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"Appeals court ruling on appointments"
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AyaK 10083 desperate attention whore postings
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01-27-13, 02:43 AM (EST)
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"Appeals court ruling on appointments"
Yesterday, the DC Circuit issued a ruling saying that Obama's three "recess" appointments to the National Labor Relations Board were unconstitutional. Because there is a lot that has been written and said about that ruling that is just nonsense, and yet the ruling is in fact controversial, I thought I'd write about it here.

When Obama made the appointments, I was convinced that they were unconstitutional, because the Senate itself said that it was in session, Had the DC Circuit ruled that, none of this discussion would be happening. Instead, the DC Circuit ruled that the appointments were unconstitutional for two reasons, one of which (which all three judges agreed to) is defensible, and one of which (which only two of the judges agreed to) is not.

Because there is so much partisan spin taking place in the discussion of the ruling, I thought I'd give a brief breakdown of it, so that you all can see here the real issues are and where it's just partisan BS. That said, I'm not going to pretend that I'm not partisan, but I also don't want bad law.

So . . . the first question is when the president has the power to make a recess appointment. For that answer, we look to the Constitution.

Here's the wording of the second and third paragraphs of Article II, Section 2, on the President's appointment power:

<H>e shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law; but the Congress may by Lawvest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.

The 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.

So now we know what it says. And I'll have to return in a few minutes to finish this post.

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  Table of Contents

  Subject     Author     Message Date     ID  
 RE: Appeals court ruling on appoint... dabo 01-27-13 1
   RE: Appeals court ruling on appoint... cahaya 01-27-13 2
       RE: Appeals court ruling on appoint... dabo 01-28-13 6
           RE: Appeals court ruling on appoint... cahaya 01-28-13 7
               RE: Appeals court ruling on appoint... dabo 01-28-13 8
                   RE: Appeals court ruling on appoint... AyaK 01-28-13 15
 RE: Appeals court ruling on appoint... kingfish 01-27-13 3
   True Dat foonermints 01-27-13 4
       RE: True Dat Dakota 01-27-13 5
           RE: True Dat kingfish 01-28-13 9
               RE: True Dat foonermints 01-28-13 10
                   RE: True Dat Dakota 01-28-13 11
                       *grin* foonermints 01-28-13 12
 End of initial post AyaK 01-28-13 13
   RE: End of initial post kingfish 01-28-13 14
       RE: End of initial post AyaK 01-28-13 16

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dabo 25344 desperate attention whore postings
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01-27-13, 03:56 AM (EST)
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1. "RE: Appeals court ruling on appointments"
A few minutes? How many is a few? It's been over 90 minutes already!!! I even clicked on the "reset" button, whatever that means.

That said, I totally respect your opinions, and on legal concerns most especially.

But seriously, hasn't the Pub party gone overboard in hitting the brakes on noms, and bills, coming from the administration, obstructionism at all costs and let's do nothing for another two years?

UG!

So, President Obama made some recess appointments while the Congress was basically in recess except it was pretending it wasn't, and now we have a federal dispute -- over rules of engAgement.

Meanwhile the country sinks into the toilet of economic depression.

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cahaya 18904 desperate attention whore postings
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01-27-13, 04:56 AM (EST)
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2. "RE: Appeals court ruling on appointments"
These appointments themselves are rather trivial and it's only a question of whether any of these appointments are objectionable enough for further legislative body scrutiny.

What is at question here is the legal language that defines the dividing line between the executive and legislative bodies regarding appointments made in and/or out of session.

In short, it's a long-running legal procedure squabble that is going to have little, if any, influence on the conduct and results of the next Bamadministration.


Capn's temple lions

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dabo 25344 desperate attention whore postings
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01-28-13, 01:19 AM (EST)
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6. "RE: Appeals court ruling on appointments"
Oh, I should probably steer clear of comments involving the 112th -- perhaps the worst Congress in U.S. history -- they raise my blood pressure. Waiting for the good and the bad just got to me, I guess.

Fact is the court couldn't make a right or wrong decision here (unless it found some way to smack both parties in the face), only a right or left decision. In deciding to adhere to the language of the Constitution about recess and such the court made a decision favoring the right this time, and that's fine.

A decision favoring the left in this instance would have certainly gone up to SCOTUS, which could make a decision smacking both parties in the face. And that would have been a good thing, though the Justices would have hated every bit of it.

The genuinely unfortunate aspect of this decision, really, is that whatever work was done by these now unconstitutional recess appointees, it now can be undone. It doesn't have to be, necessarilly, but it can be.

Meanwhile, the Senate can continue to remain in session pro forma simply to prevent the president from exercising his Constitutional powers. Hopefully the Senate will clean up it's act on their own, starting with ridding itself of the silent filibuster rule (not a Pub creation, let me acknowledge) and actually allowing votes to come up.

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cahaya 18904 desperate attention whore postings
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01-28-13, 02:08 AM (EST)
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7. "RE: Appeals court ruling on appointments"
Waiting for the good and the bad just got to me, I guess.

And the ugly.

Fact is, the 112th Congress was amongst the least productive Congresses (if not the least, depending on how your measure it in terms of percentage of bills proposed and passed).

So if the executive wants to be sure the federal bureaucracy functions along side a highly dysfunctional Congress, with numerous bureaucratic appointments that need to be made and positions filled, what do you do? Let it all stall or get people in place?

I think Obama was being pragmatic, leaving the legal fallout to the courts. He has an administration and bureaucracy to run and leaving leadership posts vacant for national political reasons seems silly.

Y'know dabo, quoting Abe Martin, it's almost got so you can't speak th' truth without commitin' an indiscretion.

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dabo 25344 desperate attention whore postings
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01-28-13, 02:48 AM (EST)
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8. "RE: Appeals court ruling on appointments"
I think Obama was being pragmatic, leaving the legal fallout to the courts. He has an administration and bureaucracy to run and leaving leadership posts vacant for national political reasons seems silly.

Agree. He was willing to take the hit if it came to it, but in the meantime he kept things running -- which is his job.

Meanwhile, the obstructionist games continue. I am not opposed to obstructionism itself, it is a natural part of debate. But the game of obstructionism has been elevated now to the point of eliminating debate, at least in the Senate, and I find it all extremely frustrating.

Things cannot continue this way.

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AyaK 10083 desperate attention whore postings
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01-28-13, 03:26 PM (EST)
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15. "RE: Appeals court ruling on appointments"
As I show in the post, the court certainly reached an extreme conclusion, although one that had been urged less then 10 years ago by the radical left. I don't think it will stand up, but I think the so-called recess appointments will nevertheless be found unconstitutional.

So, if we assume that these appointments are going to be reversed, the question is whether Obama actually accomplished something positive by making them. For my money, I think not. If the DC Circuit hadn't gone off the deep end with its opinion, I think we'd be wondering how an administration that was sworn to uphold the Constitution could have so blatantly disregarded the law in this attempted power play. Instead, the DC Circuit wandered off into never-never land in its ruling, and he may even look reasonable by contrast. Hard to believe.

As far as negative comments about the 112th Congress, well, it was the Congress that finally reaced a permanent resolution on the "temporary" Bush income and estate tax rates that had been about two years away from expiration since the day there were adopted in 2004. Even though it waited until its last day in session to reach an agreement, it did reach an agreement. It's nice finally to have a real rate in place instead of another temporary extension.

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kingfish 16088 desperate attention whore postings
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01-27-13, 02:36 PM (EST)
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3. "RE: Appeals court ruling on appointments"
The appointments were for the Labor Board, and they aren't inconsequential. The appointments were of labor advocates, and they have made a number of ruling in the time they have had that make it easier for unions to recruit members. The unions traditionally vote Democratic, so basically, Obama enhanced the power of the Democratic party in elections. And a year or so worth of labor Board decisions will be nullified if the SCOTUS agrees with the lower court.

So, so much for the appointments being inconsequential. They weren't.

And as to the legality of the appointments, if the Senate (the Democratically controlled Senate) was in session, the appointments weren't legal.

It's not a question of whether it was considered a ploy or not, the Senate declares itself in session, not the President, and if they were in session, they were in session.

And Obama once again shows that he considered the US Constitution, which is the bedrock legal document in US law, to be ignorable when ever it suits him. An obstacle to his liberal policies.

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foonermints 12302 desperate attention whore postings
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01-27-13, 02:44 PM (EST)
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4. "True Dat"
LAST EDITED ON 01-27-13 AT 04:19 PM (EST)

*grin*
eta: and as intermission, you can go out to the lobby and get a sandwich.

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Dakota 5643 desperate attention whore postings
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01-27-13, 10:58 PM (EST)
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5. "RE: True Dat"
I think it's hard to tell if Congress is in session no matter what they say. But Obama could send someone to go look. He's has a lot of highly paid staff.

I agree with the fish. So I brought him a sandwich from the lobby.

Agman's Spring Fling '12

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kingfish 16088 desperate attention whore postings
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01-28-13, 09:20 AM (EST)
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9. "RE: True Dat"
Tanks.
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foonermints 12302 desperate attention whore postings
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01-28-13, 12:23 PM (EST)
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10. "RE: True Dat"
Gimme dat sammich!!
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Dakota 5643 desperate attention whore postings
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01-28-13, 01:16 PM (EST)
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11. "RE: True Dat"
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foonermints 12302 desperate attention whore postings
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01-28-13, 01:24 PM (EST)
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12. "*grin*"
But that monkey is kind of creeping me out.
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AyaK 10083 desperate attention whore postings
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01-28-13, 02:10 PM (EST)
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13. "End of initial post"
Zzzzzz.

I signed off from the initial post because I was falling asleep. Then I didn't have a chance to get back to it yesterday. My apologies. I'll go read all the comments on this thread after I finish the initial post here.

Recess appointments were only made between sessions of Congress until 1867, when President Andrew Johnson (a Democrat with a Radical Republican Congress) made such an appointment during an intrasession break. Of course, Johnson was impeached, and no president did it again until Harding (once) and Coolidge (once). Even Roosevelt never did it.

However, Truman, starting in 1947, began to make regular intrasession appointments, and, through 2004, Truman and his successors had made almost 300 intrasession appointments. As a result, the question as to whether intrasession appointments are permissible has been litigated a couple of times since then.

Until this ruling, the most recent and most authoritative ruling was in Evans v. Stephens, 387 F.3d 1220 (11th Cir. 2004) (en band), in a case involving the recess appointment of judge William Pryor to the . . . 11th Circuit. Although Judges Pryor and Carnes excused themselves from the en banc panel (which, for every circuit except the 9th, involves all of the circuit's sitting judges ruling on the case), the court ruled 8-1 that his intrasession appointment during an 11-day break in the Senate term constituted a valid appointment. (I should add that Pryor was later confirmed by the Senate and still sits on the 11th Circuit.)

The dissenting vote, a liberal Democrat named Rosemary Barkett, made two arguments against permitting the recess appointment: (1) the term "the Recess" applied only to the break between sessions, not to intrasession breaks; and (2) the only openings that could be filled during a recess appointment were those that happened during the recess. In this case, though, the majority (made up of both Democrats and Republicans) ruled that, based on the language of the Constitution, the term "the Adjournment" appeared to refer to the intersession breaks, not "the Recess" (citing a 1938 case on the Pocket Veto clause), and that the fact that Presidents Washington and Jefferson had both used recess appointments to fill vacancies that existed when Congress adjourned argued against this interpretation of when the vacancies had to occur.

With that as background, the way I expected that this case would go is that the DC Circuit would start with Evans v. Stephens and then note that, unlike that case, the Congress here was, by its own resolutions, not in recess during the period of the so-called "recess appointments" -- instead, it was holding sessions every third day and had taken two actions during this period, so it could have acted on Obama's nominees had it so chosen. Thus, since the Congress by its own terms wasn't in recess, the courts weren't about to override its determinations about its own sessions (which Congress is given the Constitutional authority to set in Article I, Section 5). End of case. Appointments unconstitutional.

Makes sense. But no.

Instead, the DC Circuit sided with Judge Barkett and ruled that recess appointments can only be made in the breaks between sessions (unanimously) and that the vacancies to be filled had to occur during the break.

Argument ! is defensible, because the first 16 presidents (through Lincoln) followed that procedure and the next 16 presidents (through FDR) only violated that procedure 3 times, none of which appear to have been litigated. It's at least a defensible position. Is it correct? I guess the Supreme Court will get to decide that, but -- if I were voting -- I'd side with the 11th Circuit majority against this position. Nevertheless, the longstanding prevalence of this position does argue in favor of its validity, and I don't care to delve into it deeply enough to answer the question definitely.

But the second argument, that the vacancy must have occurred during the recess, just seems specious. The majority in the DC Circuit argues that the Washington and Jefferson examples don't really count because "these appointments were 'in fact examples of the practice of appointing an individual without his concent and then, if he turns down the appointment during the recess, making a recess appointment at that time.'" That may have some weight in academic circles, but to me it just looks like a distinction without a real difference. Appointing someone who never serves in the job is no different than leaving the job open.

IN short, I expect that the Supreme Court will reverse at least part of this ruling's logic, and maybe all of it, without changing the outcome of the case.

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kingfish 16088 desperate attention whore postings
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01-28-13, 02:36 PM (EST)
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14. "RE: End of initial post"
If the appointment nullifications were upheld, then do you think the decisions made by the Labor Board while these people were serving would automatically be nullified? Or would the court have to rule on that question also?
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AyaK 10083 desperate attention whore postings
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01-28-13, 03:32 PM (EST)
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16. "RE: End of initial post"
>If the appointment nullifications were upheld,
>then do you think the decisions made by the Labor
>Board while these people were
>serving would automatically be nullified?

In some cases (such as that of Judge Pryor, discussed above), the courts have considered the actions of the body to which the appointments were made to see their effect (one reason that the Supreme Court didn't take the appeal of the Pror decision was because the lower court held that, even if his appointment were unconstitutional, his actions didn't make any difference).

But that wouldn't be the case here. Without the three recess appointments, the NLRB would not have had a quorum. The law is very clear that, if the NLRB does not have a quorum, it cannot act. Thus, all of its decisions from the time of the recess appointments will have to be nullified.

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