”This policy of supplying, by opposite and rival interests, the defect of better motives, might be traced through the whole system of human affairs, private as well as public. We see it particularly displayed in all the subordinate distributions of power, where the constant aim is to divide and arrange the several offices in such a manner as that each may be a check on the other — that the private interest of every individual may be a sentinel over the public rights. These inventions of prudence cannot be less requisite in the distribution of the supreme powers of the State.” — James Madison, Federalist Papers No. 51
Checks and balances? Not in a dictatorship of the executive.
This past week, U.S. Court of Appeals for the D.C. Circuit declared invalid Obama “recess appointments” to the National Labor Relations Board when the Senate technically was not in recess, potentially invalidating hundreds of decisions by the board in the past year.
“An interpretation of ‘the Recess’ that permits the President to decide when the Senate is in recess would demolish the checks and balances inherent in the advice-and-consent requirement, giving the President free rein to appoint his desired nominees at any time he pleases, whether that time be a weekend, lunch, or even when the Senate is in session and he is merely displeased with its inaction,” the court ruled. “This cannot be the law.”
So, with deference described by Madison in the Federalist Papers that helped sell the nation on the new Constitution, the chairman of the NLRB, Mark Gaston Pearce promptly thumbed his nose at the court and said it would be ignored.
He issued a statement:
“The Board respectfully disagrees with today’s decision and believes that the President’s position in the matter will ultimately be upheld. It should be noted that this order applies to only one specific case, Noel Canning, and that similar questions have been raised in more than a dozen cases pending in other courts of appeals.
“In the meantime, the Board has important work to do. The parties who come to us seek and expect careful consideration and resolution of their cases, and for that reason, we will continue to perform our statutory duties and issue decisions.”
Of course, the president promptly reined in this outlaw nonsense, right?
Jay Carney, the president’s spokesman, said, “It does not have any impact, as I think the NLRB has already pointed, out on their operations or functions.”
Carney also defiantly stated, “The decision is novel and unprecedented. It contradicts 150 years of practice by Democratic and Republican administrations. so, we respectfully but strongly disagree with the ruling.”
View Carney’s statement.