Court strikes down 'Recess Appointment' scheme by Obama

Editor’s Note – As SUA, along with a large amount of other internet sites have been reporting, this Administration has been routinely circumventing the Constitution in so many ways. From Executive Orders, to Signing Statements, selective enforcement of the law, illicit self-proclaimed ‘recess appointments’, and ramming legislation by employing nefarious methods in the Senate and House, the Obama team has constantly run rampant over the will of the people. There hasn’t even been a budget in four years.

Now, finally, the courts have weighed in and declared unanimously that at least one of these end-runs was in fact unconstitutional. Early responses from the administration indicate they are willing to fight all the way to the Supreme Court. This is a legal move of course, but it just goes to show the arrogance of this administration. They lost one, very badly, unanimously,  yet they are going to spend all that time and effort to continue the fight. Why, because they don’t care how they get their way, they will say and do anything.

Unfortunately, the most egregious transgression, PPACA, or ObamaCare was declared ‘valid’ by SCOTUS. A fight not yet over we hope.

This will not be the last loss this administration will endure however as more cases move forward, but the damage has already been done – people and businesses have lost greatly. How do they get their value and names back from the abyss created by appointing people to posts who made gross errors in decisions regarding labor and business?

In its individual circumstance it may seem trivial, but in totality, all these end-runs have amassed a great deal of harm to the people. It is likely getting very busy at Boeing’s law offices now – a likely law suit could cost the tax payers a great deal, so its a double whammy – all from an illegal move through ideologically driven chicanery as practiced by the most anti-constitutional characters ever.

Get ready folks, more is sure to come.

Obama recess appointments unconstitutional, court

By Stephen Dinan – The Washington Times

In a case freighted with major constitutional implications, a federal appeals court on Friday overturned President Obama’s controversial recess appointments from last year, ruling he abused his powers and acted when the Senate was not actually in a recess.

The three-judge panel’s ruling is a major blow to Mr. Obama. The judges ruled that the appointments Mr. Obama made to the National Labor Relations Board are illegal, and the board no longer has a quorum to operate.

But the ruling has even broader constitutional significance, with the judges arguing that the president’s recess appointment powers don’t apply to “intrasession” appointments — those made when Congress has left town for a few days or weeks.

The judges signaled the power only applies after Congress has adjourned sine die, which is a legislative term of art that signals the end to a long work period. In modern times, it means the president could only use his powers when Congress quits business at the end of a year.

“The dearth of intrasession appointments in the years and decades following the ratification of the Constitution speaks far more impressively than the history of recent presidential exercise of a supposed power to make such appointments,” the judges wrote.

“Recent presidents are doing no more than interpreting the Constitution. While we recognize that all branches of government must of necessity exercise their understanding of the Constitution in order to perform their duties faithfully thereto, ultimately it is our role to discern the authoritative meaning of the supreme law.”

The case is likely to end up before the Supreme Court, and it turns on the definition of what the Constitution means when it says “recess.”

Last January Mr. Obama named union lawyer Richard Griffin and Labor Department official Sharon Block, both Democrats, and a Republican, NLRB lawyer Terence Flynn, to the labor board using his recess powers. He also named Richard Cordray to head the new Consumer Financial Protection Bureau, using those same powers.

Noel Canning, a bottling company, sued the NLRB, arguing that a rule issued by the new board was illegal since the recess appointments were unconstitutional. Senate Republicans, led by Minority Leader Mitch McConnell, joined in the suit.

The appeals court panel, which sits in Washington, D.C., was skeptical of Mr. Obama’s case during oral argument in early December, with Chief Judge David B. Sentelle and Judge Thomas B. Griffith peppering the administration lawyers with questions.

The Constitution gives the president the power to nominate judges and executive branch officials, but the Senate must vote to confirm them before they take office. Article II, Section 2 of the Constitution grants the president powers “to fill up all vacancies that may happen during the recess of the Senate.”

Those powers have produced centuries of give-and-take, with senators regularly slow-walking nominees and the White House looking for ways to get its way — including the recess appointment.

Mr. Obama’s move, though, appeared to break new ground by acting at a time when the Senate was meeting every third day, specifically to deny him the chance to make appointments.

The problem is the word “recess” has several meanings in legislative-speak. It can mean a short break during the day, it can mean a break of days or weeks for a holiday, or it can mean the end of a yearly session.

The president argued that even though the Senate was convening every three days, the pro forma sessions didn’t allow any business, and nearly every senator was absent from the chamber, signaling that the Senate wasn’t able to perform its confirmation duties and should be considered essentially in recess.

His opponents had warned that if Mr. Obama’s stance prevailed, then presidents could make appointments when the Senate takes its recess for weekly party caucus lunches.

The judges on Friday ruled that the only clear bright line is when the Senate recesses at the end of the year.

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Executive Order coming – Cyber Security

Editor’s Note – The Obama administration is now famous for ‘end-runs’ around Congress – here is yet another attempt.

When Obama cannot get legislation passed, he blames the Republicans as the party of “No”, and then signs a piece of paper that effectively enacts it anyway.

There is a good reason the founders ensured a balance of powers through a checks and balances system, but over the decades that has been worn down to a mere shadow of its former self.

Once again, its about securing more power in a single branch – at some point, this must be legislated away in the future, or countermanded by another stroke of the pen by a successor to Obama. Feeling that liberty glow?

White House draft cyber order promotes voluntary critical infrastructure protections

By Federal News Radio

The White House so far has failed to get a bill passed by both houses of Congress to improve the cybersecurity of the nation’s critical infrastructure, so they want to take an alternative approach.

The administration has created a draft executive order detailing how, within its authority, it would improve the information assurance of the nation’s critical infrastructure, such as the power grid and financial industries.

The draft EO includes eight sections, including the requirement to develop a way for industry to submit threat and vulnerability data to the government.

The draft EO, which Federal News Radio viewed a draft copy of, closely follows the second version of comprehensive cyber legislation introduced by Sens. Joseph Lieberman (I-Conn.) and Susan Collins (R-Maine) in July.

The draft order gives agencies several deadlines to meet, either by writing reports or creating and implementing frameworks.

For instance, 90 days after the EO is signed by President Barack Obama, the cybersecurity council — led by the Homeland Security Department secretary — must develop a report to determine which agencies should regulate which parts of the critical infrastructure. The creation of the council is in section 2 of the draft EO.

Under earlier cyber bills, DHS would take the lead in regulation and that concerned some lawmakers and experts. It was a major sticking point in moving forward with a vote on a comprehensive bill.

“An executive order is one of a number of measures we’re considering as we look to implement the President’s direction to do absolutely everything we can to better protect our nation against today’s cyberthreats,” said a National Security Council spokeswoman in an email statement. “We are not going to comment on ongoing internal deliberations.”

Voluntary guidelines

Sources say the White House held a call with federal cyber leaders last week to discuss the draft order.

Section 8 of the draft order, which has five subsections, includes the most significant changes to how the government wants to oversee critical infrastructure.

One subsection would ask industry to voluntarily submit cyber threat information to the government. The draft order says this data wouldn’t be used for regulatory purposes or used against companies. Sources say there aren’t any liability protections in the EO because that could only come from Congress.

A second subsection would require DHS to undertake privacy assessments of the data they collect around critical infrastructure.

A third subsection limits what critical infrastructure is included under the draft EO, and makes clear that First Amendment protections will apply to how the government identifies critical infrastructure.

A fourth subsection would address acquisition and the preferences for products and services that meet the cyber standards developed by the DHS-led council.

The final subsection would call for a report within 120 days discussing possible incentives such as liability protection, expedited security clearances and recognition by the government that the critical-infrastructure owner and operator meet the voluntary standards.

Sources say this subsection also is very similar to the Lieberman-Collins cyber bill.

Another part of the EO, Section 4, requires the DHS-led council to develop a framework to remediate and mitigate risks for critical infrastructure. A draft roadmap would be due in 90 days and then be sent out for public comment in 180 days.

Sources say the order doesn’t advocate for any specific technology or approach to remediating or mitigating risks, and is not “ordering” industry to take specific steps.

Section 3 would require DHS to identify the critical infrastructure owners and operators that the government would ask to voluntarily participate in the framework. In 60 days, DHS would have to submit a report to the President detailing the critical infrastructure that if attacked would threaten the lives of citizens or the national security of the country.

Sources say DHS already has identified these owners and operators.

Does not address FISMA

The next part, Section 5, would require the council to create a voluntary critical-infrastructure program to promote adoption of the framework. It would address incentives such as telling the public who conforms to the framework and who doesn’t. Sources say it doesn’t advocate for rewards or more tangible incentives such as liability protection like the Lieberman-Collins bill does.

Section 7 is the only part of the EO that would specifically address federal agency networks.

It calls for DHS to identify critical infrastructure owned and operated by federal agencies and to assist the agencies in identifying and mitigating risks.

Sources say this too is very similar to the Lieberman-Collins bill.

The draft EO doesn’t include any of the ideas in the bill to reform the Federal Information Security Management Act (FISMA) or any of the cyber workforce and training provisions.

Sections 9 and 10 are definitions and general provisions, basic administrative parts of the draft EO.

Sources say few if any lawmakers or their staffs have seen the draft EO, and there still is minimal hope the Senate can pass a version of the comprehensive cyber bill by the end of the December.

In a statement provided to Federal News Radio, Sen. Susan Collins (R-Maine), the co-author of the Senate bill, said she understands the Obama administration’s “desire to act” but said an executive order shouldn’t be a substitute for congressional action.

“I am deeply disappointed that the Senate failed to pass our bipartisan bill before the August recess, but it remains imperative that this Congress address this issue,” Collins said. “An executive order could send the unintended signal that congressional action is not urgently needed.”

Others in the federal community already are coming out against a cyber executive order.

“The President should resist the temptation to ladle on a new regulatory bureaucracy (or bureaucracies) simply to satisfy the need to ‘do something,'” wrote Steve Bucci of the Heritage Foundation in a blog post. “If it is not done right, it will do damage. Let the debate continue until it is done right, Mr. President. It’s called the democratic process, and it invariably provides the best answers, even if it takes awhile.”