Accuracy in Media

In response to a ruling today by a three-judge panel of the U.S. Court of Appeals for the D.C. Circuit, White House spokesman Jay Carney called the decision “novel and unprecedented.” This could be one of many instances in which the co-equal branch of government, the judiciary, will attempt to check the powers that President Obama is attempting to exercise. And it could also be a test of how far Obama is prepared to go in terms of ignoring the courts and the Constitution to achieve his goals.

What the court said is that President Obama lacked the constitutional authority to make three recess appointments last January to the National Labor Relations Board. The issue was whether or not the Senate was in recess at the time. If it was in recess, then the President would have the authority to make the appointments. But instead, the Senate was in what is called pro forma session, meaning that someone would gavel the Senate in and out of session. It is largely a gimmick both parties have used over the years.

CNS News did a good job of explaining the issues involved:

Article 1, Section 5, Clause 4 of the Constitution says: “Neither House, during the session of Congress, shall, without the consent of the other, adjourn for more than three days, nor to any other place than that in which the two Houses shall be sitting.”

Because the Republican-controlled House did not allow the Senate to adjourn, neither House was in recess.

In the case of Noel Canning vs. NLRB, the court said, “Allowing the President to define the scope of his own appointments power would eviscerate the Constitution’s separation of powers.”

The decision continued, “An interpretation of ‘the Recess’ that permits the President to decide when the Senate is in recess would demolish the checks and balances inherent in the advice-and-consent requirement, giving the President free rein to appoint his desired nominees at any time he pleases, whether that time be a weekend, lunch, or even when the Senate is in session and he is merely displeased with its inaction. This cannot be the law.”

If this ruling is upheld by the Supreme Court, it could result in hundreds of rulings by the NLRB being overturned. It also creates scenario in which other actions taken by the administration that conservatives have viewed as an overreach or trampling on the Constitution could now also be subject to the same sort of judicial review.

RedState’s Daniel Horowitz gave a clear explanation as to whether or not Congress was in recess:

The problem is that Congress was not in recess. They were indeed holding pro forma sessions. In fact, a week earlier, while Congress was in the same pro forma session, the House and Senate passed a sweeping tax extenders bill, which granted tax cuts to almost every worker, unemployment benefits to millions of the jobless, and reimbursement payments to hundreds of thousands of healthcare providers. If Congress can do all that during a “recess,” they certainly have the ability to advise and consent on a handful of executive branch nominations.

It will be very interesting to see the emboldened Obama administration react to what could be a major setback to its second term agenda.

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  • When is this rogue administration (and corrupt ruling class) going to be stopped. What do we have to do here guys?

  • gawxxx

    @ barbara ! the spilling of blood ! unfortunately !

  • jdelaney3

    Don’t put it past this smug autocrat to thumb his nose at the court and congress. He knows impeachment alone won’t stop him. The Progressive-dominated Senate would still need to convict and remove. Not likely. It’s a full court press for the Progressive machine, and they won’t relent until the “fundamental transformation of the US of A” has been fully accomplished. We the People may need to take more…convincing…action to stop this tyranny if Comrade Obama thwarts the judiciary and congress. Keep your pitchforks and guns close.

  • The Major

    Remember what his wife,,1st Spender,,said,,,’Obama is ready to RULE on day 1″
    not govern ,,,RULE. This Arrogant marxist muslim has been breaking rules & laws since childhood. Remember when he & his muslim buds went to Pakistan,,even tho’ it’s OFF-Limits to Americans at the time??? Oh yeah,,I forgot,,,he was NOT an American then,,,he WAS a Indonesian Citizen,,,breaking his line of C/ship,,& therefore ,,making him “Ineligible” to be come POTUS,,,also due to the fact NEITHER of his dads EVER became Citizens ,,also breaking the US Codes.,,,& the hits just keep on coming folks. and the WORST part is,,,he does NOT care.

  • Still, the GOP controlled House should display the courage and integrity to impeach Mr. Obama should he refuse to obey a supreme Court ruling against him.

    Should the House be unwilling to act after such an act of defiance by Mr. Obama then the GOP will have effectively announced its rejection of its principles and will no longer be relevant.

    Perhaps in any articles of impeachment should be the charge against Mr. Obama’s starting a war with Libya without congressional consent and for the failure and possible act of treason to rescue those at the Benghazi consulate where the administration was likely running another gun running operation thru al-Qaeda.

    As you imply, we may need to dust off the Declaration of independence and take it to heart with a vengeance keeping in mind the reason Jefferson and Madison said the 2nd Amendment was written.

  • It will not be stopped unless the people or the sovereign States put an end to it. Keep in mind the creeping fascist/socialist agenda didn’t start with Mr. Obama. We should look back to Wilson, FDR, Johnson, Carter, and to an extent Bush with the signings of the Patriot and Homeland Security Acts which violate the Bill of Rights in major ways.

  • It’s time for the sovereign States to call for a Constitutional Convention and enact Amendments that will once again as Jefferson said bind the Federal government with the chains of the Constitution.

  • jdelaney3

    Sadly, Congress has made itself irrelevant. To date, and by my reckoning, Comrade Obama has racked up 53 impeachable offenses to date. Rather impressive, even for a Marxist thug. But, to expect the spineless House leadership to impeach, if for no other reasons than to make an important constitutional point, is, at best, wishful thinking on steroids.

    I see at least a few congressmen, Stockman of TX for one, who are actually talking about intnroducing articles of impeachment, so hope does spring eternal. It’s just not likely to go anywhere. Teh guys with principle are outnumbered.

    Boy, where is Joe McCarthy when you need him. Damn.

  • jdelaney3

    Then, of course, there’s nullification/interposition and, as a last resort, the time-honored principle of secession enshrined in our Declaration of Independence. We should not forget either of these remedies.

    And, again, if the corrupted/co-opted States lack the priniciple and spine to seize upon these rightful remedies, then it’s up to We the People to take whatever actions necessary to restore constitutional order.

    In resisting tyranny, always let our Founders’ counsel be our guide.

  • mudguy1

    Obummer has the attitude about our Constitution.

  • mudguy1

    When one has control and do not take control they don’t have control. Bone Boehner has no idea how to take control. There are too many that are afraid to stand up against him. He like Obummer has to go if our country are going to be saved.
    It is pass time to take the Boom out of the “Boom Town” Washington D.C before it is too late.

  • mudguy1

    We also need to get the wimps out of the GOP.

  • Idaho Bob

    Here is a very informative documentary that very concerned American should watch, ht tp:// . It’s called”AGENDA: Grinding America Down”. This documentary clearly and factually makes the case for why America is in the shape that it’s in today. What is happening isn’t accidental but a long term plan that has been put in place and executed for many many years. Watch it for yourself and then pass the link along to as many as you can.

  • Idaho Bob

    Major, if you haven’t seen the documentary “AGENDA: Grinding Down America”, please watch it. It hits on your assertions in a very powerful and factual manner. The link is ht tp://

  • He’s The King. Didn’t the Court Know that? 😉

  • Now, if they can do something about Homeland Security and the Environmental Agency!

  • Roystoll2

    Novel and unprecedented??? What, that mere mortals have found that this Autocratic President is subject to the Constituion? Wake up Obama! You do not own us!

  • reggiec

    What is astounding is that it took Pepsi to take it to court. Where was Congress? Where are they in all the other violations of the separation of powers violations?

  • First, this process for making appointments is not new and is included in the Constitution. The question revolves around what is a recess under this provision of the Constitution. Presidents have been interpreting it as Obama did for 150 years. For your reference Bush made 179 of these appointments.

  • Freedom Watcher

    What a misguided view of the world that so-called documentary provides. Fortunately, it’s just more propaganda meant to demonize the left, even though the right has done more to destabilize freedoms anyway.

  • Freedom Watcher

    Push your agenda propaganda elsewhere. Geesh.

  • jude1229

    YES!! I have seen this documentary…EVERY AMERICAN SHOULD WATCH IT…VERY SCARY!!!!

  • Yes, it IS rather novel and unprecedented that a court, ANY court, would be so bold as to support and defend the Constitution! Now, will the Supreme Court agree, or will it bow to Obama, like the last time? Let’s find out. For me, I am heartened that this court saw fit to use their brains instead of their partisanship.

  • Marj0120

    Thanks for posting the link, but thinking Americans already are very aware that all of the devastating decisions and failed programs are not mistakes. The simple law of averages dictate that even a stupid man will make a right decision X number of times if enough decisions are made. obam has yet to make a decision that works out well for America. Statistically impossible much like the 57 precincts in PA not having one vote for Romney. And as far as demonizing the left Freedom Watcher, there are as many guilty RINOs as there are Dimlibs. Repubicans control the money and not a single program can move forward without them funding it.

  • Marj0120

    He does not care because for a long, long time Americans have stood by and not cared enough to vote intelligently and have not put their foot down when they see what happening in DC.

  • Erin

    Where was all this hell raising when Bush was busy plunging us into this economic nightmare?

  • finabiscotti

    A Major Setback to his second term agenda – would be ARREST – as the ENEMY in The White House.

  • finabiscotti

    It is ironic that the first “black” President of the United States of America – would bring back slavery.
    Through Obama’s rules and regulations – of his Lawless Administration, as US Taxpayers we are Obama’s modern day version of slavery.
    have to keep his Fraud pig wife in wigs…….