Durk Pearson & Sandy Shaw’s®
Life Extension NewsTM
Volume 16 No. 3 • March 2013

People only accept change in necessity

and see necessity only in crisis.
— Jean Monnet


Appeals Court Rules That NLRB Did Not Have Quorum in Recent Case and Had No Authority to Issue Order



A very recent decision by a three-judge panel of the Court of Appeals for the DC District (Jan. 25, 2013) found that an order of the NLRB (Nat’l Labor Relations Board) was void because the Board did not have a quorum. This may sound like a minor matter, but in fact was a very important ruling on how Presidents can avoid getting the advice and consent of the Senate when making appointments by using a Constitutional alternative called Recess Appointments. The painstakingly argued decision of the Court revolved around whether the appointment of three new NLRB Board members conformed to Constitutional requirements for Recess appointments and, hence, did not need to get Senate approval. The Court ruled that these appointments were unconstitutional for convincing reasons we describe below and, hence, the NLRB order that was the proximate reason for the lawsuit was void. The NLRB was ruled not to have a quorum and, hence, had no authority to issue an order.

As you ought to know by now if you have been paying attention, Constitutional limits on government powers have been failing to limit government actions and much of the blame is the failure of courts to enforce these limits. The Constitutional design for the “checks and balances” to prevent usurpation by one branch of the powers delegated by the Constitution to another branch is in its provisions establishing the separation of powers. The requirement that Presidents get the advice and consent of the Senate to make appointments (to high level policymakers at regulatory agencies and cabinet secretaries, for example) is one of these checks and balances. The Constitution does provide for when the Senate is out of session (“The Recess”) and, hence, cannot provide advice and consent, that an appointment can be made unilaterally by the President.

The requirements for making these Recess appointments are spelled out in the Constitution. The Judges followed the Constitutional wording in great detail to show that the recent appointment of three members of the NLRB Board were not made between sessions of the Senate but within a session that was in a short break in Senate business during that session. The Constitutional language as cited in the court decision is very clear on this matter. As the court noted, “[t]he Framers emphasized that the recess appointment served only as a stopgap for times when the Senate was unable to provide advice and consent.” The court further explained that when the Constitution was written, senators did not have the luxury of catching the next flight to Washington so as to be available for considering appointments. Hence, “the Framers established the ‘auxiliary’ method of recess appointments. But they put strict limits on this method, requiring that the relevant vacancies happen during ‘The Recess.’”

The court continued, “[i]t would have made little sense to extend this ‘auxiliary’ method to any intrasession break, for the ‘auxiliary’ ability to make recess appointments could easily swallow the ‘general’ route of advice and consent. The President could simply wait until the Senate took an intrasession break to make appointments, and thus ‘advice and consent’ would hardly restrain his appointment choices at all.” Moreover, the court noted, in the case of Freytag v. Commissioner of Internal Revenue (501 U.S. 868, 883 (1991)), the court had explained that “[t]he manipulation of official appointments had long been one of the American revolutionary generation’s greatest grievances against executive power, because the power of appointment to offices was deemed the most insidious and powerful weapon of eighteenth century despotism.”

In arguing against an attorney general’s support for the use of a vague definition for the length of time required to be necessary for a “Recess” in an earlier case, the court noted that the Supreme Court has observed, “when interpreting ‘major features’ of the Constitution’s separation of powers, we must ‘establish[] high walls and clear distinctions because low walls and vague distinctions will not be judicially defensible in the heat of interbranch conflict.”

A final argument (we haven’t discussed them all) for a possible interpretation of “The Recess” as advocated by the government’s Office of Legal Counsel in this case, is that the President should have discretion to determine that the Senate is in recess. To which the court replied in part, “This will not do. Allowing the President to define the scope of his own appointments power would eviscerate the Constitution’s separation of powers.” We keep wondering when Chevron deference whereby courts simply accept without investigation the findings of regulatory agencies on the basis of their supposed superior technical knowledge, will be thrown out on the basis that there is no Constitutional authorization for freedom from court review of purported facts when you are accused of crimes and may be subject to a prison sentence. Deference is just another word for lazy. Courts don’t have to bother protecting the public from the lies of regulatory agencies if they just “defer.” But, back to the decision:

And finally the court concludes as to whether the Board had a quorum: “Because the Board lacked a quorum of three members when it issued its decision in this case on February 8, 2012, its decision must be vacated.” Most importantly, the court resets the standard for Presidential appointments back to the Constitutional one.

The decision was 46 pages long and argued very convincingly, in our view, in great detail with extensive consideration of the Constitutional language. It is about time some of the limits on Federal power are enforced.


The NLRB requested an en banc hearing before the entire DC Circuit Court of Appeals and was turned down.

The NLRB has issued a statement concerning the above decision (see The Wall Street Journal editorial section, Jan. 29, 2013) that is consistent with the criminality running amok in the current Administration. The Board has declared, the WSJ reports, that “it doesn’t like the D.C. Circuit Court of Appeals Friday ruling that three board members were illegally appointed so it plans to ignore it.” (this is how their response is described by the Journal) The Board’s Chairman Mark Pearce is quoted as saying: The Board respectfully disagrees with today’s decision and believes that the President’s position in the matter will ultimately be upheld.” Moreover, he notes, “It should be noted that this order applies to only one specific case, Noel Canning, and that similar questions have been raised in more than a dozen cases pending in other courts of appeals. “In the meantime, the Board has important work to do. The parties who come to us seek and expect careful consideration and resolution of their cases, and for that reason, we will continue to perform our statutory duties and issue decisions.” Clearly, the NLRB plans to continue doing business as usual, as if nothing had happened, as if the Constitution doesn’t apply to them.* In fact, there are some 200 rulings issued by the NLRB, according to the WSJ, that took place during this period in which there was no quorum and, hence, no authority to issue orders. How can anybody still believe that we have a rule of law in this country? Or is the Administration counting on a lot of people who don’t give a damn as long as they get their government handout? This is a scary situation, folks.

* One of the lawyers that represented the FDA in the landmark case of Pearson v. Shalala was actually heard to say that he didn’t think the First Amendment applied to the FDA!

We applaud Tina Turner, thirty-year resident of Switzerland (but forced to continue paying U.S. income taxes despite that) for her courageous action in giving up her American citizenship. The Land of the Free and the Home of the Brave is one of the very few countries that continues to tax citizens that live and work outside of their borders. In fact, many countries have extradiction treaties so that the IRS can have you forcibly returned to the U.S. and imprisoned if you don’t keep paying despite not living in the U.S.

The opinions expressed in the editorial sections of this newsletter are those of Durk Pearson and Sandy Shaw and do not necessarily represent the views of Life Enhancement Products, its owners, officers, and its employees.

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