A Win for Checks and Balances | American Center for Law and Justice
  Search  |  Login  |  Register

A Win for Checks and Balances

By David French1359149458000

Today is a good day for constitutional governance. To recap, at issue was whether NLRB appointments made while the Senate was not technically in recess were constitutional. The opinion from the D.C. Circuit is a must-read (at least for those who like reading lengthy court opinions), but I had to highlight one paragraph that perfectly described the high stakes of this case:

To adopt the Board’s proffered intrasession interpretation of “the Recess” would wholly defeat the purpose of the Framers in the careful separation of powers structure reflected in the Appointments Clause. As the Supreme Court observed in Freytag v. Commissioner of Internal Revenue, “The manipulation of official appointments had long been one of the American revolutionary generation’s greatest grievances against executive power, because the power of appointment to offices was deemed the most insidious and powerful weapon of eighteenth century despotism.” 501 U.S. 868, 883 (1991) (internal quotation marks and citation omitted). In short, the Constitution’s appointments structure — the general method of advice and consent modified only by a limited recess appointments power when the Senate simply cannot provide advice and consent — makes clear that the Framers used “the Recess” to refer only to the recess between sessions. 

My colleagues at the ACLJ had the privilege of filing an amicus brief on behalf of Speaker Boehner. For a time at least (the Supreme Court will have the final say), the D.C. Circuit has rejected the Obama administration’s direct challenge to our core constitutional system of checks and balances.

This article is crossposted at National Review Online.

Latest in

Why Obama's Plans Are Unconstitutional

By Jay Sekulow1447358134239

President Obama has a penchant for presidential power plays. He has been following his own playbook since January 2014 when he declared: “I’ve got a pen, and I’ve got a phone” – his promise to do all that he could to bypass Congress – relying on Executive Orders and actions instead of legislation.

read more

Not for President or Congress, Why Vote?

By Matthew Clark1446588501654

Another election day is upon us, but for many the question lingers: Why vote? Many of you reading this may even be asking, there’s an election today? No, the President isn’t on the ballot, neither are the members of the U.S. House or Senate. Unless you live in Kentucky, Louisiana, or Mississippi,

read more

A Felony in the Clinton Email Scandal

By Matthew Clark1445266450583

The FBI is reportedly focusing its investigation into Former Secretary of State Hillary Clinton’s email scandal on a particular federal law governing “gross negligence” in handling national defense secrets. As I explained this summer, this felony, 18 U.S.C § 793, could be the most legally...

read more

Winning Victories for Faith & Freedom

By ACLJ.org1438285554928

For years, the ACLJ has fought—and continues to fight—to defend your Constitutionally protected freedoms. Your support allows us to fight for the lives of the unborn, defend the Constitution, and protect the religious liberties of all U.S. citizens. Here are a few of the victories that you’ve...

read more