Staebler v. Carter
On January 8, 1979, the U.S. District Court for the District of Columbia granted defendant Jimmy Carter's motion for summary judgment and upheld the President's recess appointment of John McGarry to the Federal Election Commission.
The action against President Carter was filed in October 1978 by former FEC Commissioner Neil Staebler. Mr. Staebler, whose term of office expired in April 1977, still held the seat (under the hold over provisions of 2 U.S.C. §437c(a)(2)(B)) to which Carter appointed Mr. McGarry on October 25, 1978. After the Senate had twice failed to act on Mr. McGarry's nomination, the President appointed him to the Commission during the 1978-79 congressional recess.
Mr. Staebler challenged the appointment on the grounds that:
- A vacancy occurs on the Commission, not at the close of the statutory term, but upon the lawful appointment of a successor.
- A successor is lawfully appointed only when he is nominated by the President and confirmed by the Senate.
The court determined that neither the statutory language nor the legislative history of the Act supported these premises.
- The court interpreted 2 U.S.C. §437c(a)(2)(C) to mean that "a vacancy shall occur upon the expiration of the term of office." In the case of Mr. Staebler, then, a vacancy existed since April 30, 1977, the date upon which his term expired.
- In the view of the court, moreover, there is no support for the argument that Congress intended to prohibit some or all recess appointments to the FEC.
The court concluded that a vacancy did exist, the President had the authority to make the McGarry appointment, and that Mr. McGarry is a lawful member of the Federal Election Commission.
This case, the court noted, involved not only the interests of the defendant and plaintiff, but also the proper distribution of power between the branches of government. Under the plaintiff's interpretation, it would be possible for a member of a Commission, once appointed and confirmed, to remain in office indefinitely. As long as the Senate did not act, either to confirm the nomination of a successor or to bring a nomination to a vote, the President would be powerless to protect the powers of appointment granted to him by Article II, Section 2 of the Constitution.
This argument is "especially compelling," the decision pointed out, when applied to the "politically sensitive" FEC. By providing the Senate with de facto authority to retain appointed officeholders, long beyond the expiration of their statutory terms, plaintiff's interpretation would facilitate the legislative domination of the FEC, which the Supreme Court condemned in Buckley v. Valeo. The court pointed out, however, that had the Senate rejected Mr. McGarry's nomination, the President would have been "unable to grant a recess appointment to McGarry."
Source: FEC Record — March 1979. Staebler v. Carter, 464 F. Supp. 585 (D.D.C.), appeal dism'd, 2 Fed. Elec. Camp. Fin. Guide (CCH) ¶9080 (D.C. Cir. 1979).