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.
Of political-question precedents supporting my amicus briefs, Nixon v. U.S. (1993) is the most easily summarized. The U.S. Supreme Court refused review of a debenched federal judge’s challenge to the Senate’s exercise of its Article I, Section 3, "sole" duty to "try" all impeachments. The court lacked authority to review the procedurally questionable Senate trial process used to strip U.S. District Judge Walter Nixon of his tenured office and salary. The court stated: "Judicial involvement in impeachment proceedings…is counterintuitive because it would eviscerate the ‘important constitutional check’ placed on the Judiciary by the Framers." Federal courts should similarly be conflicted-out of being the final reviewer of the constitutional process by which more than 300 judges have been recess-appointed (often strategically employed to ensure gender and racial bench diversity).
Goldwater v. Carter (1979) is an example of the Supreme Court’s most efficient political-question determination. Barry Goldwater led a group of senators who sued President Jimmy Carter for abrogation of a U.S. treaty with the Republic of China (Taiwan). The Supreme Court firmly rejected the senators’ attempt to interfere with an exclusive executive authority. Without oral argument, the high court vacated and remanded the case to the trial court. Concurring, Associate Justice William Rehnquist explained why it was a political question. "Here, while the Constitution is express as to the manner in which the Senate shall participate in the ratification of a treaty, it is silent as to that body’s participation in the abrogation of a treaty." Similarly in the recess-appointment challenges, "while the Constitution is express as to the manner in which the Senate shall participate" in the confirmation of an ordinary appointment, its next clause negates "that body’s participation" in the president’s signing of a recess commission. On all fronts of recess-appointment conflict, DOJ should forcefully adopt the political-question alternative defense. Meanwhile, Obama should continue to fight obstruction and demand timely Senate confirmations. And he should sign commissions to staff the national government any time he determines the Senate is not available to timely render its advisory consent. Obama should prioritize filling the several D.C. Circuit vacancies.
Victor Williams is a clinical assistant professor of law at Catholic University of America Columbus School of Law. He has filed amicus briefs in four circuit NLRB adjudications that argue political-question nonjusticiability.