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 and National Labor Relations Board v. Noel Canning. The appointments process has featured even more prominently in the political sphere, figuring in a number of congressional–presidential confrontations. 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. By contrast, the dominant characteristic of appointments in the political sphere is novelty and embrace of new institutional arrangements.
This Article explores these differing judicial and political approaches to innovation, and the implications of the emerging contrast for federal administration. Although the Court’s resistance to innovation might appear a useful prophylactic against efforts to bend the Constitution in the name of political expediency, the constitutional basis for such a general suspicion of innovation is lacking. Particularly given the political transformations occurring in response to polarization, a stance of suspicion sets the Court on a course of confrontation with the other two branches that is hard to justify. A more nuanced approach that pays greater attention to political reality would allow the Court to both better titrate its interventions to constitutional structure and minimize the disruptive effects of its decisions.
Gillian E. Metzger, Appointments, Innovation, and the Judicial–Political Divide, 64 Duke L.J. 1607-43 (2015)
Available at: http://scholarship.law.duke.edu/dlj/vol64/iss8/4/