Academic journal article Harvard Law Review

Congressional Restrictions on the President's Appointment Power and the Role of Longstanding Practice in Constitutional Interpretation

Academic journal article Harvard Law Review

Congressional Restrictions on the President's Appointment Power and the Role of Longstanding Practice in Constitutional Interpretation

Article excerpt

The District of Columbia and its courts have an unusual history, arising from the fact that the District is a creature of federal law but local concern. In particular, the selection of the District's municipal leadership has vacillated between the federal model of appointment by the President with the advice and consent of the Senate, and the local model of city-wide elections or nomination by local officials.

The Constitution gives Congress the authority to "exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of the Government of the United States." (1) Congress established the District on July 16, 1790, and in the early nineteenth century it experimented with different forms of local government. (2) In 1820, Congress allowed the city of Washington a measure of self-rule by providing for the direct election of its mayor. (3) Fifty years later, in 1871, Congress abolished home rule for the District and instead authorized the President to appoint a "governor" and the upper house of the legislature. (4) Seven years later, Congress established the three-person, presidentially appointed Board of Public Works to manage the city. (5) During the nineteenth century and throughout most of the twentieth century, the U.S. Court of Appeals for the D.C. Circuit heard all local D.C. cases in addition to its federal docket. (6) But in 1970, Congress passed legislation setting up local courts for the District. (7) Finally, in 1973 Congress returned an elected government to the District through the Home Rule Act. (8)

Section 433 of the Home Rule Act sets out the appointment method for local D.C. judges: "[T]he President shall nominate, from the list of persons recommended to him by the District of Columbia Judicial Nomination Commission ..., and, by and with the advice and consent of the Senate, appoint all judges of the District of Columbia courts." (9) The Act further establishes the selection criteria of the seven members of the Commission: one is appointed by the President, two by the Board of Governors of the D.C. bar, two by the District's mayor, one by the District Council, and one by the Chief Judge of the federal district court. (10) This statutory scheme continues to govern the President's appointment of D.C. judges.

Section 433 is an anomaly among federal appointment schemes. (11) The President, rather than selecting nominees in the first instance, is required to choose from among three candidates (12) selected by the Judicial Nomination Commission. This Note questions the constitutionality of section 433. Part I sets out the original understanding of the Appointments Clause, showing that two plausible interpretations exist: the "purist" view and the "office qualifications" view. Part II applies the original understanding to Section 433, as well as to two other perplexing Appointments Clause problems related to Section 433. The common theme that runs throughout all three problems is that although a given statute may violate the Appointments Clause as originally understood, it is supported by longstanding practice by both Congress and the President. Part III therefore zooms out to consider the broader jurisprudential issue of whether and how longstanding practice should impact constitutional interpretation.

An initial definitional point: This Note uses the term "longstanding practice" to refer to any practice accepted by both political branches over a period of several decades or more, with the exception of practices extant since the time of the Founding (running to roughly 25 years after the ratification of the Constitution). Such practices, which might be called "contemporaneous practice," actually evidence the original understanding of the Appointments Clause. Courts frequently look, for instance, to statutes passed by the First Congress to discern constitutional meaning. …

Search by... Author
Show... All Results Primary Sources Peer-reviewed

Oops!

An unknown error has occurred. Please click the button below to reload the page. If the problem persists, please try again in a little while.