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Saturday, January 26, 2013

Obama's Illegal, Invalid And Unconstitutional NLRB Appointee Will Ignore Federal Court Ruling

By Susan Duclos

Friday a federal appeals court panel of three ruled Obama's illegal recess appointments were unconstitutional and invalid.

As Chief Justice Marshall made clear in Marbury v. Madison, “[i]t is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each.” 5 U.S. (1 Cranch) at 177. In Marbury, the Supreme Court established that if the legislative branch has acted in contravention of the Constitution, it is the courts that make that determination. In Youngstown Sheet &Tube Co. v. Sawyer, the Supreme Court made clear that the courts must make the same determination if the executive has acted contrary to the Constitution. 343 U.S. 579 (1952). That is the case here, and we must strike down the unconstitutional act

In short, we hold that “the Recess” is limited to intersession recesses. The Board conceded at oral argument that the appointments at issue were not made during the intersession recess: the President made his three appointments to the Board on January 4, 2012, after Congress began a new session on January 3 and while that new session continued. 158 Cong. Rec.S1 (daily ed. Jan. 3, 2012). Considering the text, history, and structure of the Constitution, these appointments were invalid from their inception. Because the Board lacked a quorum of three members when it issued its decision in this case on February 8, 2012, its decision must be vacated. See 29 U.S.C.§ 153(b); New Process Steel , 130 S. Ct. at 2644–45


Allowing the President to define the scope of his own appointments power would eviscerate the Constitution's separation of powers," said the judges from the U.S. Court of Appeals for the District of Columbia Circuit. "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, 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."

( Ruling embedded here)

It is very clear they ruled Obama's appointments invalid, which nullifies any and all decisions, yet now, the National Labor Relations Board Chairman Mark Gaston Pearce issued a statement saying they will ignore the court's ruling and continue to make illegal decisions.

Today, the U.S. Court of Appeals for the DC Circuit issued a decision finding that the Jan. 4, 2012 recess appointments of three members to the National Labor Relations Board were invalid. In response, Chairman Mark Gaston Pearce issued the following statement:

"The Board respectfully disagrees with today’s decision and believes that the President’s position in the matter will ultimately be upheld. It should be noted that this order applies to only one specific case, Noel Canning, and that similar questions have been raised in more than a dozen cases pending in other courts of appeals.

In the meantime, the Board has important work to do. The parties who come to us seek and expect careful consideration and resolution of their cases, and for that reason, we will continue to perform our statutory duties and issue decisions."

GOP House Speaker John Boehner welcomed the ruling as "a victory for accountability in government."

The question now is what will Boehner, the Republican controlled House and the Democratically controlled Senate  do about  Obama's illegal appointee's  refusal to abide by the Federal Court's ruling?

[Update] Via Washington Examiner:

Obama bragged about the unilateral Cordray appointment yesterday when he re-nominated Cordray to continue in the post.

“[Cordray] wasn’t allowed an up or down vote in the Senate, and as a consequence, I took action to appoint him on my own,” Obama said.  “And over the last year, Richard has proved to be a champion of American consumers.”

The CFPB chief acknowledged in an email last year that his appointment might be overturned.
 “There is a chance (a minor chance in my view, though everyone is entitled to his or her own opinion) that the appointment would be invalidated by a court,” Cordray wrote to staff last February.

State National Bank of Big Spring, Texas, has filed a lawsuit challenging Cordray’s appointment that could eventually be heard by the same court that just overturned the NLRB ‘recess’ appointments, which were made on the same day as the Cordray appointment.

And a reminder:

 In 2007, Harry Reid started holding pro-forma Senate sessions to prevent George Bush from naming recess appointments. (Source- CNN from 2007)

Last year when Republicans did the same, Obama named them anyway. This ruling invalidates Obama's appointments.(Source- The Hill)