Supreme Court Unanimously Strikes Down Obama's Unconstitutional "Recess" Appointments

Today in Washington, D.C. - June 26, 2014
The Senate reconvened at 9:30 AM today and began a period of morning business.

At noon, the Senate voted 57-39 to invoke cloture on the nomination of Cheryl Krause to be U.S. Circuit Judge for the Third Circuit. Democrats once again used the precedent they set after they used the nuclear option to break Senate rules and allow cloture on nominations with fewer than 60 votes.

At 1:45 PM, the Senate will hold up to 6 confirmation votes on the nominations of Stuart Jones to be Ambassador to Iraq, Robert Beecroft to be Ambassador to Egypt, Karen Dynan to be an Assistant Secretary of the Treasury, Esther Kia’aina to be an Assistant Secretary of the Interior, Vincent G. Logan to be Special Trustee, Office of Special Trustee for American Indians, and Jo Handlesman to be an Associate Director of the Office of Science and Technology Policy.

Yesterday, the Senate voted 95-3 to pass H.R. 803, the Workforce Investment Act. Prior to final passage, the Senate rejected amendments to the bill offered by Sen. Jeff Flake (R-AZ) and Sen. Mike Lee (R-UT).

The House reconvened at 9 AM. Today the House continued debate and voted to pass H.R. 4899 (229-185) — "To lower gasoline prices for the American family by increasing domestic onshore and offshore energy exploration and production, to streamline and improve onshore and offshore energy permitting and administration, and for other purposes." The next meeting is scheduled for 11:30 AM on Monday, June 30, 2014.

Yesterday. the House passed H.R. 6 (266-150) — "To provide for expedited approval of exportation of natural gas to World Trade Organization countries, and for other purposes."

Supreme Court Decisions.
Yesterday, the U.S. Supreme Court on Wednesday struck down the federal Defense of Marriage Act, known as DOMA. The court's 5-to-4 decision means that the federal government will now have to provide the same benefits to gay couples as to heterosexual couples.

Today, the Supreme Court issued its 9-0 decision ruled that President Obama's recess NLRB appointments in 2012 were unconstitutional. Business Insider writes, “The unanimous opinion, written by liberal Justice Stephen Breyer, said that Congress, and only Congress, decides when it is in session and when it is in recess. It ruled the Senate was not in a formal recess when Obama made the 2012 appointments — therefore, they were illegal. Obama had said in 2012 he was forced to appoint the three NLRB members, arguing Senate Republicans sought to stop the board from functioning. The administration argued the pro forma sessions held by the Senate every three days were only a sham designed to keep him from filling the posts. But the Supreme Court ruled the technicality Obama used to try to fill the slots did not constitute a formal recess. ‘Because the Senate was in session during its pro forma sessions, the President made the recess appointments at issue during a 3-day recess,’ the opinion read. ‘Three days is too short a time to bring a recess within the scope of the Clause, so the President lacked the authority to make those appointments.’ The case, National Labor Relations Board v. Canning, was a challenge to limit the president's ability to make appointments of federal officials while the Senate is in recess. It specifically challenged three of Obama's recess appointments to the National Labor Relations Board (NLRB), an independent government agency that conducts elections for labor-union representation and investigates allegations of unfair labor practices.”

Business Insider points out, “The ruling is a victory for Senate Minority Leader Mitch McConnell, who filed an amicus briefing with other Senate Republicans in the case. McConnell said Thursday the Supreme Court acted decisively to curb Obama's power. ‘I welcome the Supreme Court’s important decision today that the President’s so-called 'recess' appointments to the National Labor Relations Board two and one-half years ago were unconstitutional,’ McConnell said. ‘This administration has a tendency to abide by laws that it likes and to disregard those it doesn’t. In this case, that disturbing and dangerous tendency extended to the Constitution itself.’”

Americans for Limited Government President Nathan Mehrens today hailed a unanimous ruling by the Supreme Court overturning the 2012 false recess appointments by President Barack Obama to the National Labor Relations Board (NLRB) when Congress was not even in recess. The Supreme Court affirmed the D.C. Circuit Court of Appeals, which had broadly overturned the decisions made by the illegitimate appointments because the "recess" appointments that had provided the Board its quorum were never constitutionally made.

"No president can imagine a Congressional recess into existence," Mehrens said. "All of the acts of the unconstitutionally appointed NLRB back to the beginning of 2012 have been struck down. The Court was unanimous in upholding the Circuit Court of Appeals ruling vacating the unconstitutional decisions of the NLRB."

According to the Circuit Court's unanimous ruling which the Supreme Court affirmed, "Because none of the three appointments were valid, the Board lacked a quorum and its decision must be vacated," upholding the 2010 New Process Steel 2010 case.

"This is a great victory for constitutional government and reaffirms the advice and consent process. Never again will a president be able to just say Congress is in recess whenever he wants. This outcome was predictable," Mehrens concluded.

In this case decided by the Supreme Court, Leader McConnell joined with 44 other Republican senators in an amicus brief in the case, defending the Senate against the president’s unconstitutional appointments. The senators retained Miguel Estrada as counsel, and he argued their case to the Supreme Court. In the amicus brief, the senators wrote, “By purporting to appoint principal officers without the Senate’s approval, the President contravened the advice-and-consent protocol. As the court of appeals held, those appointments cannot be justified by the Recess Appointments Clause without distorting that provision’s text and purpose beyond recognition.” Not only that, they said, “The Executive’s claim that the President could disregard [pro forma] sessions and draw his own ‘conclusion’ whether the Senate really convened is a naked assault on Senate self-governance. The President has no power to declare a House of Congress adjourned when it says otherwise—least of all when it is, as here, demonstrably capable of exercising its constitutional authority.”

Justice Stephen Breyer, writing the opinion of the Court, agreed: “In our view, however, the pro forma sessions count as sessions, not as periods of recess. We hold that, for pur­poses of the Recess Appointments Clause, the Senate is in session when it says it is, provided that, under its own rules, it retains the capacity to transact Senate business. The Senate met that standard here.”

Speaking on the Senate floor following the Court’s decision, Leader McConnell said, “I welcome the Supreme Court’s decision in the Noel Canning case. It represents a clear rebuke to the President’s brazen power grab – a power grab I was proud to lead the effort against. Today’s decision was clear, and it was a unanimous rebuke of the President. Like my Republican colleagues and I have said all along, President Obama’s so-called ‘recess’ appointments to the NLRB in 2012 were a wholly unprecedented act of lawlessness. The President defied the Senate’s determination that it was meeting regularly, and the Supreme Court unanimously agreed with us. Today’s ruling is a victory for the Senate, for the American people, and for our Constitution. The Court reaffirmed the Senate’s clear constitutional authority to prescribe its own rules, including the right to determine for itself when it is in session.  And the Supreme Court unanimously rejected the President’s completely unprecedented assertion of a unilateral appointment power—a power that the Framers deliberately withheld from his office. Our counsel, Miguel Estrada, did an outstanding job defending the Senate, and its uniquely important place in our Constitutional system.  By contrast, our Democratic colleagues shirked their institutional duty to defend the Senate.  They failed, yet again, to stand up to the President. . . . In closing, the Administration’s tendency to abide only by the laws it likes represents a disturbing and dangerous threat to the rule of law. That’s true whether we’re talking about recess appointments or Obamacare. So I hope the Obama Administration will take away the appropriate lessons. Because the Court’s decision today is a clear rebuke of that behavior.”

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