Noel Canning v. NLRB: DC Circuit Court of Appeals Rules President Obama’s Recess Appointments were Invalid

On Friday, January 25, 2013, the U.S. Court of Appeals, District of Columbia Circuit, ruled that  President Obama’s “recess appointments” of three National Labor Relations Board (NLRB) members was unconstitutional.  At issue was whether the President illegally invoked the Recess Appointments clause of Article II, Section 2 of the U.S. Constitution when he filled three existing vacancies on the NLRB during pro forma sessions of Congress (President Obama had maintained that Congress was actually not in session).  Attorneys for Noel Canning argued that, since the recess appointments were illegal, the NLRB lacked a quorum when it ruled that the company violated various provisions of the National Labor Relations Act, and, therefore, the NLRB ruling was invalid and unenforceable. A three-member panel consisting of Chief Judge David Santelle, and Circuit Judges Thomas Griffith and Karen Henderson concurred.

For additional analysis, read this alert.

Read more »

David Rivkin on Gun Control and the Second Amendment

The following is a transcript of David Rivkin’s appearance on the BBC Newshour radio broadcast on December 17, 2012.  The show was a direct response to the shootings at Sandy Hook Elementary School in Newtown, CT.

Host: David Rivkin joined us from the Washington studio and on the line from San Francisco I also spoke to Clara Jeffrey who is coeditor of Mother Jones a left leaning investigations magazine, does she think that this is a turning point?

Clara Jeffery: I think it could be, I think this has outraged the country. It’s one of many mass shootings this year.  The numbers keep getting worse and worse. We’ve had twice as many casualties as in any year past and I think it will behoove ordinary people to organize and responsible gun owners to step forward and say that they too support reasonable restrictions.  We need to put the wind behind politicians to make the change.

Read more »

The courts would no more allow government to undermine the Second Amendment than the First.

By David B. Rivkin Jr. and Andrew M. Grossman

Could there be a better illustration of the cultural divide over firearms than the White House photograph of our skeet-shooting president? Clay pigeons are launched into the air, but the president’s smoking shotgun is level with the ground. This is not a man who is comfortable around guns. And that goes a long way toward explaining his gun-control agenda.

Lack of informed presidential leadership aside, there is a gulf between those Americans who view guns as invaluable tools for self-defense, both against private wrongdoers and a potentially tyrannical government, and those who regard that concept as hopelessly archaic and even subversive. For them, hunting is the only possible legitimate use of firearms, and gun ownership should be restricted to weapons suited to that purpose.

Read more »

The Constitution commands that public debts be repaid. There is no such obligation to fund entitlement programs.

By David B. Rivkin Jr. and Lee A. Casey

Three false arguments, pushed hard by the Obama administration and accepted on faith by the media and much of the political establishment, must be laid to rest if the American people are to understand the issues at stake in the federal “debt ceiling” debate.

The first is that Congress’s failure to raise the debt ceiling—the amount of money the federal government is authorized to borrow at any given time—will cause a default on the national debt. The second is that federal entitlement programs are constitutionally protected from spending cuts. The third is that the president can raise the debt ceiling on his own authority.

Read more »

By defining the mandate as a tax, one that will not be uniformly applied, the Supreme Court ran afoul of the Constitution.

By David B. Rivkin Jr. and Lee A. Casey

ObamaCare is being implemented, having been upheld as constitutional by the Supreme Court in June in a series of cases now known as National Federation of Independent Business v. HHS. It is becoming increasingly clear, however, that the court took a law that was flawed but potentially workable and transformed it into one that is almost certainly unworkable. More important, the justices also may have created new and fatal constitutional problems.

ObamaCare, or the Affordable Care Act, was conceived as a complex statutory scheme designed to provide Americans with near-universal health-care coverage and to effectively federalize the nation’s health-care system. The law’s core provision was an individual health-insurance purchase mandate, adopted by Congress as a “regulation” of interstate commerce. The provision required most Americans to buy federally determined minimum health-care insurance, or to pay a penalty more or less equivalent to the cost of that coverage.

Read more »

Democrats regard federalism as quaint, Republicans at least pay lip service to it

By David B. Rivkin Jr. and Elizabeth Price Foley

In the presidential debates, Barack Obama and Mitt Romney ranged across dozens of topics, but an important one didn’t come up: federalism. And no wonder.

The idea that the Constitution grants only limited and enumerated powers and leaves the remainder to the states is foreign to those who believe that the national government should or even could address voters’ every concern. But contrary to the view widely shared by the political class, Washington—in particular, Congress—does not have the power to pass any law it wants in the name of the “general welfare.”

Politicians should take heed. Voters are increasingly focused on the proper role of government in society: Witness the rise of the tea party and unease over the massive debt caused by entitlements and other government handouts. The continuing loud objection to ObamaCare’s takeover of health care shows that voters want to preserve the Constitution’s architecture of limited federal power.

Read more »