Victor Williams of Catholic Law School has an op-ed in today’s National Law Journal arguing that any challenge to the President’s recess appointments of National Labor Relations Board members is nonjusticiable on political question grounds. This is an argument the NLRB does not advance in its own briefs in the relevant D.C. Circuit cases.
The controversial appointments at issue occurred during a three-day adjournment between pro-forma sessions of the Senate. The sessions were necessitated when the House withheld its consent to a longer adjournment. The Office of Legal Counsel defended the President’s appointments after the fact on the ground that the Senate’s pro forma sessions could be disregarded. (The available Executive branch authority on point says a three-day recess could not “be said to constitute the recess intended by the Constitution.”)
Although Williams is doubtless correct that the recess appointment power, viewed in isolation, is “textually committed” to the President, that is not the end of the matter. Any application of the political question doctrine in this circumstance would be complicated by the competing constitutional prerogatives of more than one “coordinate political department.”
Powell v. McCormack, 395 U.S. 486 (1969), teaches that even a power constitutionally committed to one of the political branches may be judicially limited to its proper constitutional “scope.” Thus, the Court determined that the House of Representatives could judge Powell’s constitutional qualifications to sit as a member of that body, but it could not exclude him for extra-constitutional reasons.
Likewise, the power to make recess appointments is committed by Article II, section 2 to the President. But it is by no means obvious that that power extends to declaring the Senate to be in constructive recess. To the contrary, the power to prevent the Senate from adjourning for longer than three days is committed by Article I, section 6 to the House of Representatives, and the same provision grants to the Senate the power to determine its own rules, including presumably the adequacy of a pro forma session. In other words, Congress, not the President, decides when the Senate is in recess. If the political question doctrine has any application in this circumstance it works against the NLRB.
The D.C. Circuit will hear oral arguments in two cases challenging President Obama’s NLRB recess appointments on December 5, 2012: