Of Individual Freedom and the United States Senate

The first lawsuit has been filed.  There will likely be others.  When President Obama, in an action more redolent of hubris than homage to the Constitution, gave recess appointments to four individuals to lead government agencies, even though the Senate was not in recess, he initiated a constitutional crisis that is only beginning to unfold.

Three of these illegal appointments were to the National Labor Relations Board (NLRB).  The NLRB has been pushing a new requirement that all businesses put up posters, designed by the NLRB, encouraging workers to form a union. Businessmen have objected.  Only about 20% of American workers have chosen to form or join unions, which frustrates the Obama Administration, because it relies heavily upon unions for political support and funding.  Without those three appointees the NLRB does not have a quorum to finish its work on this new requirement.  Pretending that it now has a legal quorum, the NLRB resumed action on the rule, and businessmen filed suit, complaining that President Obama did not just break the law; he is trying to break the Constitution.  That is to say, this is not about the Senate; it is about the rights of American citizens, in this case the right to be free from imposed unionization.

Administration advocates would like to trivialize this crisis as a mere political dispute between the President and Republican Senators, yet another partisan spat.  That would be a superficial view, and it would be wrong.  Besides that fact that so far only one Democrat in the Senate has concurred with the President’s assertion that he rather than the Senate decides when the Senate is in recess, the core of the matter affects you and me far more than it affects the Senate. 

We must remember and never forget that the Senate (and the other branches of the United States government) was created by the Constitution to be an instrument for defending the rights of the individuals who make up “We the People.”  The Founders divided the power of the government into three coequal branches specifically so that they could block each other from taking unilateral action.  When the Senate asserted its authority against action of the President, it did so to preserve our freedom, in this case our freedom from being governed by people who are not accountable to the citizens.  During the 1787 debate on ratification of the Constitution Pennsylvanian Samuel Ryan described it this way:

Mr. [John] Adams’s sine qua non of a good government is three balancing powers, whose repelling qualities are to produce an equilibrium of interests, and thereby promote the happiness of the whole community.  (Samuel Bryan, “A Most Daring Attempt to Establish a Despotic Aristocracy”, in The Debate on the Constitution: Part One, p.55)

After all, we do not live in a monarchy where the king appoints his ministers to impose their will on the king’s subjects.  Our ancestors fought a war to get away from monarchy or they fled from lands where lords, ladies, kings, dictators, and other tyrants governed.  The Constitution, first and foremost, was designed to preserve our hard-won freedom and protect us from arbitrary rule.

The Declaration of Independence cited numerous objections against exercises of despotic power by the British king.  Consider these two, relevant to this whole question of whether President Obama, or any American President, should be allowed to appoint whomever he wants as judges or other government leaders without Senate consent:

He has made Judges dependent on his Will alone, for the tenure of their offices, and the amount and payment of their salaries.

He has erected a multitude of New Offices, and sent hither swarms of Officers to harrass our people, and eat out their substance. 

Under the Constitution, people with the power of government were either to be elected or appointed with the consent of people who were elected.  The President can nominate, but he must wait for the Senate to approve the nomination.  That can be inconvenient to those appointed—I had to wait several months before the Senate confirmed my nomination as an executive officer—but it is very convenient for the preservation of freedom.

After President Obama’s unconstitutional appointments his Justice Department—which reports directly to him—rendered its opinion that the boss was right.  The core argument supporting its unsurprising (albeit late) conclusion is that the Senate should not be allowed to block what the President wants to do.  Of course, in our system of government, that is the Senate’s job, insisting that no one be given power to make laws and issue edicts without its consent.  That is not a part of the Constitution that our freedom can allow the President to skip.