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Federal Court Rules Recess Appointments Unconstitutional — What Say You?

A federal appeals court says recess appointments made by the president to the National Labor Relations Board were an unconstitutional use of executive power.

A challenge to President Barack Obama’s recess appointments of three members to his National Labor Relations Board proved successful. According to CNN, a three-judge panel unanimously ruled Friday that the president violated the Constitution when he made the appointments.

"Allowing the President to define the scope of his own appointments power would eviscerate the Constitution's separation of powers," the judges from the U.S. Court of Appeals for the District of Columbia Circuit said. "An interpretation of 'the recess' that permits the President to decide when the Senate 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."

This president, however, is not the first to use this practice. President George W. Bush is reported to have used it more often during his terms than Obama has. At that time, however, then-Sen. Obama said it was the wrong thing to do. It has been used by other presidents as well, especially when it is believed that the opposition party is "gravelling in and gravelling out" to give the appearance of being in session to avoid allowing for such appointments.

According to CNN, the White House says Friday's ruling is "novel and unprecedented."

"It contradicts 150 years of practice by Democratic and Republican administrations,” Jay Carney, White House press secretary reportedly said. “So we respectfully, but strongly disagree with the rulings. There have been — according to the Congressional Research Service — something like 280 plus intra-session recess appointments by, Democratic and Republican administration dating back to 1867. That’s a long time and quite a significant precedent.”

What do you think? Is this type of recess appointment unconstitutional? And if so, should they have been ruled that way in the past too?

Jim Ochery January 26, 2013 at 06:19 pm
The last question of the article is completely irrelavant to the actual "appointments" Obama made, and reasoning the judges used to make thier ruling. They did not rule that recess appointments are unconstitionall, they ruled that these appointments were made when the Senate was in session and therefore unconstitutional. Carney is talking to the low info voters. Next thing someone will be saying it was a racist decision because Obama is half African.
jim armstrong January 26, 2013 at 06:58 pm
" At that time, however, then-Sen. Obama said it was the wrong thing to do." <<<<obama for what he is a pathetic liar. tsk tsk tsk shame on him.
David Brown January 26, 2013 at 07:02 pm
I'm concerned about the possible political nature of Friday's ruling. The opinion was written by Chief Judge David Sentelle. Judge Sentelle was originally appointed to the federal bench by President Ronald Reagan. On the D.C. Circuit, Judge Sentelle voted to overturn the convictions of Oliver North and John Poindexter. It should also be pointed out that Friday's opinion by Judge Sentelle is directly at odds with a 2004 decision by the 11th U.S. Circuit Court of Appeals, here in Atlanta, which upheld President George W. Bush's recess appointment of a federal judge against a similar challenge.
Hal Schneider January 26, 2013 at 09:45 pm
I REPEAT, George Bush never made a recess appointment while the Senate was in ProForma session! Only Obama has attempted to do that, and he has been appropriately slapped down for it!
David Brown January 26, 2013 at 10:03 pm
Hal, I didn't expect any other response from you.:) As Chairman of the Forsyth County Tea Party, I realize that your visceral reaction is to oppose any action taken by President Obama. God bless you.
Hal Schneider January 26, 2013 at 10:31 pm
Especially when it is unconstitutional!
R January 26, 2013 at 11:02 pm
@ David
The response you have received is based on fact; the senate was in session - NOT recessed. The fact is that TWO types of actions are being discussed here and all other presidents followed the proper, legal path. The commentator’s political persuasion doesn’t change a thing and is thus immaterial. What makes this so interesting is the fact the SENATE majority leader at the time was of the same political party as the president and yet he couldn’t find a way to properly end the session? The really sad part is that a private entity that was wronged had to bring a legal action and bare the burden of all the legal cost itself. WHERE were the challenges of our other branches of government or is it simply falling to all of us to FORCE compliance from our leaders now?
Tim January 26, 2013 at 11:26 pm
Bahahahahaha......I LOVE IT!!!
David Brown January 27, 2013 at 02:40 am
Am I the only reader that gets annoyed at "R" for his repeated screaming at Patch commenters by using capital letters?
R January 27, 2013 at 03:40 am
Nice to know that I'm heard ...
Because I am INSUBORDINATE!
Good Grief Y'all January 27, 2013 at 01:13 pm
Republicans: "Do as we say, not as we do."
This case isn't over. It will be appealed. I think Patch meant to say, "gaveling in and gaveling out", or more descriptively, "groveling"? The Senate needs to clean up its procedures and do the work for the American people. Trickery is bad for all. No, David, you're not.
Mary Jane January 27, 2013 at 01:15 pm
President Obama has pushed the limit on many issues. This is just one of the first things that will be ruled unconstitutional.
Mr. B January 27, 2013 at 02:01 pm
Blah, blah, blah. I'm a liberal therefore I'm above the law. I'll just blame it on Bush. I'll make up a bunch of crap and change the subject then all the conservatives (real Americans) will get lost.
DAVID--I CAN'T HEAR YOU. WHAT ARE YOU RAMBLING ABOUT?
RayBob January 27, 2013 at 02:24 pm
I fear, that "The One" will be able to appoint two Supreme Court justices in his final term. Now he can have a liberal majority to rewrite the Constitution, as the give an interpretation of the what the framers intended.
R January 27, 2013 at 09:59 pm
Yes the Senate sure does need to clean up its rules...
The very rules established in the 1970s by gasp ... DEMOCRATS! It’s really pretty bad when you can’t play by the very rules you created. Just pass some more, so we can all find out whats in it. Remember it takes a village.
John B January 27, 2013 at 10:03 pm
Two posters above you R defines the village.
Tammy Osier January 27, 2013 at 10:46 pm
http://loganville.patch.com/blog_posts/first-principles-coconuts-2fd13f97
Concept of coconuts. Some like their coconuts and a portion yours too. If they decide to get generous, they'll use yours. That's the democratic way. ;)
Tammy Osier January 29, 2013 at 12:17 am
WOW. Once this logical explanation as to why and how government gets corrupt and no more replies (on this one or the original post about coconuts). Must be some pangs of conviction out there in political land.
Karsten Torch January 29, 2013 at 10:24 pm
A couple of thoughts here - does it really surprise anybody that while Obama didn't like the practice before he became supreme ruler, he falls to using it now?
That being said, I will say I'm confused about the 'not in session' part. They were out of town, closed up for the holidays, ergo - not available. What part of that makes them in session?
R January 30, 2013 at 03:51 am
Actually, they don't have be physically in town to be in session, like the Presidential auto pen, they can literally phone it in if the rules they choose to operate define it as such.
In this case Senator Harry Reid's "rules of engagement" did just that... Sorry - edit to add ALL CAPS just for my "fans" ... Carry on.
Hal Schneider January 30, 2013 at 01:02 pm
The point is, the Senate has Rules. Under THEIR rules, they were NOT in recess. The POTUS can't arbitrarily ignore their rules and make up his own! The Supreme Court will confirm that!
Good Grief Y'all January 30, 2013 at 06:58 pm
Interesting how folks who vilify Senate Majority Leader Harry Reid are all for his rule at this particular time.
Gimmicks always bite each side sooner or later. But neither side wants to give 'em up because of the potential future advantage. Off topic, but I'm a little mad at him because he compromised with McConnell for a weak agreement on filibuster reform.
Mr. B January 30, 2013 at 07:58 pm
Harry Reid can't tie his own shoes yet he leads the Senate. It's a shame.
r patton January 30, 2013 at 08:06 pm
History will show EVERYTHING King obama has done / will do will be ruled illegal, because some enterprising, young reporter will get the correct facts and win a Pulitizer Prize by proving the King IS not a citizen.
r patton January 30, 2013 at 08:07 pm
I think "Harry" has "Old Timers Disease" and is just walking in a cloud all day.
Good Grief Y'all January 30, 2013 at 09:05 pm
Oh my.
R January 30, 2013 at 09:32 pm
It’s not his fault; he freely admits he just reads what’s put in front of him when he speaks in front of the Senate.
NO thought required or applied. Just like the weather woman in those Jimmy Dean commercials …
R January 30, 2013 at 09:39 pm
We don't / won’t soon have citizens …
Just members of the entire world, so say we all.
R January 30, 2013 at 09:41 pm
Lions, Tigers and Bears NOT included, some assembly required*
*(Just not at any USA border)
R January 30, 2013 at 09:42 pm
Sorry but we are not "for him" or this method of operation at all.
However, that's how the Senate operates and that fact shouldn't escape such a so "nearly new" former senate member - or it that an unreasonable expectation as well?

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David Binder June 18, 2013 at 06:03 pm
And it's not posting my comment how I typed it. It's jumbled on the "Boards" banner.
Sharon Swanepoel (Editor) June 18, 2013 at 06:11 pm
Yea, sorry David. We are still dealing with some "issues." It rejected Jason's blog, andRead More none of us, not even our top regional editor, is being given authority to release it. Poor Jason, I know he so hates being rejected! And we hate it happening to him. The people not being "bugged" by technical issues, however, are reporting that it is super easy to use.
Tammy Osier June 18, 2013 at 01:08 am
Sadly, Mr. Newman, we have people who live in a utopic vision of the world and refuse to believeRead More that this can happen. Sounds a bit like 1984. Ironic too, is that in the bible, when the Lord was referring to people being blinded and going astray, he referred to them as sheep, and that phrase has been coined today to denote the same type of mentality. This could happen if our watchmen stop guarding the gate.
Karsten Torch June 18, 2013 at 12:39 pm
What's sad is that people will accuse you of needing a tinfoil hat because of this post. But weRead More are marching inexorably toward this end, the only thing we can really control is how quickly or slowly we get there.....
Tom Laverick June 18, 2013 at 01:06 pm
That looks similar to a lost dog poster at the corner of 81 and Bold Springs Road.
Sharon Swanepoel (Editor) June 18, 2013 at 03:05 pm
Tom, I will see if I can find the connection.
Sharon Swanepoel (Editor) June 18, 2013 at 05:51 pm
Good news! Her name is Izzi and she has been reunited with her owners.
tijensen June 15, 2013 at 12:34 pm
The better assignment would have been how could you have written a letter to try and convince themRead More not to commit suicide. To persuade them about all the wonderful things you love about them, how special they are and what the world would miss if they were not in it. A creative teacher could have used the same exercise to teach a life lesson that may have helped someone save a life down the road.
Tammy Osier June 15, 2013 at 12:40 pm
TJ, exactly. Like you said, a GOOD teacher would have found a way to make students think outside theRead More box yet still examine the mood of the story. But I do agree with ggy that it might have been more appropriate for a college aged student. High school (girls especially) have so much drama going on inside of them, and confusion about so many things, that it might be impossible for them to be objective in an assignment like that. Boo to the teacher.
flyinby June 15, 2013 at 08:34 pm
strikes me as more subversive attempts by perverted minds dedicated to influence all our childrenRead More with this sick mindset: http://larouchepac.com/node/11188 http://www.naturalnews.com/040744_euthanasia_children_mercy_killings.html http://www.lifenews.com/2013/06/06/sarah-palin-blasts-sebelius-for-denying-girls-lifesaving-lung-transplant/ http://cnsnews.com/blog/judie-brown/lives-unworthy-be-lived-and-polst http://endoftheamericandream.com/archives/the-elite-are-attempting-to-convince-us-that-killing-off-our-sick-grandparents-is-cool-and-trendy suicides higher than car crashes past few yrs http://www.dailymail.co.uk/news/article-2207089/56-million-suicide-prevention-programme-launched-study-reveals-Americans-lives-die-car-crashes.html http://www.theblaze.com/stories/2013/02/08/more-states-consider-legalizing-assisted-suicide-as-baby-boomers-age/
Octo Slash June 14, 2013 at 12:18 pm
My kids drink coffee every morning because they need something to accompany their cigarettes.
Tammy Osier June 14, 2013 at 01:12 pm
Tr - the perfect diet - the Mediterranean diet has a lot of fish in it. Olive oils etc... OurRead More American diet has a lot of animal fat in it and look at us as opposed to other nations! Fish oil is brain food. A multi is good, but we should ask our pediatricians about adding fish oil to our kids' diets. We should get our (good) fats through diet. Good fats help vitamins go where they are supposed to and do what they're supposed to do.
Deedee June 15, 2013 at 08:12 pm
My grandma always drunk coffee all day and I started around 30 and I am no good without at least oneRead More cup a day but she always stated that we couldn't have any as kids because it will stunt our growth. I have always felt that there is something to many of those old sayings and did not let my son touch it.
Tammy Osier June 17, 2013 at 01:53 pm
DR, seems like an oxymoron doesn't it? I'd like to hear from someone who is actually from there toRead More find out their spin on why they even enter a contestant in the first place. It's my understanding that a woman that shows that much skin in public will be flogged or worse? Maybe democracy is taking ahold in some places, who knows?
Good Grief Y'all June 17, 2013 at 03:24 pm
I was wrong. Guys are interested pageants. You would no doubt be happy if the contestants justRead More wore the face shawl with their bikinis.
Karsten Torch June 17, 2013 at 04:30 pm
Couple of thoughts - One, why hold it in a land where there is going to be this kind of protest?Read More Just move it and don't worry about it. Other, I find it interesting how the Muslims want us to be understanding and inclusive of their beliefs, but don't even think they'll allow anything they don't agree with. Just a tad bit hypocritical...
R June 14, 2013 at 02:06 am
You mean the FEES don't you? Cause they aint taxes don't you know...
Bonnie June 14, 2013 at 11:50 am
I call it a "rainbow!"
M.K. Osborne June 14, 2013 at 03:30 pm
Fees is when its lightning too .
Mr. B June 13, 2013 at 01:29 pm
They're not Americans. They don't deserve to step foot on American soil.
Good Grief Y'all June 13, 2013 at 01:34 pm
Meh, a difference without distinction.
Good Grief Y'all June 13, 2013 at 01:37 pm
Huh, you learn something once in a while on Patch blog threads. I didn't know you must be anRead More American citizen to be tried and convicted of crimes against America . . . ;p I think John and Sarah could handle them . . . you betcha! They would probably beg to be sent back to Gitmo. LOL
EMILY GOLDSTEIN June 7, 2013 at 10:35 am
We don't know yet..it was not me who found her. They had Gwinnett pick her up after staying withherRead More for a few hours..we will know after they process her there. I have contacted golden retriever rescues to let them know so they can see if they have lost ads ..or if need be rescue her
EMILY GOLDSTEIN June 8, 2013 at 02:24 am
She is so sad and missing her owner ANIMAL ID#32243 I am in PEN 114, FEMALE, GOLDEN RETRIEVER. TheRead More shelter thinks I am 3 YEARS OLD. I will be available for adoption starting 6/12/13. FOUND STRAY, LARGE, FRIENDLY Contact the shelter for more info 770-339-3200.
EMILY GOLDSTEIN June 10, 2013 at 03:11 am
Reunited!
Good Grief Y'all June 12, 2013 at 11:43 am
The top marginal tax rate in 1945 was 94%; today it is 35%. This info from one of the slides in theRead More article on various tax charts, including corporate. "A look at 2010 data reveals that the U.S. is one of the least taxed countries in the Organization for Economic Cooperation and Development (OECD), according to a study released Monday by Citizens For Tax Justice. The CTJ added up federal, state and local tax revenue. The only countries in the OECD that collected a smaller percentage in taxes are Chile and Mexico, according to the data. The OECD is a group of 34 countries that work together to improve the global economy." http://www.huffingtonpost.com/2013/04/08/us-lowest-taxes-most-industralized-countries_n_3039470.html?utm_hp_ref=business&icid=maing-grid7%7Cmain5%7Cdl1%7Csec3_lnk2%26pLid%3D295994
Good Grief Y'all June 12, 2013 at 12:30 pm
So, B, are you saying no corporations pay taxes? If that were true, why do they offshoreRead More manufacturing and money to avoid and evade? Some don't pay depending on their structure, many do. US corps don't pay as much as most in developed countries, and they sure won't go along with paying more or seeing their CEOs pay more on individual returns. According to the OECD as mentioned in the link, US corporations pay an e f f e c t i v e rate of 13%. http://www.huffingtonpost.com/2013/04/08/us-lowest-taxes-most-industralized-countries_n_3039470.html?utm_hp_ref=business&icid=maing-grid7%7Cmain5%7Cdl1%7Csec3_lnk2%26pLid%3D295994
Maria Navarro June 13, 2013 at 04:36 pm
Most of the government organizations cannot be trusted, as they have been filled with mostly crooksRead More (not all, but a good majority who use their power to fill their pockets)therefore, I think the IRS should be abolished. We need to go to a FAIR TAX and this way EVERYONE would have to pay their fair share!