The Spirit of the Laws

by Robert Alt

The NLRB has gotten itself into some hot water in recent days over a complaint that its Acting General Counsel filed against Boeing for choosing to open a facility in South Carolina — a right-to-work state — rather than expanding in Washington, a closed shop state. For those who have not followed all the details, including the fact that the decision was perfectly lawful and was approved by, among others, Obama chief of staff Bill Daley (who was on Boeing’s board at the time the decision to open the facility was made), my colleagues Hans von Spakovsky and James Sherk can get you up to speed here.

The NLRB’s actions are so meritless that they have found few defenders. Enter Harry Reid, who as readers of NRO know, had more than a little help from his union friends in the last election. What is Reid’s argument for an NRLB run amok in favor of union interests over the law? He is quoted in The Hill as saying that the NLRB is acting consistent with the “spirit of checks and balances” established by the Founding Fathers –you know, those checks and balances provided by independent agencies interposing themselves between private employers and employees. Stop laughing — the quote suggests that he was not saying this for comedic effect — although his comedic timing is truly unappreciated.

Leaving aside the fact that this “checks-and-balances” theory really doesn’t address anything about, oh, say, the law at issue in this case, the argument has more than a little bit of irony to it. Not to re-argue that whole administrative-state thing, but a single agency, the NLRB, promulgates rules (quasi-legislative), enforces its rules and federal statutes, including filing charges as it did in the Boeing matter (executive), and adjudicates cases through its administrative law Judges with appeal to the Board (quasi-judicial). That is no doubt the sort of — ahem, the “spirit” of — separation of powers and checks and balances that the Founders had in mind when they wrote: “The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many . . . may justly be pronounced the very definition of tyranny.”