Home > Executive Branch, Federal Power, South Dakota > South Dakota Governor Daugaard and US President Obama Agree: Balance of Power is Annoying

South Dakota Governor Daugaard and US President Obama Agree: Balance of Power is Annoying

January 26, 2013

scott_kirkwood_scalesThis has been an interesting week for use of Executive power in relation to committee assignments. In one case we a Democrat President that decided to go beyond the powers of the executive office and appoint committee members without working with the Legislative Branch. In another case here in South Dakota, we have a Republican Governor that decided he was not going to carry out legislation passed by the South Dakota Legislature. Both cases are similar because the involve the Executive Branch ignoring balance of power.

First lets look at President Obama’s power reach. Trevor Burros provides a good summary of the Presidents transgression:

Slightly over a year ago, on January 4, 2012, President Obama appointed four people to high-level offices without the constitutionally required “advice and consent” of the Senate. Three of those appointees were placed on the NLRB, and the other was Richard Cordray, chosen to direct the Consumer Finance Protection Bureau, the “consumer watchdog” agency created by Dodd-Frank.

The appointments were one of the most significant power grabs by a president in recent memory. The Constitution requires that certain “officers of the United States,” a category which indisputably includes NLRB board members and the director of the CFPB, be appointed by the president with the “advice and consent of the Senate.” Like many constitutional provisions, this is a “checks and balances” requirement that helps ensure the president does not unilaterally control the executive branch for his own purposes.

Under normal circumstances the President can only make such appointments while the Senate is in recess. Many previous presidents have use intra-session recesses to invoke their emergency appointment power. This case with Obama is unique because it was not done during an actual recess. Back during the Bush years Senator Reid enacted  “pro forma” sessions during intra-session recesses. These pro forma sessions legally blocked the President from unilaterally enacting their emergency appointment power. It is during one of these sessions that President Obama decided to ignore balance of power and the law.

The judge that ruled (PDF) against the Obama administration had this to say:

The Constitution’s separation of powers features, of which the Appointments Clause is one, do not simply protect one branch from another. These structural provisions serve to protect the people, for it is ultimately the people’s rights that suffer when one branch encroaches on another.

Notice how the ruling says this is not only an attack on another branch of the government; it is also an attack on the people’s rights.

Going back to South Dakota there is a similar situation, with a twist. In 2009 the South Dakota Legislature passed and Governor Rounds signed House Bill 1239: An act to create the South Dakota Boxing Commission and to provide for the supervision of boxing, kickboxing, and mixed martial arts competitions and sparring exhibitions in the state. Section 1 of this law required the Governor to appoint five members to a newly created South Dakota Boxing Commission.

Section 8 of the bill provided a sunset of July 1, 2012. This sunset provided three years for the commission to be setup. Since the commission would be self-sustaining through fees collected per Section 2 of the bill, it should not have needed to be enacted permanently. Unfortunately Governor Rounds decided he did not like this law so he chose to ignore what was legally required of him. When it came time for Governor Daugaard to comply with this law he also chose to ignore his duties set forth by the South Dakota Legislature.

Just like his counter-part in the White House, the Governor of South Dakota has decided his office is above balance of power. Governor Daugaard’s failure to comply with this statute is a direct snub at the South Dakota Legislature. Since South Dakota has a legislative session that lasts only two months the Governors office is highly relied upon to execute the statutes set forth. Does that mean South Dakota is giving too much power and trust towards the Governors Office? Maybe we are, and the legislature is doing something about it. The South Dakota Senate has brought this bill forth again as Senate Bill 84.

This bill differs from the 2009 version in one noticeable way. Only one of the commissioners is to be appointed by the Governor. Two will be appointed by the president pro tempore of the Senate and two appointed by the speaker of the House of Representatives. So how did the Governor feel about this change. Let’s look at his words from yesterday:


I would be very happy if the Legislature would amend that legislation to give themselves complete authority to appoint that commission

It isn’t hard to imagine the Governor failing to appoint that one member as required by law. As I noted before, South Dakota has a very short legislative session that lasts about two months. It is critical that the Executive Branch can be trusted to handle committee appointments in a lawful manner. By choosing not perform his duty under law the Governor has shown contempt for both the South Dakota Legislature and citizens of South Dakota.

As I conclude this post its hard to see the above situations as anything but different symptoms of the same problem: the Executive Branch has no respect for the balance of power. By choosing to illegally make appointments President Obama has decided he is beyond the control of the United States Senate. Likewise by failing to make committee appointments Governor Daugaard has decided he is beyond the control of the South Dakota Legislature. Perhaps now it is time for state and federal legislative bodies to start reviewing the balance power between branches and bring it back into alignment.

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