Sunday, January 27, 2013

Obama's Abuse of Power


An appeals court says his recess appointments are unconstitutional. 

President Obama has shown increasing contempt for the constitutional limits on his power, and the courts are finally awakening to the news. A unanimous panel of the D.C. Circuit Court of Appeals ruled on Friday that the President's non-recess recess appointments are illegal and an abuse of executive power.

On January 4, 2012, Mr. Obama bypassed the Senate's advice and consent power by naming three new members of the National Labor Relations Board and appointing Richard Cordray to run the Consumer Financial Protection Bureau. Other Presidents have made recess appointments and we've supported that executive authority.

But here's the Obama kicker: 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 a recess appointment. No President to our knowledge had ever tried that one, no doubt because it means the executive can decide on his own when a co-equal branch of government is in session.

In Noel Canning v. NLRB, a Washington state Pepsi bottler challenged a board decision on grounds that the recess appointments were invalid and that the NLRB thus lacked the three-member quorum required to conduct business. The D.C. Circuit agreed, while whistling a 98 mile-per-hour, chin-high fastball past the White House about the separation of powers.

In the 46-page opinion, the three-judge panel said that "not only logic and language, but also constitutional history" reject the President's afflatus. The Federalist Papers refer to recess appointments expiring at the end of the following session of Congress, the court explained, so it stands to reason that recess appointments were intended to be made only when the Senate is in a recess between sessions, not any time the Senators step out of the Capitol.

"An interpretation of 'the Recess' that permits the President to decide when the Senate is in recess would demolish the checks and balances inherent in the advice-and-consent requirement," wrote Chief Judge David Sentelle for the court, "giving the President free rein to appoint his desired nominees at any time he pleases, whether that time be a weekend, lunch, or even when the Senate is in session and he is merely displeased with its inaction. This cannot be the law."

Judge Sentelle added, in a clear warning to the lawyers who let Mr. Obama walk out on this limb, that "Allowing the President to define the scope of his own appointments power would eviscerate the Constitution's separation of powers."

In a particular surprise, two of the three judges also ruled that recess appointments are only allowed to fill vacancies that arise during the time the Senate is in actual recess. This has not been the recent practice, and it means that Presidents could not wait, say, until a recess in December to appoint a controversial replacement for a Secretary of State who resigned in October.

The court nonetheless makes a plausible case based on the text of the Constitution, government practice in the decades after ratification and legal precedent. Mr. Obama's imperial overreach has invited the courts to re-examine the Constitution's Appointments Clause and tilt the balance of power back toward the Senate.

Meantime, the ruling potentially invalidates dozens of NLRB decisions since the illegal recess appointments were made. A similar mess occurred in 2010 when the Supreme Court ruled in New Process Steel v. NLRB that some 600 decisions made by the NLRB without a three-member quorum were invalid.

The decision also means that Mr. Cordray has no authority to run the consumer financial bureau, which has been busy issuing thousands of pages of regulations since he was illegally imposed in the job. Mr. Obama renominated Mr. Cordray this week, which is an insult to the Senate and after this ruling to the Constitution too.

One question is whether Mr. Cordray can legally keep accepting his paycheck. Especially as a former Attorney General in Ohio, he ought to resign for having agreed to play along as a constitutional usurper.

White House spokesman Jay Carney criticized the unanimous decision Friday, which is consistent with the President's sense of constitutional entitlement. Mr. Obama decided last year he could selectively enforce the immigration laws, exempting certain young people even if Congress hadn't passed the Dream Act. We support the Dream Act but not his unilateral way of imposing it.

Mr. Obama has also signaled his intention to govern as much as possible by stretching the legal bounds of regulation and executive orders. The D.C. Circuit ruling is thus a particularly timely warning that while Mr. Obama was re-elected, has most of the press in his pocket and is popular with 52% of the public, he's subject to the rule of law like everybody else.

A version of this article appeared January 26, 2013, on page A14 in the U.S. edition of The Wall Street Journal, with the headline: Obama's Abuse of Power


  1. Wall Street Journal owner Rupert Murdoch FOX FAKE REPUBLICAN NEWS Roger Ailes Minister of Disinformation The Fix is always in at FOX

  2. Oh lets see John Barack Obama president of Harvard Law Judge they always hand that out to retards? Guys like George W Bush oh thats right he was average in school. But hey John GW was above average at snorting 8balls of cocaine getting drunk and driving thru peoples houses in the middle of the night.Thats an accomplishment he could be proud of? Or Dick Cheney for changing the law and poisoning the us citizens John another proud momment if you watch the news this weekend youll notice the company name is HALLIBURTON thats great huh John when some poor family has to drink the poison wellwater and die thats progress right?

  3. "Well, I don’t have a full answer, but I think it’s important to understand the extent to which leading Republicans live in an intellectual bubble. They get their news from Fox and other captive media, they get their policy analysis from billionaire-financed right-wing think tanks, and they’re often blissfully unaware both of contrary evidence and of how their positions sound to outsiders."

    January 25, 2013
    Court Rejects Obama Move to Fill Posts

    "[...] Mr. Obama has made about 32 such appointments, including that of Richard Cordray, as director of the Consumer Financial Protection Bureau. President Bill Clinton made 139, while Mr. Bush made 171, including those of John R. Bolton as ambassador to the United Nations and two appeals court judges, William H. Pryor Jr. and Charles W. Pickering Sr.

    Nearly all of those appointments would be unconstitutional under the rationale of the United States Court of Appeals for the District of Columbia Circuit. It ruled that presidents may bypass the confirmation process only during the sort of recess that occurs between formal sessions of Congress, a gap that generally arises just once a year and sometimes is skipped, rather than other breaks throughout the year. Two of the three judges on the panel also ruled that presidents may fill only vacancies that arise during that same recess.

    Presidents have used recess appointments to fill vacancies that opened before a recess since the 1820s, and have made recess appointments during Senate breaks in the midst of sessions going back to 1867. But the three judges, all appointed by Republicans, said the original meaning of the words used in the Constitution clashed with subsequent historical practices."

  4. January 26, 2013
    7 Die in Fire at Factory in Bangladesh

    DHAKA, Bangladesh — In the latest blow to Bangladesh’s garment industry, seven workers died Saturday after a fire swept through a factory here not long after seamstresses had returned from a lunch break. Workers said supervisors had locked one of the factory exits, forcing some people to jump out of windows to save their lives.

    The fatal fire comes roughly two months after the blaze at the Tazreen Fashions factory left 112 workers dead and focused global attention on unsafe conditions in Bangladesh’s garment industry. Tazreen Fashions, located just outside Dhaka, the capital, had been making clothing for some of the world’s biggest brands and retailers, including Walmart.

    In the aftermath of the Tazreen Fashions fire, political and industrial leaders in Bangladesh pledged to quickly improve fire safety and even conducted high-profile, nationwide inspections of many of the country’s 5,000 clothing factories. And global brands promised they would not buy clothes from unsafe factories.

    But Saturday’s fire in a densely populated section of Dhaka is a grim reminder that the problems remain. The blaze erupted about 2 p.m. at Smart Garment Export, a small factory that employed about 300 people, most of them young women who were making sweaters and jackets. All seven of the dead workers were women.

    Masudur Rahman Akand, a supervisor in the fire department, said the factory’s workers were returning from lunch when the blaze erupted in a storage area. The factory was located on the second floor of a building, above a bakery, and it lacked proper exits and fire prevention equipment, Mr. Akand said.

    “We did not find fire extinguishers,” he said. “We did not find any safety measures.”

    With smoke filling the factory floor, workers apparently panicked. Mr. Akand said the seven workers who died either suffocated or were trampled by people trying to escape.

    Eight other workers were hospitalized with injuries. Some of them told rescuers that many people could not quickly escape because one of the exits was blocked by a locked steel gate. Witnesses said people began jumping out of windows before the gate was unlocked.

    Azizul Hoque, a police supervisor, said the investigation was continuing. “We do not know the reason or the source or the origin of the fire,” he said.

    It was unclear whether the Smart Garment factory was making clothing for international brands or retailers. Dhaka’s industrial areas are filled with factories, large and small, that produce clothing for much of the Western world.

    Julfikar Ali Manik reported from Dhaka, and Jim Yardley from New Delhi.

  5. The CURRENT POTUS does not make good choices regarding appointments to positions.
    For education he puts in a guy who is too interested in 'helping' young men "find" their (homo)sexuality. Another czar thinks we should pay like $8 a gallon of gas for our cars. THE "JOBS CZAR" OUTSOURCES.

    Sure other presidents have been major screw ups too -- IF YOU DON'T HAVE A TIME MACHINE LEAVE THE PAST IN THE PAST - FACE TODAY'S TROUBLES!

    1. "Cutting off the nose to spite the face" is an expression used to describe a needlessly self-destructive over-reaction to a problem: "Don't cut off your nose to spite your face" is a warning against acting out of pique, or against pursuing revenge in a way that would damage oneself more than the object of one's anger.[1]

      The phrase is known to have been used in the 12th century. It may be associated with the numerous legends of pious women disfiguring themselves in order to protect their virginity. These cases include Saint Eusebia, Saint Ebba, Saint Oda of Hainault and Saint Margaret of Hungary.[2]

      The most famous[citation needed] of these cases was that of Æbbe the Younger, the Mother Superior of the monastery of Coldingham. In 867 AD, Viking pirates from Zealand and Uppsala landed in Scotland. When news of the raid reached Saint Ebba, she gathered her nuns together and urged them to disfigure themselves, so that they might be unappealing to the Vikings. In this way, they hoped to protect their chastity. She demonstrated this by cutting off her nose and upper lip, and the nuns proceeded to do the same. The Viking raiders were so disgusted that they burned the entire building to the ground.[3]

      It was not uncommon in the Middle Ages for a person to cut the nose off of another for various reasons, including punishment from the state, or as an act of revenge.[4] Cognitive scientist Steven Pinker notes that the phrase may have originated from this practice, as at this time "cutting off someone's nose was the prototypical act of spite."[5]

      The expression has since become a blanket term for (often unwise) self-destructive actions motivated purely by anger or desire for revenge. For example, if a man was angered by his wife, he might burn down their house to punish her; however, burning down her house would also mean burning down his, along with all their combustible personal possessions.

      In the 1796 edition of Grose's Classical Dictionary of the Vulgar Tongue, "He cut off his nose to be revenged of his face." is defined as "one who, to be revenged on his neighbour, has materially injured himself." The word "spite" is used in the sense of revenge and "face" is used in the sense of honor.

  6. The question the Circuit Court ruled on wasn't: did Obama make "good choices regarding appointments to positions."

    The question before the Court was: did the process in which those appointments were made violate the Constitution-- who Obama actually picked has nothing to do with it.

    Obama's recess appointments were made consistent with bi-partisan practice, used for almost 200 years.

    Republicans have in the past indicated they seek to invalidate everything done by Obama-- now: his recess appointees, and shutting down the NLRB. So, everything done by recess appointees of both parties, in the time span going back to 1820, is thrown into question.

    Any union member who supports shutting down the NLRB, diminishes the opportunities for other workers to organize in the workplace, and gives cover to abusive and exploitative employers.

    Any American citizen who supports throwing out Obama's recess appointments, so invalidates the appointments of Bush, and Reagan, thereby much of U.S. government that Republicans do support.

  7. Why do people respond to this self serving website.


I would ask that if you would like to leave a comment that you think of Local 157 Blogspot as your online meeting hall and that you wouldn’t say anything on this site that you wouldn’t, say at a union meeting. Constructive criticism is welcome, as we all benefit from such advice. Obnoxious comments are not welcome.