Will SCOTUS Reverse Obama’s Recess Appointment Power Grab?

9806727-largeSpeculation is running rampant in the nation’s capital that the Supreme Court is poised to strike down three purported recess appointments that President Obama used to unconstitutionally manipulate federal labor relations policy.

During oral arguments in National Labor Relations Board v. Noel Canning on Monday, the justices seemed uncomfortable with Obama’s Jan. 4, 2012 overreach in which he recess-appointed three members to the NLRB without bothering to wait for the U.S. Senate to recess. Obama’s goal was to pack the under-staffed federal body with likeminded leftists and give the NLRB the quorum it previously lacked to conduct official business. A defeat for Obama in this closely watched case could call into question every order issued by the NLRB since the date the appointments were made.

Incidentally, the NLRB itself shouldn’t even exist. It is a socialist anachronism left over from the New Deal that Obama uses to create new rules and regulations without having to go the normal route and ask Congress to pass a law. Obama’s toadies at the NLRB are hellbent on making America more like bureaucratic, dysfunctional Europe where labor disruptions and union violence are everyday occurrences.

During oral arguments this week nearly every member of the high court questioned the constitutionality of Obama’s NLRB appointments that were apparently carried out contrary to Article 2 of the U.S. Constitution.

Chief Justice John Roberts defended the Senate’s constitutional prerogative to approve nominees as a vital check on an out-of-control executive branch. Senators “have an absolute right not to confirm nominees that the president submits,” he said.

Left-leaning Justice Elena Kagan, an Obama appointee, told government counsel, “The history is entirely on the Senate’s side, not your side.”

Ruling against the Obama administration could deprive the current president and future presidents of a power that presidents have used since George Washington’s administration, the government’s lawyer argued.

“That’s the end of the recess appointment power,” Solicitor General Donald B. Verrilli said in a fit of hyperbole. “You write it out of the Constitution.”

A ruling that clamps down on the recess appointment power would “repudiate the legitimacy of thousands of presidential appointments,” Verrilli argued.

Justice Antonin Scalia balked. “You don’t really think we’re going to go back and rip out every [decision made?]” he said.

Lawyers opposing the government denied a ruling against the Obama administration would cause chaos. Various legal mechanisms, including a six-year statute of limitations on agency actions, would prevent a mountain of NLRB decisions from being cast into legal purgatory, they say.

Miguel Estrada, who represented Senate Minority Leader Mitch McConnell (R-Ky.), dismissed suggestions that upholding the D.C. Circuit decision would unleash a “parade of horribles” across the federal government’s bureaucracy.

“There will be no parade, and there will be no horribles,” Estrada told the court.

The White House said Monday it expected that the Supreme Court would rubber-stamp Obama’s highhanded appointments. “In our view, we’re confident that the courts will uphold the president’s authority and look forward to resolution of this matter,” White House lie-regurgitator Jay Carney said at a daily briefing.

The lawsuit was brought by Noel Canning, the owner of a soft drink bottling and distribution company who was displeased by a ruling the board made against him after its quorum was restored by the putative recess appointments. Last year the U.S. Court of Appeals for the District of Columbia Circuit sided with Canning and his company, finding that the president may make recess appointments only when the Senate is in recess between numbered sessions of Congress, and only then if the vacancy arose in that same time span.

Two of the three NLRB appointees were professional leftists.

At the time of his appointment Richard Griffin was general counsel for the International Union of Operating Engineers (IUOE). Since 1994 he had served on the board of directors for the AFL-CIO Lawyers Coordinating Committee.

When she was recess-appointed, Sharon Block was Deputy Assistant Secretary for Congressional Affairs at the U.S. Department of Labor. Between 2006 and 2009, Block was Senior Labor and Employment Counsel for the Senate Health, Education, Labor, and Pensions Committee where she worked for the late Sen. Ted Kennedy (D-Mass.).

Appointee Terence F. Flynn, who had served as Chief Counsel to NLRB board member Brian Hayes, didn’t stick around long enough to influence much at the NLRB. He resigned four months into his term after an official probe was launched into allegations that he unlawfully leaked internal documents to a Republican colleague. Flynn denied any wrongdoing.

Expectations that the recess appointments will be invalidated may not be well-founded.

Many pundits and journalists seem unaware that high court justices like to play devil’s advocate, toying with lawyers the way cats playfully maim and torture mice. When this writer attended oral arguments in 2005 in Kelo v. New London, Conn., a haughty, indignant Justice Anthony Kennedy made quite a show of it, sarcastically asking what sounded like hostile questions of New London’s city solicitor. Kennedy seemed genuinely enraged that the Connecticut town was trying to dispossess homeowners who didn’t want to sell their properties.

But in the end, Kennedy cast the deciding ballot in favor of the local government’s unseemly land grab. The landmark eminent domain decision infamously gave local governments essentially unlimited power to seize private property on even the flimsiest “public use” justifications.

Are the misdeeds of America’s increasingly despotic chief executive finally catching up with him?

In this post-constitutional era in which the Supreme Court gave its imprimatur to the jurisprudentially promiscuous NFIB v. Sebelius, the vile, nonsensical pro-Obamacare decision that has been aptly compared to Dred Scott v. Sanford, it remains to be seen, what, if any limits to government power the court will see fit to recognize.

We’ll know soon enough if the Supreme Court is willing to rein in our lawless president but it’s not advisable to hold your breath waiting for fickle politicians dressed in black robes to mete out justice.

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  • cedars rebellion

    SOTUS will rule against Obama. It’s an easy call for them. Since Harry changed the Senate rules and Obama has appointed, with Senate approval, their replacements, even the liberals of the court will vote against Obama. They’ll get headlines showing how they’re not Obama’s puppet. All from doing, mostly, what amounts to a non-consequential ruling.

    • http://subversioninc.com Matthew Vadum

      You are wise. Seriously, a good insight.

      • sendtheclunkerbacktochicago

        Folks are fed up with and tired of waiting for the courts and Congress for failing to prosecute this Fraud in Chief. We are organizing and taking things into our own hands beginning on May 16th, 2014. Operation American Spring is being led by retired high ranking military men with more coming on board every day. It will be the biggest uprising in our history. People are responding daily. Congress has a boat load o criminal evidence sitting in their offices, evidence that was HAND DELIVERED to them and they still remain silent. Enough is enough, screw them, it is time to act.


    • swemson

      I’ve been giving Roberts the benefit of the doubt since his Obamacare ruling, because I believe that long term, his language in his Obamacare ruling AGAINST the Commerce Clause being used to expand government, may be more useful to us than delaying the overturning of Obamacare by a few years. I think that he may have been thinking that there’s no way that it could survive despite his ruling.

      If the Roberts court defeats Obama on this, then I think he will be vindicated. I have my doubts that die hard progressives like Kagan & Sotomayor will vote against him in this ruling, for the simple reason that they don’t have to fear for their jobs like elected politicians do, but we’ll see what happens when the decision is in.

      I’m putting my money on Roberts however… This could really be the beginning of the end for Obama.


      • William James Ward

        I hope you are correct, for myself I have thought
        the average man has no longer any defense against
        the avarice of despotic exploitation…………….
        Regards Swemson……..good to see your thoughts.

  • popseal

    The judicial boot licks will find a reason to confirm KING PINOCCHIO’s activity because that’s what their ilk does.

  • semus

    I would be surprised if the Supreme Court does anything to substantively oppose this Administration. After all they’ve approved theft of private property and they rewrote from the bench the Obamacare fraud.

  • T100C1970

    I agree with Cedars. Even if the court should find against the regime, Czar Obama will just immediately reappoint the same people and Harry Reid’s puppets will immediately confirm them under the Senate’s new “nuclear option” rules :-(

  • Kim

    “A defeat for Obama in this closely watched case could call into question every order issued by the NLRB since the date the appointments were made.”

    If this happens, all I can say is, “It’s about time!”

    • WhiteHunter

      A defeat for Obama — in this case as in EVERY case — is a victory for America and the rule of law.

  • veeper

    Foolish americans still keep bringing up the U.S. Constitution as a argument…..

    The U.S. Constitution is far from the american government….

    Political agendas are the rule of law in america…..

    Potus making the rules as he goes is now the way of america….

    american no longer has a fundamental foundation of operation…

    americans have become the biggest group of FOOLS and willfully ignorant COWARDS on the planet….

    • logdon

      americans have become the biggest group of FOOLS and willfully ignorant COWARDS on the planet.

      A bit off mark there. It should be prefaced Fifty percent of Americans

      • sendtheclunkerbacktochicago

        Put up or shut up, join those amazing patriots who have had enough and come to Washington DC on May 16th, 2014 and participate in the largest uprising in our history. Operation American Spring, see details below. You are without excuse. If you don’t show up with a dozen friends, you can list yourself as a coward.

        May 16th, 2014. Spread this like a virus on the social networks and in the comment section of conservative blogs. Hit Twitter and Facebook with full force.


      • William James Ward

        The fools, some of them are waking up to the pain
        and idiocy of todays America, Obama is a curse to
        the entire population, 100%, even to his moronic

        • logdon

          My point is that fifty percent of Americans voted for this undocumented imposter.

          • William James Ward

            Right, the 50% are the morons…………..W

          • logdon

            Here in Britain Gordon Brown massively increased public service employment.

            He also implemented a convoluted system of across the board welfare.

            They are all slurping on a government teat of unprecedented largesse without the slightest worry of where the money comes from only that this is now a right.

            They are the bulk of the 50% who vote left wing Labour and I suspect that it’s the same in Obama’s socialist paradise.

    • kikorikid

      SO!, Americans are Foolish and Cowardly?
      You should come to America and spew your
      supremacist crap here. To tell you the
      truth, your screed here sounds like a series
      of Pig farts and stinks of Hubris.

  • justquitnow

    Sure Bush and every President since our founding has used recess appointments (so courts and boards and departments can do business), but since the black guy is in office, this is now a lawless thing that must be stopped. And as scalia indicated…not to mean that recess appointments are illegal or that past recess appointments will be invalidated….just Obama’s. For Obama, this is a power grab, an overreach…what an uppity President.

    “Are the misdeeds of America’s increasingly despotic chief executive finally catching up with him?”

    Like I said, this isn’t about recess appointments…it’s about Obama.

    • http://subversioninc.com Matthew Vadum

      Dumbest comment in the whole thread. You don’t even understand the article. It’s not about recess appointments. It’s about recess appointments being made when there is no recess (in the Senate). Learn to read.

      • justquitnow


        • truebearing

          That is your most intelligent comment! Congratulations! I see real growth in you.

          • justquitnow

            Well someone didn’t like it because it’s been deleted. Nothing vulgar or profane in what I wrote, so a differing opinion gets you deleted. Noted.

  • sendtheclunkerbacktochicago

    The question to be asking will Congress answer the demands that will be coming from the MILLIONS who will be marching on Washington DC in Operation American Spring come May 16th, 2014. Some of the list of demands are listed in the article below from one of the military organizers involved in this operation. There will be many more high ranking military officers involved in this as the movement grows. Are you and Frontpage going to be talking about this Matthew Vadum.


    • Sheik Yerbouti

      Are you sure they will be in town then?

  • antioli

    Suppose the court decides as wished then what force will remove those appointees from their offices?
    How many legions has the SCOTUS?

  • http://www.abay.vn/Ve-quoc-te/ve-may-bay-di-tay-ban-nha Nhóm Đào Tạo

    To tell you the
    truth, your screed here sounds like a series
    of Pig farts and stinks of Hubris.
    ve may bay
    ve may bay gia re
    Gia ve may bay

    • truebearing

      Pig farts smell like hubris? If you say so. You seem to have personal expertise in both areas.

  • Jane Wegener

    Depends on what Obama is holding over John Roberts head.

    • WhiteHunter

      It worked before….

  • http://aothidau.com/ truong web

    I think he will be vindicated. I have my doubts that die hard
    progressives like Kagan & Sotomayor will vote against him in this
    ruling If the Roberts court defeats Obama on this
    ve may bay
    ve may bay gia re
    ve jetstar

  • http://aothidau.com/ truong web

    Some of the list of demands are listed in the article below from one of the military organizers involved in this operation
    vietjet air khuyen mai
    gia ve may bay vietjet
    mua ve may bay vietjet
    mua ve vietjet air
    ve may bay quan tan phu