Obama's NLRB "recess" appointments invalid

[AustinChief]

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.c...ointments-unc/

Any thoughts?

[DementedLogic]

Originally Posted by Direckshun

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. 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]

Originally Posted by DementedLogic

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]

Originally Posted by Direckshun

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]

Originally Posted by DementedLogic

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]

Originally Posted by Direckshun

You are adorable.

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

[Cave Johnson]

Originally Posted by DementedLogic

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]

The authoring judge is a tenther, btw. No way this stands up on appeal.

http://thinkprogress.org/justice/201...nal/?mobile=wp

[Direckshun]

Originally Posted by DementedLogic

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

"No one noticed."

....got it.

[Direckshun]

http://www.bloomberg.com/news/2013-0...ss-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]

Originally Posted by Direckshun

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]

Originally Posted by FishingRod

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]

Originally Posted by FishingRod

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]

Originally Posted by Cave Johnson

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]

Originally Posted by FishingRod

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]

Originally Posted by Direckshun

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.

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.