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Obama “Recess” Appointments Unconstitutional, Reactions

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President Barack Obama just suffered a humiliating defeat in federal court. A top federal appeals court has removed three presidential appointees from power, and invalidated all actions they’ve taken over the past twelve months.

One year ago, Obama filled three seats on the National Labor Relations Board (NLRB)–an essential power center for Obama’s labor-union allies–with recess appointments, claiming that the U.S. Senate was in recess even though the Senate was still in session.

No president in history had ever done such a thing, and Republicans and conservatives immediately denounced it as an unconstitutional power grab. The matter went to court, where Breitbart News covered the judges’ questions and reactions at oral argument.

In Noel Canning v. NLRB, the U.S. Court of Appeals for D.C. Circuit held today that Obama’s three recess appointments are in fact unconstitutional. As such, the three seats on NLRB were never legally filled. Thus NLRB only had two members, while the law requires three members on the five-member Board in order to have a quorum to conduct business or issue orders.

Reaction to SCOTUS Decision on NLRB and Recess Appointments from Boyden Gray, Sam Kazman and Chuck Cooper:

C. Boyden Gray, former White House Counsel to President George H.W. Bush, lead counsel for plaintiffs in the Dodd-Frank litigation:  “Two important points follow from the D.C. Circuit’s opinion today invalidating the intrasession  recess appointments of three members of the NLRB.  First, the President has no power to declare when a recess exists, as he did in the case of the NLRB and the appointment of Richard Cordray as Director of the CFPB under Dodd Frank; as a result the recess appointments are invalid.  Second, the illegality of Cordray’s appointment casts serious doubt on the legality of CFPB actions implemented since his appointment. It should be added, however, that the question of the validity of his appointment is only one of several issues involved in determining the Constitutionality of the CFPB.”

Sam Kazman, co-counsel for Dodd-Frank litigation plaintiff CEI:  “Both CFPB Director Richard Cordray and the three contested members of the NLRB were appointed on the same day—January 4, 2012.  Today’s appellate decision makes it clear that, when it comes to the Framers’ fundamental scheme of checks and balances, that is a day that will live in constitutional infamy.  As a plaintiff in the pending constitutional challenge to Dodd-Frank, we’re confident that Mr. Cordray’s appointment will meet the same fate as those NLRB members.  They will be remembered as the Not-So-Fab-Four of the Appointments Clause.”

Chuck Cooper, former Assistant Attorney General under President Reagan:  “Today, the Court of Appeals put a stop to President Obama’s abuse of this recess appointment power, declaring that it can be exercised only during a genuine recess of the Congress between sessions, not anytime the Senate adjourns for a night’s rest. The Court’s decision vindicates the Constitution’s protection against the usurpation of power, which in turn protects the liberties of the people.”

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