On January 25, 2013, the U.S. Court of Appeals for the District of Columbia Circuit decided Noel Canning v. N.L.R.B., No. 12-1115. It’s a mortal lock for Supreme Court review, and is certain to be closely studied by government lawyers, law students and professors, and political scientists. It should be. It makes the Affordable Care Act case seem almost trivial by comparison.
At issue in Noel Canning is whether the National Labor Relations Board had a lawful quorum when it decided an unfair labor practice case. Three of the five members who voted held office under recess appointments by President Barack Obama. The case presented two constitutional questions (in addition to some non-constitutional ones): First, may a president make a recess appointment — i.e., one that does not require advice and consent of the Senate and lasts only until the end of the next session of Congress — when the Senate is merely adjourned rather than during "the Recess" referred to in Article II, Section 2, Clause 2 of the Constitution? Second, does the power to make such appointments apply only to vacancies that arise during "the Recess" or does it extend to any vacancy that happens to remain unfilled during a recess?
The D.C. Circuit panel answered the first question with a resounding and unanimous no. On the second question, it approved the more restrictive reading, although Judge Thomas Griffith did not join the majority because he felt it was unnecessary and therefore inappropriate to decide it.
Aspects of the decision are troubling. For example, the panel strained to get past the fact that the Recess Appointments Clause issue was never raised before the NLRB. Ordinarily, failure to raise an issue before an agency bars judicial relief, and that rule seems even more compelling given the special statutory requirement that issues be raised before the NLRB in order to qualify for judicial review. Since the recess appointments question is of constitutional dimension, one would think the usual reluctance to address unraised issues would apply with more, rather than less, force.
In this sense, the decision will strike some as an example of the dreaded "judicial activism." We are not so sure: the issue is an important one; the NLRB cannot claim special expertise in constitutional law; and in any event it could not have resolved the issue definitively — and several members would be self-interested since their appointments would be at stake. So on this level, it is just as well that the panel reached the constitutional issue.
Second, the D.C. Circuit panel was selective in describing the context in which the Recess Appointments Clause issue arose. Surely, it is pertinent to mention that it is only recently that the Senate has engaged in a concerted effort to thwart exercise of the Recess Appointments power by conducting what to the naked eye seem like sham sessions whose sole purpose is to avoid a constitutional "Recess." On the other hand, the decision canvasses a wealth of fascinating and potentially significant history. For example, few readers will have known that when some vacancies occurred during the administration of George Washington, nominations were sent to the Senate but the appointees did not decline the office until the Senate was in recess, thus creating a second vacancy that could properly be filled during the recess.
The Supreme Court will have to resolve the matter. The result may be to remove a cloud over actions taken by many executive branch and a few judicial branch recess appointees. It may also result in overturning a host of actions, including final judgments in numerous federal civil and criminal cases.
No doubt about it: it could take years to clean up. But a definitive ruling will be of incalculable value to both the White House and the Senate. They may be forced to develop a new and stabler modus vivendi, and one that does not involve the kind of tit-for-tat constitutional trench warfare over regular nominations that has produced phony Senate sessions and a contraction of the president’s ability to staff the executive branch and fill federal judicial vacancies. The current contortions ill serve public confidence in the ability of the federal government to conduct the nation’s business.
If the D.C. Circuit is correct on the Recess Appointments Clause issues, the result will at least be clarity and what would seem to be a closer adherence to the constitutional text on an important structural matter. In principle — and setting aside the not-insignificant danger of governmental paralysis that may be a byproduct — this is desirable. On a variety of structural issues a good case can be made for the proposition that we have drifted too far from the constitutional shore, just as we had in connection with legislative vetoes until Immigration and Naturalization Service v. Chadha, 462 U.S. 919 (1983). Is the current (and recently very modestly reformed) filibuster process true to Article I of the Constitution? Are the many executive agreements an evasion of the Senate’s sole power to ratify treaties? Is war properly made without an express congressional declaration? For that matter, shouldn’t actual vice presidential presiding over the Senate be the rule rather than the exception?
Under Article V, nearly everything in the Constitution can be amended. If the structure and process seem unsuitable in light of the profound changes that have transformed the country since 1787, let it be amended. But as the Noel Canning panel reminds us, in reliance on settled Supreme Court precedent, long practice does not excuse unconstitutional procedures.•