THE BLOG
01/26/2013 10:28 pm ET Updated Mar 28, 2013

Conservative D.C. Court Throws the Country Into Chaos on a Technicality

On Friday a Federal Appeals Court in Washington, D.C. showed just how far, and recklessly, conservatives are willing to go to get what they want, and hang the impact on the nation.

The court ruled that four recess appointments made last January by President Obama were unconstitutional and must be rescinded. Three of the appointments were to the National Labor Relations Board (NLRB), and one appointed Richard Cordray as head to the Consumer Financial Protection Bureau. The case arose over a ruling the NLRB made about the labor practices of one company.

Unsurprisingly, the ruling is already being used to attack the Administration as a lawless usurper of the Constitution. Mike Johans (R.-Neb) has already demanded the NLRB appointees resign "effective immediately."

These recess appointments were made because after the GOP blocked them for a long time, the Senate went on a three-day recess. During the recess, GOP senators came into town in rotation and convened the Senate for one or two minutes. This meant the Senate was technically in session. The goal was to continue to block any recess appointments and possibly provoke this lawsuit. It was a purely political challenge to the Administration, and the Administration took it up.

The court ruling was written by Judge David Sentelle, a Reagan appointee widely considered to be a strident conservative. It says that all recess appointments not made between the period one sworn-in Congress ends, and another begins, are void. That means most recess appointments.

Legal experts are saying that the ruling covers not just these appointments, but all recess appointments, made by any President, going back as far as the Administration of James Monroe in 1823.

Any appointments made under the conditions addressed by the Court, they say, could potentially be declared void. This would also mean that all regulations issued under such officials, and all court decisions made by judges appointed this way, would likewise be subject to voiding, if tested.

As a result, the ruling has the potential to provoke chaos; for instance, anyone convicted by such a judge, and serving or having served time, could move to have his/her conviction voided if the judge, as considered by the D.C. Court, was unconstitutionally appointed.

It could also apply to regulations made under any regulator so appointed, no matter how far back. As a hypothetical: A regulation covering food safety made in the early 20th century under such an official could be declared void, allowing present-day manufacturers to ignore the regulations, and, for that matter, sue the government for the costs incurred by observing the regulation since it was posted in the Federal Register.

Since the ruling judges in this case are extremely conservative, this has every appearance of being a conservative attempt to disrupt government operations so they can criticize the Obama Administration and throw sand in the operations of government -- not to mention cost the government a lot of money -- and hang the larger result.

This case will very likely be appealed by the Administration. But if it's ultimately upheld -- and it could be, since on a very narrow basis, the judges have something on their side -- you could, depending on the judge, see financial criminals set free, along with drug kingpins, bank robbers, etc. This doesn't count fines that would have to be returned to corporate miscreants -- banks and Wall Street firms, for instance if they were fined by a court that falls under this ruling.

To avoid this, the ruling would have to be declared to apply only to the case that provoked the ruling, and to no other.

This has been a fine example of rigid, right wing ideologues adopting what could be called the Samson Option -- causing incredible damage, and perishing in the attempt, just to make a point. It's a lot like someone loosing a pack of dogs on kids playing baseball next to their house because the kids were making too much noise.

Right wing politicians who defend this ruling, and then use it to attack the Administration as lawless usurpers of the Constitution -- as some are already alleging -- should not be allowed to get away with it. Neither should the Court that made it.

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