Reply: Political Question Answer to Recess Appointment Test

Ed. note:  In anticipation of the D.C. Circuit’s consideration of Noel Canning v. NLRB, Professor Victor Williams recently posted a thought-provoking defense of last January’s controversial recess appointments based on the political question doctrine.  I responded, arguing that the President’s recess appointment power is limited in a judicially reviewable manner by Article I, section 6, which gives to the House the power to prevent the Senate from recessing and to the Senate the power to decide what constitutes a recess.  The D.C. Circuit heard oral argument on December 5.  This is Professor Williams’s gracious rebuttal.

by Victor Williams

The political-question doctrine of judicial restraint is fundamental to conservative jurisprudence and American self-governance.  Answers to political questions, such as the Republic’s processes of impeachments and appointments, should come only from elected political leaders.  Powell v. McCormick, as referenced by the D.C. Circuit Review, is an important precedent in the development of the political-question doctrine.  It is not controlling, however, as to whether Noel Canning v. NLRB’s challenge to the president’s recess appointments is nonjusticiable.

The president alone determines if the Senate is unavailable to render advisory consent under Article II, Section 2; such unavailability triggers his Clause 3 recess commissioning power.  Article I, Section 5’s  Adjournment Consent Clause and Rules of Proceeding Clause do not restrict – or even apply to — the scope of the president’s Article II, Section 2 appointment authority.  At the kind invitation of the D.C. Circuit Review; I defend this position by expanding on my Amicus Brief filed in Noel Canning below.

First, some recent history.  When Harry Reid began scheduling pro forma sessions in late 2007 to frustrate presidential recess appointments, I encouraged President George W. Bush to ignore the Majority Leader’s too-clever bluff and assertively use his recess appointment power.  By not doing so, Bush II forfeited the Executive’s recess appointment authority for the remainder of his term.  In 2010, the Tea-Party infused House began regularly withholding adjournment consent from the upper chamber, purposely forcing the Senate back into sham scheduling to intentionally frustrate President Barack Obama’s recess appointment authority. Scores of critically important vacancies harmed Executive, agency, and judicial functions.  In a series of National Law Journal, Huffington Post and Jurist columns, I urged the president to aggressively fight Senate confirmation battles while regularizing the use of his recess authority.

In January 2012, President Obama signed commissions to the NLRB during a twenty-day break in which the Senate continued to hold sham sessions every three days.  In doing so, Obama restored quorum and legal authority to the NLRB and preserved the Framers’ dual appointment design (ordinary and recess) for himself and future presidents.  President Obama also framed a further challenge to the faulty premise of the congressional obstructionists’ scheduling gimmick.  There is no three-day recess minimum needed to trigger the president’s term appointment authority.

Unfortunately, attorneys, scholars, commentators, and now the Noel Canning Petitioners continue to parrot the three-day recess minimum myth.  They mistakenly reference the Adjournment Consent Clause as authority.  Advocates often wrongly rely on a weak inference in a poorly-crafted 1993 DOJ trial brief.  Former Deputy Solicitor General Neal Katyal made this mistake during 2010 New Process Steel v. NLRB oral arguments in response to Chief Justice John Roberts’ direct question as to why President Obama was not using recess appointments to maintain the NLRB’s quorum.

The Article I, Section 5 adjournment provision only requires each house of Congress to obtain the other’s consent before adjourning for more than three days.  The misapplication of the clause (and thus the three-day recess minimum myth) is built on conjecture that any break of three days or less is de minimis for adjournment consent and also for analysis of recess appointments.  The same Article I provision also restricts either house from moving “to any other Place than in which the two Houses shall be sitting.” Clearly, the Article I, Section 5 provision is meant only as an internal comity restriction of the Legislative Branch.  It only describes internal operations and obligations of the Congress. The Framers intended Congress to work together in time and place.  And, the chambers are autonomous in making their own procedural rules.  None of Article I, Section 5 applies to, or restricts, the president’s independent Article II, Section 2, Clause 3 recess appointment power.

By the structural logic and functional operation of the Recess Appointment Clause, a Senate on “recess” is unavailable to render Clause 2 advisory consent, or Clause 3 advice as to its unavailability.  That is the inherent nature of ‘unavailability.’  It is the president alone who has Article II discretionary power both to determine the Senate’s unavailability and sign term commissions.  It is a political power not a legal power.

Chief Justice John Marshall provided guidance as to the “rule of law to guide the judiciary in the exercise of its jurisdiction” in such cases.  It has none:  “By the constitution of the United States, the president is invested with certain important political powers, in the exercise of which he is to use his own discretion, and is accountable only to his country in his political character, and to his own conscience.”  Marbury v. Madison, 5 U.S. 137, 165 (1803).

Petitioner’s Reply Brief (pg.41, note 19) attempts to circumvent the political question argument by invoking Zivotofsky v. Clinton, 132 S. Ct. 1421 (2012).  However, Zivotofsky involved a non-relevant issue of statutory interpretation and validity.  Noel Canning, by contrast, involves a textbook example of a political question; the president’s exercise of unilateral appointment authority textually committed to him by the Constitution.

I argue in the Brief that Nixon v. United States, 506 U.S. 224 (1993) (which applied Baker v. Carr, 369, U.S. 186 (1962)), is relevant and controlling.  The Supreme Court rejected review of a debenched federal judge’s challenge to the Senate’s exercise of its (Article I, Section 3, Clause 6) “sole” duty to “try” all impeachments.  The Supreme Court determined that the judiciary could not review a procedurally problematic Senate impeachment trial process in which an “evidence committee” of only 12 senators heard testimony while 88 senators avoided jury duty.  88 senators were not in the Senate courtroom when the conflicting evidence was presented.  But all 100 Senators were ultimately allowed to vote — thumbs up or down — rendering the final removal verdict.  The Supreme Court determined that it did not have authority to review the shortcut Senate trial process used to strip U.S. District Judge Walter Nixon of his tenured office and salary.  The Court explicitly ruled “the word ‘try’ in the Impeachment Trial Clause does not provide an identifiable textual limit on the authority which is committed to the Senate.” Id. at 239.  The nation’s highest court would not conjure a definition of the word “try.”

Neither should the judiciary review the president’s exercise of his exclusive textual authority to sign term appointments.  Neither should the court attempt to find a definition of the term “recess.”  Just like the word “try” in the Impeachment Trial Clause, the word “recess” in the Recess Appointment Clause “does not provide an identifiable textual limit on the authority which is committed to the [president].” Nixon, 506 U.S. at 239.

A court’s process of defining “recess” would require it to assign constitutional weight to various types of Senate “unavailability,” including breaks, adjournments, holidays, suspensions and delays.  The court would need to examine “recess” in the political and practical context of the Senate’s pro forma sessions.   The judiciary should not allow itself to be dragged into the densest of modern political thickets – partisan appointment conflict.  Once enmeshed, the court would certainly be asked, in future litigation, to fully review the merits of other constitutional congressional dysfunctions; such as the increasingly frequency of Senate confirmation filibusters.  Indeed, Common Cause’s challenge to the Senate’s use of the filibuster procedure is now well underway in the U.S. District Court for the District of Columbia.  The Senate formally invoked political-question nonjusticiability as a defense in seeking dismissal. Common Cause v. Biden, U.S.D.C.- D.C. (No. 12–0775(EGS) (Def. Br. at 40).  The Senate has not taken a position in the Noel Canning adjudication although Majority Leader Harry Reid praised President Obama’s 2012 recess appointments and encouraged him to recess all of the blocked nominees.

In further opposition to my Amicus Brief in Noel Canning, the Petitioners (Reply Brief, pg. 41, note 19) raises two past recess appointment challenges which were decided by sister circuits on the merits. See United States v. Woodley, 751 F.2d 1008 (9th Cir. 1985) (en banc) and United States v. Allocco, 305 F.2d 704 (2d Cir. 1962).  However, each case serves as important contrast to demonstrate that Noel Canning raises a political question.  Neither the Woodley nor the Allocco recess appointments had any degree of underlying political branch conflict or controversy sufficient to provide context for a nonjusticiable determination.

The political branch conflict, surrounding and resulting in the January 4, 2012 NLRB appointments, was historically substantial. The conflict was far more pronounced even than the filibuster controversy forming the basis for the Eleventh Circuit’s discrete political question determination in Evans v. Stephens, 387 F.3d 1220 (11th Cir. 2004) (en banc).  William Pryor’s prolonged partisan confirmation tribulation was only fractionally as conflictive and controversial as the underlying political events leader to the NLRB appointments.

The Justice Department’s merits arguments in its Noel Canning briefs are very strong.  They build on the equally strong January 2012 reasoning of White House Counsel Kathryn Ruemmler and the Justice Department’s Office of Legal Counsel.   My Amicus Brief is offered as an alternative theory to defend the president’s appointments.  Attorneys (even government attorneys) may argue in the alternative (e.g. Obama’s Affordable Care Act individual mandate was argued to be valid under the commerce clause and/or valid under the taxing power).

At oral argument on December 5, the D.C. Circuit panel appeared hostile to the DOJ’s excellent merits arguments. An alternative theory might be helpful.  The three-judge panel also seemed to be searching for a limiting principle to the president’s unilateral recess appointment power.  Such limitation is found in the temporary nature of the appointments, the Senate’s willingness to cooperate with future ordinary appointments, and the Congress’ other structural legislative checks on the Executive and the agencies the president staffs using term appointments.

Ultimately, the limiting principle to a worst-case scenario of a future president grossly abusing the recess appointment authority lies with Congress’s impeachment removal power (which the Supreme Court has assured in Nixon is not reviewable as a nonjusticiable political question).

Noel Canning v. NLRB, No. 12-1115 (Sentelle, C.J., with Henderson & Griffith, JJ.) (argued Dec. 5, 2012)

One response to “Reply: Political Question Answer to Recess Appointment Test

  1. Pingback: Recess Appointments and Constitutional Hardball | Appealingly Brief!

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