By Mike Dorf
In my latest Verdict column, I discuss the controversy over President Obama's recess appointments to the Consumer Financial Protection Bureau (CFPB) and the National Labor Relations Board. When Republicans made clear that they would filibuster any of the President's nominees, he issued recess appointments, even though the Senate was still holding "pro forma" sessions. The kerfuffle raises the constitutional question of whether the President's recess appointment power exists during such pro forma sessions. I argue in the column that the answer to that question is not clear as a matter of constitutional law and that therefore, as a matter of constitutional politics, the right answer should depend on the underlying virtues and vices of the nominees and policies.
Here I want to propose a thought experiment inspired by the current case. Let's suppose that, as threatened, the Republicans sue, and that they find some party with legal standing to do so. One possible candidate would be a financial institution subject to some regulation enacted by the CFPB, arguing that a regulation applicable to it is invalid because it was adopted under the direction of Richard Cordray, whose appointment was invalid. Let's suppose further that the Supreme Court ultimately agrees with the Republicans that Cordray was not properly appointed because the Senate's pro forma session blocked the recess appointment power. Or suppose that the Court were to find that the appointments to the NLRB were invalid. Does it necessarily follow that the plaintiffs in such cases would win the relief it sought?
Certainly it is possible that the Supreme Court or a lower federal court could decide that the output of an entity that was not properly constituted is, ipso facto, void. And there is in fact a 2010 case involving the NLRB itself that does just that: New Process Steel v. NLRB. There the Supreme Court held (as a matter of statutory interpretation rather than constitutional law), that the normally-five-member NLRB could not delegate its powers to a two-person board, because three board members are required to make a quorum. The Supreme Court did not specify the remedy, but when the case went back down to the lower courts, they vacated the underlying order of the two-person board, sending it back to the NLRB for reconsideration once it had a quorum.
But let me emphasize that the Supreme Court majority itself did not exactly say in New Process Steel that every decision by an improperly constituted NLRB panel is invalid. That principle might be thought to be implicit in the Court's ruling in New Process Steel: The dissenters in the Supreme Court appeared to assume it and the Seventh Circuit on remand did as well. Yet other Supreme Court cases indicate that remedies other than invalidation of all of the output of an improperly constituted or appointed body are available.
First consider another 2010 case, Free Enterprise Fund v. Public Company Accounting Oversight Board (PCAOB). There the Court held that the double-insulation of PCAOB members from Presidential firing violated Article II, but it did not therefore conclude that everything the PCAOB did was invalid. Instead it found that the invalid restrictions were severable from the rest of the Act. To be sure, Free Enterprise Fund involved restrictions on the removal power, so the Court could simply grant a kind of tenure to the Board members, but the members had been appointed in conformity with the Constitution.
But now consider Northern Pipeline v. Marathon Pipe Line, in which the Court held that bankruptcy judges who were not Article III judges could not exercise some of the powers they had been granted. The problem with the bankruptcy judges was, as in Free Enterprise Fund, related to their tenure, but the Court's remedy was not to convert the bankruptcy judges into Article III judges. Instead, the Court said that the judges lacked the power to do what they had been doing, but that it would only enforce that rule prospectively. Although Justice Brennan only wrote for a 4-Justice plurality, then-Justice Rehnquist added a fifth vote for the non-retroactivity holding. Northern Pipeline could thus be taken to stand for the proposition that even when some party has been exercising federal power illegally, the remedy is not necessarily to invalidate everything that party has done.
An even more dramatic example (though obviously one that is not binding here) comes from Canada. In the Manitoba Language Rights Case, the Canadian Supreme Court found that all of Manitoba's laws were invalid because they had not been printed and published in French as well as English, as required by the Canadian Constitution. But rather than create anarchy in Manitoba, the Court treated the Manitoba laws as temporarily valid, while the province translated and published them.
The highly pragmatic (and sensible) actions of the U.S. and Canadian Supreme Courts in these respective cases illustrate what I would call a nascent doctrine of "constitutionalish" laws. A constitutionalish law is unconstitutional but close enough to being constitutional that it can be treated as having some force, at least temporarily, if the costs of declaring it void ab initio would be very high. To my mind, a law could be constitutionalish for one of two sorts of reasons: 1) It is clearly invalid but only in a technical way; or 2) It is invalid but government actors and others acting in good faith could have thought otherwise prior to the Court's ruling. The Manitoba Language case strikes me as an example of category 1), while Free Enterprise Fund and Northern Pipeline fall into category 2). Were the Court to find that Obama lacked the power to make recess appointments during a pro forma Senate session, that might also fall into category 2), and thus be eligible for non-retroactive application.
Of course, I realize that there is no official doctrinal category of constitutionalish laws. Not yet, anyway!