President Barack Obama issued his second signing statement yesterday (second containing a constitutionally based objection to a provision of law being signed, that is). This statement included only one constitutional objection and, like the objections in the first, it was a garden variety objection that I cannot imagine anyone disagreeing with. The statement concludes:
Section 8203 of the Act provides that the Secretary of the Interior shall appoint certain members of the Erie Canalway National Heritage Corridor Commission “based on recommendations from each member of the House of Representatives, the district of which encompasses the Corridor.” Because it would be an impermissible restriction on the appointment power to condition the Secretary’s appointments on the recommendations of members of the House, I will construe these provisions to require the Secretary to consider such congressional recommendations, but not to be bound by them in making appointments to the Commission.
In a number of cases beginning with INS v. Chadha, 462 U.S. 919 (1983), and Bowsher v. Synar, 478 U.S. 714 (1986), the Supreme Court has held that Congress may not make the exercise of executive authority conditional upon the action or inaction of a member of Congress (or a committee or any other component of Congress). In other words, Congress may not aggrandize itself by passing a statute that reserves for Congress alone (or a sub-unit of Congress or a member or agent of Congress) the exercise of power. The Court has defined “power” for these purposes to be the authority to affect legal rights and duties outside the legislative sphere (so, for example, Congress and its committees may issue subpoenas to testify at congressional hearings even though such subpoenas alter legal duties because the subpoena operates within the legislative sphere). Because the Erie Canalway National Heritage Corridor Commission presumably does not operate within the legislative sphere, Congress may not exercise power over its membership. As long as the congressional recommendations are, in fact, recommendations that can be considered and rejected, the law does not reserve any actual power or authority (in the relevant constitutional sense) for members of Congress. President Obama’s construction of the statute is a fair one, the statute itself does not appear to make the recommendations binding. Indeed, the statute allows several members of Congress to make recommendations, so it is unlikely that the recommendations could be binding. Given that the statute pretty clearly does not make the recommendations binding, I am puzzled as to why President Obama would have issued the statement.
In puzzling over this question, however, I began to consider whether Congress has an alternative formulation by which it makes its recommendations binding. This led me to look at the organic statutes for the service academies (the United States Military Academy, the United States Naval Academy, and the United States Air Force Academy). Formally, the President appoints the cadets and midshipmen. But the organic statutes, which follow essentially the same format, limit the enrollment of each academy and provide a defined distribution of appointments. “Ten [cadets.midshipmen are to come] from each state, five of whom are nominated by each Senator from that State. Five cadets from each congressional district, nominated by the Representative from the district.” 10 USC 4342(a)(3)-(4)(West Point); 10 USC 6954(a)(3)-(4)(Navy); 10 USC 9342(a)(3)-(4)(Air Force).
If we assume that cadets and midshipmen are not officers in the constitutional sense, then the Appointments Clause would not apply. Nevertheless, the anti-aggrandizement principle of Bowsher and its progeny would. Certainly, the decisions of members of Congress about whom to nominate for appointment to the service academies alters the legal rights and duties of individuals outside the legislative sphere – namely, the applicants for admission to the service academies. It appears that the President’s authority to appoint (for the categories committed to congressional nomination) is limited to congressionally nominated applicants. It is possible that I have missed something in the way the service academy appointment process is actually implemented, and I would welcome any comments correcting or supplementing this post. On the face of each service academy’s organic statute, however, the appointment process appears to be inconsistent with settled separation-of-powers doctrine. Indeed, the very same settled doctrine that led to the objection in President Obama’s most recent signing statement.
What does this tell us? In an old separation of powers case – Springer v. Government of the Philippine Is., 277 U.S. 189 (1928) – Justice Holmes dissented partly on the grounds that the majority’s view would render the Smithsonian Institution invalid. In Holmes’s famous formulation: “Congress long ago established the Smithsonian Institution to question which would be to lay hands on the Ark of the Covenant.” Id. at 211. It may be that the validity of the service academies is similarly a third rail of constitutional analysis. (As an aside, the Smithsonian Institution can be justified under current separation-of-powers doctrine by conceiving of it as Congress’s museum. Because it operates within the legislative sphere, Congress may make appointments and otherwise exercise power over it without going through bicameralism and presentment, just as Congress does with the Library of Congress.) Or, it may be that the inability of current doctrine to account for the validity of the service academies demonstrates that current separation-of-powers doctrine is misguided.
If, however, we are truly committed to the Constitution and to the well-settled understanding expressed in judicial precedent, then the appointment process for the service academies should be disturbing. Otherwise, the separation-of-powers principle is an April Fool’s joke.
