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

[David Mason]

The facts are not precisely the same, but the FEC faced a similar situation
following the DC Circuit ruling in FEC v. NRA Political Victory Fund, 6
F.3d 821, 303 U.S.App.D.C. 362, 62 USLW 2256.

The circuit ruled that the FEC was unconstitutionally constituted due to
participation of representatives of the Clerk of the House and Secretary of
the Senate in their proceedings.  Following that ruling, the Commission
"reconstituted" itself exclusively with Commissioners appointed by the
President and effectiely re-enacted its regulations and actions in
then-pending enforcement cases and litigation.

Ruth Ginsberg was a member of the DC Circuit panel when the case was argued
but did not participate in the decision due to her appointment to the
Supreme Court.

On Sun, Jan 27, 2013 at 8:05 PM, Ronald Levin <Levin at wulaw.wustl.edu> wrote:

> Correction:  In the post below, I meant to write:  “On that premise, I
> don’t think the de facto officer doctrine will help DEFEAT THE CLAIMS OF
> those NLRB  and CFPB litigants who have been objecting all along to the
> recess appointments in their cases.”   The way I wrote it originally,
> without the capitalized words, was backwards.  (Thanks to Mark for pointing
> out the error.)****
>
> ** **
>
> Incidentally, in the prior post, I did not address the situation of
> litigants in an intermediate category, who may not have challenged the
> recess appointments during the administrative process but may raise the
> issue during direct review of their cases (which have not yet become
> final).  As to them, a case cited by Marty suggests that it’s not too late
> to challenge the validity of the recess appointments in court.  Nguyen v.
> United States, 539 U.S. 69 (2003).****
>
> ** **
>
> ** **
>
> *From:* law-election-bounces at department-lists.uci.edu [mailto:
> law-election-bounces at department-lists.uci.edu] *On Behalf Of *Ronald Levin
> *Sent:* Sunday, January 27, 2013 5:07 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****
>
> ** **
>
> 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<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* officerdoctrine, 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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