“The more you tighten your grip, Obama, the more powerl slip through your fingers.”

That was a total slap-down!

It sounds like his overreach is finally catching up with him. Unanimous decision!

We should pressure GOP Senators to vote “no” on re-appointment any of these unconstitutional appointments. They must make Obama pay for his actions. The GOP should not even discuss the merits of any of these men and simply say “no” because Obama tried to ram them through.

I despair for this nation when there isn’t even token resistance to the most offensive Constitutional insult by this man.

This decision is not a narrow decision. If upheld it would only allow presidents to make a recess appointment only for an office that became vacant during a recess, and that appointment can only be made during a recess.

According to the NY Times, this decision may have the effect of overturning decisions of US Appellate Courts whose member(s) were appointed as recess appointments, but whose appointment does not comport with this decision. According to this article there are several cases pending raising the same issue with different plaintiffs.

As to the question, “does this have the effect of overturning all the decisions of the NLRB during the tenure of the recess appointed members?” The answer is no. Those decisions will stand until the injured party files a lawsuit to vacate the NLRB decision based on the unconstitutional makeup of the NLRB. .http://www.nytimes.com/2013/01/26/business/court-rejects-recess-appointments-to-labor-board.html?_r=0

Obama’s getting his butt kicked in court right now. Another federal court just ruled that ten ICE agents had standing to sue DHS and ICE for ordering them to disregard federal laws to give illegals a free pass. Remember this one had to do with the O’s executive order giving illegals who were not guilty of serious crimes immunity from prosecution and deportation. Janet Napolitano and Morton — the head of ICE — threatened the agents with disciplinary consequences if they refused to disobey the federal laws that the O decided to disobey. Hahaha!

Prof. Jacobsen has the opinion up at his web site, Legal Insurrection. If you go to page 46 of the decision you can see that the decision only applies to the Petitioner, Noel Canning. The Court vacated the order of the NLRB as to Noel Canning and no others.

Brietbart is incorrect in their reading of the decision.

As an aside, and I only read the decision quickly, the Court points out that this decision does not square with earlier decisions of the Court. This decision will likely be appealed and at some point consolidated with the other cases pending in other circuits.

http://legalinsurrection.com/2013/01/d-c-appeals-court-rules-obama-recess-appointments-unconstitutional/

This decision, if upheld, will have wide ranging, and yet unknown effect on the federal appellate court. The effect on the NLRB, as far as I know, may be limited to their decisions of the last year.

The problem this decision presents is that any appellate decision that was rendered by an appellate court panel that had a member that was a recess appointment, and that appointment was not in compliance with the ruling in this case, in theory, can be attacked in that the judge in question was unconstitutionally appointed and their decision should be vacated.

I have no idea how many decisions this may effect, but if a court did not have jurisdiction to hear a case based on a member being a recess appointed in a manner not in compliance with this decision , their is no limit on how far back in time a litigant could back and challenge a decision of an appellate court based on this decision.

What I am speaking to is this Courts ruling effect on recess appointments by POTUS to the Federal Appellate Court. The same principals would apply. It does not appear that Pres. Obama made recess appointments to the Court but Pres. Bush had. It is a problem, but not a great a problem that I initially thought.

The rulings of the NLRB, if challenged on the basis of the recess appointment of the panel members, if a court follows this decision, would be vacated.

Keep in mind their are older decisions that do not agree with this opinion. This decision seems to be well researched and goes through the history of recess appointments.

(Evans v. Stephens, 387 F.3d 1220 [11th Cir. 2004 is the most recent case which affirmed the President’s power to make recess appointments. A quick reading of this case led me to conclude that the Court found this issue to be a political question, and left it to the Senate and President to work it out.

And who/when made “US Appellate Courts whose member(s) were appointed as recess appointments”? Still see this as legal and upheld if the appointees were made during a real recess declared by the Senate and then subsequently confirmed after their temporary period in “office”. Levin said this had only happened 3 times in history and didn’t hear the specifics. Are you saying Bush broke the “laws”?

This decision is limited in its effect to Noel Canning. It does not effect any other decision of the current NLRB panel or any other decision. It is likely a party that was the recipient of an adverse decision from this NLRB panel are calling their attorneys this morning and asking the same question you are. Until that decision is challenged in Court it stands. The only decision that has been vacated is the decision in Noel Canning.

it will be interesting to see if the SCOTUS upholds this decision as I suspect the administration will move it in that direction.

Don’t get your hopes up too high. The three Republican judges acknowledged that the ruling conflicts with what some other federal appeals courts have held about when recess appointments are valid, which only added to the likelihood of an appeal to the high court. Under the court’s decision, 285 recess appointments made by presidents between 1867 and 2004 would be invalid.

“This decision, if upheld, will have the practical effect of taking away a presidents power to make recess appointments.”

I disagree. The presidential power to make recess appointments hasn’t changed a bit. What takes away a president’s power to make recess appointment is not the Court, but the Senate itself – caused not by a Court decision, but by the present-day Senate practice of not adjourning until the day before a new Senate session begins.

The Court in their ruling stated that the POTUS can make recess appointments under the following scenario, (1) the senate is in recess and (2) a vacancy occurs during that recess. In other words, as a practical matter, timing is everything.

Under this decision a president can no longer wait until the senate goes into recess to make a recess appointment. The vacancy must occur during the recess and the president must make the appointment during the recess.

I would say that this ruling overturns the manner in which the executive branch has handled recess appointments since the time of President Washington.

You might want to watch this discussionhttp://aclj.org/us-constitution/jay-sekulow-stinging-rebuke-for-obama-constitutional-overreach-on-appointments on Fox where Megyn Kelly gets Jay Sekulow’s view of the decision. Sekulow filed a friend of the court brief in the case and is well-positioned to answer questions.

For one, Sekulow states that this decision will vacate every decision made by the NLRB in the last year since they were unconstitutionally appointed — not just for the case at hand. Also, he makes no mention of the court stating that POTUS can only make appointments when the vacancy occurs during a recess. Sekulow makes clear that Obama is the only prez ever who took it upon himself to declare the Senate in recess (when in reality it was not in recess) to make these appointments. That is the crux of the case.

If you read the decision you will find that the Court only vacated the case before it. You can find the Courts holding on page 46 of the decision which vacated the NLRB decision against Noel Canning.

As I said earlier, the decisions of the NLRB made by this panel are not void until challenged under this decision. Mr. Sekulow view may be that the decisions if challenged using this case are void, and he would be correct.

As to your statement that Sekulow did not mention the fact that POTUS can only make recess appointments when those vacancies occur during a recess, at page 39 of the Court’s decision, the Court ruled, “In light of the extensive evidence that the original public meaning of “happen” was “arise” we hold that the president may only make recess appointments to fill vacancies that arise during the recess.”

I am not going to speculate whether Mr. Sekulow was familiar with this part of the decision, or if he did not have time to discuss it, but because he did not discuss it does not mean that this case does not hold for that proposition.

Now the question becomes “Will John Roberts ‘fix’ this for him?”

I’m not so sure about that. If the issue is the validity of the appointment then the validity of any decision made by illegally appointed board members would, by extension, be invalid. But it may be incumbent upon those affected by those rulings to seek relief.

As I stated, I trust Sekulow’s reading of the ruling as he argued the case and just five minutes ago he reiterated on Fox that the court’s ruling invalidated — made null and void — every decision made by the NLRB in the past year. I might add, you cannot make a sweeping conclusion based on one paragraph on page 46 of the ruling. Sekulow was there. You were not. The court ruled that from its inception (when Obama made the three appointments), the NLRB and its rulings carry no power.

Seems to me that, just as they did in “Citizen’s United”, the Court looked at what the Constitution actually says. Lo and behold, the vacancy clause does indeed say that the president has the power to fill vacancies that “happen” during the Recess of the Senate. It doesn’t say that the president can circumvent the advice and consent of the Senate by waiting until a Senate recess to make recess appointments, and it doesn’t say that the president can adjourn the Senate to make recess appointments. If the Constitution overturns the manner in which the executive branch has handled appointments before, then it’s better late than never for the Court to correct the president’s manners.