Obama’s use of executive power faces reckoning at Supreme Court

[yota691]

Obama’s use of executive power faces reckoning at Supreme Court

 

 

 

By Kevin Bogardus and Ben Goad - 01/12/14 05:00 PM UTC

Nothing less than the boundaries of executive power are at stake Monday as the Supreme Court considers whether President Obama violated the Constitution during his first term.
 
Oral arguments slated for Monday will center on a trio of recess appointments to the National Labor Relations Board (NLRB) that were deemed unconstitutional by lower courts.
            

 

If they uphold the decision, experts say the justices could endanger hundreds of NLRB decisions.
 
Even more significant are the ramifications for future presidents, with the court poised either to bolster or blunt the chief executive’s appointment powers.
 
“Rulings like this have implications that last for centuries,” said Michael Lotito, an employment and labor attorney and co-chairman of Littler Mendelson's Workplace Policy Institute.
 
Presidents have for decades used recess appointment powers when the Senate is away to install judges and fill top federal vacancies that ordinarily would be subject to confirmation proceedings.
 
But with the disputed NLRB appointments, Obama became the first president to appoint nominees when the Senate was in a “pro-forma” session, when the upper chamber is briefly called to order and adjourned every few days.
 
The sessions are intended to prevent recess appointments, and usually only a handful of senators are present for them. In filling the NLRB posts, the Obama administration claims that the Senate is generally not available to conduct business during the sessions, so the president’s recess appointment power is in effect.
 
“The sham pro-forma sessions are nothing more than that,” said Catholic University law professor Victor Williams, who filed a brief backing the government’s position.
 
The impetus for recess appointments has faded now that Senate Democrats have changed their chamber’s rules to allow for a simple majority vote on presidential nominees. Nevertheless, the case could stunt Obama's and future presidents' authority when it comes to staffing administrations. 
 
The case was brought by Noel Canning, an Oregon-based soft drink bottling and distribution company that challenged the appointments as unconstitutional.
 
In January of last year, the D.C. Circuit Court of Appeals agreed.
 
The appellate court ruling under now review at the Supreme Court found a narrow window for the president to make recess appointments. Under its decision, the president can only make such appointments when the Senate is in recess between sessions of Congress, and only if a vacancy occurred in that same time period.
 
That goes well against protocol adopted by past Democratic and Republican presidents. A Congressional Service Research report found 329 such appointments since 1981 that would not meet that criteria and would be ruled void if the appeals court decision was law.
 
Some see the fight against the labor board as a broader effort in which opponents have sought to stymie the Obama administration’s rules and regulations.
 
“I think the battle against the NLRB over the last few years has been a proxy war about the proper role and scope of government,” said Wilma Liebman, who served as chairwoman of the NLRB from January 2009 to August 2011.
 
The obscure agency has become ground zero in that war, pitting business against labor and Republicans against Democrats.
 
The private sector mobilized a massive lobbying campaign after Obama’s election, fearing a Democratic president might enact a host of policy changes favorable to unions.
 
The effort first targeted legislation that would ease union organizing, but shifted to the NLRB nominees and its decisions.
 
“There has been an especially rancorous degree of controversy whipped around the NLRB. It got swept up with the Employee Free Choice Act," Liebman said.
 
The NLRB has had its decisions overturned by the high court before. In 2010, the Supreme Court found the board lacked the authority to make decisions for more than two years because it only had two members — one short of a quorum.
 
About 600 NLRB decisions were made in that time period, and the board was forced to go back through about 100 of them.
 
Liebman said it was a time-consuming process, but one the labor board could do again.
 
“We issued new decisions in a relatively short period of time. We had a process in place and went methodically back through them,” Liebman said. “It took some time that we could have spent doing other things. It wasn't the end of the world.” 
 
But having to turn its focus on previous decisions could sidetrack the NLRB from what is seen as an activist agenda at a critical moment, said Lolito, whose firm represents employers.
 
The board is now at full strength for the first time in years, and was expected to tackle numerous issues involving union elections.
 
“If this board has to spend the next good couple of years looking backward instead of forward, many in the employer community would say that's good news,” he said.
 
In Monday’s arguments, attorneys with the U.S. Chamber of Commerce will argue on behalf of Noel Canning that the NLRB operated without a quorum for well over a year, causing confusion for both employers and employees. 
 
“We look forward to the much needed clarity that the Supreme Court’s decision will bring,” said Lily Fu Claffee, the Chamber's general counsel.
 
The Obama administration’s case hinges on winning three points, according to Georgetown University Law Center’s Nicholas Quinn Rosenkranz, who is arguing against the government.
  
First, it must convince the justices that presidents may make appointments during regular recesses and not, as the appeals court ruled, only during the breaks between numbered sessions on Congress.
 
Next, the court must agree that the appointments may include the filling of vacancies that existed before the recess began, rather than those that occurred during a recess.
 
Finally, it must conclude that the pro-forma sessions do not count as formal sessions of Congress.
 
Proving all three points, particularly the last, would be a tall order, said Rosenkranz, who predicted a 9-0 ruling in favor of Noel Canning.
 
“I don’t think this is a close case,” he said.

 

Edited January 13, 2014 by yota691

[Biker]

I hope the court slam dunk his Butt.

[yota691]

Supreme Court justices question Obama's recess appointments (+video)

The Obama administration's top lawyer told justices that a ruling against the president would 'repudiate the constitutional legitimacy' of thousands of appointments. A lawyer for Senate Republicans calls the episode a 'complete abuse of the process.'

By Warren Richey, Staff writer / January 13, 2014

• 

Members of the public line up in front of the US Supreme Court to hear oral arguments on the first day of a case involving 'recess appointments' to the National Labor Relations Board on Monday.

Larry Downing/Reuters

 

WASHINGTON

The Obama administration’s top constitutional lawyer confronted a skeptical US Supreme Court on Monday as he tried to convince a majority of justices that the president acted properly in January 2012 when he declared the Senate to be in recess and unilaterally appointed three new members of the National Labor Relations Board.

•  

 

In a showdown of sorts between President Obama and Senate Republicans, the Supreme Court took on a highly charged political issue Monday: a president's ability to make recess appointments to positions that typically require Senate confirmation.

 

Without President Obama’s quick action in using his recess appointment authority, the five-member NLRB would have lost its quorum and any ability to render decisions.

Placing labor-friendly members on the NLRB was a high priority of the administration in 2011. Not everyone saw this as progress. Some of the board’s actions triggered congressional opposition, opposition that bloomed into a concerted effort to block Obama nominees to the NLRB.

 

The effort didn’t end there. Aware that the president might try to fill the vacant posts through recess appointments, the Senate agreed to remain in session throughout the winter break in December 2011 and January 2012.

To accomplish this, the Senate conducted a series of pro-forma sessions, one every three days throughout the entire period.

The action was designed to prevent the president from using his recess appointment authority to bypass the usual requirement that he obtain the advice and consent of the Senate for nominees.

It was against that backdrop that Mr. Obama in January 2012 brushed aside the Senate’s pro-forma sessions and declared that he was making three recess appointments to the NLRB.

A month later, Noel Canning, a bottling company from Washington State, lost its case before the NLRB. As part of its appeal, company lawyers questioned the validity of the three recess appointments to the NLRB.

A federal appeals court agreed with Noel Canning and ruled that the three appointments were beyond the president’s authority.

Now, the administration is asking the Supreme Court to reverse the appeals court and declare that the president has the power to ignore pro-forma Senate sessions and treat that period as if the Senate is in recess for purposes of making recess appointments.

US Solicitor General Donald Verrilli argued that the Senate could not manipulate its recess schedule in a way that would undermine the president’s broad power to keep the executive branch fully staffed and operating efficiently.

He told the justices that nearly all the nation’s presidents had made recess appointments under a variety of scenarios. If the court upheld the appeals court and ruled against the president, he said, it would “repudiate the constitutional legitimacy of thousands of appointments by presidents going back to George Washington.”

More specifically, he said, dozens, and perhaps hundreds, of NLRB decisions would be “under a cloud.”

Washington Appellate Lawyer Noel Francisco urged the justices to uphold the appeals court decision and embrace a more restrictive view of executive power.

The president’s recess appointment authority is contingent on the Senate being in recess, a procedure that is entirely within the Senate’s discretion, said Mr. Francisco, who is representing Noel Canning in the case.

“The one thing the president may not do is force the Senate to act against its will and run around the Senate’s refusal to act [on a nominee],” he said.

Francisco noted that in the early days of the country, members of Congress would make the long, difficult journey to Washington to conduct the nation’s business and then call a recess before returning home for months at a time. Since it was difficult to call Congress back into session every time a vacancy arose that needed to be filled, the framers of the Constitution included a provision to address that contingency.

The clause reads in part: “The president shall have power to fill up all vacancies that may happen during the recess of the Senate.”

Francisco said the clause sets out a procedure that is less relevant today than 200 years ago. Today, he said, senators could quickly be called back to Washington by the president in an emergency.

Washington Appellate Lawyer Miguel Estrada argued on behalf of Senate Republicans that the Obama recess appointments were aimed at bypassing the Senate’s role in approving nominees, rather than upholding presidential prerogatives.

He said the president waited to make his recess appointments until Jan. 4, 2012, one day after the new Senate convened (in a pro-forma session) on Jan.3.

He noted that Obama could have taken the action before the new session began on Jan. 3, but that by waiting a day the length of the recess appointments increased from one year to two years.

Mr. Estrada said the episode represented “the bottom of the slippery slope on the Recess Appointments Clause” and “a complete abuse of the process.”

“It is being used for no other purpose than to overcome the Senate opposition or the Senate disinclination to agree with the president’s nominations,” he said.

In his rebuttal, Solicitor General Verrilli challenged the charge. “It is just not the case that this is an end-run around the advice and consent of the Senate,” he said.

Several of the justices raised similar questions during the 90-minute session.

Elena Kagan, an Obama appointee and former solicitor general in the Obama administration, noted that the Recess Appointments Clause appears to have been written to address the problem of congressional absence.

More recently, she said, “presidents of both parties essentially have used this clause as a way to deal, not with congressional absence, but with congressional intransigence, with a Congress that simply does not want to approve appointments that the president thinks ought to be approved.”

“This is not the horse and buggy era anymore,” Justice Kagan said. “There’s no such thing truly as congressional absence anymore.”

Verrilli, who replaced Kagan as solicitor general, disagreed. The president had to act, he said, the NLRB was about to “go dark.”

“Yes,” Kagan replied, “as a result of congressional refusal, not as a result of congressional action.”

Verrilli tried to regroup. “Perhaps it sounds like this is an aggressive assertion of executive authority,” he said. But what the Framers were most concerned about, he said, was Congress draining authority from the executive branch.

“The executive needed to be fortified against those actions by Congress,” he said.

The case is National Labor Relations Board v. Noel Canning (12-1281).

A decision is expected by late June.

Edited January 14, 2014 by yota691

[yota691]

Megyn Kelly to Mitch McConnell: If Obama’s executive power grabs are so terrible, why not impeach him?

POSTED AT 2:41 PM ON JANUARY 14, 2014 BY ALLAHPUNDIT

 

She’s asking rhetorically, not egging him on. The obvious logistical problem, as many a Republican officeholder has noted when asked about this by an angry constituent, is that impeachment is DOA in the Senate as long as it’s controlled by Democrats. The House can force a Senate trial but what’s the use of that when we all know what the verdict will be? (For that reason, this question is better aimed at Boehner than at McConnell.) And no, retaking the Senate next year doesn’t solve the problem. You need two-thirds of the chamber to convict an impeached president; Republicans won’t be remotely close to 67 seats, no matter how big this year’s November wave is.

The political problem is that Republicans fear impeaching O would do more to hurt them than it would the president. Not only did Clinton weather the storm, so did his approval rating. If you’ve got a weak president in office like Obama who’s facing a debacle from his signature legislation between now and the next presidential election, why make any sudden moves to mess with that dynamic if you’re a Republican? They’re probably going to get a good result from SCOTUS on Obama’s NLRB power grab; if they want to push back against executive overreach, court battles might be fruitful high-publicity ways of doing it with minimal political risk — certain difficulties notwithstanding.

To solve their political problem, the GOP would have to convince a majority of the public (probably a big majority) that impeachment is warranted. But that’s the thing — even when the president’s guilty of encroaching on another branch’s powers or suspending parts of the law that are politically inconvenient to him, you’ll never find a majority of Americans willing to entertain a punishment as severe as removal from office for that. To make impeachment stick, you need to show that the president’s motives for acting were rotten and selfish, like Nixon’s; O, by contrast, always takes care to present his motives for ignoring Congress as civic-minded, something he does for the good of the people, not for himself. Tim Scott once suggested that Obama could be impeached if he tried to raise the debt ceiling unilaterally, but the public would never support that, I suspect. He’d simply say that he was driven to desperate measures to protect the country’s creditworthiness; at best you’d get a 50/50 split in public opinion on whether he should be punished, and I doubt the ratio would be even that good. Ron Paul once suggested that impeachment should be on the table for O’s drone strike on Anwar al-Awlaki, who was, after all, a U.S. citizen. O defended that by insisting he was acting to protect America from a particularly dangerous terrorist. I’d be surprised if you could get even 20 percent of the public angry enough to support impeachment over that one. A constitutionalist would wave his hand at all of the above and say that motives are irrelevant — if you violate due process or separation of powers, impeachment is an obvious remedy, however allegedly virtuous the motives. That’s what it means to follow the rule of law. How many constitutionalists are out there in the voting booth on election day, though? Fifteen percent of the electorate, maybe? Less?

Exit question: Will any big-name Republican pound the table for impeachment next year? Ted Cruz’s language about Obama’s lawlessness has been especially strong lately. He knows, of course, that the votes aren’t there in the Senate, but he knew they weren’t there for the “defund” effort either and he pushed that anyway. The key, then and now, was getting the House to act. O would survive but some conservatives would love Cruz for making the effort, which would be helpful to him when the primary campaign starts in 2015.

http://youtu.be/Mn7ea1sjN1w

Edited January 15, 2014 by yota691