Will the Supreme Court Strike Down Obamas NLRB Recess Appointments?

[Publius1787]

Will the Supreme Court Strike Down Obamas NLRB Recess Appointments?

Come place your bets!

NATIONAL LABOR RELATIONS BOARD v. NOEL CANNING

The audio of the argument will be posted here in a few days.
National Labor Relations Board v. Noel Canning | The Oyez Project at IIT Chicago-Kent College of Law

Questions

1. Was the Senate “ in recess” under the Recess Appointments Clause when President Obama appointed three people to the Board on January 4, 2012?

2. Does the Recess Appointments Clause grant the President the power to fill only vacancies that occur during the official recess of the Senate?

Background
NLRB v. Noel Canning: Inside the Case - YouTube


More National Labor Relations Board v. Noel Canning : SCOTUSblog

For those of you interested, the audio for the Oral argument for the case has been posted here >>>> National Labor Relations Board v. Noel Canning | The Oyez Project at IIT Chicago-Kent College of Law

 

[iamwhatiseem]

[MENTION=24610]iamwhatiseem[/MENTION] [MENTION=27496]Publius1787[/MENTION]

All true, but I cannot think of another President who has either made recess appointments while the congress was in pro forma session or gone to war beyond the scope of the War Powers Act without consulting Congress. The second of these two have nothing to do with the recess appointments, however, is there simply to point out that this behavior is repetitive.

hmm...
From US Senate website: U.S. Senate: Reference Home > Glossary > pro forma session
pro forma session - From the Latin, meaning “as a matter of form,” a pro forma session is a brief meeting of the Senate (sometimes only a few minutes in duration).

and: http://www.senate.gov/CRSReports/crs-publish.cfm?pid='0DP+P\W; P

and then...

Ahem! "In January 2012, Obama made three recess appointments to the National Labor Relations Board to ensure that the agency had the quorum necessary to conduct business. At the time, the Senate was observing a 20-day break in which it would convene a "pro forma" session every three days. At these sessions no business was conducted and no senator was required to show up, except for the one who began and ended the perfunctory proceedings by pounding the gavel. (Ironically, pro forma sessions originated in 2007 as a way for Senate Democrats to prevent President George W. Bush from making recess appointments.)" - Let history rule on recess appointments - latimes.com

Do we smell hypocrisy coming out of your butt, err, mouth, ahhh, pen, uhm pea-brain?

I'm sorry, I do not see where any other president but Obama has engaged in a recess appointment during a pro forma session. Here is what I said:

"I cannot think of another President who has either made recess appointments while the congress was in pro forma session..."

And I cannot think of one. Can you?

Again, I am not up on any of this...which is why I am asking the questions.
If in fact a pro forma session is nothing more than a couple guys showing up to smack the gavel twice - then what is the distinction? Why is it worse to place a recess appt during, essentially, a bogus session?

 

[Publius1787]

[MENTION=24610]iamwhatiseem[/MENTION] [MENTION=27496]Publius1787[/MENTION]

hmm...
From US Senate website: U.S. Senate: Reference Home > Glossary > pro forma session
pro forma session - From the Latin, meaning “as a matter of form,” a pro forma session is a brief meeting of the Senate (sometimes only a few minutes in duration).

and: http://www.senate.gov/CRSReports/crs-publish.cfm?pid='0DP+P\W; P

and then...

Ahem! "In January 2012, Obama made three recess appointments to the National Labor Relations Board to ensure that the agency had the quorum necessary to conduct business. At the time, the Senate was observing a 20-day break in which it would convene a "pro forma" session every three days. At these sessions no business was conducted and no senator was required to show up, except for the one who began and ended the perfunctory proceedings by pounding the gavel. (Ironically, pro forma sessions originated in 2007 as a way for Senate Democrats to prevent President George W. Bush from making recess appointments.)" - Let history rule on recess appointments - latimes.com

Do we smell hypocrisy coming out of your butt, err, mouth, ahhh, pen, uhm pea-brain?

I'm sorry, I do not see where any other president but Obama has engaged in a recess appointment during a pro forma session. Here is what I said:

"I cannot think of another President who has either made recess appointments while the congress was in pro forma session..."

And I cannot think of one. Can you?

Again, I am not up on any of this...which is why I am asking the questions.
If in fact a pro forma session is nothing more than a couple guys showing up to smack the gavel twice - then what is the distinction? Why is it worse to place a recess appt during, essentially, a bogus session?

Because the intent of the congress was specifically to prevent recess appointments via keeping one body in session. If this gets struck down by the courts then congress with simply institute a session of congress whereas they will deem it "possible" that business be conducted instead of a normal pro forma session where no business is conducted and it will end up right back in the supreme court at a later date. Nevertheless, congress considered itself in session and the President has no right to deem the congress adjourned. Procedural arguments aside, what is really at stake here is whether the "de facto officer doctrine" will be applied whereas the courts will rule that the officers decisions are valid despite their seats being invalid. I don't think the courts are going to rule against the "de facto officer doctrine." They will rule against Obamas recess appointments. The intent, letter, and spirit of the law is absolutely clear with respect to recess appointments and Obamas solicitor general got his ass kicked if you listen to the audio posted in the op. Both liberal and conservative justices ate his ass alive! He basically argued that the constitution is not the law of the land if it has been ignored for a long enough time. He also argued that the president doesn't need congress to make legitimate appointments even while they are purposely locking said appointments in normal session. According to Obamas Solicitor General, Obama has no constitutional requirement to run anything past congress with respect to appointments in any congressional secession. Indeed, if congress breaks for a 5 minute snack he can appoint as many officers as he deems necessary. You should listen to the audio. It's quite funny! Here ya go >>>> http://www.oyez.org/cases/2010-2019/2013/2013_12_1281

 

[Dante]

The SCOTUS will rule the appointments ILLEGAL and overturn all of it's rulings since the illegal appointments.

The Senate decides when it is in session, not the executive. It's the biggest no-brainer in the history of the court.

keeper post

 

[Dante]

[MENTION=24610]iamwhatiseem[/MENTION] [MENTION=27496]Publius1787[/MENTION]

All true, but I cannot think of another President who has either made recess appointments while the congress was in pro forma session or gone to war beyond the scope of the War Powers Act without consulting Congress. The second of these two have nothing to do with the recess appointments, however, is there simply to point out that this behavior is repetitive.

hmm...
From US Senate website: U.S. Senate: Reference Home > Glossary > pro forma session
pro forma session - From the Latin, meaning “as a matter of form,” a pro forma session is a brief meeting of the Senate (sometimes only a few minutes in duration).

and: http://www.senate.gov/CRSReports/crs-publish.cfm?pid='0DP+P\W; P

and then...

Ahem! "In January 2012, Obama made three recess appointments to the National Labor Relations Board to ensure that the agency had the quorum necessary to conduct business. At the time, the Senate was observing a 20-day break in which it would convene a "pro forma" session every three days. At these sessions no business was conducted and no senator was required to show up, except for the one who began and ended the perfunctory proceedings by pounding the gavel. (Ironically, pro forma sessions originated in 2007 as a way for Senate Democrats to prevent President George W. Bush from making recess appointments.)" - Let history rule on recess appointments - latimes.com

Do we smell hypocrisy coming out of your butt, err, mouth, ahhh, pen, uhm pea-brain?

I'm sorry, I do not see where any other president but Obama has engaged in a recess appointment during a pro forma session. Here is what I said:

"I cannot think of another President who has either made recess appointments while the congress was in pro forma session..."

And I cannot think of one. Can you?

No. But why would the Senate have kept itself in such a pro forma session? Think it might be politics?

Then we have the legal arguments and the political arguments. We also will have constitutional arguments over powers of branches

 

[Dante]

"The appeals court's reasoning would outlaw long-standing practices."

Let history rule on recess appointments - latimes.com

Why?

Obama's action was a provocative one, and its legality was challenged by Noel Canning, a Yakima, Wash., soft drink bottler that had received an adverse decision from the NLRB that was reconstituted as a result of Obama's appointments. But in ruling for the company, the U.S. Court of Appeals for the District of Columbia Circuit issued a breathtakingly broad decision.

Instead of simply holding that recess appointments during pro forma sessions were invalid, the court held that presidents may not make recess appointments except between enumerated sessions of Congress, a hiatus that occurs only once a year (and sometimes not at all). Moreover, the court said, presidents could make recess appointments only to vacancies that actually arose during that particular recess. If an official resigned a few days earlier, the president couldn't appoint a temporary successor.

Let history rule on recess appointments - latimes.com

 

[Publius1787]

[MENTION=24610]iamwhatiseem[/MENTION] [MENTION=27496]Publius1787[/MENTION]

hmm...
From US Senate website: U.S. Senate: Reference Home > Glossary > pro forma session
pro forma session - From the Latin, meaning “as a matter of form,” a pro forma session is a brief meeting of the Senate (sometimes only a few minutes in duration).

and: http://www.senate.gov/CRSReports/crs-publish.cfm?pid='0DP+P\W; P

and then...

Ahem! "In January 2012, Obama made three recess appointments to the National Labor Relations Board to ensure that the agency had the quorum necessary to conduct business. At the time, the Senate was observing a 20-day break in which it would convene a "pro forma" session every three days. At these sessions no business was conducted and no senator was required to show up, except for the one who began and ended the perfunctory proceedings by pounding the gavel. (Ironically, pro forma sessions originated in 2007 as a way for Senate Democrats to prevent President George W. Bush from making recess appointments.)" - Let history rule on recess appointments - latimes.com

Do we smell hypocrisy coming out of your butt, err, mouth, ahhh, pen, uhm pea-brain?

I'm sorry, I do not see where any other president but Obama has engaged in a recess appointment during a pro forma session. Here is what I said:

"I cannot think of another President who has either made recess appointments while the congress was in pro forma session..."

And I cannot think of one. Can you?

No. But why would the Senate have kept itself in such a pro forma session? Think it might be politics?

Then we have the legal arguments and the political arguments. We also will have constitutional arguments over powers of branches

Politics or not, they have the constitutional authority to play politics on this one! END OF STORY. Besides, is there anything that congress or the president does that isn't politics? And you don't think the president plays politics when he nominates a recess appointee in an age where congress can be convened in less than 24 hrs? No, he knew that his appointees could not pass the Senate so he just waited for the opportune time. The congress was therefore fighting politics with politics. Blame Obama, not the congress.

 

[Publius1787]

"The appeals court's reasoning would outlaw long-standing practices."

Let history rule on recess appointments - latimes.com

Why?

Obama's action was a provocative one, and its legality was challenged by Noel Canning, a Yakima, Wash., soft drink bottler that had received an adverse decision from the NLRB that was reconstituted as a result of Obama's appointments. But in ruling for the company, the U.S. Court of Appeals for the District of Columbia Circuit issued a breathtakingly broad decision.

Instead of simply holding that recess appointments during pro forma sessions were invalid, the court held that presidents may not make recess appointments except between enumerated sessions of Congress, a hiatus that occurs only once a year (and sometimes not at all). Moreover, the court said, presidents could make recess appointments only to vacancies that actually arose during that particular recess. If an official resigned a few days earlier, the president couldn't appoint a temporary successor.

Let history rule on recess appointments - latimes.com

Of course, the entire question is one the Supreme Court has never ruled on. Obamas Solicitor General got smashed for suggesting that the Constitution is no longer the law if in practice it has been long ignored. A laughable suggestion, and thus, long standing practices need not be the standard of judgment.

 

[Dante]

I'm sorry, I do not see where any other president but Obama has engaged in a recess appointment during a pro forma session. Here is what I said:

"I cannot think of another President who has either made recess appointments while the congress was in pro forma session..."

And I cannot think of one. Can you?

No. But why would the Senate have kept itself in such a pro forma session? Think it might be politics?

Then we have the legal arguments and the political arguments. We also will have constitutional arguments over powers of branches

Politics or not, they have the constitutional authority to play politics on this one! END OF STORY. Besides, is there anything that congress or the president does that isn't politics? And you don't think the president plays politics when he nominates a recess appointee in an age where congress can be convened in less than 24 hrs? No, he knew that his appointees could not pass the Senate so he just waited for the opportune time. The congress was therefore fighting politics with politics. Blame Obama, not the congress.

END of Story after the SCOTUS Rules, but...there may be more issues involved.

blaming Obama and not the Congress? Cart before the horse?


the thing is you choose to politicize the issue rather than argue constitutional merits

 

[Dante]

"The appeals court's reasoning would outlaw long-standing practices."

Let history rule on recess appointments - latimes.com

Why?

Obama's action was a provocative one, and its legality was challenged by Noel Canning, a Yakima, Wash., soft drink bottler that had received an adverse decision from the NLRB that was reconstituted as a result of Obama's appointments. But in ruling for the company, the U.S. Court of Appeals for the District of Columbia Circuit issued a breathtakingly broad decision.

Instead of simply holding that recess appointments during pro forma sessions were invalid, the court held that presidents may not make recess appointments except between enumerated sessions of Congress, a hiatus that occurs only once a year (and sometimes not at all). Moreover, the court said, presidents could make recess appointments only to vacancies that actually arose during that particular recess. If an official resigned a few days earlier, the president couldn't appoint a temporary successor.

Let history rule on recess appointments - latimes.com

Of course, the entire question is one the Supreme Court has never ruled on.

And their answer may be 'we have no final answer' -- we will have to parse the arguments made and those left out

 

[TooTall]

The Supreme Court is not concerned with "Obama's" appointments. It is concerned with executive power.

The problem with the right/left arguments here is that they usually miss the forest for the trees.

To be credible in support or hostility to the 'recess' appointments one must stand on a principle and not a party or personality. Dante supported many things Cheney and company pushed through their years in government because Dante supports a strong executive

Holy Shit....someone check the temperature of hell...I think it is freezing.
I 100% agree with a Dante post.
This is why I asked the question about the number of recess appointments by previous Presidents. This is not about Obama, this is about the power of the office.

All true, but I cannot think of another President who has either made recess appointments while the congress was in pro forma session or gone to war beyond the scope of the War Powers Act without consulting Congress. The second of these two have nothing to do with the recess appointments, however, is there simply to point out that this behavior is repetitive.

Think, Kosovo and Clinton and Libya and Obama and it will come to you. I agree that no other President has abused the recess appointment provision.

 

[Publius1787]

No. But why would the Senate have kept itself in such a pro forma session? Think it might be politics?

Then we have the legal arguments and the political arguments. We also will have constitutional arguments over powers of branches

Politics or not, they have the constitutional authority to play politics on this one! END OF STORY. Besides, is there anything that congress or the president does that isn't politics? And you don't think the president plays politics when he nominates a recess appointee in an age where congress can be convened in less than 24 hrs? No, he knew that his appointees could not pass the Senate so he just waited for the opportune time. The congress was therefore fighting politics with politics. Blame Obama, not the congress.

END of Story after the SCOTUS Rules, but...there may be more issues involved.

blaming Obama and not the Congress? Cart before the horse?


the thing is you choose to politicize the issue rather than argue constitutional merits

There are indeed more issues involved. None of which you can name but I certainly can. Nevertheless, you cannot tell me that the reason Obama made his nominations when congress was in "recess" was because he couldn't wait for congress to return. LAUGHABLE!!! The politics started with the president on this one. Congress just played politics in return which is their constitutional perogative. The Constitution is clear on who has what power and when. The only question left is whether "de facto officer doctrine" applies. Care to place your bets on this one and explain why?

 

[Publius1787]

"The appeals court's reasoning would outlaw long-standing practices."

Let history rule on recess appointments - latimes.com

Why?

Of course, the entire question is one the Supreme Court has never ruled on.

And their answer may be 'we have no final answer' -- we will have to parse the arguments made and those left out

Not exactly what I was addressing but OK.

 

[Dante]

Holy Shit....someone check the temperature of hell...I think it is freezing.
I 100% agree with a Dante post.
This is why I asked the question about the number of recess appointments by previous Presidents. This is not about Obama, this is about the power of the office.

All true, but I cannot think of another President who has either made recess appointments while the congress was in pro forma session or gone to war beyond the scope of the War Powers Act without consulting Congress. The second of these two have nothing to do with the recess appointments, however, is there simply to point out that this behavior is repetitive.

Think, Kosovo and Clinton and Libya and Obama and it will come to you. I agree that no other President has abused the recess appointment provision.

and there are rightwingers, conservatives, Republicans, Democrats, and liberals as well as moderate and independents who support a strong executive.

You seem stuck on the politics and Obama

your immaturity and IQ are showing

 

[Dante]

Politics or not, they have the constitutional authority to play politics on this one! END OF STORY. Besides, is there anything that congress or the president does that isn't politics? And you don't think the president plays politics when he nominates a recess appointee in an age where congress can be convened in less than 24 hrs? No, he knew that his appointees could not pass the Senate so he just waited for the opportune time. The congress was therefore fighting politics with politics. Blame Obama, not the congress.

END of Story after the SCOTUS Rules, but...there may be more issues involved.

blaming Obama and not the Congress? Cart before the horse?


the thing is you choose to politicize the issue rather than argue constitutional merits

There are indeed more issues involved. None of which you can name...

so you say


tool

 

[Dante]

Politics or not, they have the constitutional authority to play politics on this one! END OF STORY. Besides, is there anything that congress or the president does that isn't politics? And you don't think the president plays politics when he nominates a recess appointee in an age where congress can be convened in less than 24 hrs? No, he knew that his appointees could not pass the Senate so he just waited for the opportune time. The congress was therefore fighting politics with politics. Blame Obama, not the congress.

END of Story after the SCOTUS Rules, but...there may be more issues involved.

blaming Obama and not the Congress? Cart before the horse?


the thing is you choose to politicize the issue rather than argue constitutional merits

There are indeed more issues involved. None of which you can name but I certainly can.

Nevertheless, you cannot tell me that the reason Obama made his nominations when congress was in "recess" was because he couldn't wait for congress to return. LAUGHABLE!!!

The politics started with the president on this one. Congress just played politics in return which is their constitutional perogative. The Constitution is clear on who has what power and when. The only question left is whether "de facto officer doctrine" applies. Care to place your bets on this one and explain why?

wow, I'm seriously underwhelmed

I think Obama has given reason.

Most all of the relevant arguments on this have already been made:

"As we observed at the time of the appeals court decision, dramatically reining in recess appointments might not be a problem if the confirmation process always worked the way the framers of the Constitution intended, with the president submitting nominations to the Senate in timely fashion and the Senate expeditiously moving to an up-or-down vote. In an ideal world, recess appointments would be exceedingly rare."

Let history rule on recess appointments - latimes.com


Your misrepresentation is unworthy of the high opinion you have of yourself.

Some think we should all know how the court will rule on the roles of the Senate and President on this one. We don't and we don't.

Precedent has some Justices in rulings on similar cases before the court arguing for wanting to leave politics to the legislative branch, where powers between the executive and legislative branches are a political issue: solve it through legislative reform. This while having some Justices in rulings arguing for precedent being established anew because the political arguments may shield a constitutional argument that deserves addressing. I guess it will always depend on how the court agrees to hear an arguments as well as how the parties involved agreed to argue their cases.

On serious issues before the highest court in the land, more often than not nothing is as simple as most self-appointed 'experts' like to say it is.

 

[Publius1787]

END of Story after the SCOTUS Rules, but...there may be more issues involved.

blaming Obama and not the Congress? Cart before the horse?


the thing is you choose to politicize the issue rather than argue constitutional merits

There are indeed more issues involved. None of which you can name...

so you say


tool

I do say

 

[Publius1787]

END of Story after the SCOTUS Rules, but...there may be more issues involved.

blaming Obama and not the Congress? Cart before the horse?


the thing is you choose to politicize the issue rather than argue constitutional merits

There are indeed more issues involved. None of which you can name but I certainly can.

Nevertheless, you cannot tell me that the reason Obama made his nominations when congress was in "recess" was because he couldn't wait for congress to return. LAUGHABLE!!!

The politics started with the president on this one. Congress just played politics in return which is their constitutional perogative. The Constitution is clear on who has what power and when. The only question left is whether "de facto officer doctrine" applies. Care to place your bets on this one and explain why?

wow, I'm seriously underwhelmed

I think Obama has given reason.

Most all of the relevant arguments on this have already been made:

"As we observed at the time of the appeals court decision, dramatically reining in recess appointments might not be a problem if the confirmation process always worked the way the framers of the Constitution intended, with the president submitting nominations to the Senate in timely fashion and the Senate expeditiously moving to an up-or-down vote. In an ideal world, recess appointments would be exceedingly rare."

Let history rule on recess appointments - latimes.com


Your misrepresentation is unworthy of the high opinion you have of yourself.

Some think we should all know how the court will rule on the roles of the Senate and President on this one. We don't and we don't.

Precedent has some Justices in rulings on similar cases before the court arguing for wanting to leave politics to the legislative branch, where powers between the executive and legislative branches are a political issue: solve it through legislative reform. This while having some Justices in rulings arguing for precedent being established anew because the political arguments may shield a constitutional argument that deserves addressing. I guess it will always depend on how the court agrees to hear an arguments as well as how the parties involved agreed to argue their cases.

On serious issues before the highest court in the land, more often than not nothing is as simple as most self-appointed 'experts' like to say it is.

Allow me to translate what the Obama admin observed: Our power has been checked by congress, and thus, we have the obligation to result to extra constitutional means so as to run around this essential constitutional barrier.

The checks and balances worked EXACTLY as the founders envisioned it!

I will forego returning the ad-hominems. I am confident enough not to seek self assurance via an unsubstantiated assault on my opponents character.

 

[JakeStarkey]

My question is what happens to all of the NLRB rulings if Obamas appointees get booted?

If the appointments were deemed unconstitutional then the rulings made are null and void.

That would be both funny and awesome. Obama loves his NLRB and has nominated some pretty radical people to the board.

Won't happen. When the NLRB is re-ratified next month, the Senate will note the previous decisions are good, but to make sure, the NLRB will merely ratify them again before SCOTUS opines.

 

[Publius1787]

If the appointments were deemed unconstitutional then the rulings made are null and void.

That would be both funny and awesome. Obama loves his NLRB and has nominated some pretty radical people to the board.

Won't happen. When the NLRB is re-ratified next month, the Senate will note the previous decisions are good, but to make sure, the NLRB will merely ratify them again before SCOTUS opines.

Oh, my dear Starkey; the gift of ignorance that keeps on giving. Your simple mindedness is funny, but not necessary. Your argument lies within the "De Facto Officer Doctrine." Look it up. Isn't it a shame that you are so ill-equipped to debate me on this issue that I need to throw you a bone of knowledge so as to make up for your ignorance? Here you go ol simple minded one. >>> http://definitions.uslegal.com/d/de-facto-officer/

De Facto Officer refers to an officer holding a colorable right or title to the office accompanied by possession. The lawful acts of an officer de facto, so far as the rights of third persons are concerned, when done within the scope and by the apparent authority of office, are valid and binding.

The de facto officer doctrine confers validity upon acts performed by a person acting under the color of official title even though it is later discovered that the legality of that person’s appointment or election to office is deficient.

.