Government Commission Proposes Bad Solution To Non-Problem

A commission on continuity of government, i.e. keeping things running after a terrorist attack, disaster or some other calamity disrupts the functioning of the government, has proposed in a recent report has proposed "changes in federal law to allow the courts to keep working, including creating an emergency court that would function only until the Supreme Court had the minimum six justices it needs to hear and decide cases."

Of course, the U.S. Constitution already provides for this situation by allowing the President to make recess appointments to courts and civil service positions.

[T]he most provocative and potentially troubling issue highlighted in the report is the president's power to name several new justices, or even the entire court, without congressional approval for a period that could last a few months or as long as a year and a half.

The Constitution gives the president the power to make what are called recess appointments, temporary appointments to jobs that otherwise require Senate confirmation. Recess appointments only last until the end of the congressional session and can only be made when the Senate is not in session.

If the appointments are made in good faith and after informal consultation with congressional leaders, the temporary justices could allow the court resume its work quickly.

But the authors foresaw more difficulty if the president were expecting challenges to his legitimacy in office or actions he was planning. In that case, "he might fill a court with recess appointees who would be sympathetic to his point of view. He would appoint the court that might then be called upon to be an independent check on the president," the report said.

A temporary emergency court, set up before a crisis arises, but only coming to life following a catastrophe, would be well placed to deal with urgent court matters in the event the Supreme Court is unable to do its work, the report said.

Any surviving justices would sit on the court along with other judges chosen from a pool. Decisions of the temporary court could be appealed to the Supreme Court, after it was up and running again.

Overall, the report simply has the matter wrong. The status quo system is not seriously broken and doesn't need the kind of fix that it proposes.

First, there are very few matters which the lower courts are not qualified to handle. Every judge in the United States, federal, state and local, is empowered to rule on constitutional questions properly before that judge. The United States is not a country with a specialized "constitutional court." It takes many months and usually years for a case in the lower courts to reach the U.S. Supreme Court, so almost all of the cases on its docket from the time of the emergency until recess appointments expire would be pre-emergency cases. The U.S. Supreme Court has granted certiorari in fewer than a hundred cases a year in recent years, all of which have definitive resolutions that can simply be left standing in the lower courts, just as they are in the 99.8% of cases where certioari is denied by the U.S. Supreme Court now. En banc sittings of U.S. Circuit Courts of Appeal can even provide discretionary review in the interim period of close issues. Some circuit splits on issues of federal law may fester a bit longer than they would have otherwise, but this is hardly a crisis.

Perhaps the weightest issues that are troublesome to postpone are death penalty stays of execution, but the President, in federal cases, or Governors of most states, in state cases, and in all cases the lower court before which the case was pending, would have the authority to stay an execution using the pardon power (or a stay of proceedings in the case of a lower court) to avoid an appearance of impropriety caused by the delay. Abuse of authority in death row cases by lower courts in cases that have already undergone multiple levels of judicial review before reaching the U.S. Supreme Court, is not truly a continuity of government crisis.

As it stands, individual judges of the U.S. Supreme Court can grant stays in cases for particular judicial circuits until the full court can review the decision. A rule allowing those assignments to be temporarily adjusted following the government continuity causing event pending the repopulation of the court is a far more modest way of addressing the issue.

If there is a place for a new law, Congress could pass a law automatically staying the execution of anyone whose case is pending before a court when there is a vacancy in every judicial position with authority to rule on a request for a stay in every court with authority to rule on a request for stay, until such a person is in place and has had a reasonable period of time after being appointed (perhaps a month) to rule on the request.

And, of course, recess appointments to lower courts pose even less of a concern about bias because they are subject to appellate review and don't make a long term impact on the makeup of the judiciary.

Second, in the same vein, the United States Constitution and the Judiciary Act does not allocate very much mission critical litigation exclusively, or even primarily to the federal courts. The vast majority of cases including the vast majority of cases that truly urgently need to be resolved by courts in a continuity of government emergency can and routinely are handled by state courts, and by federal trial courts when state courts lack jurisdiction. There are very few crimes or civil matters that are a priority to handle in a crisis that couldn't be handled in state court if necessary, and the few that are could be handled for a brief crisis period by federal trial courts.

Indeed, the reality of civil litigation in both state and federal trial courts, is that most kinds of litigation can proceed for many months with almost no judicial intervention prior to trial.

Third, the U.S. Supreme Court has an exceedingly small original jurisdiction, hearing perhaps a dozen or so such cases a year, and that jurisdiction is constitutional in nature so it can't be dealt with via a federal law.

If there is a change to be made for continuity purposes, and this indeed would be a minor one, it could be to allow for a majority of remaining judges of the U.S. Supreme Court to appoint a special master to hear cases in its original jurisdiction so as not to delay this perfunctory step that it always takes before the U.S. Supreme Court takes up such cases on the merits (by which time new justices were likely have been appointed).

Notably, the Constitution does not place actions under either the Presidential Succession Act or related to the powers of Congress in the original jurisdiction of the U.S. Supreme Court. Generally, these matters are within the jurisdiction of the U.S. District Court for the District of Columbia and appealled to the U.S. Circuit Court of Appeals for the District of Columbia Circuit (which can conduct an en banc review of a controversial decision of a three judge panel of that court).

Fourth, experience teaches us that a terrorist attack or major national disaster is precisely the sort of thing that causes the public, Congress and the courts to rally around the President rather than providing a really check on the President's actions in any case. So the concern that the balance of power in the U.S. Supreme Court would be thrown out of whack by recess appointees of a crisis period President, for a period of less than two years, leading not to a constitutional crisis, but a political one, are overblown.

Indeed, making a recess appointment is precisely the kind of political act by a President that can restore a sense of legitimacy, normalcy and control to the new administration, setting the nation back on track to the usual constitutional process.

Also, a recess appointment, by deferring a permanent decision until the crisis has passed or subsided somewhat, prevents a long term bias in the courts from arising from a short term crisis. Whatever mistakes the judges appointed on a recess basis making in a year and a half, their biases can be resolved when the recess appointments expire. Indeed, the fact that recess appointed judges will probably be first in line for permanent appointments and do not have lifetime appointments makes them especially sensitive to creating a partisan or biased appearance of impropriety during the crisis because it would sacrifice a shot at a lifetime appointment.

In any case, even if there is a temporary emergency court that is provided for, no federal statute can strip the President of recess appointment power and a judge who is going to stack the court with recess appointments is precisely the kind of President who will pre-empt the temporary emergency court's powers by making those recess appointments. Thus, a temporary emergency court curbs only the powers of Presidents whose power does not need to be curbed.

Fifth, this leads naturally to the fact that a temporary emergency court inevitably would raise all sorts of novel questions of law that would not come up if the system were simply allowed to work without modification. The validity of recess appointments has been litigated and tested over the two centuries of this Republic. The legal issues related to temporary emergency courts have not, so this measure would simply add to the legal uncertainty of an already confusing time. Any special purpose court or institution is inherently less legitimate than one that exists already when the continuity crisis arises.

One of the reasons that courts have power is that the people whose cooperation is needed to give effect to their decisions are used to obeying them and know how they work. For example, specialized human rights courts with thin dockets are often far less powerful in practice than courts such as the European Union's highest court which develops its legitimacy by routinely handling E.U. entity employment and regulatory cases.

In short, a temporary emergency court in lieu of the U.S. Supreme Court for emergencies is simply a very bad idea, in so many ways, and should be abandoned. The status quo isn't broken, although it could be slightly tweaked with adjustment that could mostly be enacted through the rule making process of the courts themselves.