Courts (Should Not) Consider Recess Appointment Challenges: Posner Explains Political Questions

Just as would their presidential nominee, the GOP congressional obstructionists badly underestimated the political instinct and constitutional courage of President Barack Obama.
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At the start of 2012, the National Labor Relations Board was dead. After months of Senate minority confirmation delays, holds, and filibusters, the venerable NLRB lost its membership quorum and thus, its legal authority. In obstructionist collusion, the Tea Party-infused House majority purposely denied intersession adjournment consent to the Senate, keeping both chambers in pro forma sessions every three days. The congressional partisans attempted to bluff the president out of making recess appointments during the congressional break. Just as would their presidential nominee, the GOP congressional obstructionists badly underestimated the political instinct and constitutional courage of President Barack Obama. On January 4, 2012, our president signed three recess commissions, immediately resurrecting the Board's quorum and thus, its legal power.

As I explain in the National Law Journal, anti-labor groups such as the U.S. Chamber of Commerce and the Right to Work Legal Defense Foundation began promoting NLRB court fights throughout the nation to challenge the appointments. These challenges have now been fully briefed at four different U.S. Court of Appeals geographic circuits.

Last week in Chicago (before the Seventh Circuit), as this week in Washington, D.C. (before the D.C. Circuit), challenges to the constitutionality of the appointments were argued. The challengers' briefs veer towards the absurd in raising long-discredited arguments against recess appointments, by substantially overstating the Senate's role in both ordinary and term appointments, and by indiscriminately implicating unrelated constitutional provisions.

Building on the reasoned January 2012 arguments of White House Counsel Kathryn Ruemmler and the Justice Department's Office of Legal Counsel, the government's briefs met and defeated every argument against the president's recess appointment authority. In each circuit, the government briefs clearly explained that the NLRB commissions were signed by the president during a twenty-day Senate break (from January 3rd through 23rd). During the break, the Senate conducted no business and considered no communications from the president. Just as I have argued here and elsewhere, the seconds-long pro forma sessions held every three days were embarrassing faux sessions lacking legal or constitutional significance.

The government surprisingly neglected, however, to argue the stronger jurisdictional defense that no federal court should consider the merits of the challenges as they each raise a nonjusticiable political question. It is a principle of conservative jurisprudence that the federal courts do not have jurisdiction to interfere with issues which the Constitution's text has committed to a coordinate political branch. At each of the four circuit courts, I tendered Amicus Briefs supporting the NLRB, raising and arguing the political question defense. The text, drafting, and ratification history of the Recess Appointment Clause prove that the Executive alone has final authority over term appointments.

Political Question Doctrine Provides a Stronger Defense

Although my Amicus Briefs are alone among any filings in suggesting a political question inquiry is required, the theory in this context is well-known. Congress' own nonpartisan Congressional Research Service (CRS) issued a report in January 2012 that raised the possibility. Chief Justice John Marshall provided early guidance as to the "rule of law to guide the court in the exercise of its jurisdiction" in such cases. In Marbury v. Madison (1803), John Marshall offered this political-question description: "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." Then, as now, Associate Justice Sonia Sotomayor reiterated the jurisdictional rule as developed in American jurisprudence (Luther v. Boden (1849), Baker v. Carr (1962), Goldwater v. Carter (1979), Nixon v. United States (1993): "The political question doctrine speaks to an amalgam of circumstances in which courts properly examine whether a particular suit is justiciable -- that is, whether the dispute is appropriate for resolution by courts." Zivotofsky v. Clinton (2012)(concurring).

Between 1803 and 2012, federal courts of all levels exercised the most important judicial restraint -- deciding not to hear cases where the Constitution has granted final authority to the political branches. Judge Richard Posner of the Seventh Circuit artfully explains that the doctrine acknowledges the Constitution's "assignment of exclusive decision making responsibility to the nonjudicial branches of the federal government." Miami Nation v. Interior (7th Cir. 2001). Article II, Section 2, Clause 3 "lies at the heart of the doctrine of 'political questions,'" which is described by Posner:

The doctrine identifies a class of questions that either are not amenable to judicial resolution because the relevant considerations are beyond the courts' capacity to gather and weigh, or have been committed by the Constitution to the exclusive, unreviewable discretion of the executive and/or legislative -- the so-called 'political' -- branches of the federal government.

Id. (citations and references omitted).

Even more instructive is Posner's caution regarding the "nature of the questions that the court would have to answer -- which asks whether the answers would be ones a federal court could give without ceasing to be a court." Id. The answers to all such genuine political questions must come from our elected political leaders.

Another Opportunity for Nonjusticiability

At the November 30 Seventh Circuit oral argument, Judge Ilana Diamond Rovner (presiding at the three judge panel) spotted the "political question" issue, and directly asked the government if this was the "type of political question" with which the court should become "enmeshed." Deputy Assistant Attorney General Beth Brinkmann failed to take the judge's cue to avail the government of the jurisdictional defense. Perhaps because its brief's merits arguments are so strong, the Justice Department appears not to appreciate the contours of, and strategy for, a nonjusticiability alternative defense. (Richards v. NLRB 12-1973 oral argument audio transcript available here.)

At the December 5 oral argument before the D.C. Circuit, Brinkmann will again argue for the government, defending the president's NLRB recess appointments (Noel Canning v. NLRB 12-1115). Her merits arguments will likely again be strong. Senate Minority Leader Mitch McConnell and 41 other GOP senators have formally joined the court challenge as Amici. Speaker John Boehner, on behalf of the House Majority, has joined the challenge as an Amicus. Miguel Estrada, whose 2001 D.C. Circuit judicial nomination was filibustered for over two years by Democrats, will share argument time to present the Senate minority's Amici arguments. Even if confident of its merits case, perhaps the government will adopt the alternative political question nonjusticiability defense. Thankfully, the D.C. Circuit can be expected to carefully examine its judicial authority to review a case raising such an obvious political question.

Victor Williams is an attorney in Washington D.C. and clinical assistant professor at Catholic University of America School of Law.

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