No, Mr. President, you can’t do that

On Friday, the United States Circuit Court for the D.C. Circuit issued its ruling in Canning v. NLRB.  The decision can only be considered a blow to the President’s agenda.

The case involved the legality of certain appointments the President made to the NLRB while the President claimed the Senate was in recess.  Article II, Section 2 of the Constitution provides, in pertinent part,

The President shall have power to fill up all vacancies [that would otherwise need Senate confirmation] that may happen during the recess of the Senate…[emphasis supplied]

The facts of the case are very straightforward.  On January 4, 2012 the President appointed 3 people to fill vacancies on the NLRB. 

At the time of the President’s purported recess appointments of the three Board members, the Senate was operating pursuant to a unanimous consent agreement, which provided that the Senate would meet in pro forma sessions every three business days from December 20, 2011, through January 23, 2012. 157 Cong. Rec. S8,783–84 (daily ed. Dec. 17, 2011). [see page 14]

In fact, during one of those pro forma sessions, on January 3, 2012, the Senate convened the Second Session of the 112th Congress. 

The Circuit Court held that all three NLRB appointments were unconstitutional for two separate reasons.  First the court found that the Senate was not in recess at the time of the appointments.  The court determined that the words “the recess” in the Constitution meant only that period of time between sessions of the Senate, not anytime the Senate was not present on the Senate floor.  In other words, appointments could be made, for example, during the recess between the first session of the 112th Congress and the second session, or the second session of the 112th Congress and the first session of the 113th Congress.  In this case, because of the proforma sessions, there never was a recess.

And second, the court found that recess appointements can only be made if the vacancy happens during the recess.  The fact that a vacancy may exist during a recess does not give the President the power to make an appointment.  None of the vacancies on the NLRB in question happened during any recess.

Without these three members, the NLRB did not have a quorum, and thus the ruling made by it in the Canning case was void.

During the period of time between January 4, 2012 and Friday’s opinion, the NLRB made over 200 decisions, and, as there was no quorum, those decisions are now called into question.

What is even more interesting is that on the same day the President made his “recess” appointments to the NLRB, he also “recess” appointed Richard Cordray as Director of  Dodd/Frank’s Consumer Financial Protection Bureau.  Since then, that bureau has issued thousands of pages of regulations, which, by law, it cannot issue without a Director.

One could conclude that those regulations are void as well.



12 replies
  1. jesichashope
    jesichashope says:

    We have a President who’s job is to uphold the Constitution but cannot for the life of him find a way of doing so.? If we are to believe he does so through ignorance is it not our faults for putting a man without the abundance of knowledge we demand in office?? Do I dare think he knows well what he is doing and we the people are held hostage under tyrannical rule? This man has the highest courts under his command; when the President controls all the checks and balances we are without balance and doomed to fail.

    • stinkfoot
      stinkfoot says:

      Remember that his reputation as promoted by his propagandist mainstream media held him to be a Constitutional Scholar so I do not think that he can claim ignorance.? I’m thinking more and more that the best answer to the problem at hand would result in a bit of a constitutional crisis and power vacuum because the military needs to go in and round up the whole lot of criminals that have usurped positions in the government and bring them to justice.? The actions of this government do not reflect the slightest respect for the Constitution that its members swore to uphold and protect.

      • jesichashope
        jesichashope says:

        Then I would assume if he be not ignorant he be the leader of the wolf pack. His spirit lacks integrity and patriotism; oppressive socialistic behavior favors him. I see voting is out of our control, when near whole states claim all ballots were in his name; we need not wonder further of rigged ballots. The damage done to this nation is by far more devastating then any of our wars; we are financially ruined and no solution but to cost generations hence part of their wages to repay. Without revolution and reconstruction, America shall never be that shining city on the hill but a tarnished city laying in ruins. We the people wait and hope but dare I say what are we waiting for, what more must we see, or endure before we lay claim to our Declaration of Independence and our Constitution.

  2. JBS
    JBS says:

    Obama will say and do anything that will keep him and his cronies in power.
    The judges who rule against him are very probably on his enemies list. We are witnessing a president who is not governing but seeing what he can get away with!
    It has taken time for Obama to be called on his bending of the law. Hopefully, the Cordray appointment, another crony pay-off, will be vacated, also. If there is justice, there are more of these decisions to come.
    Isn’t it time for Obama to go on vacation again? Hit the links? Shoot some skeet — he has fun shooting?

  3. dennis
    dennis says:

    OK, now that it has been deemed that he violated the Law and the constitutional powers, who or what happens to reverse all the regs and illegal things that those 4 appointments have had a hand in? If it is the DOJ then who will tell Holder he has to enforce the law? These are questions I would like to know the answer to.

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