The Law

The War Over Recess Appointments Is Not for the Supreme Court to Settle

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There has been considerable disagreement about the constitutionality of President Barack Obama’s recess appointments, including here at The New Republic: My colleague Jonathan Cohn has defended the appointments, while Timothy Noah grudgingly has not. We’re not alone: Federal courts can’t seem to agree, either. In 2004, the Eleventh Circuit Court of Appeals upheld the appointments’ constitutionality, but last week, in a sweeping decision that called into question more than a century of recess appointments by Republican and Democratic presidents, the U.S. Court of Appeals for the D.C. Circuit ruled that Obama exceeded his powers when he made three appointments to the National Labor Relations Board last year.

There are respectable constitutional arguments on both sides of the issue, which I’ve outlined before. But regardless of which arguments you find more persuasive, one thing is clear: The D.C. Circuit engaged in an extraordinary display of judicial activism when it agreed to hear the case in the first place. As the court acknowledged [pdf] at the outset, “there is a serious argument to be made against our having jurisdiction over the Constitution issues.” But the majority, led by Judge David Sentelle, then dismissed those objections, embracing a strained reading of the law that no previous court had accepted.1

Having stretched to hear the case, the court then decided to resolve the constitutional issues far more broadly than the facts required. As Judge Thomas Griffith wrote in a concurring opinion, the court could have struck down the constitutionally controversial “intrasession” recess appointments (that is, appointments the president makes when Congress briefly adjourns during one of its sessions) without striking down the far more widely accepted practice of intersession recession appointments (that is, those the president makes during the adjournments between Congressional sessions). Citing Louis Brandeis, Griffith noted that courts shouldn’t lightly dismiss a presidential interpretation of the Constitution that dates back more than a century when the case at hand doesn’t demand it. That, in fact, is precisely the kind of judicial activismdefined by a straining to resolve constitutional issues broadly rather than narrowlythat John Roberts pledged to avoid when he became Chief Justice.

What will the Supreme Court do when it hears the case, as now seems likely given the disagreement among the lower courts?  The Court could rule that federal judges should stay out of the controversy over recess appointments because it’s a quintessential example of a "political question": an issue that judges can’t resolve without taking sides in a dispute between Congress and the president, which the Constitution expects them to resolve on their own. In fact, in 2004, the Eleventh Circuit ruled along these lines when it rejected the argument that George W. Bush had misused his recess appointment authority by appointing Judge William H. Pryor, a controversial figure whose nomination had earlier been filibustered by Senate Democrats. “These matters are criteria of political wisdom and are highly subjective,” the court held. “They might be the proper cause for political challenges to the President, but not for judicial decision making: we lack the legal standardsonce we move away from interpreting the text of the Constitutionto determine how much Presidential deference is due to the Senate when the President is exercising the discretionary authority that the Constitution gives fully to him.”

If the Supreme Court does agree to review the constitutionality of recess appointments, it would do well to dismiss the case on similar grounds. Bush v. Gore shows the dangers of allowing federal courts to second-guess quintessentially political disputes, and last week’s decision threatens to resurrect Bush v. Gore–style judicial activism with a vengeance. At the beginning of Obama’s second term, the real threat to his agenda may come not from the Roberts Court, but from lower-court judges who are trying to resurrect limits on executive and congressional power that have been dormant for more than a century. Let’s hope that, regardless of their views on the constitutional merits of recess appointments, the justices of the Roberts Court recognize that when the president and Congress disagree about the scope of these powers, judges have no business taking sides.

1

The jurisdictional argument is technical, but it turns on whether the failure of those who are challenging the recess appointments to raise the constitutional arguments in the first place counts as an excusable example of "extraordinary circumstances"; the fact that the judges reached out to raise arguments that hadn’t even occurred to the parties shows how determined they were to press their novel constitutional agenda.

Jeffrey Rosen is legal affairs editor at The New Republic and president and CEO of the National Constitution Center.

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