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Fee Fi Fo Fiat … The Rule of Law Ignored Again

Chalk one up for the rule of law. A unanimous panel of the D.C. Circuit Court of Appeals ruled the president’s non-recess appointments unconstitutional and therefore illegal and an abuse of executive power.

So now the left’s narrative begins with the WSJ news pages leading the pack. Newsrooms and editorial pages are often at political odds so the Journal’s split personality is not unusual. However, for an editorial to obliquely criticize the deficiencies of its news pages within the same edition is not usual. (Saturday/Sunday edition Jan. 26/27).

The discerning reader knows the liberal narrative is about to commence by the second paragraph of the front page news story.

“Such appointments –which bypass Senate approval to install top administration personnel—have been used by presidents for at least 90 years,” the authors’ intone.”

However, the Journal editorial points out that there is a big difference between the recess appointments by the aforementioned presidents and the current president’s appointments.

The “Obama kicker” according to the editorial, is that, “He consciously made those recess appointments when the Senate wasn’t in recess, but was conducting pro-forma sessions precisely so Mr. Obama couldn’t make recess appointments.”

The editorial continues, “No president to our knowledge has ever tried that one, no doubt because it means the executive can decide on its own when a co-equal branch of government is in session. “

However the authors of the news article apparently didn’t think that bit of information worthy of the front page.

What the authors did want readers to know before turning to the jump was that; “Mr. Obama has made 32 recess appointments, compared with 171 by Mr. Bush and a 139 by Mr. Clinton.”

ToadyObviously then, Obama should be heralded as a model of presidential restraint regarding recess appointments.
It is not, of course, how many recess appointments presidents make, it is whether they do so legally, that is constitutionally. The three judges on the Appeal Court ruled unanimously that President Obama did not.

Midway into page 6 Journal readers are informed, of the crux of the case: “The court case turned on whether the Senate was in recess when Mr. Obama made the appointments during a holiday break last year.”

In Noel Canning v. NLRB a Washington state Pepsi bottler argued that National Labor Relations Board (NLRB) seats were filled in violation of the Constitution, Article II, Section 2, Clause 3, which allows recess appointments only when the Senate is in recess. Because the Senate was in pro forma session when the president used recess appointments to fill vacant NLRB seats, the Board would not have a legitimate quorum and would therefore lack authority to make the ruling that Noel Canning appealed.

The Court wrote:

“The framers emphasized that the recess appointment power served only as a stopgap for times when the Senate was unable to provide advice and consent. Hamilton wrote in Federalist No.67 that advice and consent ‘declares the general mode of appointing officers of the United States,’ while the Recess Appointments Clause serves as ‘nothing more than a supplement to the other for the purpose of establishing an auxiliary method of appointment, in cases to which the general method was inadequate.’

The ‘general mode’ of participation of the Senate through advice and consent served an important function: ‘it would be an excellent check upon a spirit of favoritism in the President, and would tend greatly to prevent the appointment of unfit characters from State prejudice, from family connection, from personal attachment, or from a view to popularity.’”….

In addition to “the logic of the language,” the court held that any other reading of the Constitution would “eviscerate the primary mode of appointments set forth in Article II, Section 2, Clause 2. It would have made little sense to make the primary method of appointment the cumbersome advice and consent procedure contemplated by that Clause if the secondary method would permit the President to fill up all vacancies regardless of when the vacancy arose. A President at odds with the Senate over nominations would never have to submit his nominees for confirmation. He could simply wait for a “recess” (however defined) and then fill up all vacancies.”

The court was cognizant that its ruling invalidates not only the NLRB appointments and all the decisions the board made after that date, but also the appointment of Richard Cordray to run the newly created Consumer Financial Protection Bureau. (A name like that in these Orwellian times should alert consumers to hide their wallets.)

The court pointed out that the administration is not empowered “to change what the Constitution commands… the fact that a given law or procedure is efficient, convenient, and useful in facilitating functions of government,” is not germane.

The Appeals Court called Mr. Obama to account for flaunting the Constitution. Judging by recent statements from the White House it appears the president is not chastened. Jay Carney, the president’s spokesman denounced the ruling as “novel and unprecedented” and said the decision would have “no impact on the ongoing operations of the National Labor Relations Board (NLRB).”

What is novel and unprecedented is that this president unilaterally declared the Senate in recess when it was not and now ignores a court ruling. It is, however, perfectly consistent with the habitual abuses of power by Mr. Obama and members of his administration.

All of which makes this an important ruling, not only because it focuses attention on this president’s abuse of power, but because it challenges the president’s determination to govern by fiat through executive orders and regulations during his second term.

That explains the vitriol unleashed by the left on Chief Judge David Santelle and his two colleagues. Anyone who doubts that a campaign of vilification is now in full flood is invited to Google Judge David Santelle and read numerous examples of the name-calling and character assassination the president pretended to condemn in his Inaugural speech.

The Appeals Court ruling sent a message to Mr. Obama and to the rest of us:

“The power of a written constitution lies in its words. It is those words that were adopted by the people. When those words speak clearly, it is not up to us to depart from their meaning in favor of our own concept of efficiency, convenience, or facilitation of the functions of government…”

Will there ever be a violation of the rule of law by this president that the amalgamation of toadies known as the mainstream media will find intolerable?


2 comments

1 Jim at Asylum Watch { 01.31.13 at 8:15 am }

Our professor of constitutional law must have skipped more than a feww classes at Harvard. Maybe he was to busy with his “Law Review” duties.

[Reply]

2 Marcia { 02.01.13 at 6:23 pm }

He didn’t need to attend classes. He already knew everything. I wonder what his Law Review duties were since there seems to be no record of his ever having written anything.

[Reply]

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