There has been three recent court decisions that if affirmed by the Supreme Court that will have far reaching ramifications, not only in the area of regulatory law but criminal law as well.
The decision of the D.C. Court of appeals declaring the recess appointments of President Obama unconstitutional and that of the Third and Fourth Circuit Courts of Appeal also declaring the Presidents appointments unconstitutional. The reason for the Courts declaring the appointments are two fold in the decisions of the D.C. and Fourth Circuit , While the Third Circuit only address the issue of the Senate recess. All three courts have determined that the Senate was not in recess at the time of the appointments. This along brings into question all prior recess appointments that were not made between sessions of the Senate which all three Courts used to declare the Presidents appointments unconstitutional.
The second reason for declaring the appointments unconstitutional may be of even greater importance and hinges on when the vacancies occurred. The decisions of both the D.C. Circuit and the Fourth Circuit declare that the recess appointment clause of the Constitution can only be used to fill vacancies that actually occur during a between session recess. This calls into question not only the appointments of President Obama but the appointments of any number of federal judges. Should the Supreme Court uphold the decisions of the three courts and declare the appointments unconstitutional the appointments of past Presidents such as that of Judge Prior made by former President Bush would also be unconstitutional calling into question any decisions rendered by these Judges absent some sleight of hand by the Supreme Court like that performed by the Court in Bush v. Gore where the court violated the Constitution for political purposes.
I have no doubt in my mind that the “Conservatives” on the Court will find some way to invalidate the appointments of President Obama while preserving the appointments of past Presidents that would be unconstitutional as well in furtherance of caring out their political agenda, thus again violating the Constitution in furtherance of “Conservative” politics.
If President Obama’s appointments today are unconstitutional under the terms cited by the Courts then the appointment and by implication the decisions of those appointees of past Presidents that do not meet the same standards imposed on our current president are also unconstitutional.
Watch for the sleight of hand that is forth coming from the Supremes in advancement of their corrupt political agenda were they will declare the appointments of President Obama unconstitutional while at the same time declaring those of past Presidents constitutional even though they do not meet the standard they will use to invalidate Obama’s appointments. The simple fact is if it is unconstitutional today then it was unconstitutional yesterday except in the world of five Republican Justices on the court.