We Have Ourselves a Constitutional Crisis

imagesMost good trial lawyers know you never ask a question unless you already know the answer. We all know that President Obama has never actually been at trial and his “recess appointments” of January, 2012 actually proves it. He was upset that the Senate (which should have been home for the holidays) was technically still in session, blocking his attempts at packing the NLRB with pro union nominees. So, he decided that the Senate wasn’t really in session…and went ahead and appointed 3 new committee members anyway. Obama owed the unions and now was the time to pay up, never mind that no other President had done this…ever!!!!

So now, after more than 100 NLRB rulings, the DC Court of Appeals ruled that those appointments were unconstitutional!

OK, I know that other Presidents have made more recess appointments than Obama. I know that Reagan and Bush made hundreds and Obama has only made a little less than 100. I know, I know. But you can’t get to the bottom of this by using the MSM. All they will tell you is what this means to a given agenda and their hopes about whether it will stand the scrutiny of a Supreme Court review.

The “facts:”

  1. In the past 100 years or so, it has been common practice for Presidents to avoid Senate confirmation battles by making appointments during Senate recesses, since as Article II of the Constitution clearly states “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.”Harry Reid
  2. In the 110th session (2007-2009,) Majority leader Harry Reid came up with a solution to block George Bush from making additional recess appointments…simply by keeping the Senate in “pro-forma session.” It worked!
  3. On January 4th, 2012, with the tables turned,  a frustrated Barack Obama unilaterally decided that such pro-forma sessions weren’t real sessions and appointed 3 members to the NLRB anyway.

That’s it! Those are the actual facts.

Noel CanningFrustration is not unique to progressives and Noel Canning, an 80 year old bottler in Washington State who felt that they got a raw deal from Obama’s “packed” NLRB, filed suit in the D.C. Court of Appeals that the NLRB decision was invalid. Their contention was that those 3 recess appointments were invalid and as a result, with only 2 board members, the NLRB lacked a quorum to issue any rulings (the law that creating the NLRB requires at least 3 votes.)

OK, now for opinion, but the only opinion that counts…for now!

The DC Court of Appeals unanimously ruled:

  1. The 3 appointments were unconstitutional since they were made while the Senate was still in session.
  2. The board lacked a quorum.
  3. The NLRB ruling against Noel Canning is invalid.

But  2 of the 3 judges didn’t stop there! Ask a question…you will get an answer. They went on to rule:

  1. Recess appointments can only be made when the Senate adjourned between sessions,  which only occurs between once every 2 years.
  2. Recess appointments can only be made for positions which actually became vacant during during those inter-session recesses.

Now this is a pretty big deal. Contrary to what you might read in the press, these guys aren’t just 3 wild eyed Republican appointees that decided to arbitrarily rule against Obama. Their 47 page opinion (http://www.cadc.uscourts.gov/internet/opinions.nsf/D13E4C2A7B33B57A85257AFE00556B29/$file/12-1115-1417096.pdf) is well documented and thought out, stating:

An interpretation  of  “the  Recess”  that  permits  the  President  to decide when the Obama smirkSenate is in recess would demolish the checks and balances inherent in the advice-and-consent requirement, giving the President free rein to appoint his desired nominees at any time he pleases, whether that time be a weekend, lunch, or even when the Senate is in session and he is merely displeased with  its  inaction.  This cannot be the law.

We all know that we have gridlock in Washington, with failure to compromise on anything being pretty much the rule of the day. On this they continue:

The power of a written constitution lies in its words.  It is those words that were adopted by the people. When those words speak clearly, it is not up to us to depart from their meaning in favor of  our  own  concept of  efficiency,  convenience,  or facilitation  of  the  functions  of  government.

In other words, shredding the Constitution is not the way to fix things.

If the Supremes take the appeal, these are going to be difficult words to ignore.

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