Partisan appointment obstruction has found a federal court forum. Congressional Republicans used every possible procedural gimmick to block National Labor Relations Board appointments during President Obama’s first term. The goal was nullification; extinguish the agency’s legal authority. Similar obstructionist schemes hobbled executive departments and other regulatory agencies and kept many judgeships vacant.
A new low was reached in 2011, when the House majority withheld adjournment consent in order to keep the Senate in pro forma sessions every three days. The sham scheduling was meant to limit executive recess-appointment authority. Obama called the partisans’ bluff on January 4, 2012, by signing recess commissions to resurrect the NLRB’s quorum. In response, partisans made good on their pledge to redouble obstruction throughout the election year.
Minority Leader Mitch McConnell (R-Ky.) and 41 other Republican senators took their obstruction to uncharted depths by joining a court challenge to the NLRB recess appointments, Noel Canning v. NLRB, as amici. The full House majority behind Speaker John Boehner (R-Ohio) also filed an amicus brief in support of the challenge. On December 5, arguments before the U.S. Court of Appeals for the D.C. Circuit will feature Miguel Estrada to defend the Senate GOP’s obstructionist prerogative. It is ultimate appointment-obstruction payback; Estrada’s nomination to the D.C. Circuit was scuttled after two years of Democrat blockage.
Curiously, congressional partisans bothered to join only one of the four ongoing challenges against the January 2012 recess commissions. In addition to Noel Canning, the U.S. Chamber of Commerce, the National Right to Work Legal Defense Foundation and other anti-labor groups are promoting NLRB court fights across the nation. Cases have been fully briefed in the Third (NLRB v. New Vista Nursing), Fourth (Nestle Dreyer’s Ice Cream Co. v. NLRB) and Seventh (Richards v. NLRB) circuits. The ever efficient Seventh Circuit was the first to conduct oral argument in late November.
Each of the separate challenges asserts a laundry list of well-worn but rejected arguments against recess appointments. Each is indiscriminate in raising unrelated constitutional provisions and substantially overstating the Senate’s appointment role.
The NLRB’s responding briefs, with Justice Department signatories, met and defeated each of the myriad, scattershot arguments. Building on the excellent reasoning offered in January by White House Counsel Kathryn Ruemmler and the Office of Legal Counsel, the NLRB briefs fully defend the president’s recess appointments and negate any legal significance of the Senate pro forma sessions.
NONJUSTICIABLE POLITICAL QUESTION
Although extraordinarily strong on the merits, the NLRB briefs neglect to raise the superior defense of political-question nonjusticiability. When rejecting a challenge (supported by Senate amicus) to President George W. Bush’s recess appointment of a judge, the en banc Eleventh Circuit easily made a political-question determination. Evans v. Stephens, 387 F.3d 1220 (11th Cir. 2004).
Each challenge to the NLRB appointments presents a textbook example of the nonjusticiability doctrine. In Baker v. Carr, 369 U.S. 186 (1962), the U.S. Supreme Court identified six independent characteristics of a political question including, as most relevant here, “a textually demonstrable constitutional commitment of the issue to a coordinate political department.” The doctrine also forbids judicial review when there is a “lack of judicially discoverable and manageable standards for resolving it,” or when it is impossible for the court to undertake “independent resolution without expressing lack of the respect due coordinate branches of government.”
In Nixon v. U.S., 506 U.S. 224 (1993), the high court rejected a challenge to the Senate’s sole power to try impeachments as nonjusticiable. Nixon instructs that the analysis first “determines whether and to what extent the issue is textually committed.” The text, drafting and ratification history of the recess-appointments clause prove that the executive alone is charged with power over recess appointments.
The unilateral executive authority was the capstone of the Philadelphia Convention’s final judgment to severely restrict the legislature’s role while granting the president a predominant appointment authority with a dual (ordinary and term) appointment design. The term-appointment idea came from Delegate Richard Dobbs Spaight, who drew from the 1776 North Carolina Constitution. Spaight offered his motion during the most critical day of the long summer’s many debates regarding appointments. This was the day when the final accord was struck for clause 2, ordinary appointments, by restricting the Senate to an advisory consent vote of the president’s choice. The delegates immediately and unanimously accepted the grant of exclusive term-appointment authority for the president. Spaight’s motion prompted no additional Convention debate, perhaps because it was so obviously practical; indeed, it was integral to the delegates’ plan for predominant presidential appointment authority.
DENSE POLITICAL THICKET
If a reviewing court goes beyond the text to review the petitioners’ broader claims, it will enter the densest of modern political thickets. A court will find no manageable standards to solve the partisan argument between the executive and Congress (and the equally rancorous internal conflict among congressional factions). The court should not attempt to conjure a minimum Senate recess time. It should not attempt to distinguish different types of Senate “unavailability” by divining constitutional weight for various Senate breaks.
It will also be impossible for reviewing courts to “undertake independent resolution” of the partisan appointment conflict “without expressing lack of the respect due coordinate branches of government.” Little to no respect is possible.
A fully functioning national government is critically necessary for our republic to successfully confront its severe problems in the next four years. The president must enact a bold appointment strategy to keep all federal offices staffed. Even as the Senate minority takes its obstructionist arguments to federal court, the 113th Senate majority should forever end confirmation filibusters. Regardless of upper-chamber reform, Barack Obama should formally regularize the use of recess commissions as the default appointment method. Article II, Section 3 is a mandatory obligation: “[H]e shall take Care that the Laws be faithfully executed, and shall Commission all the Officers of the United States.”
Victor Williams is a clinical assistant professor of law at Catholic University of America Columbus School of Law. He has tendered amicus briefs, in the Third, Fourth, Seventh and D.C. Circuit adjudications, that raise and argue political-question nonjusticiability.