#5 As such, isn't this current case now moot?
Well, no. The "recess" appointees are still in place aren't they?
Further if the recess appointments are unconstitutional, as the DC Circuit has determined, then questions arise as to whether the actions they've taken are legal nullities and whether parties negatively impacted by same have ongoing ripe causes of action as a result. Of course the D.C. Cir. ruling is precedential only in D.C. so a plaintiff would have to win in their home courts on the question of the unconstitutional nature of the appointments, the harm, their right to bring a resultant action and the damage they experienced. Unless of course these particular agencies or the statutes impacted are ones whose actions are appealable only to the D.C. Circuit. It's complicated.
SCOTUS doesn't take moot cases, AFAIK, so wouldn't the Appeals Court ruling stand?
Yes but I'd wager that the DC Circuit's overreach (though a proper originalist interpretation of the Constitution) will induce the S.Ct. to take up the matter. The D.C. Cir. found: 1) the recess appointments unconstitutional (so far so good); 2) for the reason that only the Senate could determine when the Senate was in session (potentially a failure as the S.Ct. may choose to avoid the issue entirely by calling this out as a "political question" and using that fig leaf to vitiate the entire D.C. Cir. decision); and 3) that recess appointments can only be made for vacancies that arise during a recess (danger Will Robinson, it was entirely unnecessary to set this forth in order to invalidate the improper recess appointments and, if the S.Ct. takes up the matter I'd not bet heavily on its survival).
And have no practical effect except as precedent, which can be ignored and then the next intrasession 'recess' appointees serve until THEIR case gets through the court system?
While not binding precedent in the traditional sense (I believe the D.C. Cir. has original jurisdiction here), the D.C. Cir. case would, if the S.Ct. declines to take the matter up, survive as a holding binding on the Executive & Legislative Branches.
The out for the Administration that would probably effectively moot the matter would entail quickly nominating new appointees who would, upon confirmation, quickly rubber stamp every action taken the the unconstitutional appointees. The matter of the unconstitutional appointments would then be moot and those affected would be left with causes of action accruing damages only from the date of the impactful action by the unconstitutional appointee until the date of the rubber stamp action by the proper appointee. That's far from an automatic win and given the temporal limitation it's probably something few, if any, would pursue. |
