OPINION

A political question imperative

The D.C. Circuit's ruling against NLRB recess appointments proves DOJ should rely on the political-question defense that was upheld by the Supreme Court in 'Goldwater v. Carter.'

, The National Law Journal

   | 2 Comments

The D.C. Circuit's ruling against NLRB recess appointments proves DOJ should rely on the political-question defense that was upheld by the Supreme Court in 'Goldwater v. Carter.'

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What's being said

  • ponsoldt

    good suggestion re: use of political question doctrine, especially when dealing with a very political, ideologically tested appellate court. one has to question the propriety of a court getting between the senate and the white house in this manner. on the other hand, there does need to be a "limiting principle" for recess appointments by a white house--beyond a white house declaration.

  • ColorBlindJustice

    The Senate considered itself in session. And no president before this president took it upon himself to disregard the will of the Senate and instead pretend it was not in session. For this reason the D.C. Circuit had to act, whether or not the DOJ thought to offer up the lame "political question" defense. Allowing the NLRB appointments to stand would have eroded the separation of powers and all but eviscerated the Advise and Consent clause, inviting such despotism to the executive branch that could ultimately destabilize the Republic to a dangerous degree. If presidents of any political stripe want their nominees confirmed without drama, it's in their interest to work constructively and respectfully with Senate leadership of both parties before the fact to select consensus nominees. This would promote moderation and cooperation, and only extremists from either end of our political spectrum would fail to welcome more of both in Washington.

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