Appeals Court on Recess Appointments

“And Moses built an altar and called the name of it, The LORD Is My Banner,”                   Exodus 17:15

[This post has a new section, entitled, PRESIDENTIAL APPROVAL EXCEPTION.  Itasca, 1/29/13]

In my last post, “What Is Liberty?” I referenced the recent court decision rejecting certain of Mr. Obama’s so-called “Recess Appointments,” and the fact that nothing had been done since it was issued.  The decision appeared to have gone the way of those decisions declaring Mr. Obama’s Gulf Oil Drilling Moratorium unconstitutional: into the depths of a black hole, with Mr. Obama having deliberately ignored/disregarded the decisions; keeping his moratorium in place, to the detriment of the Gulf Economy and the Nation.

However, in this instance, the case having been appealed to the United States Court of Appeals for the District of Columbia Circuit, a decision was rendered yesterday (1/25/13).  The three-judge panel unanimously declared three disputed National Labor Relations Board (NLRB) appointments unconstitutional.

This is a victory for We the Sovereign People and our Constitution!


The Obama Administration “strongly disagrees” with the decision.  It will likely appeal to the Supreme Court.  The NLRB will not comply:

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.”

This administrative body of the Executive Branch, in open defiance of the Judicial Branch, brashly declares it will not comply!  This is not the only occasion of the Obama Executive Branch refusing compliance with court decisions; others include continuation of the Gulf Oil Drilling Moratorium, and implementation of Obamacare.  As I have understood legal discourse surrounding those decisions, the proper action is to cease and desist while a decision is being appealed to higher courts.


The Recess Appointments Clause of the Constitution, Article II, Section 2, Clause 3, states: “The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.”

What defines when the Senate is in Recess as intended in this Clause?  The prevailing argument in this case is based upon the phrases the Recess of the Senate,” “the Session of Congress” (Article I, Section 5, Clause 4), the Session of their respective Houses” (Article I, Section 6, Clause 1), and the End of their next Session.”  “the” being the key word.  (emphases added)

Amendment XX, Section 2, which amends the date, states: “The Congress shall assemble at least once in every year, and such meeting shall begin at noon on the 3d day of January,…”  Thus begins the yearly Session of Congress.  The Session is the total period of time the Congress is “in Session” until the beginning of the next Session.  Adjournments during the Session are not “the Recess of the Senate” as required by the Recess Appointments Clause.

The intent of said Clause is to provide for temporary filling of a vacancy occurring during the time period following the end of the Session and the beginning of the next Session; this being “the Recess.”  This was more readily apparent in the years prior to proliferation of regular air travel making it possible for legislators to commute in a matter of hours between their Home States and the District of Columbia, greatly reducing the need for such a Recess between the yearly Sessions.


Adjournment of the Congress is determined by the Congress, without interference by the Executive Branch.  “Every Order, Resolution, or Vote to which the Concurrence of the Senate and House of Representatives may be necessary (except on a question of Adjournment) shall be presented to the President of the United States;…”  The text does not here include the words, “the Recess,” or, “Recess.” However, it seems prudent to interpret it as extending to, “the Recess.” 

If the President has no say in an “Adjournment,” it is reasonable that the Framers would not have intended his interference in the decision of Congress to end their Session with “the Recess.”  I believe it never occurred to them that any President would seize the reins of tyranny to declare the Congressional Session in Recess.

ADVICE AND CONSENT: Article II, Section 2, Clause 2.

If the Congress does not declare “the Session” ended, there is no Recess.  Hence, the Senate is Constitutionally available to perform its duty of Advice and Consent, tendering its approval or disapproval accordingly.

“He shall have the Power, … and by and with the Advice and Consent of the Senate, shall appoint … and all other Officers of the United States, …”

The intent of the Framers is clear, the filling of Offices, etc., is to be a joint process between the Senate and the Executive Branch.


The president even bragged about his intent on the very same day in an address to high school students – to circumvent the Senate and its Constitutional duty of Advice and Consent.  The sole purpose being to force his will by deliberately declaring the Senate to be in Recess when that Body had not ended its Session. The motive behind his action was obviously to make his appointments without the Advice and Consent of the Senate; not to meet a need caused by the Senate being unable to perform its duty due to a true Recess between Sessions.


The Administration cites the history of 285 “Recess Appointments” being made in the history of the Nation, as precedent to justify Mr. Obama’s action.  However, there has NEVER been a president who deliberately defied the Senate and the Constitution to HIMSELF declare the Senate to be in Recess in order to force appointments in violation of the relevant clauses!

It seems evident that in 223 years, if Mr. Obama’s argument to precedent were valid, there would have been many more such Appointments.  It also seems that at least some of the previous 43 presidents would have tried the same ploy had they read the Constitution so loosely as to deny the obvious in the same vein as the current occupant of the Office.

It is high time the practice of citing precedent to violate the Constitution came to a sure and certain death!

Of course, he cannot at the same time argue precedent while becoming the only president to justify his appointments by declaring the Senate in Recess!


This was a transparent instance of the president getting his hand caught in the cookie jar!  Now, the question is, will the Supreme Court decide in favor of the Constitution and against these impeachable acts by this Imperial President?

Or, will it follow the disgraceful example set by the Roberts Court in the Obamacare debacle, and completely disregard the plain meaning of the Constitution here, also?

“On every question of construction, [let us] carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates, and instead of trying what meaning may be squeezed out of the text, or invented against it, conform to the probable one in which it was passed.”    Thomas Jefferson

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