educate yourself with even basic information that takes 5 seconds of Google searches to verify. This is either an astonishing level of petulant immaturity, or representative of such an embedded ignorance and lack of any intellectual curiosity whatsoever that it boggles the mind what you even do to sustain yourself on a daily basis.

    You can type in cap locks all you want. That does not make your fallacious arguments, which are not supported by any evidence or substantiated review of any facts, any less false or incorrect. The DC Circuit decision does not, in its own right, deem anything the president did “unconstitutional” as a matter of settled law. The Courts of Appeals are not the highest federal courts. What this decision does do is create a conflict, which will force the SCOTUS to take the case on appeal, since there is a prior Eleventh Circuit decision which is in direct conflict with this decision. As the former Chief Justice John Marshall determined in Marbury v. Madison, the Supreme Court of the United States is the supreme expositor of the U.S. Constitution. We have a tiered court system. Right now we have a conflict at the appellate level. As has been repeatedly stated, the Eleventh Circuit says that intra-session recess appointments of any kind are not proper under any circumstances, whether the Senate is in pro forma session or not. The DC Circuit says that the senate is either “in session” or “in recess”. That means there is a conflict at parallel levels of jurisdiction. Only SCOTUS can resolve the question of constitutionality.

    Comedian, we here have repeatedly tried to impart this upon you and others in as many ways possible, but instead you insist on turning this into a series of personal, ad hominem attacks that are not relevant to federal jurisprudence. The plaintiff (who is not Mr. Canning or Mrs. Jar or Grandma Aluminum Lid but rather, a company challenging the NLRB) argued pro forma in their brief, but the DC Circuit entirely ignored that in their decision. Pro forma was not decided at all. Not at all. Can you read? Do you even know how to read the decision that DC Circuit itself published? It’s been linked to, pasted, highlighted in italics, bold-printed, quoted, and repeated, and yet you continue to assert this completely irrelevant piece of pro forma nonsense as having any role whatsoever in this decision or the core of its implications.

    Then you summarize your post with a “yo momma” attack? Clearly – and the readers here can certainly see this for themselves – this discussion thread does not have equally rigorous participants engaging in this debate.

  21. The Comedian

    Is asking if I know how to read an ad homenim attack? Or is that a serious question? Do you really think I am banging the keys blindly and responding to guess work at the letters I can just barely differentiate? I’ll have you know, I can read, and I read all the time. Thank you for your concern. Also, dear friend, I have read the decision–i have that capability. You and Adam need to get this straight: I made no mention in my original post to the actual ruling itself. I made the statement that the PRO FORMA SESSION led to the challenge, and thus the ruling.

    “This does not, however, end the dispute. The Board
    contends that despite the failure of the President to comply with
    Article II, Section 2, Clause 2, he nonetheless validly made the
    appointments under a provision sometimes referred to as the
    “Recess Appointments Clause,” which provides that “[t]he
    President shall have Power to fill up all Vacancies that may
    happen during the Recess of the Senate, by granting
    Commissions which shall expire at the End of their next
    Session.” Id. art. II, § 2, cl. 3. Noel Canning contends that the
    putative recess appointments are invalid and the Recess
    Appointments Clause is inapplicable because the Senate was not
    in the recess at the time of the putative appointments and the
    vacancies did not happen during the recess of the Senate.”

    Wait, why weren’t they in recess? It couldn’t be because they were in the pro forma sessions! No, it couldn’t be, because pro forma sessions have NOTHING to do with this ruling. At all. That’s why they mention it. Because it’s totally irrelevant.

    They then go on to explain the difference between A RECESS and THE RECESS. It makes sense to me. If I told my wife to go to THE HOUSE, she’d probably go to our house. But if I said go to A HOUSE she’d probably need clarification. I guess you wouldn’t, bully for you.

    Also, I made no “yo momma attack.” A “yo momma attack” would be like this: “Yo momma is so fat…” I told Adam his mom would be proud. There’s a clear distinction here. Can you see it yet? It’s like finding Waldo, I know.

  22. Comedian, as Mark Twain said; “Do not argue with an idiot they drag you down to their level and beat you with experience.”
    He obviously gets his information from media matters and is a parrot.
    So you uppercase and he BOLD’s then he has the audacity to call you out.
    You provide multiple links and he lectures you on Goggling for information.
    I suggest you don;t waste your time.

  23. Comedian – yes, asking if you know how to read is a “serious question” when you continue to assert that some guy named Noel Canning sued Richard Cordray. Is that an ad hominem attack? Stop engaging in this debate if you won’t bother reading the specifics of the case, and maybe people here won’t call you a moron.

    Wilson – It’s “Googling”, not “Goggling”.

    Ted – this is your readership. Take a deep look at this.

  24. Adam Faber

    The Comedian, you’re still wrong about nearly everything. Repetition won’t make something become factually accurate.

    1. Noel Canning did not argue against the appointment of Richard Cordray. Richard Cordray was appointed to a different agency and has nothing to do with this case.

    2. That you posted links to articles does not in any way change the Court’s decision. Those links do not alter what the judges wrote and the legal opinion is what matters.

    3. You needn’t post anything about the Court’s reasoning since their reasoning is clearly explained in the analysis section of their written opinion.

    4. That Noel Canning argued that recess-appointees were appointed during pro forma sessions of the Senate is not what led to the Court’s decision. The judges wrote that their decision was based on their interpretation of the words “the recess” versus “a recess”. Thus, they did not need to address whether the pro forma sessions were legal or not.

    5. You aver that the President’s appointments during pro forma sessions were unconstitutional. That’s your opinion, but the Supreme Court has not ruled on that so one cannot definitively say that it is unconstitutional. The Supreme Court alone gets to decide that when and if the issue is before them.

    That you cannot even discern the difference between Richard Cordray at the Consumer Financial Protection Bureau and Craig Becker at the National Labor Relations Board or interpret the judge’s written opinion really disqualifies you from discussing this issue. Your lunch break, wife and my mother are not germane to this issue.

    Ted, do you see the dangers of posting misinformation? You could have addressed my point at the beginning and avoided getting your readers so confused. So, Ted, how about addressing the issue you have been ignoring: why are you trying to paint this as if President Obama is the first President to make these recess appointments when his predecessors, including Presidents Reagan, Clinton and George W. Bush made far more intrasession recess appointments that would have been invalidated by this decision? Or were you just hoping that nobody here would be competent enough to read the opinion and cite the actual figures that demonstrate your error and now you have no response?

  25. “The judges wrote that their decision was based on their interpretation of the words “the recess” versus “a recess”. Thus, they did not need to address whether the pro forma sessions were legal or not.”
    I don’t think the allegation was made that it was, it is just that you happened to misinterpret the Comedian’s point. Either it was done on purpose or you just failed to understand.
    Do you understand the difference between “The” and “A”?

    Oh the Hypocrisy.
    Senate Majority Leader Harry Reid (D-Nev.), who previously held pro forma sessions to block recess appointments by President George W. Bush, said Wednesday he supported President Obama’s decision to ignore those sessions to push through one of his key nominees.”

    Read more: http://thehill.com/blogs/on-the-money/banking-financial-institutions/202335-reids-backs-obama-for-ignoring-pro-forma-sessions-he-once-pushed#ixzz2KoySjfqg

    How was my spelling?

  26. Adam Faber

    Wilson,

    The Comedian said in his first post:

    “Bush never made any recess appointments during the pro forma sessions his appointments were upheld. President Obama made his appointments while the Republicans were employing the same recess appointment blocking technique. That’s the difference Mr. Farber.”

    But he’s wrong. That’s not the difference at all. The Republicans weren’t even the ones holding the pro forma sessions in the Senate, but that’s beside the point. The difference is that now the DC circuit has ruled that all intrasession recess appointments — during a pro forma session or not — are unconstitutional. That renders all of this talk about pro forma sessions irrelevant and it means that if this decision stands all intrasession recess appointments in prior administrations would have been unconstitutional and that all future intrasession recess appointments will be unconstitutional. This all comes directly from the Court’s written opinion. Thus, I have demonstrated that The Comedian’s contention that Obama’s appointments were invalidated because they were made during pro forma sessions is wrong.

  27. Adam Faber

    Ted, since you assert that “[I] couldn’t punch [my] way out of a paper bag let alone holes in [your] arguments”, this is a great example of how wrong that statement really is. The numbers I posted reveal how many intra- and inter-session recess appointments Obama and his predecessors made. When considered in light of the 11th Circuit opinion and the historical precedent, your attempt to portray this as an unconstitutional abuse of power by the Obama administration crumbled. Your point was ruined. Did you address this? No, you completely ignored that fact and pretended that nobody caught that flaw in your reasoning.

  28. SNuss

    Adam, F.Y.I.:

    Another Court Invalidates Controversial Obama Recess Appointment

    President Obama in 2010 appointed Craig Becker to the National Labor Relations Board while the Senate was in recess for two weeks.
    But now an appeals court ruling — the second of its kind — claims his appointment was unconstitutional and invalid.

    “A second appeals court has joined the D.C. Circuit in ruling that President Barack Obama’s recess appointments to the National Labor Relations Board were unconstitutional, concluding that some board actions taken in the wake of those appointments were also invalid,” POLITICO reports.

    “The issue has far-reaching implications for both the NLRB and other boards, including Obama’s Consumer Financial Protection Bureau, which has been a frequent target of conservatives and whose director was a recess appointment,” the report adds.

    The U.S. Court of Appeals for the Third Circuit ruled 2-1 Thursday that recess appointments can only be made between sessions of the Senate, not any time the Senate is away on a break (such as during “pro forma” sessions).

    This is basically the same ruling as the one handed down by D.C. Circuit Court in January.

    “The 3rd Circuit case centered on decisions the NLRB made on the authority of three members including Craig Becker, who was appointed by the president on March 27, 2010, while the Senate was adjourned for two weeks,” POLITICO explains.

    “The case was brought by a New Jersey nursing and rehabilitation center whose nurses were allowed to form a union by one such NLRB decision. The facility, New Vista, contended that the board’s decision was invalid because it did not have enough members active when the decision was issued because the naming of Becker to the board was not a valid recess appointment,” the report adds.

    The labor board has five seats and needs at least three sitting members to conduct business. At the time of the New Vista ruling, it had the minimum of three, but one member was Becker, the recess appointee. Therefore, according to the 3rd Circuit, the New Vista ruling is invalid.

    Read more at: http://www.theblaze.com/stories/2013/05/16/another-court-invalidates-controversial-obama-recess-appointment/

    So, it appears that ALL decisions made by the NLRB replacement members will be declared null and void, because they did not have a legal quorum.

  29. Adam Faber

    Snuss: this is destined for the Supreme Court.

    Ted: Are you simply not paying attention to anything anyone who points out your mistakes says? You contend that it was improper for Obama to make these appointments, but — now here is the important part — before these rulings, these appointments were legal and he was acting consistent with established law. Not only that, but his predecessors have made more intrasession recess appointments than Obama. So your argument that this was an abuse of power fails. It’s destroyed. I successfully punched holes in your argument. Your personal attack that “[I] couldn’t punch [my] way out of a paper bag let alone holes in [your] arguments” is entirely without merit. Not only did you engage in personal attacks — again — but you were wrong — again.

  30. Adam Faber

    Your link did not work. But that article — nor can any other — change the fact that your argument that Obama thinks that “courts are only to be obeyed when their decision agrees with Obama’s agenda” was wrong since, at the time of the NLRB appointments, Evans v. Stephens, 387 F.3d 1220 (11th Cir. 2004), was still the controlling opinion which allowed these appointments.

    You argued that “Obama continues to set new low standards that he thinks allows him to bypass all branches of government.” I demonstrated that this was also wrong because I showed you that his predecessors had made even more intrasession recess appointments. Obama cannot set a “new low standard” if he is doing something even less than those who came before him.

    Since I have now shown you how I punched holes in these two arguments of yours, I have also proven that you were wrong again when you argued that I couldn’t punch holes in your arguments. Your little paper bag comment only goes to demonstrate your true character and reinforce that, rather than take responsibility for your behavior, you only know how to make insults when exposed for being wrong.

    • Ted Biondo

      The fact that the “current”court rulings are against Obama is what I was referring to, Adam. It shows that the president thinks he is above the law and so do his illegal appointees. Justice will be served when when the higher courts negate all the NLRB’s decisions.

      The link was a Wall Street Journal article. The pertinent paragraphs were as follows:

      ‘The National Labor Relations Board has problems with authority.” That droll understatement begins a petition filed Thursday with the D.C. Circuit Court of Appeals, highlighting the havoc the Obama labor board’s defiance is causing in the real world.

      Cablevision is petitioning the D.C. Circuit to issue a writ of mandamus—a direct court order—prohibiting the NLRB from proceeding with unfair-labor-practice complaints against it and its parent company, CSC Holdings. Cablevision’s rationale is straightforward: The same D.C. Circuit ruled in January that President Obama’s non-recess recess appointments to the NLRB were illegal. Thus, the board has been operating without a quorum since January 2012.

      No matter. A defiant NLRB persists as a law unto itself, no matter how illegitimate its actions are in the wake of that decision. After the Communications Workers of America leveled charges of unfair labor practice against Cablevision, two of the labor board’s regional directors snapped to in April with complaints against the company.

      Cablevision’s request is also notable for pointing out the substantial business costs of the NLRB’s defiance. In reply to other mandamus petitions filed against it, the labor board has suggested that companies should be required first to complete the entire NLRB administrative process—sitting in front of a judge, then the board itself—before being allowed to ask a court to declare the currently illegitimate NLRB’s rulings invalid.

      and,

      As important, Cablevision notes that a writ of mandamus is necessary if the D.C. Circuit wants to send a message that the federal judiciary isn’t to be so easily disobeyed. The Obama board has flippantly argued that it need not follow the D.C. Court’s ruling because the Supreme Court hasn’t weighed in. The NLRB didn’t even bother to ask for (much less obtain) a stay of the D.C. Circuit Court’s ruling. Instead, as Cablevision notes, it “arrogated to itself the power to decide when an Article III court’s ruling shall take effect, seeking to shift onto private parties the burden of proving such harm.”

      Though Cablevision isn’t the first to request a writ of mandamus against the illegal NLRB, it appears to be the first to ask for an emergency stay of proceedings until the circuit court can rule. Here’s hoping the court grants that request. It’s well past time for someone to address this NLRB’s problem with judicial authority.

  31. Adam Faber

    It does not show that. He did what was regarded as legal at the time just as his predecessors have. By moving the goal posts as you are, are you conceding that I am correct and that I can, indeed, punch holes in your arguments?

  32. Adam Faber

    Ted, it’s shady that you went back and edited your response after I had already responded rather than responding to my subsequent comment. My comment must have struck too close to the truth.

    All of that is still irrelevant. You argued that Obama did not respect the court’s decision — but that’s wrong because he was respecting the decision in force at the time of the action. While current cases may change the legality of these appointments, they were regarded as legal at the time so your argument fails.

    You argued that Obama set a new low standard, but, according to the actual numbers, he has exercised more restraint in recess appointments than his predecessors which shows that that assertion was also wrong.

    You cannot possibly successfully argue that I do not punch holes in your arguments. To do so only shows how untethered from reality you truly are.

    • Ted Biondo

      I simply added more information to the comment for clarification. I guess I should have put it in a separate comment – but what difference, at this point, does it make, Adam. It doesn’t change the fact that the appeals courts have ruled against Obama, right?

  33. Adam Faber

    The difference, Ted, is that it is but one more underhanded technique you have employed multiple times to avoid admitting that you got caught being wrong. As I have clearly explained ad nauseum, the same rationale applies to all intrasession recess appointments, so these rulings would have invalidated those of both Bushes, Clinton, Reagan, etc. so your argument that Obama set a new low standard fails which means that I punched holes in your arguments — which you incorrectly averred that I could not do. So, it still turns out that you were wrong in your petty, immature little insult.

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