New SCOTUS Amicus: Can Congress “Establish[] By Law” Process for Appointment After Senate Confirmation?

April 27th, 2015

In Marbury v. Madison, Chief Justice Marshall concluded that “since [William Marbury’s commission] was signed by the President, and sealed by the secretary of state, [Marbury] was appointed.” Even though it was not delivered, “[t]o withhold his commission, therefore, is an act deemed by the court not warranted by law, but violative of a vested legal right.” That much is black-letter law. But Marbury recognizes another, equally important proposition concerning the appointment power. At every juncture—even after the confirmation vote—the laws of Congress established the process through which Marbury would become an officer of the United States. The Court recognized that Congress has the power to “establish[] by law” the means of finalizing an appointment.

In a cert-stage amicus brief I authored on behalf of the Military Officers Association of America and the Flag & General Officers’ Network, I argue that Congress can structure this process, and the Federal Circuit erred in holding that such a process violates the separation of powers. The amicus is in support of a cert petition filed by Paul Smith, Matt Hellman, Adam Unikowsky, and the team at Jenner & Block on behalf of Gen. Terryl Schwalier.

As relevant to this case, President Clinton nominated Schwalier for promotion for a 1-star General to a 2-star General. He was confirmed by the Senate. In the meantime, Schwalier, who was in command of the Khobar Towers, took the blame for the bombing there (he was later cleared of any wrongdoing). After the return of the nomination, the President transmitted the nomination to the Secretary of Defense, who calculated and set what is known as a “promotion date” under the Defense Officer Personnel Management Act (“DOPMA). After that date is set, the President has 6 months to review the appointment. Schwalier argues that after the 6 months, if the President does not revoke the appointment, Schwalier’s promotion becomes final. President Clinton did not terminate the promotion until after the 6 month window.

At first glance, I thought, of course this is unconstitutional. Isn’t it the President’s prerogative to decide whether or not to appoint someone absolute? After some study, I realized that Marbury recognizes that Congress has a lot of latitude over the appointment process following nomination, and that under the statute the President’s transmission of the promotion list to the Secretary of Defense manifests his assent to begin the process.

Here is the summary of argument of this brief, which was a lot of fun to write:

Marbury v. Madison provides the rule of decision for this case. 5 U.S. (1 Cranch) 137 (1803). The decision below, Schwalier v. Hagel, 776 F.3d 832 (Fed. Cir. 2015) was “control[led]” by Dysart v. United States, 369 F.3d 1303 (Fed. Cir. 2004). In Dysart, the Federal Circuit considered a provision of the Defense Officer Personnel Management Act (“DOPMA”) that established a process for finalizing the appointment of certain military officers. 10 U.S.C. § 624(a)(2). Finding that this law would violate the separation of powers, the Federal Circuit read DOPMA such that “after confirmation,” Congress has no power over the appointment process. Dysart, 369 F.3d at 1316. This conclusion is contrary to the text and history of the Constitution, as well as Marbury v. Madison. 5 U.S. at 158 (1803). The Court should grant certiorari to reaffirm Congress’s constitutional authority to “establish[] by law” officers of the United States.

First, the Constitution vests Congress with broad authority over the appointments process, “which shall be established by law.” Art. II, § 2, cl. 2. This authority exists both before and after Senate confirmation. Prior to confirmation, the Congress can establish qualifications for officers. For example, the Solicitor General must be “learned in the law.” 28 U.S.C. § 505. Certain military officers must satisfy congressionally-imposed eligibility criteria before receiving a promotion. 10 U.S.C. §§ 611-641.

Congress can also establish the process that finalizes the appointment following confirmation. In Marbury, Chief Justice Marshall affirmed that Congress has the power to chart a “precise course accurately marked out by law,” to complete the appointment. 5 U.S. at 158. Though the President retains the absolute right not to appoint an officer, this congressionally-designed process “is to be strictly pursued.” Id. The Court reaffirmed this principle in Freytag v. Commissioner, finding that Congress can set the “duties, salary, and means of appointment for that office [as] specified by statute.” 501 U.S. 868, 881 (1991) (emphasis added).

Second, contrary to the Federal Circuit’s conclusion in Dysart, DOPMA bolsters the Constitution’s separation of powers. 369 F.3d at 1317. The Framers used the phrase “by law” in ten places in the Constitution to vest Congress with extraordinary authority to legislate over the Executive Branch, the States, individuals, and even its own members. This power includes the ability to design the appointment process to be followed for officers “established by law.” Art. II, § 2, cl. 2. The Federal Circuit’s decision nullifies this congressional power.

Finally, the appointment process in Marbury parallels the appointment process in this case. In Marbury, the final act “established by law” was sealing the commission, following Presidential assent. Under § 624(a)(2) of DOPMA, the final act “established by law” was setting the promotion date, following Presidential assent. Consistent with Marbury, Congress, and not the President, determines how the Executive’s assent is manifested. For § 624(a)(2) of DOPMA, the President’s decision to transmit the list of confirmed names to the Secretary of the Air Force manifests his assent to begin the appointment process. Upon the Secretary’s receipt of the list of confirmed names, Congress charges him with the duty to set the promotion date. This calculation triggers a congressionally-designed six-month window for the officer’s appointment. While the President retains the absolute power to revoke his previous assent at any point during this period, after six months the officer’s appointment “established by law” becomes final.

Consistent with Marbury v. Madison, § 624(a)(2) of DOPMA is a permissible exercise of Congress’s authority under the Appointments Clause. Certiorari should be granted, as this Court’s voice is essential to reaffirm once again Congress’s constitutional role in the appointment process. NLRB v. Noel Canning, 134 S.Ct. 2550, 2578 (2014).

After Noel Canning, I think there is a decent shot the Court gets involved.

DOPMA’s appointment process is a permissible exercise of Congress’s authority under the Appointment Clause. The Federal Circuit erred in its sub silentio invalidation of 10 U.S.C. § 624(a)(2), as it negated Congress’s role in ensuring an orderly and fair appointment process for military officers of the United States. As this Court recognized last term, “the separation of powers can serve to safeguard individual liberty . . . [and] it is the ‘duty of the judicial department’—in a separation-of-powers case as in any other—‘to say what the law is.’” Noel Canning, 134 S.Ct. 2559-60 (quoting Clinton v. City of New York, 524 U.S. 417, 449-450, (1998) (Kennedy, J., concurring); Marbury, 5 U.S. at 177

More likely than not, this petition will fall into the long conference, depending what the government does. Stay tuned.