NLRB v. Noel Canning Presents a Nonjusticiable Political Question
25 Pages Posted: 12 Aug 2015
Date Written: 2014
The Article asserts that it is a patent conflict of interest for the federal judiciary to review a challenge to the President’s alternative appointment process used to form, transform, and force integration (racial, gender and religious) of federal courts. The first black, female, and Jewish federal judges were recess appointed when their confirmation was obstructed by reactionaries in the Senate and on federal benches across the nation. African-American jurists such as Leon Higginbotham, Spottswood Robinson, William Hastie, and Thurgood Marshall first rose to the federal bench by recess appointments. This Article argues that the Noel Canning challenge to the President’s use of his recess appointment authority presents a nonjusticiable political question.
Published in April 2014, two months prior to the Supreme Court’s ruling, the work draws from the author’s amicus briefs filed in Noel Canning and in related actions in the Third, Fourth, Seventh, and Ninth Circuits. It also reflects a variety of author’s popular commentary on federal appointments. (The author has strongly supported the past four presidents’ appointment authority - ordinary and recess - without regard to the president’s political party. He has harshly criticized the escalating cycle of Senate confirmation obstruction and partisan payback.)
The Recess Appointment Clause’s history, textual mandate, and structural logic recognize that only the President possesses the institutional competence to know when such discretionary appointment action is required to meet the executive’s Article II, Section 3 “Take Care” obligation.
The Article discusses the unprecedented partisan confirmation obstruction that led to President Barack Obama’s modest exercise of his alternative appointment authority as required to prevent nullification of the NLRB. It exposes congressional pro forma sessions as scheduling shams intended only to obstruct the executive’s fulfillment of the "Take Care" duty.
In arguing nonjusticiability, the Article references political-question precedent from John Marshall’s Marbury v. Madison 1803 ruling to Baker v. Carr to Goldwater v. Carter through Sonia Sotomayor’s Zivotofsky v. Clinton 2011 concurrence. The work fully applies Walter Nixon v. United States in which the Supreme Court determined that the judiciary should not review the Senate’s impeachment trial process because impeachment removal serves as an "important constitutional check" on the judiciary. The function of the "constitutional check" in both constitutional processes of presidential recess appointment and Senate impeachment removal concerns the composition and quality of the federal judiciary.
The Article concludes by urging the Supreme Court to apply Professor Alexander Bickel’s prudential abstention doctrine.
Note: This work is the second in a series of the author’s analysis of the NLRB v. Noel Canning adjudication. The author filed one of three Supreme Court amicus briefs supporting Barack Obama’s January 2012 recess appointments. After its journal publication, this SSRN paper, which is now redacted, will be available in full.
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