Catholic University law school Professor Victor Williams has been a stalwart supporter of the president’s authority to make recess appointments to key unfilled government posts without obstruction or second-guessing from Congress. Now, it appears courts are willing to listen.
Williams has published numerous columns in legal media on the subject, most recently in the Nov. 26 edition of the National Law Journal, in which he defends President Obama’s power to make recess appointments last January to the National Labor Relations Board (NLRB). The move has prompted legal challenges in four U.S. Circuit Courts, and 42 Republican members of the Senate including Senate Minority Leader Mitch McConnell have formally joined the suits as amici.
Seeking a more active role in the debate, Williams has taken the opposite side, tendering a pro se amicus brief supporting the NLRB in each circuit court.
Both the D.C. Circuit Court (left) and the Third Circuit Court of Appeals have formally granted his Motion for Leave to File the amicus briefs in their respective recess appointment challenges. In the D.C. Circuit, which will hear the case on Dec. 5, Williams is the only tendered amicus on the government’s side supporting its position.
“Like Facebook, each court has to ‘friend’ an amicus brief if it does not have consent from all parties before it is part of the record,” said Williams. “So, my political-question nonjusticiablity arguments, which were summarized in the National Law Journal piece, will be formally presented. It will be interesting to see if they come up during the oral arguments next week.”
The purpose of an amicus curiae (“friend of the court”) brief is to offer legal perspectives that the court might otherwise not have a chance to consider.
Williams' briefs argue that the challenges to Obama’s recess appointments are not subject to judicial review because they raise “nonjusticiable political questions.”
He cites precedent rulings that clearly limit the role of the legislative branch in presidential appointments, writing that a revisitation of those boundaries now by a federal circuit court would be a crawl into a “the densest of modern political thickets. A court will find no manageable standards to solve the partisan argument between the executive and Congress…”
Williams says his stance is one of principle; he has supported the recess appointment authority of the past four presidents without regard to political party.