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Obama appointments unconstitutional, court rules

By Sam Hananel

Associated Press

LAST UPDATED: 06:42 a.m. HST, Jan 25, 2013

WASHINGTON » President Barack Obama violated the Constitution when he bypassed the Senate to fill vacancies on a labor relations panel, a federal appeals court panel ruled today.

A three-judge panel of the U.S. Court of Appeals for the D.C. Circuit said that Obama did not have the power to make three recess appointments last year to the National Labor Relations Board.

The unanimous decision is an embarrassing setback for the president, who made the appointments after Senate Republicans spent months blocking his choices for an agency they contended was biased in favor of unions.

The ruling also throws into question Obama's recess appointment of Richard Cordray to head the Consumer Financial Protection Bureau. Cordray's appointment, also made under the recess circumstance, has been challenged in a separate case.

Obama claims he acted properly in the case of the NLRB appointments because the Senate was away for the holidays on a 20-day recess. But the three-judge panel ruled that the Senate technically stayed in session when it was gaveled in and out every few days for so-called "pro forma" sessions.

GOP lawmakers used the tactic — as Democrats have in the past as well — to specifically to prevent the president from using his recess power. GOP lawmakers contend the labor board has been too pro-union in its decisions. They had also vigorously opposed the nomination of Cordray.

The Obama administration is expected to appeal the decision to the U.S. Supreme Court, but if it stands, it means hundreds of decisions issued by the board over more than a year are invalid. It also would leave the five-member labor board with just one validly appointed member, effectively shutting it down. The board is allowed to issue decisions only when it has at least three sitting members.

On Jan. 4, 2012, Obama appointed Deputy Labor Secretary Sharon Block, union lawyer Richard Griffin and NLRB counsel Terence Flynn to fill vacancies on the NLRB, giving it a full contingent for the first time in more than a year. Block and Griffin are Democrats, while Flynn is a Republican. Flynn stepped down from the board last year.

Obama also appointed Cordray on the same day.

The court's decision is a victory for Republicans and business groups that have been attacking the labor board for issuing a series of decisions and rules that make it easier for the nation's labor unions to organize new members.

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AhiPoke wrote:
"Republicans spent months blocking his choices for an agency they contended was biased in favor of unions." - Excuse me but wasn't the NLRB established to facilitate unionization?
on January 25,2013 | 06:08AM
ichiban wrote:
So what's your point?
on January 25,2013 | 06:48AM
frontman wrote:
America, this is just the start of shutting down the fraud on America and not just Hawaii.
on January 25,2013 | 08:45AM
allie wrote:
Republicans won't stop in their war on America and the working class. It is just so obvious what they do to weaken America.
on January 25,2013 | 06:46AM
ichiban wrote:
allie--Don't blog if you can't comprehend this news item. You're so biased against Republicans, you miss the point. Pres. Obama miscalculated. His recess appointee to the NLRB IS NULL AND VOID. The Senate was in a "pro forma" session, not out of session. The Judiciary branch made its ruling.
on January 25,2013 | 07:28AM
Pacej001 wrote:
Yet another inane comment.
on January 25,2013 | 07:45AM
HD36 wrote:
The gist of this story is that we have checks and balances as afforded by the Constitution of the United States. We have the executive branch, the congressional branch and the judicial branch. Obama was bypasssing the congressional branch when he made the appointments. That kind of power is found in countries where they have dictators, kings, and communism. It's about time the Supreme Court did there job. Now, hopefully they can rule public unions unconstitutional as a violation of the equal protection clause.
on January 25,2013 | 07:01AM
ichiban wrote:
Our socialistic oriented Pres. Obama pulled a fast one that didn't quite work. But worst yet is our Judiciary branch took so long to come out with the ruling. Now all the decisions that Obama's recess appointees to the NLRB made are in question. The court decision a Republican victory? Kiss my grits. What this shows me is Obama's arrogance and although legal if the Senate was out of session an underhanded way to appoint a person. I hope the US Supreme court upholds this ruling if Obama appeals.
on January 25,2013 | 07:14AM
MKN wrote:
@ichiban: Be careful what you wish for. Remember that this ruling will affect any future Republican Presidential appointments as well which could result in them being blocked by the Democrats as well. This could potentially gridlock any future appointments for either party resulting in positions not being filled if either side can't agree on a person to fill whatever Presidential Appointment vacancies exist.
on January 25,2013 | 07:46AM
inlanikai wrote:
So, if the appointments were unconstitutional what about the regulations the and decisions they made? Are they null and void?
on January 25,2013 | 07:30AM
ichiban wrote:
If the US Supreme Court upholds this ruling, hundreds of decisions the NLRB made with the recess appointees on board will be invalid.
on January 25,2013 | 07:53AM
Bdpapa wrote:
That's what happens when you don't follow the rules.
on January 25,2013 | 08:52AM
South76 wrote:
Let's hope that the rules made those appointed ILLEGALY are null and void. The NLRB has become lip service for the unions, especially public unions. This board was supposed to gather all the information before making the proper decisions but as of late, it has been so slanted towards unions. As you have probably read, union membership is shrinking, unions were good when the business owners were making decisions without the interests of their workers....the world has gotten smaller thanks to technology, corporation CEOs wrong doings are easily exposed.
on January 25,2013 | 09:46AM
peanutgallery wrote:
Oh my. Not the golden boy. Say it isn't so. Please Barrack wouldn't circumvent the constitution. I thought only Republicans did that. Oh my!
on January 25,2013 | 12:16PM
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