Court strikes down president's recess appointments

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Back now to the breaking news that is our top story right now a federal appeals court ruling that President Obama violated the constitution.

When he sidestepped the senate and -- open positions on the National Labor Relations Board.

The ruling that raises questions about hundreds.

Hundreds of decisions issued by that board and most of which have been very pro labor.

Oh for more than a year now to those -- are they boys.

Are they thrown out who's on the NLRB you right now.

Can it even adjudicate anything lots of questions -- an -- gonna get answers.

Had violated the constitution.

And Julian Epstein is a former chief counsel for the House Judiciary Committee and former staff director of house of the house Government Reform Committee gentlemen welcome back.

Wow so this was a unanimous decision I I guess congratulations to you.

Cute you know I think a lot of -- -- sort of know okay NLRB they've they've adjudicate disputes between companies and and labor.

Right but explain the significance of this ruling.

Well you you actually said the significance and at the beginning of your production to this issue and that is of these decisions that have been made by the NLRB since these appointments.

But that the president made these so called recess appointments that the three judge panel has now ruled invalid from their inception.

Which means there was not a quorum of the NLRB and those decisions are Null and void and -- no effect.

And we did not like I'm members and I'll be ready normally -- amber right and he put three people lie to two men and women a woman out of -- it's as if they were never there -- this past year.

That's right the court said.

Right from the beginning from its inception.

Those appointments were basically unconstitutional.

And we represent the speaker John Boehner in this case and -- up -- I think this is a great win.

For the constitution.

And the separation of powers I know what friend Julian -- gonna disagree but I think this is a very important signal.

That the president is -- president he's not a monarch he doesn't get to make these decisions by himself there's a reason we have advice and consent in the constitution.

And I think this is a big day.

No doubt about it.

-- your thoughts.

Well -- former President Bush as a monarch -- former President Bush made somewhere on the order.

Of -- a 171.

Of these appointments these are appointments that have regularly been made by presidents President Clinton made 139.

And what the court said here which is different from what other courts have said.

Is that president's cannot make recess appointments unless we are one between congresses or two between sessions of congress -- which occur.

That had -- basically the end of the year for very short period of time.

President since we have all known about since we have can remember.

Have made recess appointments on things like summer recess is when congress goes away.

For the month of August so what the court is now saying is there interpretation of the constitutional power to make recess appointments under.

Yeah.

Under the constitution limits the president's ability to -- would -- -- very very narrow time frames and there was that's a rule that has never governed president's message is that no question President Bush.

Bush made about a recess appointments as anybody -- one of their contributors.

However however there is -- -- there was a question here -- from the very beginning about whether President Obama could do it under this particular recess this is a unique thing in the senate pushed back almost immediately -- Explain that to -- Well it's because it was actually business being done they -- -- pro forma but there were bills introduced panels set.

Actual legislation signed including debt limits and and increases and and now -- -- -- commerce bill that came through so the fact of the matter is that congress was actually working here Megan.

And you know Julian likes to -- President Bush and Andy as others but let's look at what the constitution -- which is what the -- -- -- recess appointments for the first hundred years of our constitution were rarely ever used by a president it was when.

The congress was in the bulk recess and all the court did here was say what the constitution says which is when the courts in the recess in recess appointment can be made.

When it's not it's not they weren't here.

Julian you had to go to you have you have been right on many predictions here in America so I wanna give you that that upfront -- yeah.

Yeah I'll have very you -- not great this land you key rotten that I think there is no chance this will be thrown.

Well I don't think guard.

I I don't think that this case is over I think this would be appealed to the Supreme Court and -- I mean I think it.

-- chief Justice Roberts and well I think you will because it got a conflict now I think chief Justice Roberts has invited and asked a question.

To the deputy solicitor general previous case of why -- the president simply use the recess appointment for cases similar to this.

To -- point look -- -- at it what it to a hundred years ago we didn't have congressional schedules the way we did.

And more importantly this was a pro forma schedule during which President Obama made the -- but made the appointment.

And there was very little business going on there were coming in for a minute or two and what today is going to purpose the purpose of keeping these pro forma sessions.

Was in was two outs for better -- president.

From making recess appointments so -- this what we're talking about is true setting up -- courts can do this.

Is setting up a new set of rules for -- Obama that haven't applied to any president last fifteen.

Has there ever been a president who tried to do it when that witness and it was in pro forma session when they did have business going on was this the first -- -- by President Obama you.

Maybe that's exactly are correct the fact is -- -- I was the first one that did this while actual business was going on.

Where the house and senate we're not in recess a recess for the recess so that I want to -- he -- -- in -- -- you -- -- -- -- that this is important what what does this mean right now I mean right so if they appeal to the Supreme Court with a -- to wait to see if they take it.

But even if they take it that we have to wait for briefing an argument so.

What what isn't -- right now today that the are these decisions over the past your voice like what there have -- some important decisions at the NLRB at a last year.

They're -- the good three judge panel of the US -- court of appeals for the District of Columbia said the appointments were invalid from the outset and that means the decisions made by them with not a -- Court address that issue those opinions and those are decisions are came up from the are very.

-- -- What -- let me now.

Practical matter Julian for -- for the companies out there in the unions who received rulings from this board I mean it's some somewhat chaotic.

-- it means total chaos and I would agree with.

DC circuit decision.

Which they could and look at that two former.

Officials in the bush justice department of the office of legal counsel.

Who basically said that this pro forma session.

It's just it's a total artifice is an artifice intended to prevent the president.

From exercising his constitutional power and recess appointments and these two former bush officials basically.

Backed up the position the legal position of the Obama administration when -- said looked at what they said.

These recess.

The these these artificial recess is that the senate was taking they were really not conducting any serious business so effect.

They were realize that you're -- -- -- that -- our little rooms here project.

That's right they did say I was wondering if they have big disagreed with everything Julie did you said in every eyeing the Obama administration said and we had everything the bush officials -- -- -- -- so I don't.

Bush officials that and it's not necessarily a lot.

Now some are now doing it matters is what the courts that with the DC Circuit Court of Appeals that now -- relaxed and that that -- -- the last word that I like that family.

You might get finally get it gets one notable for the underdogs but that was the opponent and neighbor -- -- -- -- Great having you guys congratulations.

Steve -- think humans by coming.

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Court strikes down president's recess appointments

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