Is Obama trying to pack the DC appeals court?

The D.C. Circuit is the nation’s top regulatory court, responsible for scrutinizing many of the federal government’s most expensive and far-reaching actions. No wonder, then, that President Barack Obama is now trying to push three new judges onto the court and tilt it decisively in his favor. A great deal is at stake here for the U.S. economy, and it is high time for the Senate to have its say.

For a president with an aggressive second-term regulatory agenda, the D.C. Circuit may be a greater impediment than the Supreme Court. By statute, the court hears all challenges to nationwide rules under the Clean Air Act, as well as many major challenges to regulations affecting water, labor relations, securities law, and other fields. It vets agencies’ compliance with constitutional requirements. More than a third of cases in the D.C. Circuit are administrative appeals, compared to 16 percent in other appeals courts. And because the Supreme Court takes so few cases each year, the D.C. Circuit’s word is typically the last when it comes to regulatory challenges.

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The court hasn’t exactly been clamoring for more judges. It has the equivalent of 11.25 full-time judges: eight active judges, split 4-4 between Democratic and Republican appointees, plus another six senior judges whose workloads add up to 3.25 full-time judges. While the court has three vacancies, they are not among the 32 “judicial emergencies” identified by the Administrative Office of the U.S. Courts—and the president hasn’t even made nominations to most of those seats.  Moreover, the court’s caseload is among the lowest of the courts of appeals, at 88 cases per judge, and declining. According to one current judge, “If any more judges were added now, there wouldn’t be enough work to go around.”

So why three new judges? And why now?

The best explanation is that the court has played an important role checking the Obama administration’s most legally adventuresome actions. It blocked Obama administration regulations that required some states to reduce air pollution by more than they actually emitted and struck down the president’s attempt to bypass the Senate by “recess” appointing pro-union lawyers to the National Labor Relations Board when the Senate was still in session.

Just recently, it ordered the Nuclear Regulatory Commission to follow the law and reopen consideration of the Yucca Mountain nuclear waste repository, which the Administration had shut down for political reasons. The court felt the need to remind the administration: “The President and federal agencies may not ignore statutory mandates or prohibitions merely because of policy disagreement with Congress.”

To be clear, the court is not set against Obama’s agenda—far from it. Where agencies hew to the letter of the law and present reasoned explanations for their actions, they fare well. Indeed, the D.C. Circuit has turned back challenges to the vast majority of the Obama administration rules, including EPA’s greenhouse gas regulations, which many observers viewed as legally vulnerable for deviating from the language of the Clean Air Act. (The Supreme Court recently agreed to review that precise issue.)

Problems typically arise when regulators overreach by playing fast and loose with the law to carry out their political agendas. As D.C. Circuit Judge David Tatel has explained, “You’d be surprised how often agencies don’t seem to have given their authorizing statutes so much as a quick skim.”

The president is right to fear that his agencies may face tough going in the D.C. Circuit during his second term. Despite a number of high-profile court losses for failure to follow the law, President Obama declared after his reelection that he intends to act even more aggressively. He said that he is “not going to…wait for Congress” to carry out his agenda. “Wherever we have an opportunity and I have the executive authority to go ahead and get some things done, we’re just going to go ahead and do ‘em.” He has followed through on that promise, pushing the EPA to effectively ban new coal-fired power plants and to issue standards for existing plants that are likely to be among the most expensive regulations ever.  EPA is also contemplating new rules targeting natural gas. 

Thus, the president’s rush to place three liberal stalwarts on the court. Today, the D.C. Circuit enjoys a reputation for careful legal reasoning and attention to detail. It is sensitive to the tough policy choices faced by public officials, without unduly deferring to their judgments on issues of law. For those very reasons, it poses a real threat to the president’s plans to skirt the normal lawmaking process—that is, working with Congress—in favor of unilateral action.

It’s easier to win in court, of course, when you get to pick the judges.  A second reason for the rush is to prevent the Senate from careful review of his nominees’ records.

This, in particular, should give Senators pause, because it stands in the way of carrying out their constitutional duty to provide “advice and consent” on judicial nominations. Given the stakes, a full airing of the nominees’ records is warranted, followed by careful deliberation by the Senate.

Rivkin Jr. and Grossman practice law in the Washington office of BakerHostetler. Rivkin served in the Justice Department and the White House Counsel’s Office in the Reagan and George H.W. Bush administrations.