Appointments, Innovation, and the Judicial - Political Divide

By Metzger, Gillian E. | Duke Law Journal, May 2015 | Go to article overview

Appointments, Innovation, and the Judicial - Political Divide


Metzger, Gillian E., Duke Law Journal


TABLE OF CONTENTS  Introduction I. Appointments in the Courts       A. The Roberts Court and the Appointments Process:          Free Enterprise Fund and Noel Canning Compared       B. Against Institutional Innovation II. Appointments in the Political Branches       A. Contemporary Politics and the Separation of Powers          1. Appointments          2. Broader Separation-of-Powers Trends: Defaults,              Shutdowns, and Executive Unilateralism B. Innovation and Political Polarization          1. Political Polarization, Divided Government, and              Innovation          2. Political Polarization, United Government, and              Regulatory Innovation III. Assessing the Judicial-Political Divide Conclusion 

INTRODUCTION

The federal appointments process is having its proverbial day in the sun. The appointment and removal of federal officers figured centrally in the Supreme Court's two major recent separation-of-powers decisions, Free Enterprise Fund v. Public Company Accounting Oversight Board (1) and National Labor Relations Board v. Noel Canning. (2) To be sure, appointment and removal have long played a major role in judicial analysis of the scope of presidential power. (3) But for over two decades these issues had lain largely judicially dormant, which alone makes their recent star turn notable. Moreover, the net result is that the Roberts Court has used appointments, and more broadly the issue of control over federal officers, as the frame for articulating its separation-of-powers vision.

The appointments process has featured even more prominently in the political sphere, figuring in a number of congressional--presidential confrontations. Again, the use of appointments as an occasion for political contestation has a long historical pedigree. (4) But appointments have become the brave new world of American politics. Senators have used their confirmation role to resist presidential initiatives in new ways, such as delaying key executive-branch appointments and holding pro forma sessions to prevent recess appointments. (5) The President has responded in kind, wielding the recess-appointments power assertively and experimenting with White House policy czars and other executive-branch positions. (6) Moreover, these growing political confrontations over appointments have provoked a major change to the appointments process, with the Senate changing rules to free executive-branch and judicial appointments from the filibuster. (7)

Such simultaneous top billing in the judicial and political spheres is hardly coincidental. After all, it was President Obama's use of the Recess Appointments Clause in response to pro forma sessions that triggered the Court's engagement with the Clause in Noel Canning. But the relationship between the Clause's judicial and political manifestations is more complicated, and more fraught, than mere practical causality. The Roberts Court's approach to appointments and separation-of-powers issues stands out for its Burkean resistance to innovation. (8) New institutional arrangements or assertions of power at the federal level are presumed constitutionally suspect; structural experimentation is a cause for concern rather than celebration. By contrast, the dominant characteristic of appointments in the political sphere is novelty and innovation. This characteristic holds true of national politics and legislation writ large. Established norms and conventions that governed Congress have fallen by the wayside, replaced by new arenas of political contestation and dispute. Innovation is even clearer in the executive branch, with the President responding to congressional inaction and resistance with new administrative measures. Innovation has been a significant feature of recent periods of united government as well, with the dominant party taking advantage of rare alignment of the branches to pass significant legislative measures.

This contrast between judicial conservatism and political innovation is striking. …

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