NEOCONS TRY TO SHACKLE OBAMA : with separated powers

Dr Kamal Wickremasinghe

President Barack Obama’s second term was never going to be ‘incident-free’ from the day he refused to carry out a militarily attack on Iran as demanded by the hawkish Israeli Prime Minister Binyamin Netanyahu. In the immediate aftermath of Obama’s refusal, Netanyahu and his moneyed friends in America unsuccessfully backed Obama’s opponent Mitt Romney at the presidential election. Since his victory, Obama made several perfectly sensible comments that further angered Netanyahu and his neocon backers.

Judging by US presidential history, Obama is not going to have an easy time of it during the second term: his new enemies believe in “delivering 100 blows and showing no mercy” to anyone perceived as an enemy, including those who may have helped them previously.

One of the first indications of the neocon ‘plan for Obama’ came to light last week, in the form of a court decision that further limits, in addition to the Senate confirmation hearings process, Obama’s capacity to appoint a team he can trust: on January 25, the US Court of Appeals for the District of Columbia Circuit ruled, in Noel Canning v. NLRB (12-1115), that some “recess appointments” Obama made to the National Labour Relations Board (NLRB) in 2012 were invalid as they were not made during the Recess of the Senate.

George W. Bush	Binyamin Netanyahu	Dwight D. Eisenhower	Ronald Reagan

The facts surrounding the Canning case and the potential implications of the ruling bear striking similarities to the Marbury v. Madison case the Sri Lankan supporters of the former Chief Justice desperately clung to. The similarities between the political manoeuvring that preceded the cases and the anticipated impact on the interpretation of the constitution are remarkable.

Recess appointments are provided for in the US constitution

The US constitution requires, under normal circumstances, that appointments to senior federal government positions be confirmed by the Senate before the officials could assume office. If the Senate is in recess however, the President has the power under Article II, Section 2 of the constitution to appoint officials, pending Senate approval by the end of the next session of Congress.

Though the provision in the constitution is clearly aimed at ensuring the continuity of government, both Democratic and Republican presidents have used recess appointments to install officials who would be likely to be opposed by the Senate due to their political views. Some such appointments have clearly proven momentous, helping presidents achieve their vision for America while others have been cynical exercises aimed at bypassing Senate scrutiny.

Two examples of the best recess appointments come from the presidency of Dwight D. Eisenhower (Republican President from 1953-1961) whose appointment of Earl Warren as Chief Justice in 1953 led to the outlawing of racial desegregation inn public schools and the armed forces: Warren declared the separation of public-school children according to race unconstitutional, ordering desegregation with “all deliberate speed in Brown v. Board of Education of Topeka (1954). Justice Potter Stewart, the other recess appointment of Eisenhower in 1959, established the “I know it when I see it” standard as the threshold test for obscenity in the public square in Jacobellis v. Ohio (1964).

Other more recent Republican Presidents have made liberal use of the facility to ‘stack’ the system with their ‘chosen’ men and women: Ronald Reagan made 240 recess appointments, George H. W. Bush 77 and George W. Bush, leading to the Iraqi invasion, 171.Democratic presidents have used the method less often, with Bill Clinton making 139 recess appointments during his eight years, and Barack Obama just 32 as of January 5, 2012.

One of the most cynical uses of the recess appointment facility was by George W. Bush, when he appointed the raving neocon John Bolton to serve as US representative to the UN in 2005, at the peak of global backlash against America at the UN following the Iraqi invasion.

Bush bypassed a Senate filibuster on Bolton’s confirmation, warranted by documentary proof of his abusive treatment and coercion of staff members and improper use of National Security Agency communications intercepts regarding US citizens. At the time the Bush administration cited the large number of previous recess appointments to claim that there is nothing extraordinary about the appointment. Having failed to win Senate confirmation before the adjournment of the next session of the Congress as required under the constitution, Bolton was forced to resign in December 2006.

Facts of Canning v. NLRB shows careful planning by anti-Obama forces

The Canning case follows from three recess appointments President Obama made, on January 4, 2012, to the board of the National Labour Relations Board (NLRB), an independent agency of the US government charged with investigating and remedying unfair labour practices in the private sector. Congress was on an extended 20-day recess at the time of appointments. The NLRB, governed by a five-person board and a General Counsel, is anathema to the neoliberal philosophy of the Republicans and big business due to its facilitation of organised trade union activity in privately owned businesses. Obama’s appointments naturally attracted the opprobrium of the Republicans, including the House Speaker John Boehner.

US Supreme Court

Noel Canning, a company carrying out the bottling of Pepsi Cola, aggrieved by a decision of the NLRB in favour of the local Teamsters Union during contract negotiations, petitioned for judicial review of the decision on the grounds that three out of the five members of the NLRB Board had not been legitimately appointed, making their decision invalid. The case developed a high-profile with the help of the US Chamber of Commerce and Senate Republicans.

Marbury v. Madison5 U.S. 137 (1803) recreated

As voluminous analytical legal literature reveals, the Marbury v. Madison decision, often quoted by many, uncritically, in favour of the separation of powers doctrine, was a fraud on the American system of government: the case was decided by a US Supreme Court judge appointed by the outgoing President John Adams just one month before the end of his term.

The litigant William Marbury himself was one of Adams’‘midnight judges’ whose appointment was nullified because it was made technically after President Jefferson’s term began. The Supreme Court judge John Marshall gave the Jefferson administration a pyrrhic victory in terms of not being forced to reappoint William Marbury, in exchange for realising his ulterior motive of establishing the principle of judicial review of the Legislature.

There are similar elements in Canning v. NLRB. To begin with, the three judges who delivered the unanimous Canning ruling are all Republican appointees: Chief Judge David Sentelle was appointed by Ronald Reagan, Judge Karen Henderson by George H. W. Bush and Thomas Griffith by George W. Bush.

Then there are strong grounds to suspect pre-planning by Republican Senators:at the time the appointments were made, on January 4, 2012, the Senate was supposed to be on a 20-day recess. However, a small group of Republican Senators had decided to hold “pro-forma” sessions during the recess, for minutes at a time - some lasting less than a minute. The frequency of the bogus Senate “sessions” have been timed to beat a 1993 Department of Justice brief which defines a recess as a period more than three days. Obviously, the sessions have been a clever ruse put in place to make Obama’s recess appointments questionable.

Looking at the decision itself, the court found merits arguments of Canning against the NLRB non-compelling, granting the government the pyrrhic victory. But the court concentrated on the Constitutional arguments on the definition of a “recess”.

The court did not accept the Department of Justice argument that the “pro forma sessions” were not valid sessions. The court’s opinion is that the recess appointment power extends only to recesses between sessions of Congress and not to intra-session recesses that have been used commonly since in the past, particularly since the Reagan administration.

The court concluded that “Considering the text, history, and structure of the Constitution, these appointments were invalid from their inception. 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.”

The Circuit Court opinion written by Chief Judge David B. Sentelleis based on the vacuous approach to constitutional interpretation founded upon attempts to second guess the “original intent” of the drafters. This unscientific approach has made America ungovernable due to the ludicrous nature of outcomes it has yielded. As usual with such opinions, the Sentelle opinion is filled with recollections of early government history, and of what the earliest generations believed.

White House will appeal

The extremely broad ruling will have repercussions by limiting recess appointments to only a few weeks a year, only for positions that become vacant while the Senate is in recess: it stretches Article II, Section 2 of the US constitution beyond the wildest imagination of even an anarchist.

Republican House Speaker John Boehner hailed the ruling as “a victory for accountability in government.” Such behaviour is to be expected from people like Bohner, a person with close links to big industry: in1995 he gained notoriety for distributing campaign contributions from tobacco industry lobbyists, on the House floor, to members preparing to vote on tobacco subsidies.

Another Republican, Senator Orrin Hatch of Utah went further; He is of the opinion that: “this ruling… will go a long way toward restoring the constitutional separation of powers.”

A media release by the National Federation of Independent Business, which filed an amicus brief in the case, directed its anger at the NLRB:“Small-business owners throughout the country have suffered under the pro-union decisions handed down by the NLRB”, it said.

Though the direct and immediate impact of the court ruling is limited to the three NLRB appointments, the removal of quorum from its board will affect its capacity to conduct business since it leaves the NLRB with only one “validly appointed” board member. It will also make NLRB’s recent rulings vulnerable to legal challenge. NLRB announced it would be continuing to perform its statutory duties and issue decisions, ignoring the court decision. The Justice Department hinted that it would appeal to the Supreme Court. A White House statement reflected the true situation: “The decision is novel and unprecedented. It contradicts 150 years of practice by Democratic and Republican administrations, the Obama administration disagrees with the decision.”

Neocons still have bigger fish to fry

The NLRB is only ‘small fry’ in terms of what neocons are trying to prevent Obama achieve. The undermining of the NLRB will help their cause by delivering a victor to their clientele in the conservative business community. But they will be trying their best to block Obama’s preferred appointees to key positions in the areas of foreign policy and defence.

One of their key targets is Obama’s choice for Secretary of Defence, Chuck Hagel. They have been making noises against Hagel since Obama announced his name prior to his inauguration. During the last week, anti-Hagel campaign has intensified.

A new conservative group calling itself Americans for a Strong Defence, financed by anonymous donors has started an advertising campaign urging Democratic senators to vote against Chuck Hagel, saying he would make the United States “a weaker country”. Another new, anonymously backed organisation, Use Your Mandate, supposedly a liberal gay rights group is attacking Hagel as “anti-gay”, “anti-woman” and “anti-Israel”. Those groups are joining dozens of others campaigning to stop Hagel’s confirmation. One major Republican donor, Foster Friess, demanded that Mr Hagel’s “past statements about Israel be taken into consideration and a better person found to serve in that position.’’

Such events show that the shining light of the free world is in fact is a hostage of special interest groups who will stop at nothing to achieve their sinister objectives.