JUNE 27, 2014
Supreme Court Unanimously Rules Obama “Recess” Appointments Unconstitutional
Judicial Watch participated in a major victory for the rule of law and the U.S. Constitution this week – and Barack Obama received a humiliating setback in his ruthless, reckless efforts to “fundamentally transform” America by egregiously exceeding constitutional restraints on presidential power. The Supreme Court – in a stunning 9-0 vote – ruled that that Obama overstepped his constitutional authority in bypassing the U.S. Senate in making a series of “recess appointments” to the National Labor Relations Board (NLRB).
Judicial Watch supporters will recall that in November 2012, JW and the Allied Educational Foundation (AEF) jointly filed an amici curiae brief in National Labor Relations Board v. Noel Canning (No. 12-1281) strongly opposing Obama’s illegal actions. We argued in the amici brief:
The President’s alleged Recess appointments to the NLRB are unconstitutional for the primary reason that the Senate was in session at the time of the purported appointments… The President’s declaration that these sessions were invalid disregards the Senate’s authority to determine and administer its own procedures, including when it will recess and how it will conduct its business.
The Supreme Court unanimously agreed with the position JW and AEF took and, in a rare push-back to Obama’s outrageous rule by executive fiat, declared: “the separation of powers can serve to safeguard individual liberty.” I issued a statement to the press immediately following the historic ruling applauding the decision, but at the same time issuing a solemn warning:
We applaud the Supreme Court’s unanimous judgment that serves to remind this president that he is not king. President Obama, in his lawlessness, has been acting as the “catch me if you can president.” The Supreme Court, to its credit, finally caught and restrained Barack Obama’s lawlessness. Unfortunately, these recess appointments are one of many examples of this president acting outside of his constitutional authority.
By way of review, on January 4, 2012, Obama recess-appointed three members to the NLRB despite the fact that the U.S. Senate was not in an official recess. Obama’s goal was clearly to pack the then under-staffed NLRB with leftists who shared his political agenda and give the board the quorum it previously lacked to conduct official business. He succeeded in his unilateral power grab to the extent that the NLRB, with its new liberal slant, ruled against a soft-drink bottling company, Noel Canning, saying it had engaged in an unfair labor practice by refusing to enter into a collective bargaining agreement.
Noel Canning fought back, taking its case to court. And on July 17, 2013, the Fourth Circuit Court of Appeals held that the NLRB lacked a quorum to decide the case because two of the three members on the board panel had received recess appointments in violation of the Constitution’s Recess Appointment Clause. At the time of the Canning decision, Obama press secretary arrogantly shrugged it off declaring that it only applied to “one court, one case, one company.” Then, the Supreme Court accepted the government’s appeal. And now it applies to the entire country.
JW had been critical of Obama’s sleight-of-hand recess appointments from the get-go (as we have of the many unaccountable czars installed by the president). And on November 25, 2013, we officially registered our objections once again, by jointly filing an amici curiae brief with the United States Supreme Court with our friends, the Allied Educational Fund (AEF). Specifically, we made the point that:
The President’s supposed Recess appointments are unconstitutional because the Senate was in session at the time they were made … On December 17, 2011, the Senate decided unanimously to convene every three days from December 17, 2011, to January 20, 2012, including on, but not limited to, January 3, 2012, and January 6, 2012… The President’s declaration that these sessions were invalid disregards the Senate’s authority to determine and administer its own procedures, including when it will recess and how it will conduct its business.
Though previous presidents have made intrasession recess appointments “if they are of substantial length,” the Obama administration was the first to make such appointments during pro forma sessions of the Senate. As I said at the time we filed our amici brief, “Clearly these Obama’s recess appointments are unprecedented power grabs, which if left to stand will turn the constitutional separation of powers on its head.”
Fortunately, they were not left to stand. But, just think about what Obama’s illicit power grab has cost the American taxpayer in time and money. Not only has Obama administration dragged the case through the courts for the past two-and-one-half years, it has wreaked havoc on the NLRB. As the New York Timescorrectly pointed out:
The board issued 436 decisions during the 18 months when Mr. Obama’s improperly appointed employees worked there. Gregory J. King, a spokesman for the labor board, said there remained about 100 cases on hold in federal appeals courts awaiting a Supreme Court decision about the legitimacy of the recess appointees. In those cases, the appellants are challenging decisions from when the board had the contested appointees; they assert that the board did not have a legitimate quorum to issue those decisions. The great majority of those board decisions may be negated by Thursday’s ruling by the Supreme Court.
Though all nine justices ruled against the president’s power grab, including his own two appointees, the liberal majority did not sufficiently curtail the potential for abuse by presidents of these recess appointments. Justice Scalia agreed with the outcome, but wrote for a minority of justices (and in support of Judicial Watch’s contentions) that the majority’s reasoning did not go far enough to protect the U.S. Constitution’s separation of powers from being undermined by rogue presidents such as Obama. The full opinions are well worth reading if you value the vision of the Founding Fathers and how that vision has been both furthered and undermined by succeeding generations.
George Washington University law professor Jonathan Turley recently said of Obama’s reckless unilateralism, “I think he has crossed the constitutional line.” Just was we did in the Noel Canning case, JW will continue to reinforce that line in a massive educational and legal effort to keep this imperial president accountable to you and the law.
Court Grants Judicial Watch Hearing over Missing IRS Emails
Late breaking news: Judicial Watch today filed a Motion for Status Conference in the United States District Court for the District of Columbia to confer about the emails of Lois Lerner and other IRS officials, which were the subject of longstanding Judicial Watch Freedom of Information Act (FOIA) requests and a lawsuit, and which the IRS now claims to have “lost” (Judicial Watch v. IRS (No. 1:13-cv–01559)). U.S. District Court Judge Emmet G. Sullivan almost immediately granted our request and ordered a federal court hearing on the missing IRS emails be set for July 10!
The emails Judicial Watch has sought since May 2013 cover portions of the same period for which the IRS on June 13, 2014, notified the House Committee on Ways and Means were lost or destroyed. Yet, as we informed the Judge Sullivan today, the IRS failed to notify either Judicial Watch or the court concerning the “lost” emails:
Plaintiff’s FOIA requests and the Committee’s request indisputably seek the same emails of Lois Lerner and the other IRS officials, including Nikole Flax, from January 1, 2010 to the present. Despite the obvious relevance, IRS has still not notified the Court or Plaintiff of the destruction of emails and whether the same issues relating to production of emails of Lois Lerner or the other six IRS officials exist in this lawsuit. Plaintiff only learned of the destroyed records on June 13, 2014, when the news media reported on the existence of IRS’s letter to Congress about the status of the emails.
In May 2013, Judicial Watch submitted four separate FOIA requests for IRS communications concerning the review process for organizations seeking tax exempt status. One of the FOIA requests specifically sought Lerner’s communications with other IRS employees and with any government or private entity outside the IRS regarding the review and approval process for 501(c)(4) applicants from January 1, 2010, to the present. A second request sought communications for the same time frame between the IRS and members of Congress and other government agencies, as well as any office of the Executive Branch. After the IRS failed to provide the information, Judicial Watch filed a FOIA lawsuit on October 9, 2013.
And there is little doubt that our FOIA lawsuit led to the discovery of the “lost” emails:
As revealed in the announcement by the Committee, IRS confirmed that it first knew of the lost emails in February 2014. See Exhibit 3. This was during the same time frame IRS made its first production of responsive records to Plaintiff in this case on February 26, 2014. See IRS’ Status Update Report (ECF No. 15). The timing of these events reveals that the discovery of the supposedly lost emails was triggered by this lawsuit. However, IRS has still not informed this Court or Plaintiff regarding the missing emails in this litigation.
And, to put it charitably, the IRS subsequently may have intentionally omitted material information from the court:
On April 30, 2014, IRS submitted its Status Update to the Court (ECF No. 15) regarding its ongoing search and production in this case, which was after the discovery of the missing records. Although IRS had knowledge of the missing Lois Lerner emails and of the other IRS officials, it materially omitted any mention of the missing records in its Status Update.
This FOIA lawsuit led to key revelations, including emails showing that, in response to pressure from Senate Democrats, the IRS and Lerner communicated with the Department of Justice about possibly prosecuting tax-exempt groups involved in political speech. And last month, the lawsuit forced the release of IRS documents showing, contrary to what President Obama has said, the delays of Tea Party applications was directed out of the agency’s headquarters in Washington, DC. The documents also show extensive pressure on the IRS by Senator Carl Levin (D-MI) to shut down conservative-leaning tax-exempt organizations.
It is well past time for the Obama administration to answer to a federal court about its cover-up and destruction of records.
(On October 21, 2013, Judicial Watch released email exchanges between Lerner and enforcement attorneys at the Federal Election Commission (FEC) indicating that the IRS provided detailed, confidential information concerning the tax exempt application status and returns of conservative groups to the FEC in violation of federal law. Included with the email exchanges were IRS questionnaires to a conservative group that contained questions of a hostile nature. The emails were produced to Judicial Watch by the FEC in response to an August 9, 2013, FOIA request. By the way, none of these FEC emails with Lerner have been produced by the IRS.)
IRS Targets U.S. Senator
In March 2012, Sen. Charles Grassley (R-IA) was one of 12 GOP senators who signed a letter to the IRS urging if it was going to conduct probes of tea-party groups, it needed to act in an “even-handed and transparent manner.” And, in so doing, Grassley drew an IRS target on his back.
It took a while for the IRS to pull the trigger. Grassley is a strong supporter of the government integrity issues for which Judicial Watch fights. But in December 2012, the IRS’ former director of exempt organization, Lois Lerner, saw her opportunity to exact her revenge.
In early December, Lerner mistakenly received an invitation to a speaking event that was intended for Senator Grassley. The normal response for most people would have been to forward the invitation to Grassley’s office and go about their own business. But, Chuck Grassley had tried to interfere with the IRS’s targeting of Barack Obama’s enemies.
So, for Lerner, the normal response was to use the invitation as a weapon to bring down an enemy of the agency. And going about her own business meant attempting to target Grassley for an IRS audit.
“This isn’t random,” said Dean Zerbe, a tax lawyer who helped Grassley investigate tax-exempt groups and reform the law governing them. “This is going after the senator most active in conducting serious reviews of charitable organizations as well as the IRS work in this area.” And “going after the senator” was precisely what Lerner did, with all due haste.
At 11:09 am on the morning of Tuesday, December 4, 2013, shortly after intercepting the Grassley invitation, Lerner fired off an email to Michal Guiliano, then a Tax Law Specialist at the IRS, suggesting, “Perhaps we should refer to Exam” (Exam being the IRS division that conducts audits.)
Guiliano, at 12:27, emailed Lerner back expressing some doubt as to whether Grassley had done anything wrong “on its face.” But, he added, “We need to wait for (l) Grassley to accept and attend the speaking engagement, and (ll) then determine whether [redacted] issues him a 1099. And even without the 1099,it would be Grassley who would need to report the income on his 1040.”
Fortunately for Grassley, he chose not to attend the event. And, in fact, he only learned of Lerner and Guiliano’s sinister machinations in June of this year when the House Ways and Means Committee released a batch of emails it had garnered from the IRS containing the Lerner-Guiliano exchange. Lerner’s eagerness to use misdirected mail as an excuse to target an IRS critic who is a sitting U.S. Senator should erase all doubt that her Tea Party targeting was innocent.
“We have seen a lot of unbelievable things in this investigation, but the fact that Lois Lerner attempted to initiate an apparently baseless IRS examination against a sitting Republican United States Senator is shocking,” said Camp. “At every turn, Lerner was using the IRS as a tool for political purposes in defiance of taxpayer rights. We may never know the full extent of the abuse since the IRS conveniently lost two years of Lerner emails, not to mention those of other key figures in this scandal. The fact that DOJ refuses to investigate the IRS’s abuses or appoint a special counsel demonstrates, yet again, this Administration’s unwillingness to uphold the rule of law.”
Don’t think that other members of Congress aren’t worried that they will be targeted by the IRS in retaliation for tough questions. This is why independent inquiries by Judicial Watch, through the federal courts (see above) are not only essential, but effective!
Until next week…