Business groups have already begun to take aim at President Obama’s recess appointments. As SCOTUSBlog reports, a coalition of industry groups filed a motion (and supplementary memorandum) to include a challenge to the constitutionality of President Obama’s recess appointments to the National Labor Relations Board in ongoing litigation against recently adopted “notice posting” rule. According to the industry groups, the NLRB lacks the authority to implement and enforce the new rule because it lacks a quorum due to the unconstitutionality of the recent appointments.
JoeJP says:
A telling point — the limited nature of Obama’s appointments is underlined by the fact that they were made during a recess, the Senate out of session even pursuant to the pro forma dodge (so it seems) for a few days AND at the time the three appointments were made, the board lacked a quorum and could not do business. Unlike some other places, assistants and such could not fill in, to my knowledge. So, basically, pro forma sessions would be used to ptu the NLRB out of business indefinitely until a minority of the Senate gets their way. I think the recess appointment power accepted by the OLC during the last two presidencies provide a way out here.
January 17, 2012, 8:57 amNAME REDACTED says:
Or he could just wait for an actual recess.
January 17, 2012, 9:08 amMartinned says:
Yes, if he had done a Teddy Roosevelt no Republican would have complained…
January 17, 2012, 9:31 amSteve2 says:
I’m disappointed they didn’t include a second argument specific to the two pre-existing vacancies based on “may happen”. I know it wasn’t a winner in the 11th Circuit but maybe Judge Barkett’s dissent would prevail here. A guy can hope right?
January 17, 2012, 9:37 amRandolph says:
So what are the chances that this gets to the merits?
January 17, 2012, 9:41 amthirdeblue says:
They must collect pretty good paychecks squawking and hollering knowing full well they’ll reverse course 180° tomorrow if they were paid to do so.
January 17, 2012, 9:41 amOrenWithAnE says:
I would hope so. Any lawyer that doesn’t “reverse course” in order to make the strongest possible argument on behalf of the client is in gross dereliction of duty.
January 17, 2012, 9:53 amCornellian says:
a coalition of industry groups filed a motion (and supplementary memorandum) to include a challenge to the constitutionality of President Obama’s recess appointments to the National Labor Relations Board in ongoing litigation against recently adopted “notice posting” rule.
I believe the rule was approved by the previous board, which means this litigant is going to have an uphill battle explaining why he gets to challenge the recess appointments in this particular case.
January 17, 2012, 9:57 amJoe says:
actual recess
According to OLC lawyers during the Bush and Obama Administration, using reasoning I and others find convincing as a whole, he did.
As to “may happen,” a guy can hope but the fact some outlier argument of one judge raised the point doesn’t make it a winning argument, especially in the face of long term practice. Also, since three would give you a quorum, it would be a limited win at most.
January 17, 2012, 10:55 amJoe says:
actual recess
I think the reasoning set forth by the Bush and Obama OLC lawyers that there was one is convincing.
As to “may happen,” not only is that a minority view in the 11th Cir case, it would not deny the NLRB a quorum and would require overturning long precedent. But, any port in a storm, I guess.
January 17, 2012, 10:57 amPer Son says:
The motion makes no sense. The Board promulgated the rule that is being litigated when it had a quorum. The general counsel is responsible for enforcing rules to my knowledge, so unless I have it wrong, how would a lack of quorum impact anything beyond future rulemaking and appeals of ALJ decisions?
January 17, 2012, 11:12 ammark says:
The NLRB appointments seem much more at risk than Cordray because Obama did not send the NLRB nominations to the Senate until December 15, 2011. It will be very hard to sustain the narrative that the Republicans were preventing the Senate from fulfilling its advise and consent function.
Anticipatory non-approval won’t cut it – that would justify recess appointments anytime you had a divided Senate even if the Senate went out of session for just one day.
And I don’t think O cares. What O did was totally political. Senate Dems up for re-election did not want to have to go on the record for a vote, pro union or anti union. So Obama spared them by using his executive fiat to make the unions happy and energized. Totally political, zero Constitutional justification.
January 17, 2012, 11:16 amElliot says:
If this works, why bother sending anything to the Senate? Just package them all into a recess.
January 17, 2012, 11:57 amJon Shields says:
It hasn’t been a winner since 1825. I’m really not worried about a court invalidating almost 200 years of recess appointments.
January 17, 2012, 12:18 pmPersonFromPorlock says:
“I love you
January 17, 2012, 12:23 pmlongshort time, GI.”Will the President Get a Legal Spanking? | Across the Fence with Mark Meckler says:
[...] regarding appropriate and legal presidential behavior. Looks like that might be happening. A coalition of industry groups is standing up legally to the President’s unconstitutional beha… [...]
January 17, 2012, 1:22 pmloki13 says:
You know, there’s this little part of me that’s taking joy in the fact that Judge Rosemary Barkett, and her little dissent, is now the favoritest thing ever with the Paul/Tea Party/Constitution people.
Who knew? She’s like a regular J. Thomas. I would highly recommend her, and her bracing brand of originalism, to the next GOP President.
(Again, not big on counterfactuals, but I have to wonder how this would have played out if she had roped one other 11th Cir. judge into her opinion and nailed Pryor on the behest of the Sierra Club back then. Just, well, kind of funny to me. At the time, it was ignored, because it was just a random dissent. But I can’t even imagine the s***storm otherwise. Good times!)
January 17, 2012, 2:28 pmOrenWithAnE says:
Then there was no payroll cut passed.
What did you expect PFP? A lifetime commitment?
January 17, 2012, 3:21 pmyankee says:
I don’t think it makes much difference. The validity of recess appointments has never hinged on whether the appointment was submitted to the Senate before the recess or whether the Senate had sufficient time to consider the nominee.
January 17, 2012, 3:27 pmVladimir says:
Obama loves this–it plays right into his Man of Action fantasy. It’s the policy manifestation of that odd, childish pose he’s so fond of, with his jaw clenched and his chin turned up (the one critics mock by saying he looks like Mussolini in those old hokey speeches . . .).
January 17, 2012, 3:32 pmOwen H. says:
Why do people keep ignoring the fact that one of he three appointed was nominated back in Jan. 2011, and was a Republican, and still couldn’t get brought to a vote because the Republicans did not want the NLRB to have a quorum? That shows pretty conclusively what hey would have done about he other two; absolutely nothing.
January 17, 2012, 3:38 pmSarcastro says:
TELEPATHY! Amazing how well you understand our President! Certainly better than the press does.
Yes, I’ve seen at least two pictures of him like that. I like the Mussolini implication as well! (critics say – Obama – a soon-to-be-assassinated fascist?…).
January 17, 2012, 3:53 pmVladimir says:
Not your best effort. If you’ve only seen two pictures, you’re not looking hard enough. And you cite telepathy, I say “listening to what the guy has been saying on a daily basis for the past few months.”
January 17, 2012, 3:59 pmSarcastro says:
Yeah, listening to a politician campaigning tells you all about their fantasies.
January 17, 2012, 4:04 pmJoe says:
I would highly recommend her, and her bracing brand of originalism, to the next GOP President.
Isn’t she the one who dissented when the 11th Cir. upheld bans on same sex adoptions and sex toy laws (for both sexes in that case)?
January 17, 2012, 4:52 pmB-Rob says:
Uh, STANDING? Case in controversy? Harm to the plaintiffs? This is Litigation 101.
January 17, 2012, 4:53 pmrpt says:
“Mission Accomplished,” anyone?
January 17, 2012, 4:55 pmB-Rob says:
This poses no issue whatsoever. There is nothing in the Constitution that restricts recess appointments to those who have already been submitted to the Senate. In fact, the plain language of the recess appointments clause (which, admittedly, has not been interpreted this way since Washington’s time) would limit appointments to those openings that occur during a recess. If that were the rule, then, by definition, there would not have been any nominations since there were no openings.
January 17, 2012, 4:58 pmloki13 says:
Yeah, I forget that not everyone is a big judge watcher and/or not familiar with the Eleventh Circuit. So I guess I’ll explain in the SAT format-
Barkett is to the Eleventh Circuit as Reinhardt is to the Ninth Circuit.
If you need a dissent in a death penalty case (see first Troy Davis appeal) or a criminal friendly-ruling or an expansion of Lawrence v. Texas, she’s the judge for you. The only reason she’s not as famous as Reinhardt is because it’s a lot harder to get judges to agree with her on the Eleventh.
(Please note that I am being somewhat tongue in cheek. I think she is an honest and fair judge. But IIRC, there was a poll OK put in a while ago to “guess the judge that wrote an opinion” and the two judges listed for the liberal answers were Reinhardt and Barkett. There’s a reason for that. And, again, this doesn’t make her dissent in the case wrong. It just makes all of this… funny to me. Funny like- well, like the usual commentere here suddenly becoming huge fans of J. Reinhardt. Politics does make strange bedfellows!)
January 17, 2012, 5:17 pmOrenWithAnE says:
Because it’s not really relevant. “The Senate refused consent” doesn’t really change the substantive question of law.
January 17, 2012, 5:43 pmJ. Aldridge says:
“In the case of public officers, who are such de facto acting under color of office by an election or appointment not strictly legal, or without having qualified themselves by the requisite tests, or by holding over after the period prescribed for a new appointment, as in the case of sheriffs, constables, &c., their acts in respect to the public and third persons, who have an interest in them, are held valid, in order to prevent a failure of justice.” 2 Kent, 339.
The court in Beard v Cameron (NC, 1813) ruled the same thing in the case of an improperly appointed judge. The cases the judge presided over were valid. Only option is to remove the appointment from office before the appointment can act. More here.
January 17, 2012, 7:06 pmIspep Teid says:
The Senate gets its filibuster power. The president gets his recess appointment power. Fair’s fair.
January 17, 2012, 7:12 pmJoe says:
Barkett is to the Eleventh Circuit as Reinhardt is to the Ninth Circuit.
Not many former nuns, I reckon, on the federal bench.
January 17, 2012, 7:14 pmShelbyC says:
In any event, the senate can terminate its session and start a new one if it wants, I presume, thus causing all the recess appointments to end.
January 17, 2012, 7:28 pmDave N. says:
It was DEMOCRATS who did not want to vote on Terence Flynn — beause his confirmation would give the NLRB a Republican majority, even though it would be temporary. In fact, the Senate never even gave Terence Flynn a hearing on his nomination, let alone scheduled a vote.
So please, don’t rewrite history. Your attempts to do so are rather pathetic.
January 17, 2012, 7:46 pmVladimir says:
Yes, this too was an example of a president consciously endeavoring to illustrate the half-absurd, half-creepy Action Cult that has about as unsavory an intellectual and practical history as is possible. The two Roosevelts and Wilson are far less benign domestic examples (though they had the decency to be more explicit in crediting their philosophical origins).
What these three share with Bush is that they’re not in charge now, and won’t be again. Nor are they the subject of this current controversy.
January 17, 2012, 7:57 pmSteve says:
It sounds like you’re saying the GOP would have been happy to confirm the Republican nominee as long as the Democratic nominees remained bottled up.
January 17, 2012, 8:04 pmDilan Esper says:
I find this truly funny. You are willing to ignore 100 years or more of caselaw when it contradicts whatever your belief is about what the Constitution “really” means, but suddenly a couple of obscure 19th Century cases are binding precedent on Appointments Clause remedies?
Aldridge, ALL caselaw matters, not only the cases that you agree with, and CONTROLLING caselaw matters more than persuasive caselaw.
January 17, 2012, 8:12 pmSteve says:
Well, what’s the controlling case law here? If the Secretary of the Treasury turns out to have been invalidly appointed, are all of Treasury’s acts during his tenure void ab initio? How does it work?
January 17, 2012, 8:19 pmSteve2 says:
Oh, I’m not worried either. That would require me to both a) think it has a realistic chance of happening and b) think it would be a bad thing. It doesn’t have a chance of happening because in the common law the power of precedent means the law’s the one place where two wrongs do make a right. I don’t think it would be a bad thing because 1) in general the text is what it is, spirit and intent and consequences and practicality all be damned, 2) the recess appointment clause is vestigial and should have been amended out of existence in the 1950s at the latest, 3) I think too much responsibility’s been shifted from the legislature to the executive, so weakening it is probably good at the present time, 4) on this specific matter (the recess appointments clause) it renders the advice & consent clause something of a nullity (for the record, I treat a filibuster ((or a successful threat of a filibuster since almost nobody actually pulls a Strom Thurmond anymore)) as equivalent to a “no” in a “yes/no vote”).
As for the NLRB, I’d say I don’t care, but as a matter of principle if there’s a law (NLRA) the executive ought to be able to enforce it so the positions should be filled – but then, I believe in a unitary executive so the President, via his drones in the Department of Labor, should be able to perform all of NLRB’s functions. Of course I don’t like a lot of things about the NLRA (too many union actions illegal, too many employer actions illegal), so I’d prefer to see it unenforced… yeah, I don’t have a dog in that fight, really.
And Loki13, were you meaning to describe me as one of the Paul/Tea Party/Constitution people? I don’t think of myself that way, but I could be mistaken in my self-image. Considering the amount of the U.S. Constitution I’d rewrite, though, I think I’m right about myself.
January 17, 2012, 8:22 pmOwen H. says:
Try again. There were three on the board when Flynn was nominated. Had Flynn been confirmed, there would have been two Republicans and two Democrats.
http://www.washingtonpost.com/politics/federal-government/obama-sidesteps-gop-opposition-to-install-3-members-on-national-labor-relations-board/2012/01/04/gIQA7apyaP_story.html
The Republicans didn’t want the NLRB to be able to function, period.
January 17, 2012, 8:33 pmMJW says:
The limits of the de facto doctrine are somewhat unclear. In Ryder v. United States (1995) the SCOTUS overturned a court martial conviction because the appointments of two of the judges didn’t comply with the Appointments Clause. In Nguyen v. United States (2003) the decision of an appeals court was overturned because one of the judges was not an Article III judge. In both cases the court specifically rejected application of the doctrine. In any case, if the act of an invalid official is challenged at the earliest opportunity, the de facto doctrine would almost certainly not apply.
January 17, 2012, 9:06 pmErik says:
That’s exactly my thought. I understand the plaintiff’s willingness to put their name down for an ideological goal, but it strikes me as not an issue that will substantively affect their issue in their case.
Don’t get me wrong, I’m sure there will be a challenge, but it has to be one that satisfies standing and ripeness in a case that isn’t moot.
January 17, 2012, 9:13 pmCornellian says:
Don’t get me wrong, I’m sure there will be a challenge, but it has to be one that satisfies standing and ripeness in a case that isn’t moot.
And an interesting challenge that will be. My guess is SCOTUS will rule that whether the recess appointments are valid or not is a political question and Congress has ample means to enforce its view, hence SCOTUS won’t get involved.
January 17, 2012, 10:04 pmJ. Aldridge says:
What case law are you referring to?
January 17, 2012, 10:36 pmMalvolio says:
The filibuster is not a “power” of the Senate. Quite the opposite, it’s a parliamentary maneuver that keeps the Senate from doing anything.
The Senate cannot recess without the permission of the House.
I think you’re actually right, but what means does Congress have to enforce its view? They could impeach Obama, I suppose.
And if they don’t — I’m guessing they won’t — how will they ever get to advise and consent again? The President will just make appointments after 5pm or on Sundays, declaring that the Senate is in recess.
January 18, 2012, 12:46 amOrenWithAnE says:
Withholding consent is just as much an A&C power as consenting. It would be sort of meaningless to say “The Senate has the power to Advise and Consent but it can only use that to consent, never to withhold consent”. The two are part and parcel of the same power.
This is getting seriously meta. “The President had to go around the Senate because they refused to consent to nominees” is tautological — the President doesn’t have cause to go around the Senate when they are confirming those appointments.
January 18, 2012, 1:07 amDave N. says:
Owen H.,
You provide no links, other than sloppily written WaPo article that conflated Flynn’s nomination with the other two. Basically, all you are doing is spouting talking points. The reality is that the Senate never gave Flynn the courtesy of a hearing. Hearings are not filibustered (or filibusterablie). The Senate never scheduled his nomination for a vote. That’s Harry Reid’s job. So don’t blame the Republicans for Flynn because the Democrats stopped his nomination.
Steve,
I didn’t say that. I was responding to a talking point. I am opposed to filibusters for executive nominations and for judges. I am in favor of the “blue slip” process where it is appropriate (usually U.S. District Judges and the Court of Appeals). I have neither the time nor inclination to look for my old posts, but my position has been consistent during both the Bush and Obama Administrations — and I have expressed that opinion on this very blog on numerous occasions.
January 18, 2012, 1:13 amMJW says:
The power to make its own rules, including its rules of debate, is a power of the Senate granted by the Constitution. Filibustering is a consequence of the Senate’s rules.
January 18, 2012, 1:28 amJ. Aldridge says:
In Ryder I think it was the fact it was civilian judges who were appointed and not military judges that was crust of the issue. If the question is limited to only the validity of the recess appointment then the de facto doctrine will hold true.
January 18, 2012, 1:57 amOwen H. says:
At least I provided some evidence. What do you have, beyond the bland assertion that since scheduling is up to the Democrats, it must have been them, and not Republicans refusing to do anything? We have multiple instances of Republicans explicitly stating that they will block anything the President tries to do, what do you have?
January 18, 2012, 7:26 amloki13 says:
No- your comment just reminded of some other comments I read. You can self-describe however you’d like! Seriously, though, if you knew much about the judges on the Eleventh Circuit (esp. Pryor and Barkett), and went back over the history of that case, you’d realize how entertaining some of the support for her dissent is. I’m not saying it’s wrong- the argument can be judged on its own merits. But entertaining.
January 18, 2012, 9:24 amDave N. says:
Owen H.,
Did you notice the part where I stated that the Senate had NOT held a confirmation hearing on Flynn, let alone scheduled a vote? No, because that defeats your narrative.
January 18, 2012, 9:35 amgeokstr says:
To “function”, as in be a rubber stamp for Big Unions? Good on them.
January 18, 2012, 9:51 amSarcastro says:
Goddamn you, Andrew Jackson!
January 18, 2012, 9:53 amSarcastro says:
That’s not where I thought you were going then you said “via his drones.”
January 18, 2012, 9:55 amErik says:
Dave N,
That might change whether it was politically justified, but the legal question is still entirely separate. Also, there are many discussions about the recess appointments themselves. This is about this actual case. Can anyone explain to me how a court is supposed to reach the issue in this particular case? It doesn’t seem to actually increase their odds of winning.
Still if you want to consider political justification, you also have to factor in whether there was a threatened filibuster that would have made the hearings pointless if you want to analyze everything.
January 18, 2012, 11:30 amChristopher Taylor says:
Like I’ve said, it doesn’t really matter. President Obama has already been held in contempt for ignoring federal courts before, there’s no one to hold him accountable but voters.
January 18, 2012, 2:23 pmSan Francisco Liberal says:
I may have missed it, but where did these recess appointments deal with the fact that the House never consented to the Senate’s recess? Even if you accept that the Senate’s pro forma sessions are the same as a recess, they were never consented to by the House – how will this be dealt with?
January 18, 2012, 2:34 pmMJW says:
I don’t think that’s at all certain. Ryder was an Appointments Clause case. The problem wasn’t that the judges were civilians; the problem was that they weren’t appointed in accordance with the Appointments Clause:
It’s true that if the judges had been military officers, there appointments would have been valid, but only because military officer are officers appointed in accordance with the Appointments Clause (Weiss v. United States).
The best case for the proposition that the de facto officer doctrine would apply to an invalid recess appointment is probably Buckley v. Valeo, where the court gave de facto effect to the actions of a federal election commission whose members were appointed by Congress instead of the President. The Ryder court seems somewhat dubious of the “quite summarily held” result, and attempts to distinguish it because in that case “the constitutional challenge raised by the plaintiffs was decided in their favor, and the declaratory and injunctive relief they sought was awarded to them.” Of Buckley and other cases upholding the acts of de facto officers, the court says, “we are not inclined to extend them beyond their facts.”
January 18, 2012, 4:05 pmJ. Aldridge says:
That is why I said if the fact of the controversy is limited to the validity of the recess appointment only, de facto doctrine would hold true for any acts under the recess appointment. This doesn’t of course make the recess appointment itself valid or immune from legislative or judicial removal due to being an unconstitutional act.
January 18, 2012, 6:12 pmSteve2 says:
Yeah, I was going in the Star Trek Borg sense of the word. That’s my preferred metaphor for the way the Constitution’s Platonic ideal of the Executive Branch works: the entire branch is controlled by a hive mind in the Presidency.
January 18, 2012, 8:23 pmKanageloa says:
The more I see and read about Mr. Obama the more I miss Bill Clinton. Thanks George W. look what you caused.
January 18, 2012, 9:51 pmJ. Aldridge says:
Ryder didn’t involve the question of validity of appointing a nominee to a vacancy that occurred during a session of the senate or appointing a nominee who is already before the senate for their advice and consent.
January 19, 2012, 2:52 pm