By Mike Dorf
For now, the DC Circuit opinion in Canning v. NLRB only has binding effect as between the parties to that case (or at least that's the Administration's position), but suppose the court's decision is affirmed by the SCOTUS. Putting aside the merits of the rule (about which I expressed some doubts in my last post), what would its scope be?
Over the course of over six decades, there have been many hundreds of recess appointments that fall outside of the very narrow window in which the Canning court allows for recess appointments. A Daily Kos blog post over the weekend suggested that Canning could backfire on Republicans by leading to the removal of recess appointees by past Republican presidents, but (as one commenter noted) this is plainly wrong: Quite apart from Canning, recess appointments expire at the end of the legislative session, so there are no more Republican recess appointees serving as federal officers (unless they were subsequently confirmed by the Senate to terms that continue, in which case they're no longer recess appointees).
Nonetheless, past Republican (and Democratic) recess appointees probably cast votes for administrative regulations that remain on the books and have the force of law. If their participation was improper and their votes were necessary for the regs going into effect, are those regs no longer enforceable? For illustrative purposes, let's imagine that Rule R was adopted by the Federal Rulemaking Commission (FRC) in 1963, pursuant to a 3-2 vote of the Commissioners, but that one of the Commissioners who voted for R was serving under a recess appointment that, we now realize, violated Canning.
Presumably, prior final adjudications that particular parties violated R cannot now be reopened. But what about R's validity going forward? Suppose Company C says it doesn't have to comply with R anymore because R was never validly enacted. If the FRC (which now is properly constituted) brings an action to enforce R against C, can C invoke the 1963 deficiency in the FRC's composition to invalidate R? Of course, the current FRC could re-promulgate R, but doing so would only cover future violations of R, not the violations that C allegedly committed in the past.
Is there some remedy that falls short of invalidation of every action that the FRC took in the last 50 years? In Free Enterprise Fund v. PCAOB, the SCOTUS declined to hold that all past actions of the Public Company Accounting Oversight Board (PCAOB) were invalid in virtue of a defect in its composition. But there the problem was that (according to the majority), the authorizing statute unconstitutionally constrained the President's power to remove members of the PCAOB. Hence, the Court said that the remedy was to invalidate and sever the unconstitutional constraint on removal, not to invalidate the Board's output. By contrast, in my hypothetical (and in all real cases that will arise under Canning), the problem is the appointment of federal officers and so the commission's output would be void from the beginning. So severability doesn't look like a solution.
Perhaps there is an alternative. In habeas corpus cases, the federal courts are generally forbidden from granting relief to state prisoners on the basis of so-called "new rules" of constitutional law. The basic idea--which is found in both the Antiterrorism and Effecitve Death Penalty Act (AEDPA) and such pre-AEDPA cases as Teague v. Lane, is that constitutional law is complicated and evolving, so state courts and state criminal justice systems should not be made to pay the high price of freeing or re-trying criminal defendants many years after a conviction, where the initial trial complied with constitutional rules that had been announced at the time of the trial. AEDPA and the case law protect a reliance interest on the part of the states.
So, could the courts fashion a Teague-style principle of non-retroactivity under which the pre-Canning output of bodies tainted with recess appointees remains valid but going forward recess appointments are not permitted? Sure, they could, but I doubt very much that they would. Part of the reasoning in Teague is that it would violate the rule against advisory opinions for the courts to issue purely prospective rulings. That's why, under Teague and AEDPA, if a habeas petitioner even seeks a new rule, the courts decline to adjudicate his claim. They do not first decide whether to rule for him and then decide whether to apply his rule retroactively to other cases.
Accordingly, I do not see an easy way out for the courts in the event that the Canning rule is affirmed. Now it's up to some enterprising researcher to figure out just how many existing rules and regs would fall as tainted by recess appointments in the event that the Canning rule survives.