Obama's Abuse of Power
An appeals court says his recess appointments are unconstitutional
http://online.wsj.com/article/SB10001424127887323539804578263793332301584.html
........But here's the Obama kicker: He consciously made those "recess" appointments when the Senate wasn't in recess but was conducting pro-forma sessions precisely so Mr. Obama couldn't make a recess appointment. No President to our knowledge had ever tried that one, no doubt because it means the executive can decide on his own when a co-equal branch of government is in session.
In Noel Canning v. NLRB, a Washington state Pepsi bottler challenged a board decision on grounds that the recess appointments were invalid and that the NLRB thus lacked the three-member quorum required to conduct business. The D.C. Circuit agreed, while whistling a 98 mile-per-hour, chin-high fastball past the White House about the separation of powers.
In the 46-page opinion, the three-judge panel said that "not only logic and language, but also constitutional history" reject the President's afflatus. The Federalist Papers refer to recess appointments expiring at the end of the following session of Congress, the court explained, so it stands to reason that recess appointments were intended to be made only when the Senate is in a recess between sessions, not any time the Senators step out of the Capitol.
"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," wrote Chief Judge David Sentelle for the court, "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."
Judge Sentelle added, in a clear warning to the lawyers who let Mr. Obama walk out on this limb, that "Allowing the President to define the scope of his own appointments power would eviscerate the Constitution's separation of powers."
In a particular surprise, two of the three judges also ruled that recess appointments are only allowed to fill vacancies that arise during the time the Senate is in actual recess. This has not been the recent practice, and it means that Presidents could not wait, say, until a recess in December to appoint a controversial replacement for a Secretary of State who resigned in October................
http://online.wsj.com/article/SB10001424127887323539804578263793332301584.html