Category: Courts

UPDATED: RELEASED #FreeOurMarineInMexico Andrew #Tahmooressi

By @orangeone4

UPDATED 11/1/14

Andrew Tahmooressi has been released and is safely back in the United States of America!  Huge salute to all that tweeted, FAV’d and RT’d tweets to #FreeOurMarineinMexico!  God Bless you Andrew, God bless your family and God bless everyone who prayed for your release.  Special blessings for @iResistAll who tirelessly rallied for your release.

Please continue your prayers for Andrew’s recovery. #PTSD affects many of our military men and women but with God’s blessings and our compassion, he will find healing.  Follow Andrew’s mother on Twitter @ATahmooressi. Tweet your well-wishes and welcome home to our #Patriot and #Hero.


Possible Prayers:

From @BeaconHill09


From @ABiCduckie

God Bless Andrew, give him faith and hope. Wrap him in your ever loving grace and let him know people are praying and hoping for the day he comes home. Give strength, wisdom and faith to those who are trying so hard to gain his release, Comfort and peace to his family. Give our leaders wisdom and compassion to work harder so Andrew can come home. Thank you Lord. Amen


Thank you, thank you, thank you @iResistAll for creating a #Twibbon for Free Marine Sgt. Tahmooressi!  You sir are a Godsend.  Folks, please add Andrew’s #Twibbon to your Twitter and FaceBook accounts by going here.  Share the word far and wide, we MUST continue to fight for Andrew’s freedom.


More support for the release of Andrew Tahmooressi!

Thank you Rep. Steven Horsford (NV-04)

Thank you Rep. Eric Swalwell (CA-15)!

Thank you Rep. Robert Pittenger (NC-9 ) for asking to be added as co-sponsor of #HRes620!

Thank you @FreeTheMarine for tweeting the link to the House Foreign hearing!

Thank you Rep. Steve Cohen (TN-9)

Thank you Rep. Doug Lamborn (CO-5)

Original Story:

My #TweepThrob @iResistAll tirelessly fights to free Andrew!  PLEASE go to his List Of Twitter Accounts Of GOP Reps Not Supporting Hres620 To Free Sgt. Tahmooressi and TWEET them!

Background (from the Official Site for Sgt. Andrew Tahmooressi)

Sgt. Tahmooressi is currently being held in a Mexican Prison since March 31st 2014. Andrew was in San Diego receiving treatment for a recently diagnosed PTSD condition when he made a wrong turn and ended up at the Mexican border. He informed the border patrol agents he did not want to enter Mexico and that he had all his belongings with him including three personal firearms that are legally registered to him. Andrew placed a 911 call to seek help, but they informed him that if he already crossed into Mexico, they could not help him, and he was subsequently arrested on weapons charges and held in Tijuana’s La Mesa Penitentiary. There, he was threatened by inmates, stripped and beaten repeatedly by guards, denied water, and chained to his cot for more than 30 days. He has since been moved to El Hongo prison in Tecarte.

Additional background information can be found in this great blog.

Free #Tahmooressi Tweetfest

Monday’s on Twitter are all abuzz with a massive tweetfest to pressure the Administration to seek the release of our Marine, Andrew Tahmooressi.  Below are a sample of tweets from recent and ongoing efforts.

This tweet is absolutely spot-on!

Follow His Family and Supporters

If you are on Twitter, PLEASE #Follow @USMC_Family. Also follow their great advice and RT tweets in their Timeline. It is time that we pressure Congress to secure the release of an American.  If you are on FaceBook, please include this link to the Official Site for Sgt. Andrew Tahmooressi

Support HRes. 620 and HRes. 612

House Resolutions #620 and #612 were introduced by Rep. Ted Poe (R-TX) on June 11, 2014. There are currently 81 co-sponsors of this BI-PARTISAN legislation.

HRes. 620 summary is as follows:

Expresses the sense of the House of Representatives that: (1) the government of Mexico should release U.S. Marine Sgt. Andrew Tahmooressi and provide for his return to the United States so he can receive appropriate medical assistance, and (2) the President should utilize the full powers and authorities of his office to secure Sgt. Tahmooressi’s release.

The bill was introduced in the House of Representatives on June 11, 2014 and referred to the House Foreign Affairs and the Committee on Foreign Affairs, who subsequently referred to the Subcommittee on the Western Hemisphere on September 8, 2014.  The bill is scheduled for _____________

HRes. 612 summary is as follows:

Expressing the sense of the House of Representatives that the Government of Mexico should forthwith repatriate Sgt. Andrew Paul Tahmooressi from Mexican prison(s) and expressing the sense of the House of Representatives that the President of the United States should take actions to impose sanctions on Mexico until such time as Sgt. Tahmooressi is released.

Sean Hannity mentions in his tweet below, the House Foreign Affairs Committee has scheduled a hearing for Wednesday October 1.  Can you believe this is during recess?  His question is paramount, will they return to uphold their responsibility to protect America and seek the release of Andrew Tahmooressi?

I believe it is important to list EACH of the 81 co-sponsors of both HRes. 620 and HRes. 621 and have done so here.  Please be sure to thank each of them! If your Representative IS NOT on this list, call their D.C. and local offices and REQUEST they co-sponsor this vital set of legislation!.

Rep. Matt Salmon (R-AZ-5) Rep. Martha Roby (R-AL-2) Rep. Albio Sires (D-NJ-8)
Rep. Paul Cook (R-CA-8) Rep. Walter Jones (R-NC-3) Rep. Debbie Wasserman Schultz (D-FL-23)
Rep. Kenny Marchant (R-TX-24) Rep. Ken Calvert (R-CA-42) Rep. John Barrow (D-GA-12)
Rep. Mo Brooks (R-AL-5) Rep. Scott DesJarlais (R-TN-4) Rep. Carol Shea-Porter (D-NH-1)
Rep. Bill Johnson (R-OH-6) Rep. Peter Roskam (R-IL-6) Rep. Theodore Deutch (D-FL-21)
Rep. Duncan Hunter (R-CA-50) Rep. Michael Grimm (R-NY-11) Rep. Pete Gallego (D-TX-23)
Rep. Michael Burgess (R-TX-26) Rep. Christopher Smith (R-NJ-4) Rep. Daniel Lipinski (D-IL-3)
Rep. Alan Nunnelee (R-MS-1) Rep. Raul Labrador (R-ID-1) Rep. Joe Garcia (D-FL-26)
Rep. Ron DeSantis (R-FL-6) Rep. Kristi Noem (R-SD) Rep. Tulsi Gabbard (D-HI-2)
Rep. Ileana Ros-Lehtinen (R-FL-27) Rep. Lynn Jenkins (R-KS-2) Rep. Joseph Kennedy, III (D-MA-4)
Rep. Mike Pompeo (R-KS-4) Rep. Kevin Yoder (R-KS-3) Rep. Juan Vargas (D-CA-51)
Rep. Steve Southerland (R-FL-2) Rep. Mark Meadows (R-NC-11) Rep. Ami Bera (D-CA-7)
Rep. Louie Gohmert (R-TX-1) Rep. Richard Hudson (R-NC-8) Rep. Gloria Negrete McLeod (D-CA-35)
Rep. Mario Diaz-Balart (R-FL-25) Rep. Bradley Byrne (R-AL-1)
Rep. Stephen Lee Fincher (R-TN-8) Rep. David Jolly (R-FL-13)
Rep. Cynthia Lummis (R-WY) Rep. Rodney Davis (R-IL-13)
Rep. Joseph Heck (R-NV-3) Rep. Curt Clawson (R-FL-19)
Rep. Gus Bilirakis (R-FL-12) Rep. Aaron Schock (R-IL-18)
Rep. Lee Terry (RE-NE-2) Rep. Doug Collins (R-GA-9)
Rep. Charles Bostany, Jr. (R-LA-3) Rep. Jeff Duncan (R-SC-3)
Rep. Paul C. Broun (R-GA-10) Rep. Vance McAllister (R-LA-5)
Rep. Michael Fitzpatrick (R-PA-8) Rep. Edward Royce (R-CA-39)
Rep. Tim Huelskamp (R-KS-1) Rep. Doug LaMalfa (R-CA-1)
Rep. Randy Weber, Sr. (R-TX-14) Rep. Eric Crawford (R-AR-1)
Rep. Robert Aderholt (R-AL-4) Rep. Blake Farenthold (R-TX-27)
Rep. Dana Rohrabacher (R-CA-48) Rep. Trey Gowdy (R-SC-4)
Rep. Tom Marino (R-PA-10) Rep. Rob Bishop (R-UT-1)
Rep. Pete Olson (R-TX-22) Rep. Kevin Cramer (R-ND)
Rep. Adrian Smith (R-NE-3) Rep. Sean Duffy (R-WI-7)
Rep. Tom Cole (R-OK-4) Rep. Steve Stockman (R-TX-36)
Rep. John Duncan, Jr. (R-TN-2) Rep. Glenn Thompson (R-PA-5)
Rep. Frank LoBiondo (R-NJ-2) Rep. Scott Perry (R-PA-4)
Rep. Leonard Lance (R-NJ-7) Rep. Luke Messer (R-IN-6)
Rep. Kevin Brady (R-TX-8) Rep. Daniel Webster (R-FL-10)

Voter Registration Victory: Kobach vs. US EAC

By @Orangeone4

Congratulations to Kansas and Arizona for securing an Order from the U.S. District Court for the District of Kansas, order the U.S. Election Assistance Commission (“EAC”) to stand down, move aside and insert the state-specific instructions for proof of citizenship to the federal mail voter registration form for their respective states and according to their state laws.

Kansas, through its Secretary of State  Kris Kobach, joined two days later by Arizona’s Secretary of State Ken Bennett, sued in August 2013 when the EAC refused to update the federal mail voter registration form, claiming an administrative issue because the Commission positions are  vacant. Might this be another Obama Administration ploy to ignore state-legislated voter ID laws passed to help ensure only citizens are voting?

The lawsuit went on to ask the Court to declare the National Voter Registration Act (“NVRA”) unconstitutional as applied by the Obama Administration and the Wilkey memorandum (an internal EAC procedure permitting the Commission to not act) unlawful.

Upon instruction by the Court, the EAC issued its decision that the federal, not state governments, decide what is required proof of citizenship and that nothing beyond signing an “oath” was necessary.  The basis of the Kansas and Arizona suit is violation of the states’ constitutional rights.

In its decision, the Court stated it has authority to “hold unlawful and set aside agency action, findings, and conclusions found to be:

(A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law;
(B) contrary to constitutional right, power, privilege, or immunity;
(C) in excess of statutory jurisdiction, authority or limitations, or short of statutory right;
(D) without observance of procedure required by law;
(E) unsupported by substantial evidence in a case subject to sections 556 and 557 of this title or otherwise reviewed on the record of an agency hearing provided by statutes; or
(F) unwarranted by the facts to the extent that the facts are subject to trial de novo by the reviewing court.


The Court, justifiably skeptical, questioned how Miller could issue a 46-page decision once ordered to do so by the Court but previously stated no authority to issue a decision based on Arizona’s and Kansas’ requests.


The Court found, in accordance with Article 1, section 2, clause 1 and the 17th Amendment:

The Constitution gives each state exclusive authority (emphasis added) to determine the qualifications of voters for state and federal elections.”

Citing the ITCA (Inter Trial Council of Arizona LLC) case, the court reiterated: “ITCA also strongly indicated that this board power (Congress’ power to regulate voter registration) is not unlimited.”  The opinion in the ITCA case emphasized that “the Elections Clause empowers Congress to regulate how federal elections are held, but not who may vote in them. (emphasis added)

The Court unanimously concluded:

“The States’ exclusive constitutional authority to set voter qualifications necessarily includes the power to enforce those qualifications.”

Pointing to the NVRA, the court concluded that the state-specific requests by Arizona and Kansas to support citizenship are in fact authorized.

“The state-specific instructions shall contain the following information for each state, arranged by state: the address where the application should be mailed and information regarding the state’s specific voter eligibility and registration requirements.”

Further, the regulations include the method for a state to notify the EAC with voter eligibility requirements, and nowhere is it required that states receive EAC approval:

“(c) Each chief state election official shall notify the Commission, in writing, within 30 days of any change to the state’s voter eligibility requirements or other information reported this section.”

In summary, the Court held that the EAC does not have the authority to prevent states’ instructions for proof of citizenship be included on the federal mail voter registration form and that the EAC unlawfully withheld and failed to perform its nondiscretionary duty to change the federal form.

You can read the entire Court decision here.

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UPDATED: CA Carry Holders 2, CA Sheriffs ZERO

By @Orangeone4


From the Calgun’s Foundation:

The Second Amendment Foundation and The Calguns Foundation earned a significant victory today when the Ninth Circuit Court of Appeals reversed and remanded the case of Richards v. Prieto, challenging the handgun carry license issuing policy of Yolo County, California, Sheriff Ed Prieto.

SAF founder and Executive Vice President Alan M. Gottlieb stated in the press release:

“California officials have been put on notice that they can no longer treat the Second Amendment as a heavily-regulated government privilege.”

Prior Blog

One of the most liberal appellate courts, the Ninth Circuit Court of Appeals, recently dealt a death blow to uber-liberal California.  In 2009, the Calguns Foundation, the Second Amendment Foundation (“SAF”) and a number of individual plaintiffs, filed suit against  Sacramento County Sheriff John McGinness and Yolo County Sheriff Ed Prieto and their unconstitutional “good cause” and “good moral character” application requirements for a handgun carry permit.  Sacramento County settled while Yolo County stood firm.

A similar lawsuit was filed against the San Diego County Sheriff by Mr. Edward Peruta and joined by the NRA, shortly thereafter.  Fully loaded with their Constitutional arguments and strong legal team, Mr. Peruta  and the NRA successfully argued before the Ninth Circuit.  The Court’s recent decision found San Diego County’s position unconstitutional.  Following in Barack Obama’s footsteps, Breitbart reports the San Diego County sheriff is ignoring the appeallate court’s decision and still requiring a “good cause” reason on the application.    Breitbart also reports that Los Angeles, the city with a massive influx of illegal aliens, maintains the “good cause” requirement.

The Court has yet to issues its decision in the case against Yolo County.

Many thanks to the Calguns Foundation for their great work and coverage of the decision.

To learn more about the Calguns Foundation, join or donate to their great cause, click here.

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Little Sisters of the Poor vs. Barack Obama

Charlie Daniels (@charliedaniels) said it best in his tweets:

My money is on Little Sisters of the Poor!

Did Pope Francis predict the attack from the Obama Administration prior to making these on-point comments posted on the Little Sisters of the Poor website blog “In the Heart of the Church“??

“I ask the elderly, from my heart: do not cease to be the cultural storehouse of our people, a storehouse that hands on justice, hands on history, hands on values, hands on the memory of the people. And the rest of you, please, do not oppose the elderly: let them speak, listen to them and go forward. But know this, know that at this moment, you young people and you elderly people are condemned to the same destiny: exclusionDon’t allow yourselves to be excluded … Make yourselves heard; (emphasis added) take care of the two ends of life, the two ends of the history of peoples: the elderly and the young; and do not water down the faith.…” (Pope Francis, July 25, 2013)

What better way to make themselves heard than to take their case to the Supreme Court of the United States. How will the Supreme Court respond?  Will Justice Roberts betray the Constitution and rewrite the Obamacare legislation again (see Senator Mike Lee’s book “Why John Roberts Was Wrong About Healthcare: A Conservative Critique of The Supreme Court’s Obamacare Ruling” on an outstanding and easy to understand presentation of how Justice Roberts rewrote the law twice)

From the American Center for Law & Justice: (@ACLJ)

Underlying Case

Plaintiffs filed a class action lawsuit on behalf of Catholic employers who participate in the Christian Brothers Employee Benefit Trust (the “Christian Brothers Trust”) forbidden by their religion from: “participating in the federal government’s regulatory scheme to promote, encourage, and subsidize the use of sterilization, contraceptives, and drugs that cause abortions.”  The Plaintiffs allege the government, through its regulations, requires Plaintiffs to provide coverage for, or access to, contraception, sterilization, abortifacients, and related education and counseling (the “Final Mandate”).

The Plaintiffs allege the government has exempted thousands of plans, covering tens of millions of employees, from the Final Mandate for a wide variety of reasons including the  (“grandfathered plans”) to a narrow religious exemption for certain “religious employers.” The Plaintiffs further allege that, despite their religious nature, their respective religious orders do not qualify for these exemptions.

Plaintiffs include:  Little Sisters of the Poor, class action plaintiffs, Christian Brothers Employee Benefit Trust, Christian Brothers Services.

Defendants include:  US Government officials responsible for issuing and enforcing the challenged regulations, Kathleen Sebelius and the Department of Health and Human Services, Thomas Perez and the Department of Labor, Jacob Lew and the Department of Treasury.

Temporary Injunction

The Supreme Court truly had no choice but to temporarily enjoin the Obama Administration through its Health and Human Services Department from enforcing the birth control and abortion mandate.  ACLU explains: “The fact that the Supreme Court agreed to block the mandate from affecting this Christian charity is unsurprising, and the right move legally. The Supreme Court has already granted two Mandate cases, both of which are operating under an injunction.  In other words, the Supreme Court is already considering several mandate cases and the mandate will not be enforced while the [C]ourt is considering those cases, so the Court here  is extending that to this case as well.”

Obama Administration Response

Eric Holder’s Justice Department, in its brief objecting to the temporary injunction, clearly outlined the Little Sisters’ argument.  Whilte the government claims: “They need only self-certify that they are non-profit organizations that hold themselves out as religious and have religious objections to providing coverage for contraceptive services, and then provide a copy of their self-certification to the third-party administrator of their self-insured group health plan”, they further state in their brief: “Employer-applicants’ third-party administrator therefore will be under no legal obligation to provide the coverage after applicants certify that they object to providing it.”  and conclude with the contradiction: “If employer-applicants’ third-party administrator were nevertheless to decided to provide contraceptive coverage, applicants’ employees and their covered dependents would receive such coverage despite applicants’ assertion of their religious objections, not because of those objections.”

Blogger’s Opinion

So if my understanding of the government’s response is correct, the Little Sisters of the Poor can complete a “self-certification” that they are exempt from providing birth control and abortion coverage (despite extensive search the ‘form’ could not be located) but their third-party administrator may provide the coverage despite the religious objections of the employer.  It’s not like the government would try and force the third-party administrator to provide abortion and birth control coverage right?  Oh wait, Little Sisters of the Poor is a nonprofit organization.  The Internal Revenue Service and other federal agencies are already under Congressional ‘investigation’ (and I use that term very loosely) and being sued for illegal targeting of conservative non-profit and non-profit applicant groups asserting their Constitutional rights.

Alternatively, the Little Sisters of the Poor could ‘trust’ the Obama Administration that they won’t assess the destructive financial penalty for not providing abortion services.  And who is to say Barack Obama won’t rewrite the law again, without Congressional approval, that then REQUIRES third-party administrators to offer the birth control and the abortion services.  NOTHING.  In fact, Obama has already rewritten ObamaCare numerous times for his friends and large campaign donors and to further his destruction of Christianity in America.

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NSA Metadata Survellience – Unconstitutional

On December 16, 2013, the United States District Court for the District of Columbia issued a landmark decision on the NSA survellience of American citizens in Klayman et. al vs. Obama et. al. (“Klayman”).

Legal Insurrection’s (@LegInsurrection) Summary

A federal judge in D.C. has found parts of the NSA metadata surveillance program to violate the 4th Amendment.  The judge issued a preliminary injunction, but stayed his decision pending appeal.  While many people are taking the decision as obvious, in fact the Judge had to weave his way around Supreme Court precedent and other court decisions to the contrary.  Celebrations that the decision will hold up are premature.


  • Plaintiffs challenge the constitutionality and statutory authorization of intelligence-gathering practices by the US government relating to wholesale collection of phone record metadata on ALL US citizens within the US via telecommunications companies
  • Defendants include US government and executive officials, telecommunications firms and their executives

Key Findings

  • Plaintiffs have standing to challenge the constitutionality of the government’s actions
  • Plaintiffs have demonstrated a substantial likelihood of success on their Fourth Amendment arguments
  • Plaintiffs will suffer irreparable harm without preliminary injunctive relief

Order is Stayed

The Court stayed the injunction pending appeal because of “significant national security issues”.

Disagreement with the Court’s Conclusion

In it’s conclusion, the District Court stated:

…The Government, in its understandable zeal to protect our homeland, has crafted a counterterrorism program with respect to telephone metadata that strikes the balance based in large part on a thirty-four year old Supreme Court precedent…

In my opinion, if the Government had zeal to protect our homeland, they would ratchet up enforcement of our immigration laws, complete the border fence required by law, reverse Obama’s stand down orders on border enforcement and deport illegal aliens at a rapid pace.  Instead, the Government, under specific orders from Obama, have left our homeland vulnerable to terrorist attacks  Cases in point:

You can read the full court decision here.

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Giving Credit Where Due – Landmark Legal Foundation

Landmark legal icon

We recognize the outstanding work done by the Landmark Legal Foundation in two specific areas in 2013.  First, their amicus brief filed in the National Labor Relations Board case, resulting in the court’s opinion that the appointments made by Barack Obama were unconstitutional (see our “Court” corner blog here) and second, Landmark’s demand that the Inspector General’s Office investigate the serious abuse of power allegations against the Internal Revenue Service, discussed below.  If only the Inspector General had completed an investigation instead of a light-weight “audit”.

Landmark Legal Foundation’s Effort Resulted in Inspector General’s Involvement

A conservative organization, applying to the Internal Revenue Service for status as a 501(c)(4) corporation contacted Landmark Legal Foundation (“Landmark”) in early 2012.  After reviewing the pages long list of information and documents required by the IRS to process their application, well beyond the appropriate level of inquiry and appearing to be intimidating in nature against the applicants, Landmark’s President Mark Levin, contacted the Treasury Inspector General in March 2012 requesting an investigation into the IRS’ misconduct.

At the time Landmark requested the investigation, approximately 20 groups were being targeted for improper treatment.  To date, it appears that number is 100 or more (check back for a subsequent post on the Inspector General’s findings).

Specific Examples of Improper IRS Inquiries from Landmark’s Complaint

In its Complaint, Landmark stated:

“Moreover, inquiries about personal associations and political viewpoints are not only inappropriate, but impinge upon constitutionally-protected freedoms of speech and association.”

Specific examples they deemed not pertinent to the permitted activities included:

  • Fully describe your youth outreach program with the local school district.
  • Provide information regarding the *** County Teen Age Republicans (unnamed to respect privacy) and your relationship.
  • Provide a list of all issues that are important to your organization.  Indicate your position regarding each issue.
  • Provide details regarding your relationship with a certain individual (unnamed to respect privacy).
  • Has your organization engaged in any activities with the news media?  If so, please describe those activities in further detail and, if available, provide copies of articles printed or transcripts of items aired because of that activity.

The letter goes on to list requests for information regarding the organizations board members, and members of their families; merchandise sale information including a vendor list, cost of each item sold and selling price; the name, address and political affiliation for any training provided to the organizations’ staff; and copies of all newspaper advertisements, press releases, news media interviews, letters to the editor and op-ed pieces related to the organization. (emphasis added)

Landmark went on to state in its Complaint:

“As it has been upheld repeatedly by the Supreme Court, the government cannot regulate political speech with laws that chill permissible speech.  Finally, reports that Tea Party-related organizations are being singled out for the IRS’s intrusive inquiries raises serious questions about the propriety of the personnel involved in the evaluation of tax exemption applications.”

Was the Targeting Politically Motivated?

In its closing paragraph, Landmark requested the Inspector General determine whether the IRS employees involved were acting at the direction of any politically motivated superiors.  Based on the hearings so far, it appears the answer is yes.

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FLASHBACK – National Labor Relations Board Appointments – Unconstitutional

US Constitution

Flashback to the Courts’ decision that the appointments to the National Labor Relations Board were unconstitutional.  First published at, FourCornersUSA brings you our first court case discussion for our “Court” corner.  Our second “Court” corner post will be a tribute to the Landmark Legal Foundation for their Constitutional work on this case.


On January 25, 2013, the U.S. Court of Appeals for the District of Columbia Circuit decided appointments Barack Obama made to the National Labor Relations Board were unconstitutional.  Arguments were made by the Landmark Legal Foundation (“Landmark”) in conjunction with the National Right to Work Legal Defense Foundation, an amicus curiae (friend of the court) in support of Noel Canning, a bottling company in Washington, under the Recess Appointments Clause of the Constitution.  Landmark’s President Mark R. Levin stated it best in their January 25, 2013 press release:

“We’re very pleased that the Court agreed with our position that no President is above the law…This President doesn’t get to tear up and toss aside the Constitution just because he disagrees with the limitations it imposes on him.” {emphasis added}

Decision’s Impacts

The effect of the Court’s ruling heaves hundreds of Board decisions into disarray. Numerous NLRB decisions are pending in other circuit courts.  The NRLB continues to issue decisions despite the court’s ruling the appointments were unconstitutional.

The House of Representatives has pending legislation to restrict the NRLB until Senate confirmation of appointments, a Supreme Court ruling on the Canning decision or recess of the current Congressional session.

Other cases challenging the NLRB recess appointments are pending in other circuits and it is likely that these cases will produce results contrary to the decision in Noel Canning.


In 1935, Congress enacted the National Labor Relations Act (“NLRA”) to protect the rights of employees and employers, to encourage collective bargaining, and to curtail certain private sector labor and management practices, which can harm the general welfare of workers, businesses and the U.S. economy.”  The National Labor Relations Board (“NLRB”) hears cases involving alleged violation of the NLRA and issues administrative rulings.  Each of the five board members and its General Counsel are appointed by the President and confirmed by the U.S. Senate.


The Canning case had two parties, one intervening party (the Teamsters Union) and three amici curiae.  Amici curiae, or friends of the court, present essential legal arguments not presented by one of the parties.  The three amici curiae in this case were the Senate Republican Leader Mitch McConnell and 41 other members of the U.S. Senate, the Speaker of the House John Boehner (represented by the ACLJ, the same organization trying to free Christian Pastor Saeed from an Iranian prison), and the Landmark Legal Foundation (“Landmark”), a nonprofit public interest law firm that submitted its brief in support of Canning.  The crux of the court’s decision is based on Constitutional arguments advanced by Landmark!

Discussion of Court’s Ruling

There are two parts of review for the Court of Appeals in this case. The first is the underlying statutory (state law) arguments raised by Canning. The second are the constitutional arguments brought forward by Landmark in their amicus brief.  If the Court were to rule in favor of Canning on the statutory arguments, they would not take up the constitutional arguments raised by Landmark.

Canning’s Statutory Arguments

On February 8, 2012, the NLRB administrative law judge (“ALJ”) ruled against Canning, determined they had violated the NLRA and issued an administrative order to enforce a collective bargaining agreement.  Canning appealed to the NLRB Board, and a three-member panel upheld the ALJ’s finding.  Canning then appealed to the Court of Appeals arguing (1) no collective bargaining agreement had been reached, and (2) even if the court determines there was an agreement reached, it was unenforceable under Washington state law.  Canning did not prevail on either of these premises. 

Landmark’s Constitutional Arguments

Landmark raised two Constitutional arguments in support of Canning. The first argument was that the appointments Obama made were unconstitutional because they were not confirmed by the U.S. Senate.  Instead Obama claimed the Senate was in recess and that he had the authority to make the emergency appointments without confirmation.  It’s important to note that two of the three seats were vacant since August 27, 2010.  Landmark’s second argument was that the NLRB decision must be invalidated because two out of five members is not a quorum.

The appellate court ruled that all three of Obama’s appointments, made one day after Congress began a new session, were unconstitutional because the U.S. Senate was not in recess, thus Obama was barred from making emergency appointments.

The most fascinating part of the Court’s analysis came down to the meaning of “the” as used in ‘the Recess’ and ‘happen’, both as they occur in the Recess Appointments Clause of the Constitution (“Clause”).  The Clause provides for “vacancies that may happen during the Recess of the Senate.” {emphasis added}  Landmark argued that the Clause specifically referred to vacancies that occurred, not existed, only when the Senate was in official recess, while Obama argued he could make appointments, without Senate confirmation during any time the Senate took a break in business, for any vacancies, without regard to when they occurred.  The Court of Appeals vehemently disagreed with Obama, ruled the appointments unconstitutional and vacated the NLRB’s decision against Canning.

In the ruling, Chief Judge David Sentelle stated:

“Allowing the president to define the scope of his own appointment power would eviscerate the Constitution’s separation of powers.”

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