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

[Scarberry, Mark]

Buckley could be distinguished. The members of the FEC were appointed as provided by statute, and their appointments were valid:

"Insofar as the powers confided in the Commission are essentially of an investigative and informative nature, falling in the same general category as those powers which Congress might delegate to one of its own committees, there can be no question that the Commission as presently constituted may exercise them."

It was only the exercise of some of the powers given to the commissioners that violated the Constitution, according to the Court in Buckley, because of the way in which they were appointed. In effect, the Court gave effect to actions taken by the FEC that were beyond its authority, rather than to actions taken by FEC members who were not properly appointed.

By contrast, there was no constitutional provision or (I think) any statutory provision that the President complied with in the appointment of the NLRB members. The President purported to appoint them under a power that the President simply did not have (if the DC Circuit is right).

Suppose the Senate refused to confirm NLRB nominees, as it did. Then suppose the President claimed that the need for a working NLRB required him to fill the vacancies. He then purported to fill the vacancies, while the Senate undoubtedly was in session, without relying on any supposed recess appointment power. Later, a court properly held that the appointments were not valid. Would actions taken by those board members be valid under the de facto officer doctrine? Is there any limit to the doctrine?

I recognize that the President could make a good faith argument that he was entitled under the recess appointment power to make the NLRB appointments, but he in fact (if the DC Circuit is right) had no authority, statutory or constitutional, to do so.

One might make the distinction between an act that is voidable (e.g., the election of legislators under a reapportionment plan later determined to be unconstitutional) and an act that is void (perhaps the NLRB appointments). I don't know whether such a distinction works here. In any event, there must be some limit to the de facto officer doctrine. Perhaps someone on the list can tell us whether there is authority explaining what the limit is.

I might also point out that the NLRB appointments were made despite the Senate's refusal to confirm nominees. In Buckley, the Attorney General was a defendant and an appellee; he argued that the statute should be upheld. I believe the President cooperated with the appointment scheme by appointing the commissioners whom he was entitled, under the statute, to appoint.

On the other hand, I do think that the AG took the position in Buckley that if the Appointments Clause issue was ripe, and if the appellants had standing to raise it, then the provision for appointment of FEC commissioners by congressional leaders violated the Appointments Clause. (I can't find a brief in which the AG addressed that issue; their seems to be a brief missing from the Westlaw database.) I think the AG urged the Court not to reach the issue, and thus there was, I think, no active resistance by the President to the FEC appointment scheme.

Mark

Mark S. Scarberry
Professor of Law
Pepperdine Univ. School of Law

From: Ronald Levin [mailto:Levin at wulaw.wustl.edu]
Sent: Sunday, January 27, 2013 2:36 PM
To: Paul Lehto; 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 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> [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<mailto: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<mailto: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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