Mr. Obama Goes to Court

                Lawyers for Barack Obama faced the Supreme Court on Monday, January 13, 2014, to defend his use of executive power in temporarily filling high-level posts.  The case concerns his so-called “recess appointments” during his first term when he made three temporary appointments to the National Labor Relations Board (NLRB) while Congress was technically still in session. 

                Lower courts said the appointments were unconstitutional, and experts claim that the decision “could endanger hundreds of NLRB decisions.  Even more significant are the ramifications for future presidents, with the court poised either to bolster or blunt the chief executive’s appointment powers.”

                Michael Lotito,  an employment and labor attorney with the law firm Littler Mendelson P.C.’s Workplace Policy Institute, told the Hill newspaper:  “Rulings like this have implications that last for centuries.”

                Presidents have used their executive power to temporarily fill positions.  Most recess appointments were to “install judges and fill top federal vacancies” that would require Senate approval.  “But with the disputed NLRB appointments, Obama became the first president to appoint nominees when the Senate was in a `pro-forma’ session, when the upper chamber is briefly called to order and adjourned every few days.

                “The sessions are intended to prevent recess appointments, and usually only a handful of senators are present for them.  In filling the NLRB posts, the Obama administration claims that the Senate is generally not available to conduct business during the sessions, so the president’s recess appointment power is in effect.”

                Nicholas Quinn Rosenkranz of the Georgetown University Law Center is arguing against the government and claims that the Obama administration has to win three points.  “First, it must convince the justices that presidents may make appointments during regular recesses and not, as the appeals court rules, only during the breaks between numbered sessions on Congress.

                “Next, the court must agree that the appointments may include the filling of vacancies that existed before the recess began, rather than those that occurred during a recess.

                “Finally, it must conclude that the pro-forma           sessions do not count as formal sessions of Congress.”

                Rosenkranz said that “proving all three points, particularly the last, would be a tall order” and predicted a unanimous win for Joel Canning.

                United Press International  reported that “A Congressional Research Service report found 329 recess appointments since President Ronald Reagan in 1981 would not meet the appeals court’s criteria and could therefore be ruled void if the appeals court’s ruling is upheld.

                “Upholding the appeals court’s decision `would repudiate the constitutional legitimacy of thousands of appointments made by at least 14 presidents since the 1860s,’ Solicitor General Donald Verrilli wrote in a brief.

                “Verrilli argued the Senate was not permitted to use pro forma sessions to unilaterally hamstring or manipulate the president’s recess appointments authority.  `Whatever leeway the Senate may enjoy when governing its own affairs, it cannot exploit that leeway to limit the president’s constitutional authority,’ he wrote.

                “But Noel Francisco, a Washington appellate lawyer challenging the recess appointments, argued it was up to the Senate, not the president, to decide when the Senate is in session.

                “`Presidents have discretion to decide whether to make recess appointments, and to select whom they appoint.  But they may not also determine when that power is available.’ Francisco said.  `That decision is for the Senate alone.’”

                Mr. Obama has bypassed Congress numerous times because he “could not wait” for Congress to act.  I hope the Justices on the Supreme Court stand tall on this issue and rule against Mr. Obama because our nation would be better for their action.  If Mr. Obama gets away with this unconstitutional action, he will simply be strengthened in his lawlessness.  If he gets his knuckles rapped in this case, he may be slowed in his destruction of our laws and nation.