Bench Memos

NRO’s home for judicial news and analysis.

The Left’s Irrational Tizzy Against Recess-Appointment Ruling—Jeffrey Rosen


In his diatribe against the D.C. Circuit’s ruling on recess appointments, the New Republic’s Jeffrey Rosen contends that the issue of the president’s recess-appointment authority is a “quintessential example of a ‘political question’: an issue that judges can’t resolve without taking sides in a dispute between Congress and the president, which the Constitution expects them to resolve on their own.” Rosen’s argument is manifestly wrong on nearly every point:

1. As the Supreme Court reaffirmed just last year in Zivotofsky v. Clinton, a controversy “involves a political question . . . where there is a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it.” (Internal citation omitted.) The Recess Appointments Clause states: “The President shall have Power to fill all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.”

Rosen doesn’t even try to argue that the Recess Appointments Clause satisfies either of these “political question” tests—and for good reason. There is nothing in this text that demonstrably commits the issue exclusively to the president or to the Senate. Nor is this an issue that lacks “judicially discoverable and manageable standards for resolving it.” On the contrary, just as in Zivotofsky, resolution of the issue “demands careful examination of the textual, structural, and historical evidence put forward by the parties.” (Slip op. at 12.) Rosen himself concedes that there are “respectable constitutional arguments on both sides of the issue.” Deciding between these arguments, as the Court explained in Zivotofsky, “is what courts do,” and the “political question doctrine poses no bar to judicial review” in such an instance.

2. In support of his claim that the recess-appointment issue presents a non-justiciable political question, Rosen invokes the Eleventh Circuit’s 2004 decision rejecting a challenge to President George W. Bush’s recess appointment of William H. Pryor Jr. to that court. (Pryor continues to sit on that court pursuant to a later Senate-confirmed appointment.) Rosen contends that the Eleventh Circuit “ruled along these lines”—that is, along the lines of the political-question doctrine—when it rejected the challenge, and he even throws in two sentences from the court’s ruling in purported support of his contention.

But contrary to what Rosen claims, the Eleventh Circuit did not rest its ruling on the political-question doctrine. Rather, it affirmatively ruled that “the President’s appointment was not beyond his constitutional power.”

The Eleventh Circuit relied on the political-question doctrine only in deciding the challengers’ desperate fallback contention that, even if the president could use his recess-appointment authority to appoint a judge during an intrasession recess to a vacancy that did not arise during that recess, the particular recess appointment of Judge Pryor should be disallowed because (in the court’s summary of the challengers’ argument) the Pryor nomination “had been especially controversial and his confirmation had been blocked in the Senate.” Whether or not that limited use of the political-question doctrine was correct, it obviously provides no precedent for the D.C. Circuit not to rule on the same general recess-appointment issues that the Eleventh Circuit itself ruled on.

3. Even beyond the political-question doctrine, Rosen contends that the D.C. Circuit had no jurisdiction to decide the recess-appointment issue: “[O]ne thing is clear: The D.C. Circuit engaged in an extraordinary display of judicial activism when it agreed to hear the case in the first place.” Unfortunately, Rosen offers zero argument in support of his claim, as he instead indicates in a footnote that the supposedly crystal-clear point is too “technical” to explain (and falsely claims in that same footnote that “the judges reached out to raise arguments that hadn’t even occurred to the parties”).

The reality is exactly the opposite of what Rosen asserts. The government never argued that there was any jurisdictional barrier (much less a “clear” one) to the court’s deciding the recess-appointment issue. It was the D.C. Circuit panel that, in an act of judicial restraint that Rosen ought to be applauding (rather than obscuring), raised on its own the possibility that it might not have jurisdiction. Rosen contends that the panel (he says the “majority,” but the panel was unanimous on this), in deciding that it had jurisdiction, “embraced a strained reading of the law that no previous court had accepted.” I have no idea what he means, and I don’t think that he does either. The panel spent more than three pages (slip op. at 10-13) explaining why it had jurisdiction to address the constitutional challenge. If Rosen has any coherent objection to the panel’s reasoning, he provides no hint of it.

4. Rosen contends that the panel majority engaged in “judicial activism” by deciding both that the president’s constitutional authority to make recess appointments may be exercised only during an intersession recess of the Senate and that it may be exercised only with respect to vacancies that have arisen during the recess. (Rosen’s summary of the second ruling—“striking down the far more widely accepted practice of intersession recession [sic] appointments”—is confused to the point of being unintelligible.)

I think that there is room for reasonable disagreement on the question whether the panel should have decided both issues. That said, there are plenty of prudential considerations that Rosen doesn’t acknowledge that support the panel majority’s decision to address both. For starters, both issues involve interpretation of the same constitutional provision, and considering both together helps ensure that the court gets each right. Further, the panel knew that, given that its ruling conflicts with the Eleventh Circuit’s 2004 ruling, the case is very likely to be reviewed by the Supreme Court. The Supreme Court will benefit from having the panel majority’s considered treatment of both issues to contemplate along with the Eleventh Circuit’s treatment of both issues. It’s also not at all clear that the intersession versus intrasession issue has any logical priority over the issue of what “may happen” means. (In other words, if the panel were to decide only one issue, why the first rather than the second?)


Sign up for free NRO e-mails today:

Subscribe to National Review