Check and Balances Victory

acljDAVID FRENCH, ACLJ

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.

(Editor’s Note: Besides appearing at ACLJ.org, this article was crossposted to National Review Online)


David French is a Senior Counsel for the ACLJ. A Kentucky native, David is a 1994 graduate (cum laude) of Harvard Law School in Cambridge, Massachusetts and a 1991 graduate (summa cum laude, valedictorian) of Lipscomb University in Nashville, Tennessee. David has been a commercial litigation partner for a large law firm, taught at Cornell Law School, served as president of the Foundation for Individual Rights in Education (FIRE), and currently serves as a Senior Counsel at the American Center for Law and Justice. He is the author of multiple books, including A Season for Justice: Defending the Rights of the Christian Home, Church, and School and the upcoming Home and Away: The Story of Family in a Time of War.


Used with the permission of the American Center for Law and Justice.