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Court: Obama’s NLRB appointments are unconstitutional

Associated Press

WASHINGTON (AP) — President Barack Obama violated the Constitution when he bypassed the Senate to fill vacancies on a labor relations panel, a federal appeals court panel ruled Friday.

A three-judge panel of the U.S. Court of Appeals for the D.C. Circuit said that Obama did not have the power to make three recess appointments last year to the National Labor Relations Board.

The unanimous decision is an embarrassing setback for the president, who made the appointments after Senate Republicans spent months blocking his choices for an agency they contended was biased in favor of unions.

The ruling also throws into question Obama’s recess appointment of Richard Cordray to head the Consumer Financial Protection Bureau. Cordray’s appointment, also made under the recess circumstance, has been challenged in a separate case.

Obama claims he acted properly in the case of the NLRB appointments because the Senate was away for the holidays on a 20-day recess. But the three-judge panel ruled that the Senate technically stayed in session when it was gaveled in and out every few days for so-called “pro forma” sessions.

GOP lawmakers used the tactic — as Democrats have in the past as well — to specifically to prevent the president from using his recess power. GOP lawmakers contend the labor board has been too pro-union in its decisions. They had also vigorously opposed the nomination of Cordray.

The Obama administration is expected to appeal the decision to the U.S. Supreme Court, but if it stands, it means hundreds of decisions issued by the board over more than a year are invalid. It also would leave the five-member labor board with just one validly appointed member, effectively shutting it down. The board is allowed to issue decisions only when it has at least three sitting members.

On Jan. 4, 2012, Obama appointed Deputy Labor Secretary Sharon Block, union lawyer Richard Griffin and NLRB counsel Terence Flynn to fill vacancies on the NLRB, giving it a full contingent for the first time in more than a year. Block and Griffin are Democrats, while Flynn is a Republican. Flynn stepped down from the board last year.

Obama also appointed Cordray on the same day.

The court’s decision is a victory for Republicans and business groups that have been attacking the labor board for issuing a series of decisions and rules that make it easier for the nation’s labor unions to organize new members.


  1. John E Foddrill sr

    Meeks Cronies Probed in Aqueduct Bid Rigging Scheme

    Submitted by Ken Boehm on Tue, 01/08/2013 – 13:39

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    The New York Post reports today that federal prosecutors are investigating close associates of Rep. Gregory Meeks (D-NY) as part of probe into a possible casino bid-rigging scheme at Aqueduct Racetrack. According to the Post:

    Investigators are asking questions about the roles of then-Senate Democratic leaders John Sampson and Malcolm Smith and others who were accused of helping the Aqueduct Entertainment Group (AEG) land a multibillion-dollar casino contract three years ago, sources said.

    The AEG bid became controversial after NLPC exposed several individuals involved with the bid, including Malcolm Smith, as also being involved with a charity called New Direction Local Development Corporation. New Direction appeared to operate as a slush fund for Meeks and his friends. It also raised money for Hurricane Katrina victims who never received the aid.

    In 2010, then-New York Governor David Paterson granted a lucrative gambling franchise to AEG, touching off a firestorm against the backdrop of the New Direction headlines. Fuel was added to the fire when Paterson met with former Rep. Floyd Flake, a purported AEG “investor,” to discuss his support for Paterson’s re-election campaign. According to the Post:

    “Floyd Flake is extremely valuable to AEG because of his political clout in both Queens and New York state,” said Ken Boehm, chairman of National Legal and Policy Center, a government watchdog group. “Now he appears to be dangling his support for the governor until AEG’s bid is fully approved.”

    Flake’s protégés include Meeks and state Senator Malcolm Smith. Smith’s former partner, a contractor name Darryl Greene, was also involved in the AEG bid. Greene is a convicted felon who embezzled $500,000 from New York City. His wife was a founding director of New Direction.

    Flake, a Protestant minister, makes over a $1 million per year between himself and his wife from his church and “charitable” work. Darryl Green, who was disbarred during the nineties, is affiliated with companies that owed New York state almost $1 million in back taxes. Greene and his wife also personally owed New York state $10,681 in back taxes at the time, according to the Post.

    At the time, Meeks charged that racism was behind the scrutiny of Flake and Greene. Meeks alleged that Greene’s critics were “trying to prevent a person of color from trying to be part of the process.”

    The controversy was damaging to Paterson who dropped his re-election bid. It also led the state to rescind the AEG franchise, and to launch an investigation into how it was awarded.

    Last week, the Post reported that Sampson was under federal investigation as part of a broader probe of Meeks, including the relationship of these two politicians with Edul Ahmad, a Guyanese-American businessman who has pled guilty in a multimillion-dollar mortgage fraud scheme.

  2. John E Foddrill sr

    Obama campaign co-chairman / Mayor Julian Castro, City Attorney Michael Bernard ( brother of White House Social Secretary Jeremy Bernard) and other city “leaders” follow in Obama’s footsteps………….. “It’s déjà vu all over again”- Yogi Berra

    Texas Public Radio / KSTX reports that San Antonio TX city “leaders” are at the center of a federal civil rights lawsuit being filed by the Texas Civil Rights Project of Austin TX.

    A second lawsuit – SA13CV0051XR- was filed on 1/17/2013 naming City defendants (Mayor Castro, CM Sculley, City Attorney Bernard, Council members (past and present), Chief McManus, etc) in their official AND individual capacities for Constitutional violations including the act of banning a law –abiding citizen from City Hall/Council meetings for reporting long-term, widespread public /police corruption, bond fraud, accounting fraud and the theft/misuse of tens of millions of tax/grant dollars.

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