[EL] FW: DC Circuit decision on recess appointments - Canning v. NLRB

[Paul Lehto]

On Fri, Jan 25, 2013 at 1:12 PM, Marty Lederman <lederman.marty at gmail.com>wrote:

> Well, if the Supreme Court were to affirm -- a big if -- it would call
> into question the actions of hundreds of recess appointees going back to
> 1921, if not 1823.  There would then be a wholly separate question, of
> course, of whether any of those decisions could be retroactively
> challenged, particularly after time has long passed.


Void *judgments* can be attacked at any time, either directly or
collaterally, and most courts hold no passage of time cures a truly void
judgment.  Thus "a void judgment, order or decree may be attacked at any
time or in any court, either directly or collaterally" - The law is
well-settled that a void order or judgment is void even before
reversal.  *Vallely
v Northern Fire & Marine Ins. Co*., 254 U.S. 348, 41 S.Ct. 116 (1920)

But the question at hand is not judicial voidness but *executive* voidness,
and there are distinctions that could be made here. So, my question is
whether anyone has briefing or history, outside the opinion itself, that
would set forth the rules as to void executive appointments specifically,
without conflating these with void judicial decisions?

A void* judgment* lacks jurisdiction and thus the court has no power to
enter it. The President clearly has the power to appoint, and a certain
recess appointment power as well, but not the power to avoid confirmation
processes in the particular way it was done here, according to the DC
Circuit.  It would seem that the failure (I presume) of the Senate to
object either in this case or other cases would perhaps be found to be a
waiver of confirmation. But then, constitutional duties are often
considered to be nondelegable and nonwaivable, so the issues are
interesting.

Paul Lehto, J.D.

>
>
>
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20130125/37649919/attachment.html>