January 26th, 2013 • 12:11 PM
The U.S. Court of Appeals for the District of Columbia Circuit issued a 47-page ruling today, Jan. 25, 2013, upholding the U.S. Constitution against Executive branch violation of the Constitutional separation of powers, in its ruling that President Obama violated the Constitution in making recess appointments when the Senate was, indeed, in session.
The import of the decision extends far beyond the specific case which engendered that decision, as the Court recognized when it stated from the outset, that "while the posture of the petition is routine, as it developed, our review is not." Its aggressive defense of the separation of powers and the constitutional right of the Courts to judge the legality of laws (citing, amongst others, the decisive case of Marbury v. Madison that "it is emphatically the province and duty of the judicial department to say what the law is") bears implications for other immediate, grave cases of Constitutional violations by President Obama. Just two weeks from now, on Feb. 7th, a federal court in that same court circuit is scheduled to hear the Department of Justice's motion to dismiss the House of Representatives case against Attorney General Eric Holder's stonewalling of Congressional supoenas on "Fast and Furious."
The decision likewise bears upon the President's violations of the War Powers Act, and Sen. John Kerry's defense of that violation.
The specific case addressed was an appeal of a decision taken by the National Labor Relations Board (NRLB), filed on the grounds that the NLRB decision was illegal because three of its required five members had been appointed as alleged "recess appointments" by President Obama on Jan. 4, 2012, when the Senate had declared itself in pro forma session, thus subverting Constitutional requirements for Senate advice and consent on such appointments. Obama asserted that he could determine when the Senate was in session or not, and made the appointments.
The Court ruled the NLRB decision void, on the grounds that Obama making appointments when the Senate was in session violates the Constitution's Recess Appointment Clause. The decision centers on addressing the latter issue. It is clearly written, moreover, to uphold the Constitutional principle of the separation of powers as a whole, not merely in the case of recess appointments, delivering an implicit broadside against the recent assertions of the alleged powers of a so-called Unitary Executive. As the decision argues: "The Constitution's separation of powers features, of which the Appointments Clause is one, do not simply protect one branch from another. These structural provisions serve to protect the people, for it is ultimately the people's rights that suffer when one branch encroaches on another" [emphasis in original].
The Court cites a memorandum issued by the Office of Legal Council, which asserts that "the President therefore has discretion to conclude that the Senate is unavailable to perform its advise-and-consent function and to exercise his power to make recess appointments."
To which the Court replies:
"This will not do. Allowing the President to define the scope of his own appointments power would eviscerate the Constitution's separation of powers. The checks and balances that the Constitution placed on each branch of government serve as `self-executing safeguard[s] against the encroachment or aggrandizement of one branch at the expense of the other.' [citing a 1976 court decision]. 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."
And again: "The dearth of intrasession appointments in the years and decades following the ratification of the Constitution speaks far more impressively than the history of recent presidential exercise of a supposed power to make such appointments... Recent presidents are doing no more than interpreting the Constitution. While we recognize that all branches of government must of necessity exercise their understanding of the Constitution in order to perform their duties faithfully thereto, ultimately it is our role to discern the authoritative meaning of the supreme law."
Carl Schmitt-styled arguments asserted by the Obama White House, that it can violate the Constitution on grounds that "administrative efficiency" requires it to do so, are rejected out of hand. The court dismissed the NLRB's argument that the Court must uphold Obama's appointments, in order to avoid the "dire consequences" which could result from its overturning of his appointments, leaving "the President unable to fulfill his chief constitutional obligation to `take Care that the Laws be faithfully executed'."
The Court ruled: "We cannot accept an interpretation of the Constitution completely divorced from its original meaning in order to resolve exigencies created by -- and equally remediable by -- the executive and legislative branches. In any event, if some administrative inefficiency results from our construction of the original meaning of the Constitution, that does not empower us to change what the Constitution commands. As the Supreme Court observed in INS v. Chadha, `the fact that a given law or procedure is efficient, convenient, and useful in facilitating functions of government, standing alone, will not save it if it is contrary to the Constitution.' 4562 U.S. at 994. It bears emphasis that `[c]onvenience and efficiency are not the primary objectives or the hallmarks of democratic government. Idim."
Posted by John MacHaffie at 10:48 AM