Symposium: Noel Canning opens the door

This week we are hosting an online symposium on National Labor Relations Board v. Noel Canning, in which the Court will consider the constitutionality of the president’s recess appointments to the NLRB.  Lyle summarized the issues in the case last week in a “Made simple” post.

The following contribution comes from Victor Williams, an assistant clinical professor at Catholic University of America’s Columbus School of Law, who filed amicus briefs supporting the president’s appointments at the Supreme Court and various lower courts.  Professor Williams has supported the appointment authority of the past four presidents in both academic and popular commentary. 

“A little group of willful men, representing no opinion but their own, have rendered the great government of the United States helpless and contemptible.” When Woodrow Wilson condemned the scarcely used filibuster in 1917, he could not have imagined the exponential filibuster shame of our age.  The frequently used modern stealth filibuster and confirmation hold keep critically important posts vacant for months and years.  Past filibuster reform efforts have failed, and present reform proposals do not address judicial appointment obstruction.

Confirmation obstruction worsens with Bush v. Gore

A destructive cycle of confirmation obstruction and subsequent partisan payback has intensified with each of the past four presidencies.  Chief Justice John Roberts captured the downward spiral:  “Each political party has found it easy to turn on a dime from decrying to defending the blocking of judicial nominations, depending on their changing political fortunes.”

Partisan fury after the Supreme Court’s 2000 Bush v. Gore presidential selection significantly worsened the obstruction cycle for George W. Bush’s nominees.  (The divisive election ruling was criticized at the time for answering a political question and regretted most recently by one of the nine Americans whose vote counted.)  Senate Democrats ratcheted up the use of previous confirmation obstruction tactics and initiated judicial nomination filibusters.

While regularly campaigning for “up-or-down” confirmation votes, President Bush trumped filibusters with recess appointments.   When Democrats took majority control of the Senate in 2007, however, Majority Leader Harry Reid upped the ante by scheduling pro forma sessions every three days during Senate breaks.  Obstructionists asserted that a Senate recess of over three days was needed to trigger the president’s appointment power. The fake sessions were, and are, only a bluff in the high-stakes game of appointment poker.  Obstructionists misapply a three-day restriction found in the Adjournment Consent Clause.  The Article I, Section 5 adjournment provision is only an internal comity restriction of the legislative branch as to time and place for conducting its business; it does not apply to, much less restrict, the president’s Article II, Section 2 appointment power.

George Bush disregarded the advice of many, including this author, to challenge Senate interference with his exclusive executive function.  Fighting a multi-front war and a global economic crisis, the fatigued president surrendered the appointment authority for his last fourteen months in office.

Appointment obstruction becomes nullification

Barack Obama entered the White House hoping to “move beyond” appointment conflict; instead, his nominees suffered treble payback.  The more stellar the individual nominee or the more essential the vacancy, the more zealous the confirmation obstruction.  The partisan goal was soon manifest:  Defeat Obama through nullification of his governance.

Example:  NLRB nominee Craig Becker’s multiple nominations and years of confirmation tribulation.  At the end of Becker’s initial confirmation travail in February 2010, he received fifty-two favorable votes; a simple majority constitutionally sufficient for Senate confirmation, but not the supermajority (sixty votes) required for filibuster cloture.  The independent labor agency languished with only two out of five Board members, and Harry Reid called for the president to recess appoint “all” blocked nominees.

During March 2010 oral arguments in New Process Steel v. NLRB contesting the agency’s legal authority to operate with only two members, Chief Justice John Roberts asked:  “And the recess appointment power doesn’t work why?”  Neal Katyal, then the Principal Deputy Solicitor General, parroted the obstructionist myth as excuse: “I think our office has opined the recess has to be longer than 3 days.”  In a supplemental letter-brief, Solicitor General Elena Kagan also referenced the three-day canard in a mootness analysis; it is now germane only to recusal.

A direct answer to Roberts’ question:  The recess appointment power works any time the president determines the Senate is not available to offer its advisory consent; he has only to muster the political will to sign commissions.  Obama did just that only four days after Roberts’ oral argument question.  On March 27, 2010, Craig Becker was recess appointed to the NLRB.    (Barack Obama has thus far made only thirty-two recess appointments — fewer than any modern president.  Ronald Reagan signed 240 recess commissions, George H.W. Bush [one term] 74, William Clinton 139, and George W. Bush 171.

With the express motive to “prevent any and all recess appointments by preventing the Senate from recessing for the remainder of the 112^th Congress,” the Tea Party-infused House manipulated its schedule in collusion with Senate Republicans  to avoid House adjournment beginning in May 2011.  The upper chamber was effectively forced by the lower house to hold pro forma sessions during breaks.

Becker’s commission expired on January 3, 2012, rendering the NLRB legally defunct.  The next day Obama recess appointed a Becker replacement plus two other Board members. Obama also commissioned Richard Cordray to head the year-old CFPB; obstructionists had pledged to filibuster “any” nominee for the position.

The political conflict was quickly removed to federal court fora across the nation.  The D.C. Circuit’s “radical” Noel Canning ruling deserves the harsh and thoughtful criticism received; as does the subsequent Third Circuit’s New Vista Nursing edict which sua sponte invalidated Becker’s March 2010 recess appointment.  Most critics, and the president’s lawyers, however, fail to note that each court challenge presents a nonjusticiable political question.

Nonjusticiability from Marbury to Zivotofsky  

Obvious by the Recess Appointment Clause’s textual mandate, structural logic, and functional purpose, the Framers’ commitment of power is exclusive to the executive.  The 1787 Convention’s summer appointment judgment substantially restricted the legislature’s role.  In Federalist writings, Alexander Hamilton describes the Senate’s responsibility as only to “ratify or reject” the president’s permanent appointment choices.  Hamilton directly stated that the Constitution’s drafters “intended to authorize the President singly to make temporary appointments.”  Absolutely no House role in permanent or temporary appointments was allowed, thus preventing “infinite delays and embarrassments.”

The president alone has power to both determine Senate unavailability and discretion to sign temporary commissions.  This is an exercise of a political power, not a reviewable legal action.  This textual commitment recognizes that only the executive possesses the institutional competence to know when such appointment action is required for his Article II, Section 3 mandate: “[H]e shall take Care that the Laws be faithfully executed, and shall Commission all the Officers of the United States.

In amicus briefs filed to support the president’s appointments in various of the court of appeals challenges, this author raised a nonjusticiability theory with arguments based on precedent from John Marshall’s Marbury v. Madison 1803 ruling through Sonia Sotomayor’s Zivotofsky v. Clinton 2011 concurrence.  The amicus briefs attempted a detailed application of Baker v. Carr’s numerated criteria and the conflict avoidance of Nixon v. United States, when the Court rejected review of a judge’s Senate impeachment trial. The appointment challenges also present a patent conflict; judges should not be final arbiters of the appointment method often used to “regulate” bench composition and transform the courts’ racial and gender demographics.

Alexander Bickel’s prudential poetry

The predisposed D.C Circuit’s Noel Canning ruling ignored, and the nonplussed Third Circuit’s New Vista majority opinion dismissed, the nonjusticiabilty arguments.  Neither did the Supreme Court follow this author’s amicus certiorari counsel to add a threshold political question determination for Noel Canning briefing.

Maybe less “domesticated” abstention advocacy is needed; “something greatly more flexible, something of prudence, not construction and not principle.”  The purest prudential strain of nonjusticiability still incubates in Alexander Bickel’s The Least Dangerous Branch.  In unmatched aesthetic, Bickel offered foundation instead of criteria:

“In a mature democracy, choices such as this must be made by the executive…” Such is the foundation, in both intellect and instinct, of the political-question doctrine: the Court’s sense of lack of capacity, compounded in unequal parts of (a) the strangeness of the issue and its intractability to principled resolution; (b) the sheer momentousness of it, which tends to unbalance judicial judgment; (c) the anxiety, not so much that the judicial judgment will be ignored, as that perhaps it should but will not be; (d) finally (“in a mature democracy”), the inner vulnerability, the self-doubt of an institution which is electorally irresponsible and has no earth to draw strength from.

The late Yale Law professor’s prudential poetry continues to intrigue and unnerve.  Perhaps our democracy is yet too immature for Bickel’s robust restraint.

The Court should complete the interpretive job:  Respondent Noel Canning opens the door to judicial review of unconstitutional filibuster/cloture 

If the Court is to govern appointments, it should not do so piecemeal.  A Noel Canning merits ruling should insure finality by establishing a fully functioning federal appointments process. The Solicitor General’s excellent Noel Canning merits arguments should easily win affirmation of the president’s appointment power and discretion. The Court must then subject all other predicate obstruction that led to the recess appointments to constitutional inspection.

Respondent Noel Canning opened the door to this expanded review by requesting the additional question presented regarding the Senate pro forma sessions.  Amici Mitch McConnell and the forty-four other Senate Republican Conference members stumbled over the truth by advocating for review of “all aspects” of the controversy.

When former Attorney General Edwin Meese led amici in defending Bush’s recess appointment of Judge William Pryor in the 2004 Evans v. Stephens adjudication, he made just this argument:  “It would be perverse to let a minority of the Senate escape judicial review of its arguably unconstitutional obstruction, while subjecting to judicial review the President’s response — acquiesced in by the Senate majority — to that obstruction.”  (The partisan Meese now predictably opposes Obama’s NLRB recess appointments.)

Additional party briefing is apposite. The Court will independently find, however, a rich legal and policy literature discussing the nonconstitutional history of the Senate filibuster and the unconstitutional supermajority operation of the cloture rule.  The Court might best begin with Emmet Bondurant’s 2011 Harvard Journal of Legislation work which briefs six direct ways that filibusters are unconstitutional.  The Court should also examine other obstruction games and gimmicks such as confirmation holds (anonymous, tag-team, blanket, and extortion) as de facto filibusters. United States v. Ballin affirmed long ago that the Senate “may not by its rules ignore constitutional restraints.”  The partial nature of recent filibuster reform proposals –leaving judicial confirmations subject to supermajority cloture votes — argues for a full voiding of all unconstitutional obstruction for all offices.

The Court should rule that all confirmation hurdles, holds, and filibusters –if terminated only by a supermajority cloture vote — are unconstitutional.  The supermajority design of the Article of Confederation (agreement of nine of thirteen states required) had failed quite badly.  The Framers affirmatively decided that supermajority votes would be explicit exceptions to the 1787 Constitution’s simple-majority rule.  Hamilton described, in Federalist 22, how a supermajority vote requirement can be exploited by the few to “embarrass the administration” and “destroy the energy of government.”  Minority rule can encourage “caprice or artifices of an insignificant, turbulent, or corrupt junta.”  Whether the junta sports red or blue, it is damaging our Republic.

Conclusion

The extreme need for finality in federal appointments demands that the Court either broadly determine Noel Canning to be nonjusticiable; or fully reach all the merits to both reaffirm the executive’s recess appointment power and invalidate Senate confirmation holds and filibusters requiring unconstitutional supermajority cloture votes.