Is the Recess Appointment Case Justiciable?

by Brian Wolfman

We have covered the D.C. Circuit's recent ruling striking down President Obama's "recess" appointments to the NLRB here, here, here, and here. In defending the case, government lawyers did not argue that the case was not justiciable under the political question doctrine, and the D.C. Circuit did not raise and decide the issue on its own (which it should have if it thought there was a serious justiciability question). I don't know why the government did not raise the issue, but one reason may be that it thought the claim quite weak (as the D.C. Circuit panel apparently did). I'll note that, in recent years, the Supreme Court has rarely found constitutional challenges to be non-justiciable under the political question doctrine. See Hart & Wechsler's Federal Courts and the Federal System 247-48 (6th ed. 2009).

For another point of view, read this opinion piece by Catholic University law prof Victor Williams, which argues strenuously that the D.C. Circuit was presented with a political question. Williams filed an amicus brief in the D.C. Circuit case, but, as indicated, the panel ignored it.