by Peter M. Shane, Jacob E. Davis & Jacob E. Davis II Chair in Law, Moritz College of Law, Ohio State University
Much of my writing on the constitutional separation of powers and checks and balances in operation is directed at the central importance of informal norms to effective government. Chief Justice Hughes famously wrote that “[b]ehind the words of the constitutional provisions are postulates which limit and control.” A subtle, but intimately related point is that our constitutional plan cannot work unless the competing institutions (and those in charge of them) agree on some common overarching values and on certain general understandings as to shared aims and the limits of unilateral power.
If you think the text of the Constitution provides sufficient guidance by itself to keep the government operating, do a few thought experiments. Imagine that the Senate and House had adopted a custom early on that each would unanimously reapprove any legislation returned to Congress with a presidential veto. Nothing in the Constitution forbids such a practice.
Imagine that Congress had read the Constitution to allow the House to impeach presidents for acts of lesser magnitude than “high Crimes or Misdemeanors,” providing that conviction carried some punishment short of removal. Don’t believe the constitutional text permits this? Read it.
These things did not happen, I presume, because Congress recognized that such “customs” would eviscerate the contemplated co-equality of the executive and legislative branches. But not a word of constitutional text would have cast doubt on these practices.
What we are witnessing today in depressing, even contemptible form is a GOP-led congressional subversion of two of the most elementary norms on which our government rests. The first is the proposition that the government should actually function. Agencies Congress has created and to which it has delegated administrative responsibilities should discharge those responsibilities efficiently and effectively. The second is that the president is primarily responsible for achieving effective administration and, toward that end, he is entitled to significant, if not controlling deference by the Senate in his choice of individuals to head government agencies.
The latest, almost bizarre evidence of the GOP’s obliviousness to governance norms is the suggestion by Sen. Lamar Alexander (R-Tenn.) that NLRB recess appointees Sharon Block and Richard Griffin resign from the Board because a D.C. Circuit panel held their recess appointments unconstitutional. Sen. Alexander is a smart man and a prominent lawyer. He knows full well that a constitutional pronouncement by one panel of the D.C. Circuit is hardly the final word in our judicial system. (As far as I know, Sen. Alexander did not urge opponents of the Affordable Care Act to abandon their challenges after a panel of the D.C. Circuit held the law constitutional. I don’t think he has urged the House to abandon its defense of the Defense of Marriage Act because a panel of the Second Circuit invalidated it.)
The D.C. Circuit opinion in Noel Canning v. NLRB is precedent only for a single circuit. It conflicts with contrary holdings of the Second, Ninth, and Eleventh Circuits. Its reasoning is debatable, to put the matter gently. The Supreme Court will undoubtedly resolve the matter eventually.
But, as absurd as is Sen. Alexander’s pretended unawareness of how judicial review operates is his utter disregard for the efficient transaction of business at the NLRB. As Suffolk University law professor Renee M. Landers pointed out last month to an American Bar Association program, the NLRB, during the year between the Griffin and Block appointments and the Noel Canning decision, rendered over 200 published opinions and over 500 unpublished orders. Resignations by Members Block and Griffin would presumably delay the resolution of hundreds of additional matters before the Supreme Court can decide Noel Canning. All personnel, administrative, and procurement actions requiring Board approval would grind to a halt. Such disregard for the interests of both management and labor would be feckless.
Fortunately, the Board has taken the position that “parties who come to us seek and expect careful consideration and resolution of their cases, and for that reason, we will continue to perform our statutory duties and issue decisions.” Should the Court ultimately invalidate the Block and Griffin appointments, it might well decide to validate the actions taken during their service by virtue of the “de facto officer” doctrine. That was the Court’s approach to the Federal Election Commission even as it invalidated its structure in Buckley v. Valeo. Members Block and Griffin are serving the public well by staying put and doing their jobs.
It is the contemptible indifference to effective government that ties the NLRB dispute to the now-unfolding imbroglio concerning the Internal Revenue Service. Although Republicans are comparing the IRS targeting of Tea Party groups to what happened in the Nixon administration, the current scandal is actually the opposite of the Nixon scandal.
As charged by the 1974 House Judiciary Committee, Nixon, “acting personally and through his subordinates and agents, endeavored to obtain from the Internal Revenue Service, in violation of the constitutional rights of citizens, confidential information contained in income tax returns for purposes not authorized by law, and to cause, in violation of the constitutional rights of citizens, income tax audits or other income tax investigations to be initiated or conducted in a discriminatory manner.”
There is no evidence, however, that the Obama White House acted personally to direct the IRS to do anything. What is more, they did not even have a political appointee atop the IRS through which it could execute any such plan. What we are witnessing is the dysfunction possible when no one with the heft of a Senate-confirmed appointment is at the helm of an important agency.
During the events in question, the Commissioner of Internal Revenue was Douglas H. Shulman, a George W. Bush appointee. When he resigned after the 2012 election, he was replaced by an acting Commissioner, Steven T. Miller, who is actually a civil service employee serving also as Deputy Commissioner for Services and Enforcement. Trusting civil service employees to perform in the Acting Commissioner role is apparently the pattern at IRS, which is fine as long as the Service does its job without controversy. But an Acting Commissioner has little accountability to a president. Not only does the president not choose the Acting Commissioner, but no one in the press offices of either the IRS or the Treasury Department could tell me today by what process an Acting Commissioner is installed or removed.
President Obama has not nominated anyone since Mr. Shulman’s resignation to serve as Commissioner, and it is not hard to guess why. Republican Senators have deferred so little to the president in even his cabinet choices, stooping even to parliamentary tricks to prevent committee votes on Secretary of Labor EPA administrator nominees that the White House presumably saw little point to expending political capital getting Republicans to confirm a political head to an agency that they so vociferously detest. By denying President Obama the routine capacity to staff administrative leadership positions with qualified persons of his choosing, Senate Republicans have weakened the White House’s hand in accomplishing even the bureaucratic discipline that the GOP ostensibly would approve.
Senator Alexander’s implicit threat is to stall any further NLRB nominees unless Members Block and Griffin resign. But GOP intransigence has effectively made such a threat meaningless. Promising cooperation in confirming new appointees if Block and Griffin agreed to resign once successors are confirmed might be a promising strategy. But threatening to slow down an immovable wall means nothing. You can’t go slower than “Halt.”
Interestingly, should President Obama lose Noel Canning in the Supreme Court, he would not be without recourse for recess appointments. He could wait for the House to object to the Senate’s going on intersession recess and then force the adjournment of Congress for at least three weeks, during which he could fill every vacancy in the executive branch with a recess appointment. That would be an unprecedented breach of interbranch norms. It would be executive overreach at its worst – or close to it. But the constitutional text permits it – see Article II, section 2 – and really, how much worse can things get?