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OPINION

A political question imperative

The D.C. Circuit's ruling against NLRB recess appointments proves DOJ should rely on the political-question defense that was upheld by the Supreme Court in 'Goldwater v. Carter.'

By Victor Williams All Articles 

The National Law Journal

February 4, 2013

Partisans intent on obstructing President Barack Obama's governance won a double victory during inauguration week. One day after Senate filibuster reform fizzled, a federal appellate panel issued a ruling, in Noel Canning v. National Labor Relations Board, that attempts to eviscerate the president's recess-appointment authority. The U.S. Court of Appeals for the D.C. Circuit went far beyond the arguments offered by petitioner Noel Canning or amici Minority Leader Mitch McConnell (R-Ky.) and 41 other Republican senators.

The panel ruled that presidential recess-appointment authority exists only during the formal recess between sessions of Congress (traditionally once or twice a year) and is valid only to fill vacancies that have "arisen" during that particular "intercession" recess period. Mocking both textualism and originalism as interpretive models, the ruling destroys the framers' dual appointment design carefully crafted to insure a fully staffed government.

Without limiting principle, the ruling grants the Senate final authority to cancel the executive's recess-appointment power. The D.C. Circuit's gimmick: "Because in this case, the Senate declined to adjourn sine die on December 30, 2011, it did not enter an intersession recess, and the First Session of the 112th Congress expired simultaneously with the beginning of the Second Session." Thus, the Senate can frustrate presidential appointments by scheduling to avoid "the recess." The congressional Republicans' pro forma scheduling shenanigans pale in comparison to the panel's hypertechnical interpretive gimmickry.

Opposite almost 200 years of political branch understandings and operations, the ruling starkly conflicts with Second, Ninth and Eleventh circuit precedent affirming intrasession recess appointments. The opinion's overreaching nature and potential for causing extreme legal chaos demonstrates why the court should never have exercised jurisdiction. The case presents a political — not legal — question.

After the D.C. Circuit panel graciously accepted my amicus brief in Noel Canning, which raised political-question nonjusticiability in support of the NLRB, it performed a clever backflip to avoid addressing its argument. The ruling asserted that "no party has questioned our jurisdiction to decide the constitutional issues raised in this petition." An amicus is not a party. And DOJ failed to raise the alternative theory in its strong merits briefs or advance nonjusticiability at the oral argument. The political (some unfairly say partisan) panel opinion eagerly proceeded to answer the political question.

By declaring Obama's three NLRB January 4, 2012, recess commissions "invalid," the three judges attacked the institutional legitimacy (and immediate past year's rulings) of the board. More broadly, the ruling casts doubt on decades of rulings and rules made by scores of "invalid" recess-appointed officers, regulators and federal judges. The opinion substantially understated the legal chaos that will ensue, acknowledging only that "some administrative inefficiency" might result "from our construction of the original meaning of the Constitution."

Ronald Reagan signed 240 recess commissions; George H.W. Bush, 77; Bill Clinton, 139; George W. Bush, 179. Obama has made 32 recess appointments. It is doubtful that more than a few, if any, of those recess commissions would satisfy the D.C. Circuit's two-part test.

The recent operational history of the NLRB is informative. The agency's quorum and authority often depended on "invalid" recess-commissioned members throughout Bill Clinton's second term, George W. Bush's presidency and Obama's tenure. It is not just one year, but, rather, 16 years of NLRB rulings that would be subject to review.

In startled response to the radical ruling, the White House correctly noted that "the decision had to do with one case, in one court that applies to one company." The battle is multifront. There are ripe challenges briefed and pending oral arguments at the Third, Fourth and Ninth circuits. Another challenge is ripe before a different D.C. Circuit panel. And Richard Cordray's recess appointment to the Consumer Financial Protection Bureau is being litigated in federal trial court. Respectfully, but forcefully, the ruling must be challenged even as DOJ escalates its adjudicative efforts on all fronts. The D.C. Circuit's radical ruling demonstrates why the alternative nonjusticiability defense is necessary and superior to the DOJ's very strong merit arguments.

The political-question doctrine of judicial restraint is fundamental to the republic's self-governance. Answers to political questions, such as the processes of impeachments and appointments, should come only from our elected political leaders. It is the president alone who has Article II, § 2, power to determine the Senate's unavailability to offer his nominees' advisory consent and thus to decide to sign term commissions. It is an exercise of political power, not a legal judgment or decision subject to judicial review.

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