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The "judicial review" of Obama's recess appointments

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  • Liberal Democrat
    Democrat
    Colorado Springs, CO
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    Reference: Dave Jamieson, Huffington Post, February 4, 2013: Obama Recess Appointment Ruling Would Have Altered Course Of History, Congressional Study Finds

    "WASHINGTON -- The research arm of the U.S. Congress has studied the controversial appeals court ruling striking down President Barack Obama's recess appointments to the National Labor Relations Board, concluding that the decision would have theoretically scuttled scores of presidential appointments stretching back to the Ronald Reagan era.

    "In a letter dated Monday, analysts at the Congressional Research Service said the decision by the U.S. Court of Appeals for the District of Columbia Circuit, known as Noel Canning v. NLRB, would have drastically altered the course of history had it been issued in 1981, the first year the authors studied. Reagan, George H.W. Bush, Bill Clinton, George W. Bush and Obama all likely would have been stymied by the ruling, leaving an untold number of government appointments unfilled, the study said."


    While Republicans in the past have castigated the courts for "judicial review" or what they would claim as interfering in the legislative process, the three Republicans justices that overturned President Obama's recess appointments went far beyond the challenge of whether the Senate was technically in recess. Their finding against Obama's appointments to the NLRB "went outside of mainstream thought and practice on presidential recess appointments."

    The judges ruled that the president can only make such appointments when Congress is between sessions, rather than merely on an "intrasession" break. Furthermore, when it comes to intersession appointments, "such appointments can be made only to vacancies that have occurred during the recess in which the appointment is made" -- which is a drastic new limitation on presidential power.

    The case certainly will go to the Supreme Court, but if the Roberts Court rules in favor of the Republican Court of Appeals, it would severely restrict the powers of a President to act when a lone Senator decides to block an appointment for whatever undisclosed reason. Had the ruling been in effect for prior presidents, Reagan's 232 recess appointments, George W. Bush's 171, Clinton's 139, and George H.W. Bush's 78 would all have been affected in addition to Obama's 32.

    However, perhaps the real motive behind this court's political ruling is that it "would leave the NLRB -- the agency tasked with enforcing labor law on unions and companies -- without the quorum it needs to function, potentially nullifying more than 200 decisions the board has issued in the past year. In effect it would further cripple the labor movement, perhaps rendering them forever moot if all future appointments to the board can be so easily blocked. This is exactly what the business community wants.

    It's "judicial review" Republican style...and these Republicans are ruthless SOB's whether in Congress, the Executive or in the courts...absolutely ruthless in their quest for power.