An Excellent Spirit has been on extended hiatus. Between several critical health issues and the fact that we did not read or see anything worth writing about, we have kept our vigilance at a high level and our rhetoric at a low ebb. Until today. There is finally something to write about. This Washington Post bulletin just came through: “President Obama exceeded his constitutional authority when he named three members of the National Labor Relations Board while the Senate was on a break last year, a federal appeals court ruled Friday. A three-judge panel of the U.S. Court of Appeals for the D.C. Circuit ruled that allowing the president to make such appointments as a way around Senate opposition “would wholly defeat the purpose of the Framers in the careful separation of powers structure” they created.”
As Hillary Clinton recently and famously asked, “What difference” does this make? First, it must be cautioned that the United States Supreme Court will in all likelihood review this decision as there are some conflicts with cases already decided in the opposite direction in the past. “The ruling acknowledged that it conflicts in parts with what other federal appeals courts have held about recess appointments. The issue is likely to be decided by the Supreme Court.” That said, the action of one of the most liberal Circuit Courts of Appeal is noteworthy and, if affirmed, far reaching in its affect.
First, all of President Obama’s recess appointments that were designed to thwart the US Senate’s refusal to confirm his ultra leftist nominees will be invalidated. Second and even more far reaching is the consequence that all actions of the National Relations Labor Board (NLRB) taken with those recess appointments in place will be invalidated, sine die (immediately!). The Court knew this and said so in its decision. “The decision flatly rejected the administration’s rationale for appointing the board members, and jeopardizes the separate recess appointment of former Ohio attorney general Richard Cordray to head the Consumer Financial Protection Bureau. Cordray is the subject of a different lawsuit.”
For readers who desire more specific information while we wait for the published decision, we always recommend The Volkoh Conspiracy. Here is its first impression post on the case today. We also read avidly, Legal Insurrection. Here is Cornell Law School Professor William A. Jacobson’s initial reaction. He also links to a PDF version of the full decision for your information.
So, what is all the fuss about? First, a sitting President has just been rebuked, publically, by a liberal Circuit Court of Appeals 3 Judge Panel, unanimously, we note, on an issue that reverses and leaves in limbo numerous decisions of a Federal Agency (NLRB). That is rare. Second, the President, just re-elected and re-inaugurated, was believed to have clear sailing on almost any issue he championed, no matter what the opposition. That is all on hold now. When a Court of Appeal says the Emperor has no clothes, it is at least worth a closer look at his raiment. At the very least his momentum has been slowed from an entirely unforeseen direction. Let’s all take a deep breath!
Andrew McCarthy, our source on Jihad and the Blind Sheik, penned this on the decision. We have written about McCarthy in our pieces on the Blind Sheik and others. Here and here. McCarthy addressed some of the technical issues to be decided on appeal to the Supreme Court. “Expect lots of people harmed by NLRB and CFPB determinations and pronouncements to head to court. Also expect the administration to appeal to the Supreme Court. While the D.C. Circuit’s constitutional analysis is compelling, there is an interesting question as to whether it had jurisdiction to reach the constitutional issues given that the petitioner failed to raise them before the NLRB. The panel found that it did, and its reasoning is persuasive, but the judges concede that there is no precedent directly on point. I’d bet on the Supreme Court affirming today’s ruling, but I think we’ll also be hearing a lot of banter from the administration spin machine about judicial overreach — the spin machine doubling as a chutzpah machine.”
Finally, An Excellent Spirit has seen little to write about these past weeks, as the opposition has devolved into a mass of ineffectiveness and appeasement. The Congress has bowed its head and meekly done whatever it could to appear to be led to the gallows by a triumphant White House. As Hillary said, “What difference does it make?” Well, folks, the unlikely District of Columbia Circuit Court of Appeals, Three Judge Panel, ruling for the entire court, has at least brought that question back on the front burner and we may just find out that President Obama’s barely concealed contempt for the Constitution, Congress, the Courts and the American People who are not to the left of Saul Alinsky might just make some difference. Stay tuned. If it grows, this could be something to write about. God bless America.