Judicial Branch: uh oh, lightning does strike

Obama recess appointments unconstitutional

Reports the Washington Times here.

I have written several posts on the simple, clear, and concise language contained in our Constitution.

The indoctrinated, or the indoctrinators, always respond with, “BUT that was written a LONG time ago.  Our founders could not have really meant that . . .  NO, really.  These are modern times…”

“But that was written a LONG time ago” really means, “English does not equal English” and GOVERNMENT can now do ANYTHING it wishes to do.

But wait, lightening strikes as a federal 3 Judge panel finds action the O administration took actually doesn’t comport with plain English.

Stephen Dinan reports:

In a case freighted with major constitutional implications, a federal appeals court on Friday overturned President Obama’s controversial recess appointments from last year, ruling he abused his powers and acted when the Senate was not actually in a recess.
The three-judge panel’s ruling is a major blow to Mr. Obama. The judges ruled that the appointments he made to the National Labor Relations Board are illegal, and hence the five-person board did not have a quorum to operate.

But the ruling has even broader constitutional significance, with the judges arguing that the president’s recess appointment powers don’t apply to “intra-session” appointments — those made when Congress has left town for a few days or weeks. They said Mr. Obama erred when he said he could claim the power to determine when he could make appointments.

“Allowing the president to define the scope of his own appointments power would eviscerate the Constitution’s separation of powers,” the judges said in their opinion.

The judges said presidents’ recess powers only apply after Congress has adjourned a session permanently, which in modern times usually means only at the end of a year. If the ruling withstands Supreme Court scrutiny, it would dramatically constrain presidents in the future.

And the court ruled that the only vacancies that the president can use his powers on are ones that arise when the Senate is in one of those end-of-session breaks. That would all but eliminate the list of positions the president could fill with his recess powers.

. . .

Noel Francisco, a lawyer at Jones Day who argued the case for the company that challenged the NLRB appointments, said the court had returned to the Constitution’s intent, which was to make the recess appointment an emergency power for use only when Congress was not available.

“Issues like this — it’s not about protecting the Congress from the president and the president from Congress,” Mr. Francisco said. “The Constitution draws these lines ultimately to limit the government to protect the people.”

In their ruling the judges said their duty is not to speed up the workings of government, but to hold to constitutional principles.

“If some administrative inefficiency results from our construction of the original meaning of the Constitution, that does not empower us to change what the Constitution commands,” the judges wrote.

The judges said the recess power was created for a time when Congress met only a few months out of the year, and was designed for the president to fill vacancies during the long periods when Congress was not meeting. In modern times, when Congress is almost always capable of meeting, the recess powers should be more circumscribed.

Read more: http://www.washingtontimes.com/news/2013/jan/25/federal-court-obama-broke-law-recess-appointments/#ixzz2J1xHRJ3F
Follow us: @washtimes on Twitter

Here are the two portions in our Constitution which are pertinent, please go read them in context for yourself.  Oh, and I’ll add, the Constitution was written before TRAINS.  Sailing ship, horse, buggy, and walking, were the modes of transportation.  So, if in a time of national emergency the Executive needed to act swiftly when it would be a month or months before Congress could get back to Washington, the Executive was given the “Recess appointment” power.

The Constitution of the United States, Article II. Section 2.  Powers of the Executive:

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 Constitution of the United States, Article I. Section 5.  Legislative Powers:

Neither House, during the Session of Congress, shall, without the Consent of the other, adjourn for more than three days, nor to any other Place than that in which the two Houses shall be sitting.

The language is clear and concise in these two sections.  Adjourn does NOT equal Recess.

Yes folks, every now and then Lightning DOES strike and Justices, lawyers, actually read and understand “plain meaning.”



(Additional thought:  Why was the emergency power required for NLRB board members ?

To make sure Boeing could not open a new non-union factory with additional jobs for an ailing economy?

I guess that would be an emergency the President cannot ignore over the weekend, unlike Benghazi, with Americans dieing while requesting assistance.)

3 thoughts on “Judicial Branch: uh oh, lightning does strike

  1. Team Obama is certain to appeal, but would it not be rather humorous if the Supreme Court decides to not hear the case?

    I think I could crack a rib laughing at that. 🙂

    • The supreme court taking up the case would be bad for the Constitution. The court is now 5 for political power, 4 for Constitutional power.

  2. I’m pleasantly surprised.
    Maybe, now, some Congressperson, will “grow some” . . . backbone, and challenge some plain language illegal actions taken by the administration…

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