President Obama has shown increasing contempt for the constitutional limits on his power, and the courts are finally awakening to the news. A unanimous panel of the D.C. Circuit Court of Appeals ruled on Friday that the President's non-recess recess appointments are illegal and an abuse of executive power.
On January 4, 2012, Mr. Obama bypassed the Senate's advice and consent power by naming three new members of the National Labor Relations Board and appointing Richard Cordray to run the Consumer Financial Protection Bureau. Other Presidents have made recess appointments and we've supported that executive authority.
But here's the Obama kicker: He consciously made those "recess" appointments when the Senate wasn't in recess but was conducting pro-forma sessions precisely so Mr. Obama couldn't make a recess appointment. No President to our knowledge had ever tried that one, no doubt because it means the executive can decide on his own when a co-equal branch of government is in session.
In Noel Canning v. NLRB, a Washington state Pepsi bottler challenged a board decision on grounds that the recess appointments were invalid and that the NLRB thus lacked the three-member quorum required to conduct business. The D.C. Circuit agreed, while whistling a 98 mile-per-hour, chin-high fastball past the White House about the separation of powers.
In the 46-page opinion, the three-judge panel said that "not only logic and language, but also constitutional history" reject the President's afflatus. The Federalist Papers refer to recess appointments expiring at the end of the following session of Congress, the court explained, so it stands to reason that recess appointments were intended to be made only when the Senate is in a recess between sessions, not any time the Senators step out of the Capitol.
"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," wrote Chief Judge David Sentelle for the court, "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."
Judge Sentelle added, in a clear warning to the lawyers who let Mr. Obama walk out on this limb, that "Allowing the President to define the scope of his own appointments power would eviscerate the Constitution's separation of powers."
In a particular surprise, two of the three judges also ruled that recess appointments are only allowed to fill vacancies that arise during the time the Senate is in actual recess. This has not been the recent practice, and it means that Presidents could not wait, say, until a recess in December to appoint a controversial replacement for a Secretary of State who resigned in October.
The court nonetheless makes a plausible case based on the text of the Constitution, government practice in the decades after ratification and legal precedent. Mr. Obama's imperial overreach has invited the courts to re-examine the Constitution's Appointments Clause and tilt the balance of power back toward the Senate.
Meantime, the ruling potentially invalidates dozens of NLRB decisions since the illegal recess appointments were made. A similar mess occurred in 2010 when the Supreme Court ruled in New Process Steel v. NLRB that some 600 decisions made by the NLRB without a three-member quorum were invalid.
The decision also means that Mr. Cordray has no authority to run the consumer financial bureau, which has been busy issuing thousands of pages of regulations since he was illegally imposed in the job. Mr. Obama re-nominated Mr. Cordray this week, which is an insult to the Senate and after this ruling to the Constitution too.
One question is whether Mr. Cordray can legally keep accepting his paycheck. Especially as a former Attorney General in Ohio, he ought to resign for having agreed to play along as a constitutional usurper.
White House spokesman Jay Carney criticized the unanimous decision Friday, which is consistent with the President's sense of constitutional entitlement. Mr. Obama decided last year he could selectively enforce the immigration laws, exempting certain young people even if Congress hadn't passed the Dream Act. We support the Dream Act but not his unilateral way of imposing it.
Mr. Obama has also signaled his intention to govern as much as possible by stretching the legal bounds of regulation and executive orders. The D.C. Circuit ruling is thus a particularly timely warning that while Mr. Obama was re-elected, has most of the press in his pocket and is popular with 52% of the public, he's subject to the rule of law like everybody else.
A version of this article appeared January 26, 2013, on page A14 in the U.S. edition of The Wall Street Journal, with the headline: Obama's Abuse of Power.
The gun carrying Feinstein introduced on Thursday introduced long-promised legislation aimed at controlling assault weapons and high-capacity ammunition magazines. As critics note, “assault weapon” is a category of firearm that’s difficult to define. Millions of assault weapons and high-capacity magazines are already in the hands of private citizens. So how would Senator Feinstein’s on Thursday introduced long-promised legislation aimed at controlling assault weapons and high-capacity ammunition magazines. As critics note, “assault weapon” is a category of firearm that’s difficult to define. Millions of assault weapons and high-capacity magazines are already in the hands of private citizens. So how would Senator Feinstein’s new restrictions work.
First, a general definition: assault weapons are small-caliber, high-powered rifles, pistols, or shotguns that are styled to appear as if they belong in a military or law enforcement arsenal. They are semiautomatic, meaning that each pull of the trigger fires one bullet and then chambers the next round.
True military rifles, such as the M16A2, are automatic, capable of firing multiple bullets with one pull of the trigger. But civilian ownership of automatic weapons has been tightly controlled in the US since the 1930s.
Feinstein’s bill is not a flat ban on assault-weapon ownership. Instead, it would ban the manufacture, sale, transfer, or importation of new assault weapons, as well as all ammunition feeding devices capable of holding more than 10 rounds. The legislation grandfathers in existing weapons and high-capacity magazines in private hands as legal.
The legislation bans more than 150 firearms by name. According to the bill, these include all AR-15 types, which are civilian derivatives of the military M-16; all AK-47 types, which are derivatives of the famous Soviet assault rifle of the same name; and MAC weapons, Thompson weapons, and Uzis, among others.
Beyond that, the legislation would restrict weapons according to their characteristics. Falling into this category would be semiautomatic rifles that can accept a detachable magazine, and have at least one military-style feature from this list: pistol grip; forward grip, folding, telescoping, or detachable stock; grenade launcher or rocket launcher; barrel shroud; or threaded barrel.
Pistols and shotguns with similar features would also be covered by the legislation’s restrictions.
These restrictions are somewhat tougher than those contained in the assault weapons ban that was the law of the land from 1994 to 2004. Under that law, a weapon had to have two of the military style features, instead of one, to be categorized as an “assault” weapon. The new bill would also ban some of the stylistic workarounds that manufacturers used to get around the previous legislation, such as thumbhole stocks, which mimic a pistol grip.
One criticism of the ’94 law was that it was ... too easy work around. Manufacturers would simply remove one of the characteristics, and the firearm was legal. The bill we are introducing today will make it much more difficult to work around,” said Feinstein at a Thursday press conference.
However, in some ways, the bill is most different than the old not for the way it categorizes new assault weapons, but for the manner in which it treats existing assault weapons and magazines in private hands.
If a current assault weapon owner wishes to sell or otherwise transfer the firearm, for instance, the new bill requires that the transferee undergo a background check carried out either by the FBI or a state-level agency. It is difficult to see how the federal government could enforce this provision without a registry of existing assault weapons – something gun-rights groups vehemently oppose as government intrusion on Second Amendment rights.
As for existing high-capacity ammunition feeding devices, the bill would prohibit their further sale or transfer, according to Feinstein’s summary of the legislation. That means they would remain lawful to own for those who already have them, but not to get rid of, except to destroy.
The bill would establish a safe storage requirement for grandfathered assault rifles. Feinstein has yet to specify exactly what this would entail, though in the past she has talked about wanting to require trigger locks for such weapons.
Finally, the new legislation would also allow states and localities to use certain federal funds to hold voluntary buy-back programs for grandfathered assault weapons and high-capacity magazines.
Gun owner groups said they would oppose all aspects of the proposed reinstatement of assault weapon and high-capacity magazine restrictions.
“Senator Feinstein has been trying to ban guns from law-abiding citizens for decades,” said the National Rifle Association in a statement.
Where is Al Capone when you really need him.
What we really don't need is government officials with guns there dangerous enough with the tax laws. This is all based on three or four occurrences. Look at how many vehicular homicides there were last year.
Better buy a couple of cars and hang onto them because those are next.