King Obama's Power Trip: ILLEGAL Non-Recess Appointments

From Big Peace: In an editorial both Edwin Meese, the former U.S. Attorney General under President Ronald Reagan, and Todd Gaziano, Director of the Heritage Foundation’s Center for Legal and Judicial Studies, stated that President Obama's unilateral appointment of three individuals to the NLRB and Richard Cordray to head the new Consumer Financial Protection Bureau while the Senate was NOT in recess is a  “breathtaking violation of the separation of powers and the duty of comity that the executive owes to Congress.” 

The authors asserted:

…never before has a president purported to make a “recess” appointment when the Senate is demonstrably not in recess. That is a constitutional abuse of a high order.

The beauty of this editorial is that Mr. Meese and Mr. Gaziano provide instruction to handle this rogue president who continues to thumb his nose at the Constitution. They continue:

President Obama’s flagrant violation of the Constitution not only will damage relations with Congress for years to come but will ultimately weaken the office of the presidency. There eventually may be litigation over the illegal appointments, but it will be a failure of government if the political branches do not resolve this injustice before a court rules…Congressional leaders of both parties must vigorously (though thoughtfully) defend their prerogatives. Senators could filibuster all presidential nominations, as Sen. Robert C. Byrd did in 1985 over a lesser recess appointment issue, until Obama rescinds these wrongful appointments. The House or Senate could condition all “must-pass” legislation for the remainder of 2012 on an agreement to rescind these appointments. The House also could require the attorney general to produce legal justification and testify at oversight hearings.

The authors conclude:

If Congress does not resist, the injury is not just to its branch but ultimately to the people.

Of course as long as Nancy Pelosi gets to advance her agenda, gets her way, she is totally fine with the President abusing his power - the Democrat President.

The Daily Caller points out that in an outrageous move, even more so than his appointment of Richard Cordray to the Consumer Financial Protection Bureau, the President appointed two union lawyers to the NLRB even though the GOP never obstructed his nominees and weren't even given the chance to vet the normal paperwork or do background checks.  These appointments are most certainly unconstitutional since Congress wasn't in recess.

Craig Becker, a radical union leader wrote that “Employers should be stripped of any legally cognizable interest in their employees’ election of representatives.”  Unfortunately for Obama's pro-union radical agenda, Becker's term expired at the end of 2011.  When Congress refused to go to recess so that they could block equally radical outrageous appointments Obama decided to go under the radar while people were fired up over his controversial appointment of Cordray and appoint two union lawyers to the NLRB. 


Here is some information on the two new NLRB appointees from The Daily Caller: 

The little we know about Block and Griffin is not encouraging. Block was a longtime staffer for Senator Ted Kennedy, and is almost certainly a lockstep vote for the Becker agenda of upending employer rights.

Griffin has the dubious distinction of being the second board member ever (Becker was first) to join the NLRB directly from a labor union. In Griffin’s case, it’s the International Union of Operating Engineers (IUOE), where he was general counsel. 

The IUOE is an especially autocratic union that has been criticized by union activists for imposing strict Internet censorship on union members who have the temerity to run against current union leadership. Griffin justified the gag rule as necessary to protect the “union’s sensitive and/or confidential internal workings.” Griffin even tried to impose fines on his own union workers for challenging the gag rule in court.

In 1998 testimony to a House committee, Griffin argued for more expansive NLRB powers to order fines and other remedies, for allowing the board to enforce its decisions without a court order and for allowing unions to organize at single locations. Most significantly, in that testimony Griffin was asked directly whether unions and employers both engage in illegal conduct. He said: “The vast majority of illegal conduct is committed by employers, and therefore the vast majority of charges are addressed to employer conduct.”

Congress needs to pass a joint resolution of disapproval under the Congressional Review Act to send a message to Obama to stop ignoring the Constitution, bypassing the Constitution, to stop abusing his power and reverse his appointments.  

Supreme Court Justice Elena Kagan More Involved in Defense of Obamacare Then She Let On

Here are some emails that were discovered by Judicial Watch which show evidence of Elena Kagan's involvement in the defense of Obamacare. 

From Judicial Watch: According to a January 8, 2010, email from Neal Katyal, former Deputy Solicitor General (and current Acting Solicitor General) to Brian Hauck, Senior Counsel to Associate Attorney General Thomas Perrelli, Kagan was involved in the strategy to defend Obamacare from the very beginning:

Subject: Re: Health Care Defense:

Brian, Elena would definitely like OSG [Office of Solicitor General] to be involved in this set of issues…we will bring in Elena as needed. [The “set of issues” refers to another email calling for assembling a group to figure out “how to defend against the…health care proposals that are pending.”]

On March 21, 2010, Katyal urged Kagan to attend a health care litigation meeting that was evidently organized by the Obama White House: “This is the first I’ve heard of this. I think you should go, no? I will, regardless, but feel like this is litigation of singular importance.”

In another email exchange that took place on January 8, 2010, Katyal’s Department of Justice colleague Brian Hauck asked Katyal about putting together a group to discuss challenges to Obamacare. “Could you figure out the right person or people for that?” Hauck asked. “Absolutely right on. Let’s crush them,” Katyal responded. “I’ll speak with Elena and designate someone.”

However, following the May 10, 2010, announcement that President Obama would nominate Kagan to the U.S. Supreme Court, Katyal position changed significantly as he began to suggest that Kagan had been “walled off” from Obamacare discussions.

For example, the documents included the following May 17, 2010, exchange between Kagan, Katyal and Tracy Schmaler, a DOJ spokesperson:

Shmaler to Katyal, Subject HCR [Health Care Reform] litigation: “Has Elena been involved in any of that to the extent SG ]Solicitor General’s] office was consulted?...

Katyal to Schmaler: “No she has never been involved in any of it. I’ve run it for the office, and have never discussed the issues with her one bit.”

Katyal (forwarded to Kagan): “This is what I told Tracy about Health Care.”

Kagan to Schmaler: “This needs to be coordinated. Tracy you should not say anything about this before talking to me.”

Included among the documents is a Vaughn index, a privilege log which describes records that are being withheld in whole or in part by the Justice Department. The index provides further evidence of Kagan’s involvement in Obamacare-related discussions.

For example, Kagan was included in an email chain (March 17–18, 2010) in which the following subject was discussed: “on what categories of legal arguments may arise and should be prepared in the anticipated lawsuit.” The subject of the email was “Health Care.” Another email chain on March 21, 2010, entitled “Health care litigation meeting,” references an “internal government meeting regarding the expected litigation.” Kagan is both author and recipient in the chain.

The index also references a series of email exchanges on May 17, 2010, between Kagan and Obama White House lawyers and staff regarding Kagan’s “draft answer” to potential questions about recusal during the Supreme Court confirmation process. The White House officials involved include: Susan Davies, Associate White House Counsel; Daniel Meltzer, then-Principal Deputy White House Counsel; Cynthia Hogan, Counsel to the Vice President; and Ronald Klain, then-Chief of Staff for Vice President Biden. The DOJ is refusing to produce this draft answer.

The Vaughn index also describes a March 24, 2010, email exchange between Associate Attorney General Beth Brinkmann and Michael Dreeben, Kagan’s Deputy Solicitor General, with the subject header, “Health Care Challenges:” “…I had a national conference call with the Civil Chiefs. A memo also went out the day before. I am forwarding right after this. Let’s discuss if you have more ideas about what to do.”

As reported by CNS News:

In the questionnaire she filled out for the Senate Judiciary Committee during her confirmation process, Kagan said she would abide by the “letter and spirit” of 28 U.S.C. 455 in deciding whether she felt compelled to recuse herself as a Supreme Court Justice from any case that came before the High Court.

According to the law, a ‘justice … shall disqualify himself in any proceeding in which his impartiality might be reasonably questioned.’ It further says any justice ‘shall also disqualify himself … [w]here he has served in governmental employment and in such capacity participated as counsel, adviser or material witness concerning the proceedings or expressed an opinion concerning the merits of the particular case in controversy.’

“Any reasonable person would read these documents and come to the same conclusion: Elena Kagan helped coordinate the Obama administration’s defense of Obamacare. And as long as the Justice Department continues to withhold key documents, the American people won’t know for sure whether her involvement would warrant her recusal from any Obamacare litigation that comes before the High Court,” said Judicial Watch President Tom Fitton.

There is a definite connection between Supreme Court Justice Elena Kagan and her playing at least a minor role in the White House's defense of the health care law.  In my opinion she needs to recuse herself from all cases which challenge Obamacare's constitutionality. 

Howard Dean Admits Obamacare will Wreck Insurance, Doesn’t “Care” If It’s Unconstitutional

H/T Expose Obama