NLRB v. Noel Canning Presents a Nonjusticiable Political Question
Abstract
Federal judges should not monitor recess. The President’s recess appointment power is a textbook example of “the assignment of exclusive decision making responsibility to the nonjudicial branches of the federal government.” Answers to political questions, such as those raised by the Republic’s constitutional processes of Senate impeachment trials and presidential recess appointments, should come only from elected political leaders. The Recess Appointment Clause’s 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 his Article II, Section 3 obligation: “[H]e shall take Care that the Laws be faithfully executed, and shall Commission all the Officers of the United States.” Alexander Hamilton explained in Federalist 67 that Article II, Section 2, Clause 3 is “intended to authorize the President singly to make temporary appointments.” This Article argues that the Noel Canning challenge to the President’s use of his recess appointment authority presents a nonjusticiable political question. The work draws from arguments developed for this author’s Supreme Court amicus briefs in Noel Canning, other amicus briefs lodged during the past year for related actions in the Third, Fourth, Seventh, Ninth, and D.C. Circuits, and a variety of this author’s commentary on federal appointments.