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

[Ronald Levin]

Although Ryder is somewhat obscure, I think the difference is that in
that case the petitioner had timely raised the Appointments Clause
objection in his own earlier proceedings.  On that premise, I don't
think the de facto officer doctrine will help those NLRB  and CFPB
litigants who have been objecting all along to the recess appointments
in their cases.  But Adam's original question dealt with "any FEC
decision entered from January 2006-December 2007, when I believe the
Commission had three recess-appointed members (von Spakovsky, Lenhard,
Walther)."   Presumably, most if not all cases from that era have become
final, and I suspect Buckley would apply to that situation.

 

Moreover, an Appointments Clause defect can be cured if the agency's
defective actions are later cured by being ratified by the Commission
after its members have been properly qualified.  FEC v. Legi-Tech, Inc.,
75 F.3d 704 (D.C. Cir. 1996).  (This case grew out of the D.C. Circuit's
subsequent holding that the ex officio members of the FEC had also been
unconstitutionally appointed.)  So if a few cases from the 2006-07 era
lingered at the Commission for a while thereafter, the defect that is
now implied by Noel Canning probably went away.

 

From: Marty Lederman [mailto:lederman.marty at gmail.com] 
Sent: Sunday, January 27, 2013 4:47 PM
To: Ronald Levin
Cc: Paul Lehto; Scarberry, Mark; law-election at department-lists.uci.edu
Subject: Re: [EL] FW: DC Circuit decision on recess appointments -
Canningv. NLRB

 

I'm hardly up to speed on these questions, but my understanding was that
this "holding" of Buckley had been largely undermined by the decisions
in Ryder and Nguyen.  In Ryder, the Court noted that the constitutional
challenge raised by the plaintiffs in Buckley "was decided in their
favor," and that therefore to the extent it "may be thought to have
implicitly applied a form of the de facto officer doctrine, we are not
inclined to extend [it] beyond [its] facts."

On Sun, Jan 27, 2013 at 5:35 PM, Ronald Levin <Levin at wulaw.wustl.edu>
wrote:

On the question of whether a defect in the appointment of  FEC
commissioners renders their past actions void, Buckley v. Valeo would
seem to be in point.  After holding that House and Senate leaders cannot
appoint commissioners, the Court continued:

 

It is also our view that the Commission's inability to exercise certain
powers because of the method by which its members have been selected
should not affect the validity of the Commission's administrative
actions and determinations to this date, including its administration of
those provisions, upheld today, authorizing the public financing of
federal elections. The past acts of the Commission are therefore
accorded de facto validity, just as we have recognized should be the
case with respect to legislative acts performed by legislators held to
have been elected in accordance with an unconstitutional apportionment
plan.

 

424 U.S. at 142.

 

Ron Levin

 

 

From: law-election-bounces at department-lists.uci.edu
[mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of Paul
Lehto
Sent: Friday, January 25, 2013 12:36 PM
To: Marty Lederman
Cc: Scarberry, Mark; law-election at department-lists.uci.edu
Subject: Re: [EL] FW: DC Circuit decision on recess appointments -
Canningv. NLRB

 


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. 

	
	  

 

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