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AustinChief
01-27-2013, 08:31 PM
I looked and didn't see a thread on this... you guys are dropping the ball!

So, it looks like every NLRB decision since January of 2012 will be invalidated. This is a VERY HEALTHY slap in the face to Obama's constant abuse of executive power.

Here is a great article on it

http://communities.washingtontimes.com/neighborhood/tygrrrr-express/2013/jan/26/dc-appeals-court-rules-obama-nlrb-appointments-unc/

Any thoughts?

Direckshun
01-27-2013, 08:57 PM
Ugh. Washington Times.

Anyways. My thoughts are... this is a huge legal nightmare. We're talking about invalidating hundreds of regulations created by the NLRB board, and of course this would narrow the board down to 1 person, which would shut it down. Yikes.

Glad to see you actually posted about this. I resisted because I thought there'd be no interest. This is a pretty huge deal.

This is sure to end up at the Supreme Court, and while I don't think the Appeals Court was necessarily wrong on the merits of the case, SCOTUS does tend to be pragmatic so I'd have to think these appointments would be upheld under some incredibly esoteric interpretation that could never really be duplicated in the future.

I thought this was a pretty big deal when I first heard it. But then I started reading up on it in articles like this one, and I honestly had no idea how much the NLRB does.

http://www.washingtonpost.com/blogs/wonkblog/wp/2013/01/25/obamas-labor-board-has-been-ruled-unconstitutional-heres-why-that-matters/

A court just struck down Obama’s labor board. Here’s why it matters.
Posted by Brad Plumer
on January 25, 2013 at 3:16 pm

Big news: A federal appeals court has just ruled (http://www.washingtonpost.com/business/federal-appeals-court-rules-obama-recess-appointments-to-labor-board-are-unconstitutional/2013/01/25/0df0fa14-6707-11e2-889b-f23c246aa446_story.html) that President Obama exceeded his constitutional authority when he made three appointments to the National Labor Relations Board in January 2012 while the Senate was on break.

If the ruling stands — and that’s still a question mark — it would mean two big things for the five-member labor board. First, the NLRB would have just one valid appointee left, which would prevent it from deciding any further labor cases. (At least three sitting members are needed for a quorum, though the board could still hold union elections and investigate unfair practices.)

Second, and just as significantly, hundreds of NLRB decisions that have been handed down since January 4, 2012 would suddenly become invalid. That includes rulings on everything from how workers can use social media to regulations on union dues-checkoffs.

Let’s start with the first one: If the NLRB lost three of its members, labor experts warn that the agency would no longer be able to oversee union elections effectively. “Workers illegally fired for union organizing won’t be reinstated with back pay,” explained (http://www.nytimes.com/2011/12/17/opinion/crippling-the-right-to-organize.html) former board chair William Gould. “Employers will be able to get away with interfering with union elections. Perhaps most importantly, employers won’t have to recognize unions despite a majority vote by workers. Without the board to enforce labor law, most companies will not voluntarily deal with unions.”

In theory, the Senate could solve this problem by confirming new appointees. Yet in recent years, Republicans have vowed (http://o.seattletimes.nwsource.com/html/politics/2017157881_apuslaborboardappointments.html) to block all of Obama’s NLRB appointees, particularly after the board filed a controversial lawsuit against Boeing in 2011. In response, the White House tried to recess-appoint three members to the board on Jan. 4, 2012 while the Senate was on break. (That’s the move that the appeals court ruled unconstitutional.)

Since that time, the NLRB has handed down hundreds of decisions relating to various aspects of labor law. If the decision by the D.C. Circuit Court holds up, all rulings since Jan. 4 will vanish. Here’s a sample of some decisions that could be invalidated:

— Protections for workers who use social media. Recently, the NLRB issued (http://www.nytimes.com/2013/01/22/technology/employers-social-media-policies-come-under-regulatory-scrutiny.html?pagewanted=all) a series of rulings saying that employees have a right to discuss workplace issues without fear of retribution, even if those discussions take place on Facebook or Twitter. The NLRB forbade companies from banning “disrespectful” comments on social media as long as employees were engaged in conversation with each other. (There were some exceptions: Firms could step in to prevent lone workers from going on online “rants.”)

— New rules on union dues-checkoffs. In a unionized workplace, the employer typically automatically withholds money from employee paychecks for union dues. But for 50 years, there was a key exception: Employers didn’t have to do this if the collective bargaining agreement had expired. The unions had to collect dues on their own. In a December decision (http://mynlrb.nlrb.gov/link/document.aspx/09031d4580e80f3d), however, the NLRB reversed this precedent, arguing that the employer needs to handle dues-checkoffs even during this period.

— Expanded powers for unions to get information from employers. Whenever unions are bargaining or filing grievances, they are allowed to ask their employers for “relevant” information — say, about health or safety conditions. But for a long time, employers had some leeway to resist these requests. Not any more: In a November decision involving two trucking companies, the NLRB ruled that “an employer must timely respond to a union request seeking relevant information even when the employer believes it has grounds for not providing the information.”

Over the past year, many companies and conservatives have criticized Obama’s NLRB for issuing a slew of sweeping pro-labor rulings. But Kate Bronfenbrenner, a labor expert at Cornell, says the past year hasn’t been particularly unusual. Labor boards appointed by Democratic presidents tend to look more favorably on workers and unions, while those appointed by Republican presidents tend to side with employers.

“It’s always been a political agency,” she says, “and it always swings back and forth.”

Bronfenbrenner adds that if the D.C. Circuit Court’s ruling is upheld and the NLRB does have to shut down — and if it sees a year’s worth of work invalidated — that could make the agency even more dysfunctional in the years ahead. That’s because all of those cases from 2012 will have to be reheard, and new cases will keep piling up. “If and when the Senate finally does confirm new appointees, the new board will have to confront a huge backlog.”

It’s still not clear, however, whether Friday’s ruling will ultimately stand. The three-judge panel acknowledged that its ruling conflicted with other circuit court rulings on the subject of recess appointments, and the matter may ultimately end up before the Supreme Court.

In the meantime, the NLRB issued a statement (http://www.nlrb.gov/news/statement-chairman-pearce-recess-appointment-ruling) saying that it disagrees with Friday’s ruling and will continue operating normally until the legal issues are fully resolved. “The parties who come to us seek and expect careful consideration and resolution of their cases,” said NLRB Chairman Mark Pearce, “and for that reason, we will continue to perform our statutory duties and issue decisions.”

Direckshun
01-27-2013, 08:58 PM
The actual decision: http://www.cadc.uscourts.gov/internet/opinions.nsf/D13E4C2A7B33B57A85257AFE00556B29/$file/12-1115-1417096.pdf

Yes, I have it bookmarked.

Direckshun
01-27-2013, 09:00 PM
.....and this is why I think SCOTUS will overturn, as they have typically before.

http://www.washingtonpost.com/blogs/wonkblog/wp/2013/01/25/court-decision-on-recess-appointments-could-make-america-harder-to-govern/

Court decision on recess appointments could make America harder to govern
Posted by Neil Irwin
on January 25, 2013 at 2:37 pm

This has been a terrible week for anyone who wants to see a crisp, well-run U.S. government. First, Senate Majority Leader Harry Reid (D-Nev.) opted to make only minimal changes to the filibuster (http://www.washingtonpost.com/politics/senate-leaders-reach-deal-modifying-filibuster-procedures/2013/01/24/48a8ca16-6648-11e2-85f5-a8a9228e55e7_story.html), which will allow a minority of senators to continue to block any legislation they may wish to. And a court ruling on Friday threw into doubt the ability of the president to get around bottlenecks in the Senate to get his nominees into office.

A three-judge panel on the U.S. Court of Appeals for the D.C. Circuit ruled (http://www.washingtonpost.com/politics/court-says-obama-exceeded-authority-in-making-appointments/2013/01/25/b7e1b692-6713-11e2-9e1b-07db1d2ccd5b_story.html?hpid=z1) that President Obama’s “recess appointments” of members to the National Labor Relations Board last year exceeded his constitutional authority. The constitution allows the president to appoint senior officials without Senate confirmation when the Senate is in recess. (“The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate,” says Article II, “by granting Commissions which shall expire at the End of their next Session”.)

Presidents use this power sparingly, as it tends to inflame tensions with the Senate. But it is a key way for presidents to get their nominees into position when faced with an obstructionist Senate. It is even more important for the implied threat to the lawmakers: Confirm my nominees, the president can say, or I’ll appoint them during your recess and freeze the Senate out of the process entirely.

Senate Republicans were blocking consideration of Obama’s nominees to agencies whose work they generally dislike, namely the NLRB and the Consumer Financial Protection Bureau created by the Dodd-Frank Act. Nothing personal about the individual nominees themselves; the lawmakers just didn’t want to staff the NLRB and CFPB at all. Eventually fed up, Obama appointed new NLRB board members and Richard Cordray (http://www.washingtonpost.com/politics/obama-to-tap-denis-mcdonough-as-chief-of-staff/2013/01/25/498045ac-66f9-11e2-9e1b-07db1d2ccd5b_story.html) as director of the CFPB during the Senate’s holiday recess last winter.

The Senate, though, was holding “pro forma” sessions every few days, gaveling in and then out so that it could claim to not be in recess at all. The appeals court ruled Friday that the gaveling counted as being in session, meaning the recess appointments weren’t valid.

The decision will surely be appealed, but if it is upheld, it would essentially make the constitutional provision for “recess appointments” invalid — the Senate could always use the pro forma sessions to prevent a president from making such appointments. If that happens, Obama and future presidents will have less leverage in trying to force the Senate to consider nominees.

The recess appointment may have only been used as a last resort, but it was part of the president’s arsenal in getting the Senate to act. And it isn’t a partisan issue. President George W. Bush used recess appointments a handful of times, including to install John Bolton as ambassador to the United Nations over strenuous Democratic objections. Under the legal principle described in the court ruling, presidents of either party will not be able to use that method to push through their nominees.

If the court ruling stands, one of the key tools that presidents have long though sparingly used to run the country — this one spelled out in the Constitution itself! — could become useless.

Direckshun
01-27-2013, 09:04 PM
The Washington Post has been all over this shit, by the way.

Here's a piece outlining the issues at hand in the case. This is a must-read if this is honestly a new thing to you.

http://www.washingtonpost.com/politics/court-says-obama-exceeded-authority-in-making-appointments/2013/01/25/b7e1b692-6713-11e2-9e1b-07db1d2ccd5b_story.html

Court says Obama exceeded authority in making appointments
By Robert Barnes and Steven Mufson
Jan 26, 2013 03:47 AM EST

President Obama exceeded his constitutional authority by making appointments when the Senate was on a break last year, a federal appeals court ruled Friday. The court’s broad ruling would sharply limit the power that presidents throughout history have used to make recess appointments in the face of Senate opposition and inaction.

A unanimous three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit flatly rejected the Obama administration’s rationale for appointing three members of the National Labor Relations Board (NLRB) while the Senate was on a holiday break.

Chief Judge David B. Sentelle sharply criticized the administration’s interpretation of when recess appointments may be made, saying it would give 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.” He added, “This cannot be the law.”

The issue seems certain to end up before the Supreme Court, which ultimately could clarify a president’s authority to fill his administration and appoint federal judges when a minority of the Senate blocks consideration of his choices.

Although recess appointments have been made throughout the nation’s history, they have been more commonly made by modern presidents who face partisan opposition that has made it hard for nominees to even receive a vote in the Senate.

Additionally, Friday’s decision casts doubt on hundreds of decisions the NLRB has made in the past year, ranging from enforcement of collective-bargaining agreements to rulings on the rights of workers to use social media.

The ruling also raises questions about the recess appointment of former Ohio attorney general Richard Cordray to head the fledgling Consumer Financial Protection Bureau and about the actions taken by the agency during his tenure, including major new rules governing the mortgage industry. Obama named Cordray at the same time as the NLRB nominees, and his appointment is the subject of a separate lawsuit in D.C. federal court.

The White House criticized the court ruling. “The decision is novel and unprecedented, and it contradicts 150 years of practice by Democratic and Republican administrations,” White House press secretary Jay Carney told reporters Friday. “We respectfully but strongly disagree with the ruling.”

Presidents from both parties have made hundreds of recess appointments when the Senate has failed to act on nominations. Ronald Reagan holds the record with 243. Obama’s predecessor, George W. Bush, made 105, and it was during his term that Senate Democrats began holding pro-forma sessions, some lasting less than a minute, when the Senate went on break. They contended that that kept the Senate in session and did not allow Bush to make recess appointments.

Republicans took up the practice when Obama was elected. But Obama decided to challenge it in January 2012, when the Senate was on a 20-day holiday but holding pro-forma sessions every three business days to block presidential action.

Obama moved ahead with the nomination of Cordray, who many Republicans considered overly antagonistic toward business, and three NLRB members — Sharon Block, Terence F. Flynn and Richard F. Griffin Jr.

At the time, the NLRB had only two members and was thus unable to take any official action. Some Republicans were worried that the board under Obama would be too pro-union.

Obama said he had the authority under the Constitution’s recess appointments clause, which grants power for such appointments “during the Recess of the Senate,” when senators are unavailable to provide their advice and consent.

Sentelle, joined by Judges Karen LeCraft Henderson and Thomas B. Griffith, said that the Constitution’s reference to “the Recess” means that appointments are allowed only during the recess between sessions of the Senate, not when the Senate is simply on a break. It was not up to the president to decide what constitutes a recess, Sentelle said.

The ruling noted that another federal appeals court has read the Constitution differently, which adds to the likelihood the Supreme Court will have to settle the issue.

Sentelle and Henderson went where apparently no other court has gone. They said that the president has the authority to make appointments only to vacancies that arise during a recess, which would drastically limit a president’s ability to make use of the recess appointment power.

A senior administration official who was granted anonymity to discuss White House legal strategy said it was unlikely that the White House would ask the full D.C. Circuit court to take up the case. The official said it might be better to wait for other courts around the country to rule on similar cases and then seek Supreme Court review.

Senate Republicans said the decision was a victory for the separation of powers.

“Today’s ruling reaffirms that the Constitution is above political party or agenda, despite what the Obama administration seems to think,” said Sen. Orrin G. Hatch (R-Utah).

Some Democrats said the ruling will encourage Senate Republicans to block Obama’s nominees by refusing to allow them to come to a vote.

“Today’s circuit court decision is not only a radical departure from precedent, it ignores the fact that President Obama had no choice but to act,” said Sen. Tom Harkin (D-Iowa). Harkin said that “throughout his presidency, Republicans have employed unprecedented partisan delay tactics and filibusters” to block Obama’s nominees.

The case was brought by Noel Canning, a company in Washington state that challenged an NLRB ruling by saying the three Obama board members were not properly appointed. The court’s ruling on Noel’s behalf leaves hundreds of decisions in which the three members have participated open to court challenge. Block and Griffin continue to serve. Flynn resigned last year.

NLRB Chairman Mark Gaston Pearce said the board, which now has only three members, will continue with business as usual.

“It should be noted that this order applies to only one specific case, Noel Canning, and that similar questions have been raised in more than a dozen cases pending in other courts of appeals,” Pearce said in a statement on the board’s Web site.

But labor unions were alarmed. “Chaos” is the way Pamela Allen, legal director of National Nurses United, described the effect of the court ruling. She said, “It’s a field day for the employers. This decision will be appealed, but to a [Supreme] Court that hasn’t always been friendly to labor over the years.”

Allen said that hundreds of NLRB rulings (http://www.nlrb.gov/news/nlrb-issues-significant-decisions-recent-weeks-0) might be contested by employers. One example, she said, was a recent ruling to force a rural California hospital to award back pay to union activists and to accept a vote by its nurses to let the union bargain on their behalf.

Charles I. Cohen, a former NLRB member and senior counsel in the labor and employment practice of the law firm Morgan, Lewis & Bockius, said the result of the court ruling was “a cloud” over the NLRB that would “present a quandary for employers about how to comply with the law.”

The work of the Consumer Financial Protection Bureau could also be in jeopardy because the law requires the agency to have a director in place before it can exercise its power to write regulations and enforce them.

In the past three weeks alone, the bureau has issued seven rules changing the way that homeowners interact with the mortgage industry by limiting upfront fees, providing free appraisals and curtailing harmful practices such as interest-only payments, among other things.

“There will be lots of lawsuits, lots of uncertainty about what the rules of the road are, and lots of taxpayer money wasted on things that potentially turn out to be invalid,” said Andrew J. Pincus, an attorney who represents the U.S. Chamber of Commerce.

Cordray’s recess appointment expires at the end of this year. Obama renominated (http://www.washingtonpost.com/business/economy/cordray-nomination-expected-to-be-challenged-by-senate-republicans/2013/01/24/3beb0a58-6645-11e2-93e1-475791032daf_story.html) him on Thursday, but GOP leaders have said they continue to oppose him.

AustinChief
01-27-2013, 09:12 PM
No way the Supreme Court overturns this and strips the Senate of their power. The entire reason they were not letting the Senate go into recess was to not let the President go around them. Recess appointments are NOT meant to be used to usurp the normal process. Why even have a fucking Senate if the President can just do whatever the fuck he wants?

Direckshun
01-27-2013, 09:22 PM
No way the Supreme Court overturns this and strips the Senate of their power. The entire reason they were not letting the Senate go into recess was to not let the President go around them. Recess appointments are NOT meant to be used to usurp the normal process. Why even have a ****ing Senate if the President can just do whatever the **** he wants?

It doesn't strip the Senate of power. Hilarious. It strips the Senate of absolute power over appointments.

You have a problem with recess appointments? Take it up with the Constitution. It is a specifically enumerated power of the executive branch.

petegz28
01-27-2013, 09:22 PM
No way the Supreme Court overturns this and strips the Senate of their power. The entire reason they were not letting the Senate go into recess was to not let the President go around them. Recess appointments are NOT meant to be used to usurp the normal process. Why even have a ****ing Senate if the President can just do whatever the **** he wants?

Dude, you are talking to Mrs. Direckshun. That means whatever Obama claims he can do, Mrs. Direckshun will support him 120%, regardless.

Direckshun
01-27-2013, 09:24 PM
Dude, you are talking to Mrs. Direckshun. That means whatever Obama claims he can do, Mrs. Direckshun will support him 120%, regardless.

Obama's not doing anything different than what Bush and Clinton have done.

Appellate courts disagree on this issue, actually. The general consensus, however, is that a ruling like this is an aberration.

petegz28
01-27-2013, 09:26 PM
Obama's not doing anything different than what Bush and Clinton have done.

Appellate courts disagree on this issue, actually. The general consensus, however, is that a ruling like this is an aberration.

Hmmm, that has absolutley nothing to do with the point I was making

Direckshun
01-27-2013, 09:27 PM
Hmmm, that has absolutley nothing to do with the point I was making

Riiiiight.

BucEyedPea
01-27-2013, 09:33 PM
Obama's not doing anything different than what Bush and Clinton have done.
So

AustinChief
01-27-2013, 09:40 PM
It doesn't strip the Senate of power. Hilarious. It strips the Senate of absolute power over appointments.

You have a problem with recess appointments? Take it up with the Constitution. It is a specifically enumerated power of the executive branch.

I know you're too stupid to have this argument with... but the idea behind recess appointments is NOT to go around the Senate. It is for when the Senate is in recess and an appointment needs to be made.

here is the only point that can be argued...

"As a matter of cold, unadorned logic, it makes no sense to adopt the [administration'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."

If this gets overturned than President's can technically appoint people overnight after the Senate closes for the day... are you really so stupid that you think that is ok?

cosmo20002
01-27-2013, 09:41 PM
From the Washington Times article:

"At issue is the notion of what constitutes a "recess" appointment. Presidents have the absolute authority to make recess appointments without Senate approval. Those appointments are temporary. Recess appointments are never popular, but they are legal. This is not in dispute. The situation becomes murky when the Senate holds "pro-forma" sessions.

A pro-forma session in recent years has involved the Senate opening for as little as thirty seconds where one person shows up and bangs a gavel. In other words, even though little to no work is done at many of these sessions, it counts as an actual session. This is designed specifically to avoid being categorized as a recess, even if most members are gone for several weeks.

President Obama argued that these pro-forma sessions were a complete sham. On this issue, he is right. They violate the spirit of the law."

AustinChief
01-27-2013, 09:43 PM
From the Washington Times article:

"At issue is the notion of what constitutes a "recess" appointment. Presidents have the absolute authority to make recess appointments without Senate approval. Those appointments are temporary. Recess appointments are never popular, but they are legal. This is not in dispute. The situation becomes murky when the Senate holds "pro-forma" sessions.

A pro-forma session in recent years has involved the Senate opening for as little as thirty seconds where one person shows up and bangs a gavel. In other words, even though little to no work is done at many of these sessions, it counts as an actual session. This is designed specifically to avoid being categorized as a recess, even if most members are gone for several weeks.

President Obama argued that these pro-forma sessions were a complete sham. On this issue, he is right. They violate the spirit of the law."

Yes, but the idea of any time the Senate is not in session is "THE Recess" is asinine as well. This issue should have been addressed long ago. If the Supreme Court overturns this we have a seriously broken system on our hands.

Direckshun
01-27-2013, 09:56 PM
It is for when the Senate is in recess and an appointment needs to be made.

It's for when a post needs to be filled, period. It's a tool given to the President when it's been a while and the Senate's not in.

All of those conditions were met here.

Direckshun
01-27-2013, 09:57 PM
Yes, but the idea of any time the Senate is not in session is "THE Recess" is asinine as well.

Why?

AustinChief
01-27-2013, 10:09 PM
Why?

It's amazing that you claim English as your primary language. The wording in the Constitution is

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.
THE Recess

Notice the definite article THE and the capital letter R?

I will be amazed if the Supreme Court overturns this. The ruling makes far too much legal sense.

Direckshun
01-27-2013, 10:11 PM
The wording in the Constitution is

THE Recess

Notice the definite article THE and the capital letter R?

Are you familiar with inherent powers? Implied powers?

AustinChief
01-27-2013, 10:15 PM
Are you familiar with inherent powers? Implied powers?

Yes, and clearly three Federal judges don't feel this qualifies. (because it very clearly doesn't)

Your boy lost and you're going to have to deal with it. It was a stunning victory for limiting executive power. Something every American should be proud of.

Direckshun
01-27-2013, 10:27 PM
Yes, and clearly three Federal judges don't feel this qualifies. (because it very clearly doesn't)

Not so clearly.

It could be very easily implied from "The Recess" that all recesses apply.

Direckshun
01-27-2013, 10:36 PM
Here's the choice SCOTUS will have to make:

Exercise an absurdly strict definition of "recess" and make appointments of 1,400 government officials nigh unworkable if a Senate minority says so.

or

Exercise a reasonable interpretation of "recess" and allow the President to occasionally fill positions in the face of Congressional obstinance.

AustinChief
01-27-2013, 10:40 PM
Here's the choice SCOTUS will have to make:

Exercise an absurdly strict definition of "recess" and make appointments of 1,400 government officials nigh unworkable if the Senate says so.

or

Exercise a reasonable interpretation of "recess" and allow the President to occasionally fill positions in the face of Congressional obstinance.

OR they could say that THE Recess applies to any OFFICIAL recess taken by the Senate, in which case Obama's appointments would be invalid but past President's would not. You know, because they bothered to play by THE FUCKING RULES. I could see this being the "compromise" position taken. Or they let the ruling stand as is. I doubt they will take a broad interpretation that strips the Senate of it's CONSTITUTIONAL POWER to confirm appointments.

The problem here is that you think it is ok for a President to circumvent Congress anytime it pleases them. That's sickening.

Direckshun
01-27-2013, 10:40 PM
Reagan made 243 recess appointments, by the way.

This is just another case of the Obama Litmus Test by the conservatives and Republicans on this board.

If Obama does it, then it's the work of the goddamn devil. It really is that simple.

AustinChief
01-27-2013, 10:42 PM
Reagan made 243 recess appointments, by the way.

This is just another case of the Obama Litmus Test by the conservatives and Republicans on this board.

If Obama does it, then it's the work of the goddamn devil. It really is that simple.

Yes, but the Senate actually was in recess. If you don;t like the Senate rules, take it up with them... it doesn't mean you get to ignore the rules and make up your own. Obama has a habit of doing exactly that.

Direckshun
01-27-2013, 10:43 PM
OR they could say that THE Recess applies to any OFFICIAL recess taken by the Senate, in which case Obama's appointments would be invalid but past President's would not.

The problem of course, is that there's really no difference between a recess and a pro forma session. It's effectively a recess, called a session for no other reason than to block recess appointments.

The administration called the bluff. They got bit by it in court, but we haven't heard the last word of it yet.

I doubt they will take a broad interpretation that strips the Senate of it's CONSTITUTIONAL POWER to confirm appointments.

LMAO

It doesn't strip the Senate of shit. It will just invalidate pro forma sessions as a loophole used by the minority to block recess appointments.

Direckshun
01-27-2013, 10:44 PM
Yes, but the Senate actually was in recess. If you don;t like the Senate rules, take it up with them...

I believe that's what the Constitution is doing, actually, via the judicial branch.

Direckshun
01-27-2013, 10:46 PM
This is a point I believe SCOTUS will not ignore:

The decision will surely be appealed, but if it is upheld, it would essentially make the constitutional provision for “recess appointments” invalid — the Senate could always use the pro forma sessions to prevent a president from making such appointments. If that happens, Obama and future presidents will have less leverage in trying to force the Senate to consider nominees.

AustinChief
01-27-2013, 10:57 PM
This is a point I believe SCOTUS will not ignore:

And this is the problem. Recess appointments are not MEANT to be used as leverage over the Senate. PERIOD. It is clear in the Constitution what the framers meant and I doubt the Supreme Court will go against the Constitution on this. You want recess appointments to be used in that manner... get it written into the Constitution. Don't just make up rules as you go along.

BucEyedPea
01-27-2013, 11:19 PM
The problem of course, is that there's really no difference between a recess and a pro forma session. It's effectively a recess, called a session for no other reason than to block recess appointments.

The administration called the bluff. They got bit by it in court, but we haven't heard the last word of it yet.



LMAO

It doesn't strip the Senate of shit. It will just invalidate pro forma sessions as a loophole used by the minority to block recess appointments.

Reid held some pro forma sessions under Bush.

The internal rules of each institution govern its operations. It is NOT up to a President to determine whether the Senate is in session because it leads to such a constitutional confrontation.

Direckshun
01-27-2013, 11:20 PM
And this is the problem. Recess appointments are not MEANT to be used as leverage over the Senate. PERIOD. It is clear in the Constitution what the framers meant and I doubt the Supreme Court will go against the Constitution on this.

It's not at all beyond the scope of what the framers intended.

The framers intended there to be a measure when (a.) appointments needed to be made (b.) for quite some time and (c.) the Senate wasn't in session.

This fits all three of those conditions. The fact that it's an elongated debate causing this vacancy, or the intrasingence of a minority, is immaterial.

Edit: At the time the Constitution was written, they also did not intend for there to be 1,400 positions that the Senate would demand to be approved. Things change, conditions evolve, and that's why the Constitution was written so vaguely and is considered a living document.

Direckshun
01-27-2013, 11:36 PM
And so far it's just been us talking.

This is what I meant when I thought it wouldn't generate any interest. But at least somebody else knows the signficance of this.

AustinChief
01-28-2013, 12:33 AM
And so far it's just been us talking.

This is what I meant when I thought it wouldn't generate any interest. But at least somebody else knows the signficance of this.

Which is weird, this is a pretty huge deal. I'm really surprised no one else seems to care about it.

dmahurin
01-28-2013, 01:43 AM
Which is weird, this is a pretty huge deal. I'm really surprised no one else seems to care about it.

I care about it and agree with you but I'm not well versed enough in this area to attempt to argue my side of it so ill just sit back and nod my head in agreement to most everything you say in this thread.

A Salt Weapon
01-28-2013, 01:46 AM
I'd be curious to find out how many of these "appointments" were kickbacks in exchange for being reelected.
Posted via Mobile Device

pr_capone
01-28-2013, 02:00 AM
I'd be curious to find out how many of these "appointments" were kickbacks in exchange for being reelected.
Posted via Mobile Device

I sincerely doubt there were any kickbacks. Obama is a lot of things but flat out corrupt like that is not one of them IMHO.

RedNeckRaider
01-28-2013, 04:01 AM
I sincerely doubt there were any kickbacks. Obama is a lot of things but flat out corrupt like that is not one of them IMHO.

LMAO nope as pure as the driven snow :rolleyes:

CoMoChief
01-28-2013, 05:14 AM
I sincerely doubt there were any kickbacks. Obama is a lot of things but flat out corrupt like that is not one of them IMHO.

ROFL

jjjayb
01-28-2013, 09:19 AM
Here's the choice SCOTUS will have to make:

Exercise an absurdly strict definition of "recess" and make appointments of 1,400 government officials nigh unworkable if a Senate minority says so.

or

Exercise a reasonable interpretation of "recess" and allow the President to occasionally fill positions in the face of Congressional obstinance.

Just remember, this will apply when a Republican is in office too.

DementedLogic
01-28-2013, 10:31 AM
This is what the Constitution says.

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.

This is how politicians have been reading it to abuse their power.

The President shall have Power to fill up all Vacancies during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.

This is how Direckshun wants it interpreted, the "living document" interpretation.

Any president named Barack Obama can do whatever the **** he wants.


If you have ever been part of an organization with by-laws, officers, and a board, you would know that there is normally a way to fill vacancies during a time when it is not possible for the normal means of filling vacancies, and the vacancy needs to be filled with urgency. That is what the constitution is allowing for, and this is not what happened in January 2012, or for most recess appointments in history.

The SCOTUS should rule that the president may only fill positions that become vacant during the Recess, during the Recess.. This would remove one of the many ways that presidents have been usurping the constitution for decades.

FishingRod
01-28-2013, 10:49 AM
I don’t and didn’t like the previous appointments but, if the President can just decide the senate is in recess whenever he feels like it, then they are irrelevant and subservient to the executive branch. The president becomes an emperor. I don’t want this or any of the following Presidents to have that kind of power.

I know people don’t think these things through but, for those that love this president and think all his motives are altruistic please remember he doesn’t get to be President next time and sooner or later we will have a mean old conservative in the Oval Office.

Cave Johnson
01-28-2013, 11:04 AM
Just remember, this will apply when a Republican is in office too.

So? Unreasonable obstructionism is unreasonable obstructionism, regardless of which party's doing it.

Direckshun
01-28-2013, 11:06 AM
This is what the Constitution says.

This is how Direckshun wants it interpreted, the "living document" interpretation.

I do adopt the living document point of view (as do a vast, vast majority of legal/Constitutional scholars, but the idea that I'm all for allowing the President to do whatever he wants is transparent bullshit (http://www.chiefsplanet.com/BB/showthread.php?p=8969296). If you want to go full retard, by all means continue to take a shit on that.

If you have ever been part of an organization with by-laws, officers, and a board, you would know that there is normally a way to fill vacancies during a time when it is not possible for the normal means of filling vacancies, and the vacancy needs to be filled with urgency. That is what the constitution is allowing for, and this is not what happened in January 2012, or for most recess appointments in history.

I don't see why not.

I assume you don't think the NLRB is remotely important at all. Because if you do, you understand that you need people actually running the damn thing.

If the Senate minority has sworn to block all appointments, to such an extent that they will gavel in fake sessions to prevent recess appointments, then action needs to be taken.

That's what this is.

The SCOTUS should rule that the president may only fill positions that become vacant during the Recess, during the Recess.. This would remove one of the many ways that presidents have been usurping the constitution for decades.

The fact that you think this would resolve the issue shows your naivete to the subject.

Under this hilariously stupid idea, the President can just encourage his appointees to wait until recess to step down.

Boom. Constitution circumvented.

Direckshun
01-28-2013, 11:07 AM
I don’t and didn’t like the previous appointments but, if the President can just decide the senate is in recess

Let me stop you right there.

Do you know what a pro forma session is?

Please describe it.

cosmo20002
01-28-2013, 11:40 AM
This is a perfect example of clause made largely obsolete over time. Because of travel and communication issues of the late 18th century, when Congress went into recess, it would do so for 6 months or even longer. Vacancies actually did occur during the recess and needed to be filled. Now, travel and communication are easy and the longest recess is a few weeks in the summer. These pro forma sessions are a complete sham. These appointments should be a 50/50 yes or no vote and the minority can suck it.

BucEyedPea
01-28-2013, 11:46 AM
I do adopt the living document point of view (as do a vast, vast majority of legal/Constitutional scholars, but the idea that I'm all for allowing the President to do whatever he wants.

Are you sure they're a vast majority? Either way, that doesn't make it right. Afterall, the American Revolution wasn't started and implemented by a vast majority either. In fact Europe laughed at our idea of a limited Republic.

I am sure that vast majority, you allege, suffer from the some lust for power and are in the pockets of those who want to use govt for their own ends. Government and it's minions, cannot be trusted to judge where the powers end and begin. This is an age old and timeless problem.

Please name them, and allow the other side to name those who disagree with them. I take it you'll cite Laurence Tribe or someone. I assure you, that if you read the notes from the original Convention and some statements from some of the ratifying conventions—you can't possibly take the view of any "living Constitution" scholar the way it's been used as a living document. There's even Constitutional scholars, who support abortion, but feel Roe v Wade was bad law.


Boom. Constitution circumvented.
The president was intended to be the weaker of the branches with far less powers delegated to that branch than the others. The president does NOT get to decide if the Senate is in recess or in a pro form session. That's for the Senate to decide whether or not the president thinks it's BS or not.

Direckshun
01-28-2013, 12:59 PM
This is a perfect example of clause made largely obsolete over time. Because of travel and communication issues of the late 18th century, when Congress went into recess, it would do so for 6 months or even longer. Vacancies actually did occur during the recess and needed to be filled. Now, travel and communication are easy and the longest recess is a few weeks in the summer. These pro forma sessions are a complete sham. These appointments should be a 50/50 yes or no vote and the minority can suck it.

Yup.

BucEyedPea
01-28-2013, 01:01 PM
cosmos, nor anyone else, gets to call something obsolete on this issue because it's the senate that gets to make it's operational rules, not a president. A president cannot determine this for the senate.

cosmo20002
01-28-2013, 01:04 PM
cosmos, nor anyone else, gets to call something obsolete on this issue because it's the senate that gets to make it's operational rules, not a president. A president cannot determine this for the senate.

I'm calling the operational rules (the pro forma session) a sham. I'm calling the clause in the Constitution about recess appointments obsolete.

BucEyedPea
01-28-2013, 01:12 PM
I'm calling the operational rules (the pro forma session) a sham. I'm calling the clause in the Constitution about recess appointments obsolete.

You sound like Henry Hyde, when he said congress declaring war was obsolete...'er actually I believe he called it an anachorism.
You don't get to change it at will even if it's obsolete. You change it with an amendment.
Other than that, it's just your OPINION that it's a sham.

Fact is that the Senate still gets to make it's operational rules NOT the President. There is NO delegated power for the President to make such a rule change for another branch. That destroys the checks and balances, which is never obsolete—unless you want a dictatorship. Checks and balances are NOT obsolete. Taking powers is NOT obsolete which is what you are calling for.

cosmo20002
01-28-2013, 01:16 PM
You sound like Henry Hyde, when he said congress declaring war was obsolete...'er actually I believe he called it an anachorism.
You don't get to change it at will even if it's obsolete. You change it with an amendment.
Other than that, it's just your OPINION that it's a sham.

Fact is that the Senate still gets to make it's operational rules NOT the President. There is NO delegated power for the President to make such a rule change for another branch. That destroys the checks and balances, which is never obsolete—unless you want a dictatorship. Checks and balances are NOT obsolete. Taking powers is NOT obsolete which is what you are calling for.

So I know you can see my posts. How about responding to my calling bullshit on your repeated claims of Obama voter fraud? If not here, pick a different thread.

BucEyedPea
01-28-2013, 01:18 PM
Did you say something?

KC Dan
01-28-2013, 01:19 PM
I'm calling the operational rules (the pro forma session) a sham. I'm calling the clause in the Constitution about recess appointments obsolete.What's next, the 2nd Amendment?

BucEyedPea
01-28-2013, 01:21 PM
What's next, the 2nd Amendment?

Most of the Constitution is obsolete to these guys. It's in their way.

Direckshun
01-28-2013, 01:22 PM
I don't think I'd adopt cosmo's stronger language that the clause is a "sham."

I'd just say that the practical application of it has evolved as Senatorial treatment of recesses has evolved.

I'd say the same thing about the 2nd amendment -- as our weaponry evolves, as does the application of the 2nd.

KC Dan
01-28-2013, 01:23 PM
I don't think I'd adopt cosmo's stronger language that the clause is a "sham."

I'd just say that the practical application of it has evolved as Senatorial treatment of recesses has evolved.

I'd say the same thing about the 2nd amendment -- as our weaponry evolves, as does the application of the 2nd.Then change it legally not usurp rules, laws and amendments

Direckshun
01-28-2013, 01:29 PM
Then change it legally not usurp rules, laws and amendments

We do. We also can often change it through executive action. We also change it judicially constantly.

BucEyedPea
01-28-2013, 01:33 PM
We do. We also can often change it through executive action. We also change it judicially constantly.

WoW! That's unConstitutional and you're all for it. Courts doing it is called judicial activism aka legislating from the bench when that power was delegated to the legislature...and you're for that too.

JFC we need a neutron bomb for internal enemies in this country. We should just ignore your right to any due process beforehand as well because we can change it. Or would that be a right to stopping a imminent attack. We passed that danger point years ago.

AustinChief
01-28-2013, 01:38 PM
From an article a year ago right after this ridiculous travesty happened.

Not only was the Senate not in recess when these purported appointments were made, it constitutionally could not have been.

Article I, Section 5, of the Constitution states that neither house of Congress may adjourn for more than three days without the consent of the other house. The House of Representatives did not consent to a Senate recess of more than three days at the end of last year, and so the Senate, consistent with the requirements of the Constitution, must have some sort of session every few days.

The president and anyone else may object that the Senate is conducting “pro forma” sessions, but that does not render them constitutionally meaningless, as some have argued. In fact, the Senate did pass a bill during a supposedly “pro forma” session on Dec. 23, a matter the White House took notice of since the president signed the bill into law. The president cannot pick and choose when he deems a Senate session to be “real.”


It does not matter one whit that most members of Congress are out of town and allow business to be conducted by their agents under unanimous consent procedures, because ending a session of Congress requires the passage of a formal resolution, which never occurred and could not have occurred without the consent of the House.

http://articles.washingtonpost.com/2012-01-05/opinions/35438016_1_senate-recess-senate-session-richard-cordray

BOOM. Going to be tough to get around this.

Oh and just a nice bonus... this also invalidates Cordray's appointment as the first head of the CFPB, which probably means that every action taken by them is now invalid.

cosmo20002
01-28-2013, 02:01 PM
I don't think I'd adopt cosmo's stronger language that the clause is a "sham."

I'd just say that the practical application of it has evolved as Senatorial treatment of recesses has evolved.

I'd say the same thing about the 2nd amendment -- as our weaponry evolves, as does the application of the 2nd.

I didn't call the clause a sham. I said the pro forma sessions are a sham. The clause I said was obsolete.

blaise
01-28-2013, 02:09 PM
Because it's Obama it's no big deal.

- cosmo and Direckshun

RedNeckRaider
01-28-2013, 02:14 PM
I'm calling the operational rules (the pro forma session) a sham. I'm calling the clause in the Constitution about recess appointments obsolete.

Pretty much anything that does not fit this administrations agenda is obsolete in your eyes ~

Direckshun
01-28-2013, 02:17 PM
From an article a year ago right after this ridiculous travesty happened.

http://articles.washingtonpost.com/2012-01-05/opinions/35438016_1_senate-recess-senate-session-richard-cordray

BOOM. Going to be tough to get around this.

Oh and just a nice bonus... this also invalidates Cordray's appointment as the first head of the CFPB, which probably means that every action taken by them is now invalid.

That's extremely interesting.

I hadn't seen Article 1, Section 5 dragged into the discussion before. That's a new one to me.

Hmmmmmmmm. Very interesting.

cosmo20002
01-28-2013, 02:18 PM
Pretty much anything that does not fit this administrations agenda is obsolete in your eyes ~

No, I explained why I thought it was obsolete. I thought that was pretty clear, actually.

RedNeckRaider
01-28-2013, 02:22 PM
No, I explained why I thought it was obsolete. I thought that was pretty clear, actually.

I have never read a single post from you that does not tow the left line. Maybe I have just missed the posts where you are objective and willing to admit the left was in error~

Direckshun
01-28-2013, 02:34 PM
Apparently, the 11th, 2nd, and 9th circuit have all addressed this issue before and found that the POTUS can in fact make recess appointments in the middle of a Senate recess.

I will keep digging, to see if I can locate their stated reasoning.

As of now, the DC circuit is firmly in the minority.

BucEyedPea
01-28-2013, 02:35 PM
Apparently, the 11th, 2nd, and 9th circuit have all addressed this issue before and found that the POTUS can in fact make recess appointments in the middle of a Senate recess.

I will keep digging, to see if I can locate their stated reasoning.

As of now, the DC circuit is firmly in the minority.

How many courts said ACA was unConstitutional or partly before it got to the SC?

Cave Johnson
01-28-2013, 02:44 PM
One of the judges in the panel is a partisan hack, having played a role in both Iran-Contra and the Whitewater witchhunt.

I'm gonna take his legal conclusions with a metric shit-ton of salt.

http://www.esquire.com/blogs/politics/david-sentelle-case-012513

BucEyedPea
01-28-2013, 03:09 PM
One of the judges in the panel is a partisan hack, having played a role in both Iran-Contra and the Whitewater witchhunt.

I'm gonna take his legal conclusions with a metric shit-ton of salt.

http://www.esquire.com/blogs/politics/david-sentelle-case-012513

Do you think a partisan from the other side is more reliable?
Have to have an opposition party or these things don't get challenged.

jettio
01-28-2013, 03:25 PM
Seems to me that it is wrong for the Congress to create offices that require commissions granted by presidential nomination and the advice and consent of the Senate, but then have the Senate not vote on the nominees. Especially when it is close to certain that many of the nominess would be confirmed by a majority of the Senators.

This case seems like a giant waste of time created by another giant waste of time.

IMO, I could see there being some senatorial courtesies regarding federal judicial nominees for the senators from the state(s) that federal court would have jurisdcition over, but nearly all judge nominees should get an up or down vote.

Not giving up or down votes on nominees for the NLRB and any other Congress created agency requiring a Senate confirmation seems to me contrary to what the Framers expected when drafting that section. Seems to me wrong that offices remain vacant when the POTUS nominates someone that would be confirmed on a floor vote.

Direckshun
01-28-2013, 03:26 PM
Apparently, the 11th, 2nd, and 9th circuit have all addressed this issue before and found that the POTUS can in fact make recess appointments in the middle of a Senate recess.

I will keep digging, to see if I can locate their stated reasoning.

As of now, the DC circuit is firmly in the minority.

The 11th on intrasession recesses (http://www.emptywheel.net/wp-content/uploads/2012/01/Evans-v.-Stephens.pdf):

[W]e reject the argument that the plain meaning of the
phrase, “the Recess of the Senate,” limits the opportunity to make recess
appointments to one particular recess: the recess at the end of a Session. We do
not agree that the Framers’ use of the term “the” unambiguously points to the
single recess that comes at the end of a Session. Instead, we accept that “the
Recess,” originally and through today, could just as properly refer generically to
any one -- intrasession or intersession -- of the Senate’s acts of recessing, that is,
taking a break.

Furthermore, what we understand to be the
main purpose of the Recess Appointments Clause -- to enable the President to fill
vacancies to assure the proper functioning of our government -- supports reading
both intrasession recesses and intersession recesses as within the correct scope of
the Clause. That an intersession recess might be shorter than an intrasession
recess is entirely possible.10 The purpose of the Clause is no less satisfied during
an intrasession recess than during a recess of potentially even shorter duration that
comes as an intersession break.

This kind of argument presents a political question that moves beyond
interpretation of the text of the Constitution and on to matters of discretionary
power, comity and good policy. These matters are criteria of political wisdom and
are highly subjective. They might be the proper cause for political challenges to
the President, but not for judicial decision making: we lack the legal standards --
once we move away from interpreting the text of the Constitution -- to determine
how much Presidential deference is due to the Senate when the President is
exercising the discretionary authority that the Constitution gives fully to him.

AustinChief
01-28-2013, 04:28 PM
Apparently, the 11th, 2nd, and 9th circuit have all addressed this issue before and found that the POTUS can in fact make recess appointments in the middle of a Senate recess.

I will keep digging, to see if I can locate their stated reasoning.

As of now, the DC circuit is firmly in the minority.

And yet again... those decisions require the Senate to actually BE IN RECESS. The President doesn't get to just say "nope I don't think you are really in session, I think it's a sham, so I will move forward." It's against the law. Period. Please find a precedent for the President getting to determine when the Senate is in session and when it is in recess. Now, the recent decision takes it two steps further and I wouldn't be surprised to see the Supreme Court ratchet it back slightly... but either way, Obama was dead wrong and his appointments won't stand.

Direckshun
01-28-2013, 04:53 PM
Seems to me that it is wrong for the Congress to create offices that require commissions granted by presidential nomination and the advice and consent of the Senate, but then have the Senate not vote on the nominees. Especially when it is close to certain that many of the nominess would be confirmed by a majority of the Senators.

This case seems like a giant waste of time created by another giant waste of time.

IMO, I could see there being some senatorial courtesies regarding federal judicial nominees for the senators from the state(s) that federal court would have jurisdcition over, but nearly all judge nominees should get an up or down vote.

Not giving up or down votes on nominees for the NLRB and any other Congress created agency requiring a Senate confirmation seems to me contrary to what the Framers expected when drafting that section. Seems to me wrong that offices remain vacant when the POTUS nominates someone that would be confirmed on a floor vote.

I generally agree.

Direckshun
01-28-2013, 04:55 PM
And yet again... those decisions require the Senate to actually BE IN RECESS.

Letter of the law versus the spirit of the law, I'm afraid.

If you think the framers believed the Senate should be able to use what is little more than a knock knock joke as an effective substitute for an open, active session, and not what it actually is, which is a trite exercise in creative obstructionism, then I'd like to have what you're having.

Direckshun
01-28-2013, 04:58 PM
By the way, the idea that you know how this is going to turn out is laughable, AC.

It's in the hands of the judicial system. And when it comes to judicial considerations, the ancient adage is: he who thinks he knows everything, knows nothing.

DementedLogic
01-28-2013, 06:22 PM
I do adopt the living document point of view (as do a vast, vast majority of legal/Constitutional scholars, but the idea that I'm all for allowing the President to do whatever he wants is transparent bullshit (http://www.chiefsplanet.com/BB/showthread.php?p=8969296). If you want to go full retard, by all means continue to take a shit on that.

Your reading comprehension is the only thing that has gone full retard.


I don't see why not.

I assume you don't think the NLRB is remotely important at all. Because if you do, you understand that you need people actually running the damn thing.

If the Senate minority has sworn to block all appointments, to such an extent that they will gavel in fake sessions to prevent recess appointments, then action needs to be taken.

That's what this is.


It's not the same situation, because the senate was perfectly capable of confirming the appointment as their check on the Executive branch. The constitution was purposely designed to give the minority the powers to fight against the majority. The majority cannot circumvent the law because the minority is making things inconvenient for them. We live in a Constitutional Republic, you might want to take the time to learn what that means.

And no, I don't give 2 shits about whether or not the NLRB is able to perform its duties. I believe that this country would get along just fine without it and several hundred other bureaucracies.

The fact that you think this would resolve the issue shows your naivete to the subject.

Under this hilariously stupid idea, the President can just encourage his appointees to wait until recess to step down.

Boom. Constitution circumvented.

What exactly is preventing that from happening now? Why doesn't Obama tell all of his buddies in power that if they are going to resign, do it around Christmas time. That way the Senate will go into recess and he won't have to worry about them holding "pro forma" sessions.


It is the rule of law that the senate confirms executive appointments. It is a crucial check that the legislative branch has on the executive. Now I know that in your dream world, we would have dictator Obama, and he would have no roadblocks in driving his progressive agenda. Keep on dreaming.

Direckshun
01-28-2013, 07:21 PM
It's not the same situation, because the senate was perfectly capable of confirming the appointment as their check on the Executive branch. The constitution was purposely designed to give the minority the powers to fight against the majority. The majority cannot circumvent the law because the minority is making things inconvenient for them. We live in a Constitutional Republic, you might want to take the time to learn what that means.

And no, I don't give 2 shits about whether or not the NLRB is able to perform its duties. I believe that this country would get along just fine without it and several hundred other bureaucracies.

Really, all of this, just about every sentence, is one form of nonsense or another.

But the bolded part is really what informs you. You don't think the NLRB is remotely important.

If you did, you'd understand it clearly fits your stated standard of "needs to be filled with urgency."

Of course, you don't much care for standards, and I understand attempting to hold you to your own is a fool's mission. But it's important to keep our eye on the ball here: you invented a standard (an urgent appointment), I argue that this standard is definitiely met (this is crucial enough to be urgent), and your response is: no it isn't, with pretty much no explanation.

That's on you. You don't think there should be any centralized understanding in this country of how unions work.

Which I'm not even sure if that's true, because I'm not even sure if you've spent the time pouring over that issue to warrant the opinions you're spouting off here. Opinions with no ideological mooring or internal consistency.

DementedLogic
01-28-2013, 10:05 PM
Really, all of this, just about every sentence, is one form of nonsense or another.

But the bolded part is really what informs you. You don't think the NLRB is remotely important.

If you did, you'd understand it clearly fits your stated standard of "needs to be filled with urgency."

Of course, you don't much care for standards, and I understand attempting to hold you to your own is a fool's mission. But it's important to keep our eye on the ball here: you invented a standard (an urgent appointment), I argue that this standard is definitiely met (this is crucial enough to be urgent), and your response is: no it isn't, with pretty much no explanation.

That's on you. You don't think there should be any centralized understanding in this country of how unions work.

Which I'm not even sure if that's true, because I'm not even sure if you've spent the time pouring over that issue to warrant the opinions you're spouting off here. Opinions with no ideological mooring or internal consistency.



There is a difference between a vacancy that happens while the Senate is in recess and it needs to be filled immediately, and a vacancy that is unfilled before Senate goes into recess (or in this case, didn't go into recess) and the president goes around the Senate to fill the vacancy. If the vacancy needs to be filled urgently, the Senate will fill it before going into recess.

The constitution clearly states that the vacancy must happen during the recess. Even if the Senate would've been in recess when Obama made the appointments, the vacancies did not happen during the recess.

Direckshun
01-28-2013, 10:33 PM
There is a difference between a vacancy that happens while the Senate is in recess and it needs to be filled immediately, and a vacancy that is unfilled before Senate goes into recess (or in this case, didn't go into recess) and the president goes around the Senate to fill the vacancy. If the vacancy needs to be filled urgently, the Senate will fill it before going into recess.

You are adorable.

DementedLogic
01-28-2013, 11:14 PM
You are adorable.

The NLRB positions were vacant for months, and no one noticed.

Cave Johnson
01-29-2013, 06:06 AM
The NLRB positions were vacant for months, and no one noticed.

You're adoreable.

They didn't have a quorum, meaning they couldn't issue regulatory decisions. The Congresscritters/Senators blocking the nominations should just nut up and propose abolishing the agency if they don't want it to function.

Cave Johnson
01-29-2013, 06:17 AM
The authoring judge is a tenther, btw. No way this stands up on appeal.

http://thinkprogress.org/justice/2012/04/16/464731/two-federal-judges-suggest-all-labor-business-or-wall-street-regulation-is-unconstitutional/?mobile=wp

Direckshun
01-29-2013, 06:49 AM
The NLRB positions were vacant for months, and no one noticed.

"No one noticed."

....got it.

Direckshun
01-29-2013, 07:23 AM
http://www.bloomberg.com/news/2013-01-28/court-originalists-upend-power-balance-with-recess-ruling.html

Court Originalists Upend Power Balance With Recess Ruling
By Noah Feldman
Jan 28, 2013 11:41 AM CT

If it was good enough for James Madison, it’s good enough for me -- that was the message of the U.S. Court of Appeals in Washington when it struck down the president’s power to appoint officials when Congress isn’t doing business but is nominally in session.

Relying on the language of the Constitution, and what it took to be the original intention of the Founding Fathers, the three-member court panel struck down a practice that by some estimates goes back to 1867. The decision involved appointments to the National Labor Relations Board, but the impact will be felt throughout government. Hundreds, perhaps thousands of executive branch actions will be thrown into question retroactively.

With the greatest respect to Madison and his peers, this makes no sense -- or at least no sense in a world that differs from that of 1789. The problem isn’t really that from now on, the president will have to put up all his nominees for Senate confirmation unless it is during the official recess that usually takes place over the summer. In principle, that would be a reasonable thing for him to have to do, and it is entirely possible that the court got the original meaning right.

Bigger Government

The problem is that in every other respect, including the confirmation process, today’s government is totally different from the world the constitutional framers imagined. Start with its size. When Thomas Jefferson took office in 1801, a dozen years into the history of the Constitution in action, he had a grand total of four full-time Cabinet officials: the secretaries of state, war, the Treasury and the Navy. The attorney general was a part-time lawyer who kept his private clients. There were no assistant secretaries, to say nothing of deputies, deputy assistants and beyond. Senate confirmation was a matter of a few discussions among a handful of men.

All this has been altered radically as government has grown. The increase in the number of confirmed officials came both in slow increments, with the growth of individual jobs within the executive branch in the 19th century, and in major leaps, as in the New Deal, when agencies proliferated. Today, confirming appointees takes forever. If recess appointments can’t fill jobs during the backlog period, then much of the executive branch will teeter along, rudderless. This might please small-government advocates, but even they presumably would like to see the Defense Department, say, fully operational.

Size isn’t the only issue. In Jefferson’s world, when senators got down to business, they would either confirm the president’s nominee or reject him (always “him” until Franklin D. Roosevelt nominated Frances Perkins as labor secretary). In the contemporary world, however, an innovation totally incompatible with original intent has changed that: I speak, of course, of the dreaded filibuster.

The filibuster has a dirty history and a disreputable present. Deployed most often to protect slavery and segregation, it enables a minority of the Senate to block an appointment without compunction. Filibusters, or just the threat of them, have for many years been applied most often to block appointments.

Undemocratic Filibuster

There is nothing unconstitutional about this -- unless you are an originalist. The Senate makes its own rules, and if it wants a rule that breaks majority vote, so be it. But the Founding Fathers never dreamed of it. It is, arguably, a violation of their aspiration to a republican form of government. It is certainly undemocratic.

In a sense, recess appointments functioned as compensation to the executive branch for its inability to get an up-or-down vote on its nominees. There was a certain push and pull -- if the Senate blocked a nominee, the president could give that person a recess appointment. Taken together, the system gave each side incentives to compromise. Even if they couldn’t, each walked away with something.

Now the U.S. Court of Appeals for the District of Columbia Circuit has upset this balance in favor of the minority party in the Senate. Its motives may be totally pure, but the effects of the decision are decidedly partisan.

And the true culprit isn’t the three-judge panel -- all of whom happened to have been appointed by Republican presidents -- but the theory of originalism itself. Justice Oliver Wendell Holmes put it best (as he usually did). The words of the Constitution, he wrote, “have called into life a being the development of which could not have been foreseen completely by the most gifted of its begetters.”

The Constitution has evolved as the country has changed. The trouble with applying strict originalism to one bit of the evolving structure is that it doesn’t take into account the other changes. Had we never developed recess appointments of the modern type, that might have been fine. Yet they came about as part of an overall structure of balance between the branches, and eliminating them makes those powers less balanced, not more.

The NLRB itself would have been unimaginable to the framers. How does Congress’s power to regulate interstate commerce evolve into a body that can determine labor-capital relations and control unions and employers alike? By necessity, that’s how.

If we have today a constitutional system that is the envy of the world, it is emphatically not because of the original text, however elegant. It is because we have had the wisdom over the generations to let our magnificent structure evolve to meet new needs and circumstances.

FishingRod
01-29-2013, 08:03 AM
Let me stop you right there.

Do you know what a pro forma session is?

Please describe it.


In short, it is a session in which nothing is expected to happen. A time where they are not doing squat, kind of like when the rest of us leave work on a Friday evening.

So do you know what the Recess is and what the difference between the two is and Why the Executive Branch doesn’t get to declare a pro forma session The Recess? I can’t imagine you want Dick Chaney to have the power to just decide they are in Recess when he is President in 4 years.

Direckshun
01-29-2013, 09:25 AM
In short, it is a session in which nothing is expected to happen. A time where they are not doing squat, kind of like when the rest of us leave work on a Friday evening.

Close. But it's even less than that.

It's a session where some dude gavels in, sits on his ass for three minutes, and gavels out.

That's not, by any reasonable understanding, a session. It's a blatant attempt to usurp the executive branch's constitutional ability to make recess appointments.

Cave Johnson
01-29-2013, 09:29 AM
In short, it is a session in which nothing is expected to happen. A time where they are not doing squat, kind of like when the rest of us leave work on a Friday evening.

So do you know what the Recess is and what the difference between the two is and Why the Executive Branch doesn’t get to declare a pro forma session The Recess? I can’t imagine you want Dick Chaney to have the power to just decide they are in Recess when he is President in 4 years.

President Cheney? Are you high?

KC Dan
01-29-2013, 09:54 AM
The Congresscritters/Senators blocking the nominations should just nut up and propose abolishing the agency if they don't want it to function.Agreed, sounds perfectly good to me. Might save a few dollars. There is no need for this agency

BucEyedPea
01-29-2013, 10:22 AM
In short, it is a session in which nothing is expected to happen. A time where they are not doing squat, kind of like when the rest of us leave work on a Friday evening.

So do you know what the Recess is and what the difference between the two is and Why the Executive Branch doesn’t get to declare a pro forma session The Recess? I can’t imagine you want Dick Chaney to have the power to just decide they are in Recess when he is President in 4 years.

Well, they're up there not doing anything about the deficit and passing no budget. So what's the difference. They can be in session and decide to pass no laws and that'd be just fine with me. They don't have to be making law.

BucEyedPea
01-29-2013, 10:24 AM
Really, all of this, just about every sentence, is one form of nonsense or another.

But the bolded part is really what informs you. You don't think the NLRB is remotely important.

If you did, you'd understand it clearly fits your stated standard of "needs to be filled with urgency."

Of course, you don't much care for standards, and I understand attempting to hold you to your own is a fool's mission. But it's important to keep our eye on the ball here: you invented a standard (an urgent appointment), I argue that this standard is definitiely met (this is crucial enough to be urgent), and your response is: no it isn't, with pretty much no explanation.

That's on you. You don't think there should be any centralized understanding in this country of how unions work.

Which I'm not even sure if that's true, because I'm not even sure if you've spent the time pouring over that issue to warrant the opinions you're spouting off here. Opinions with no ideological mooring or internal consistency.
:rolleyes:Yet this whole post is pure opinion. Furthermore, no one is 100% consistent and no one's opinion has to be based on ideology if they don't want.

What is good or bad is opinion. Everyone also has their own standards....also an opinion.
Another typical prog, telling everyone what they should value, what is good or bad and what their standard should be aka based on the ideological mooring of Direckshun or Progs. You guys are the micro managers of society.

FishingRod
01-29-2013, 10:49 AM
President Cheney? Are you high?

Just making a point that you don’t want to remove the checks and balances just because your guy is currently in the driver’s seat.

Direckshun
01-29-2013, 11:07 AM
Just making a point that you don’t want to remove the checks and balances just because your guy is currently in the driver’s seat.

The only agent here removing checks and balances is the Senate minority for blocking off the constitutional power of recess appointments through a farce.

FishingRod
01-29-2013, 12:30 PM
The only agent here removing checks and balances is the Senate minority for blocking off the constitutional power of recess appointments through a farce.

but the court agrees with me

Direckshun
01-29-2013, 12:32 PM
but the court agrees with me

LMAO

If I could rep you for each Helen, I would. I love Monty Pyton that much.

I think courts could (and will) disagree on this. It's a classic "letter of the law vs. spirit of the law" archetype. It will almost certainly end up before the SCOTUS.

blaise
01-29-2013, 12:38 PM
Um, Monty Python, huh?

FishingRod
01-29-2013, 12:58 PM
LMAO

If I could rep you for each Helen, I would. I love Monty Pyton that much.

I think courts could (and will) disagree on this. It's a classic "letter of the law vs. spirit of the law" archetype. It will almost certainly end up before the SCOTUS.

Actually it is an old Kids in the Hall skit

Direckshun
01-29-2013, 01:02 PM
Actually it is an old Kids in the Hall skit

ARG. I knew that. Another irreverent sketch show that I loved.

Tom_A_Hawk
01-29-2013, 01:03 PM
I looked and didn't see a thread on this... you guys are dropping the ball!

So, it looks like every NLRB decision since January of 2012 will be invalidated. This is a VERY HEALTHY slap in the face to Obama's constant abuse of executive power.

Here is a great article on it

http://communities.washingtontimes.com/neighborhood/tygrrrr-express/2013/jan/26/dc-appeals-court-rules-obama-nlrb-appointments-unc/

Any thoughts?
His attempt to load the NLRB with union friendly asswipes failed

BucEyedPea
01-29-2013, 03:02 PM
Just making a point that you don’t want to remove the checks and balances just because your guy is currently in the driver’s seat.

I agree with you FishingRod. Teddy Roosevelt abused these too. It's good to have a suit because this type of thing needs to stop—no matter who is in office. I'd like to see something on the abuse of EO's too. Perhaps using the one where Obama removed the welfare reform work requirement.

AustinChief
01-29-2013, 04:27 PM
What Direckshun has failed to say in the midst of all of his wrongheaded ignorant ranting is this... Obama didn't just follow some long held precedent of making recess appointments. He instead decided that he would circumvent the Senate and decide for HIMSELF when they were and weren't in recess. GOING AGAINST previous precedent in the matter and most obviously going against the Constitution.

He also acts as if the Senate's pro forma sessions was some brand new tactic. This has been used for years to block recess appointments.

So quit trying to act as if what the court did was some massive change of the game. OBAMA brought this on himself with his illegal expansion of executive powers. Even Evil President Bush abided by these rules when Reid used pro forma sessions to block him.

Where was your outcry when Reid was using the same tactic? Fucking partisan hypocrite.

BucEyedPea
01-29-2013, 04:31 PM
What Direckshun has failed to say in the midst of all of his wrongheaded ignorant ranting is this... Obama didn't just follow some long held precedent of making recess appointments. He instead decided that he would circumvent the Senate and decide for HIMSELF when they were and weren't in recess. GOING AGAINST previous precedent in the matter and most obviously going against the Constitution.
For me, this is the crux of the matter that harms checks and balances.

Where was your outcry when Reid was using the same tactic? ****ing partisan hypocrite.

That's right Reid did it to Bush—rightfully so, imo.

stonedstooge
01-29-2013, 04:32 PM
What Direckshun has failed to say in the midst of all of his wrongheaded ignorant ranting is this... Obama didn't just follow some long held precedent of making recess appointments. He instead decided that he would circumvent the Senate and decide for HIMSELF when they were and weren't in recess. GOING AGAINST previous precedent in the matter and most obviously going against the Constitution.

He also acts as if the Senate's pro forma sessions was some brand new tactic. This has been used for years to block recess appointments.

So quit trying to act as if what the court did was some massive change of the game. OBAMA brought this on himself with his illegal expansion of executive powers. Even Evil President Bush abided by these rules when Reid used pro forma sessions to block him.

Where was your outcry when Reid was using the same tactic? ****ing partisan hypocrite.

RACIST!!!!!

AustinChief
01-29-2013, 04:58 PM
“the Senate may act to foreclose [recess appointments] by declining to recess for more than two or three days at a time over a lengthy period.”

Without looking it up... anyone want to guess who this quote is from? (It's not Reid or Obama, that would be too obvious)

RedNeckRaider
01-29-2013, 04:59 PM
Without looking it up... anyone want to guess who this quote is from? (It's not Reid or Obama, that would be too obvious)

Can I google first?

AustinChief
01-30-2013, 05:06 AM
Can I google first?

NO! That defeats the point.... let's see if Mrs. Direckshun can guess first. (it annihilates his Supreme Court Theory btw)

Direckshun
01-30-2013, 10:06 AM
What Direckshun has failed to say in the midst of all of his wrongheaded ignorant ranting is this... Obama didn't just follow some long held precedent of making recess appointments. He instead decided that he would circumvent the Senate and decide for HIMSELF when they were and weren't in recess.

It was a bold move because the other option was to sit there and do nothing and have the NLRB board get shut down anyway through the intrasingence of Senate Republicans. His choices were to sit on his thumb, get nothing done, and allow Senate Republicans to shut down the NLRB, or make this move, make the NLRB board functional and effective, and risk the legal challenge. At the very worst, the President will end up exactly where he'd be anyway.

A "pro forma" session is, in actuality, a recess with two douchebags banging a gavel every other day for minutes at a time. The issue's not nearly as clear you believe it to be, as usual.

GOING AGAINST previous precedent in the matter and most obviously going against the Constitution.

Previous practice, maybe. Far as I know, there's no judicial precedent on the issue.

He also acts as if the Senate's pro forma sessions was some brand new tactic.

Swing and a miss.

Where was your outcry when Reid was using the same tactic? ****ing partisan hypocrite.

Wrong.

It'd be hypocritical if I was arguing at the time that a similar move by Bush was unconstitutional.

Direckshun
01-30-2013, 10:06 AM
Without looking it up... anyone want to guess who this quote is from? (It's not Reid or Obama, that would be too obvious)

You posted it earlier in the thread.

jettio
01-30-2013, 04:35 PM
What Direckshun has failed to say in the midst of all of his wrongheaded ignorant ranting is this... Obama didn't just follow some long held precedent of making recess appointments. He instead decided that he would circumvent the Senate and decide for HIMSELF when they were and weren't in recess. GOING AGAINST previous precedent in the matter and most obviously going against the Constitution.

He also acts as if the Senate's pro forma sessions was some brand new tactic. This has been used for years to block recess appointments.

So quit trying to act as if what the court did was some massive change of the game. OBAMA brought this on himself with his illegal expansion of executive powers. Even Evil President Bush abided by these rules when Reid used pro forma sessions to block him.

Where was your outcry when Reid was using the same tactic? ****ing partisan hypocrite.

How long has this pro forma tactic been used?

I thought the article stated that Harry Reid was the first leader to do it.

mlyonsd
01-30-2013, 04:44 PM
Yes I would definitely consider bypassing the constitution a bold move.

AustinChief
01-30-2013, 09:01 PM
How long has this pro forma tactic been used?

I thought the article stated that Harry Reid was the first leader to do it.

Without researching it, my understanding is that Reid was the first to use it FOR THIS PURPOSE... but the practice has been around for ages.

What Direckshun wants is for the Executive Branch to be able to interpret Senate rules in any way that meets their needs. A dangerous and stupid idea. Par for the course for him.

patteeu
01-30-2013, 10:48 PM
I'm shocked to find out that we have people willing to defend Obama on this.

Direckshun
01-31-2013, 06:45 AM
What Direckshun wants is for the Executive Branch to be able to interpret Senate rules in any way that meets their needs.

Swing and a miss.

Par course for you.

jettio
01-31-2013, 03:17 PM
Without researching it, my understanding is that Reid was the first to use it FOR THIS PURPOSE... but the practice has been around for ages.

What Direckshun wants is for the Executive Branch to be able to interpret Senate rules in any way that meets their needs. A dangerous and stupid idea. Par for the course for him.

You are way too enthusiastic about this.

Seems like a lot of people are getting paid by the taxpayer to not get anything productive done.

I would not be surprised if the final ruling on this will be that the reason for the recess clause was that at the time of the Framers travel to Congress took a long time depending on the state, and the recess appointment power was included by the framers because of those travel considerations to prevent vacant offices.

I doubt they contemplated this idea of pro forma sessions being a way to keep offices vacant, because they thought it necessary to fill vacancies that arose when most of the Senators were out of town.

Just a stupid pissin' contest that is wasting a lot of taxpayer money if you ask me.