Federal Appeals Court Declares Obama Violated the Constitution by Usurping the Senate

A federal appeals court ruled that United States President Barack Obama abused his power by usurping the Senate’s Advice and Consent power, thereby violating the Constitution.  A three-judge panel of the Federal Appeals Court for the District of Columbia circuit ruled unanimously that Obama’s “recess” appointments to the National Labor Relations Board (NLRB) were unconstitutional.

Obama had appointed two members of the NLRB during a time when the Senate was in session.  Under the Constitution, appointments must be confirmed with the advice and consent of at least two thirds of the upper chamber of Congress (Article II, Section 2).  Presidents have constitutional authority to make temporary appointments during “the Recess” of the Senate (Article II, Section 3).  Presidents have made appointments between congressional sessions, but in recent decades they have increasingly made the appointments when Congress has recessed for summer or holiday breaks during sessions.  The Senate had not objected to such appointments.

Obama took an even further step, however, by making the appointments when the Senate was in “pro forma” session, when it gavels to order every few days and conducts little or no business with only a few members present.  The Senate took the step by unanimous consent of not recessing specifically in order to prevent Obama from making the appointments to the NLRB to which it objected.  In addition to the NLRB members, the President also made a recess appointment to a newly-created consumer relations body to which the Senate objected, arguing that the Senate was essentially in recess.

The Federal Appeals Court panel examined the plain meaning of the phrase “the Recess,” noting the difference between inter-session breaks, as opposed to those between sessions, that is to say, between “recesses” and “the Recess.”  In short, the case came down to the meaning of the article the, with the appellate court observing the specificity intended by the inclusion of the word.  The Court made the point in its opinion that Obama’s wide interpretation of the recess appointment power would allow presidents to make appointments every time the Senate left for the weekend or even when it broke for lunch, which would render its Advice and Consent power meaningless.  In its opinion, it cited the purpose of the recess appointment power as intended and expressed by the Framers and its interpretation in the early legislative history of the Republic in support of the Court’s interpretation of the plain meaning of the Constitution.  Moreover, because Article I, Section 5 of the Constitution gives each house of Congress the prerogative to determine its own rules, the Court found the President lacks the authority to determine whether or not the Senate was in recess under its rules.  The Senate had made it clear by its pro-forma sessions that it was not in recess, regardless of the interpretation of the Chief Executive.

The ruling means that the NLRB lacked a quorum of valid members, thereby invalidating its rulings since Obama made the unconstitutional appointments a year ago.  The members were notoriously anti-business.   The legitimacy of the actions of the consumer relations board have also been called into question.

The Obama Administration intends to appeal the case to the Supreme Court.  If the appellate court ruling stands, it would be the second time so far that the President, a former constitutional law professor, has been ruled to have acted unconstitutionally in his first term.  The first was in Obama’s signing of the act to federalize of health insurance, which violated the Constitution by attempting to coerce the States to expand the federal welfare entitlement program, Medicaid. 

The Fortieth Annual March for Life

The annual March for Life rally was held today in Washington, District of Columbia.  As always, it attracted over a hundred thousand participants from across America. 

The event observes the anniversary of the 1973 United States Supreme Court’s infamous Roe v. Wade and Doe v. Bolton decisions.  Over 50 million abortions have been committed since then.  This year marks the fortieth anniversary of the decisions that overturned state bans on abortion and permitted the procedures throughout pregnancy for broadly-defined reasons of well-being.  The First March for Life was held in 1974.  

It is also the first March for Life held after the death of its founder, Nellie Gray, in 2012.  See my post from August of 2012, Nellie Gray, Rest in Peace, http://williamcinfici.blogspot.com/2012/08/nellie-gray-rest-in-peace.html, meaning that her legacy is an enduring event that calls attention to the evil of abortion and the harm it causes not only to unborn children, but to their mothers and other perpetrators, fathers and other family members and to society as a whole, and is a rally of prayer and speaking to promote the cause of life.

The Right Wins the Israeli Parliamentary Elections

Right-wing parties won a narrow majority in the Israeli parliamentary elections.  Prime Minister Benjamin Netanyahu was re-elected.  The Israeli Prime Minster would become the longest-serving premier in the Jewish State’s history.

Netanyahu is expected to continue his hard line against Palestinian terrorism and against terrorist-sponsoring Iran’s nuclear weapons program, as well as to maintain Israel’s close alliance with the United States. 

Developments in North Africa in the War on Terrorism: Mali, Somalia and Algeria

Mali and Somalia

France has led an international intervention in Mali to fight Islamist militants who hold the northern part of that sub-Saharan West African state and who threaten to expand their territory.  The French intervention came after the repeated requests of the Malian government and the U.N. Security Council and after there had been delays in establishing an African force to assist Mali.  France is the former colonial power and has forces in a number of places nearby in Africa. 

The United Kingdom and several West African countries are supporting the military effort.  The United States is lending intelligence support.  Other European states expressed political support for the intervention, which is supported across the French political spectrum.  The French suffered a wave of Islamist terrorist attacks in the 1990s.

I explained in a post to this blog in April of 2012, Foreign Digest, Mali, Sudan, Burma, Cuba,

http://williamcinfici.blogspot.com/2012/04/foreign-digest-mali-burma-sudan-cuba.html

about the military coup d’etat that removed the democratically-elected government that was perceived as weak versus the separatist Tuareg and Islamist (including al-Qaeda) rebellions in northern Mali, and how the coup unintentionally created a power vacuum that allowed the united rebels to take over the entire northern part of the state, from the Sahara to the Sahel, including Timbuktu, a World Heritage Site, and other important towns before a democratic regime could be empowered.  Meanwhile, the rebels have literally dug in to their defensive positions in northern Mali where they have established a harsh, Taliban-style Islamist rule under Shariya. 

The French responded to the immediate threat of twin advancing columns of Islamist rebels toward the rice-growing part of the Sahel near Malian towns that were the last government-held garrisons before the capital of Bamako.  They were able to drive the rebels from one of the major towns they had occupied.  The French suffered some losses, as did the enemy, in the fight.  Without international aid for Mali, not only would the northern part of the state remain a safe haven for al-Qaeda and other Islamists, like Afghanistan before 2001 or much of Somalia before recently, but it would continue to represent a threat to neighboring states and even to Europe itself.

Meanwhile, at the beginning of France’s military operation in Mali, the French simultaneously launched a commando raid in Somalia to rescue a French hostage from Islamists there, but the hostage was killed in the attempt, along with some of the enemy. 

Algeria

Islamist rebels captured a foreign-owned natural gas facility in a remote part of the Sahara, capturing and killing many foreign workers, including some Americans.  The Algerians launched a series of bloody rescue missions to end the siege of the facility.  Some Algerian and foreign hostages were released or escaped before the rescues.  Algeria has been putting down an Islamist rebellion for decades.  The perpetrators of the siege of the gas facility are affiliated with Al-Qaeda in North Africa. 

The al-Qaeda terrorists claimed to have carried out the attack in Algeria in retaliation for France’s intervention in Mali.  However, the raid must have been planned well beforehand.  Thankfully, this timing was noted by the media in dismissed the claim of retaliation, unlike its usual practice of reporting such claims by the terrorists uncritically.  As I noted in my post from July of 2011, Terrorism Is Never Committed out of “Revenge,” http://williamcinfici.blogspot.com/2011/07/terrorism-is-never-for-committed-out-of.html, terrorist like al-Qaeda or other Islamists do not need any excuse to carry out their unjustifiable evil deeds.  They strike at will, but use claims of retaliation or revenge only to intimidate the populace further into giving into their specific political demands.

Conservative Analysis of the Fiscal Cliff Tax Deal

The details of the “fiscal cliff” tax deal approved by the United States Congress after New Year’s Day and signed into law by President Barack Obama a few days later have been widely published.  I shall analyze and comment on the key provisions.

The deal extends nearly all of former President George W. Bush income tax cuts – those for the middle class and most upper class – permanently.  However, it raises income taxes on the highest earners, as well as on capital gains and estate taxes, although to a lesser degree than Obama had demanded.  The $400,000/450,000 individual/household threshold for the increase in the income taxes is much higher than the $200,000/$250,000 threshold the President had wanted. 

The capital gains tax and especially the estate tax increases Obama sought were also paired.  A number of other tax credits were extended.  The total $620 billion in projected additional revenue is less than the $800 billion Obama called for during the presidential campaign.  Note: after the election, the 43^rd President doubled his demand for total tax revenue. 

Although legally the deal represented a tax cut because the Bush income tax cuts had expired after the beginning of the calendar year, thereby returning tax rates to those of the Clinton era, essentially the bill represents a tax increase over 2012.  Not only will the upper class and some small businesses be affected, as well as some one-time earners (See my last post), but the capital gains tax increase will affect many in the middle class, as will the estate tax, especially for farmers and other small businessmen.

The end of the Social Security payroll tax holiday would have occurred without this deal, as neither political party intended to extend the temporary measure intended to stimulate the economy.  It was originally intended for one year, but was extended for 2012.  The payroll tax is the only method of funding Social Security.

The necessary annual fix of the Alternative Minimum Tax was made permanent by indexing it to inflation, thereby sparing tens of millions of American taxpayers this year alone from this burdensome income tax that was originally intended to prevent the wealthy from escaping total income tax liability, as well as countless taxpayers in the future. 

There were few spending cuts in this bill, as it was primarily a tax bill and also because it was mutually intended to delay temporarily most of the sequestration (the automatic across-the-board cuts to entitlements and defense Congress imposed on itself as in incentive to reach a more comprehensive fiscal deal), including the dangerous cuts to defense.  It was also necessary to do the annual “doctor fix” in regard to Medicaid reimbursements.  There were some spending increases, such as Obama’s proposal to extend insurance for the long-term unemployed.  The net cuts thus amounted to only around $15 billion.  The size of the cuts was surprisingly disappointing to us conservatives who were expecting – at worst – another deal such as the ones Presidents Ronald Reagan or George H.W. Bush accepted with a ratio of spending cuts to new revenue of at least two or three to one, especially given the leverage of the Republican majority in the House of Representatives.  With the tax issue finalized, they retain leverage after two months when the sequestration delay expires, if not before when the reaching of the debt limit becomes necessary to address.  Additionally, they will have the leverage on the appropriations bills.  It remains to be seen if this leverage, if used skillfully, will suffice to force the necessary drastic spending cuts, especially to entitlements, to improve the fiscal health of the United States.

The deal, for good or ill, ends uncertainty on taxes, which allows people to budget accordingly.  It avoided as much economic harm as Obama and the liberal Congressional Democrats would have imposed, but its tax increases will still be harmful to the economy, while it failed to address the debt crisis significantly.  Conservatives must continue to repeat the obvious: that the debt is the result of overspending, not inadequate taxation, and that increasing revenue only allows more spending, unless it is coupled with significant, long-term spending cuts.  Conservatives and Republicans were placed in a difficult fiscal and political position by the fiscal cliff.  Conservatives, such as the majority of Republican House members, were right to oppose the tax increase, but the GOP members in that body and the majority of conservative Republican Senators who voted for it were not entirely unreasonable in voting essentially to cut taxes from the Clinton-level and preventing irresponsible cuts to defense, as well as avoiding the continuation of the uncertainty of the fiscal cliff.  The political fear of being blamed for a massive tax increase on the middle class on top of the expiration of the payroll tax holiday was understandable. 

We conservatives and Republicans must stand firm on the fiscal crises to come, despite the expected intense political pressure from the liberal Democrats and their allies in the media, by promoting the principle of fiscal responsibility.  Only if the conservative Republicans in Congress are at least somewhat significantly successful in decreasing spending, in addition to blocking the additional tax increases sought by Obama and the liberal Congressional Democrats, then the fiscal cliff tax deal will be viewed in the context as a necessary minor loss that led to a larger victory.