Is Recess Appointment Controversy a Nonjusticiable Political Question? Court May Look to Goldwater v. Carter


The constitutionality of President Barak Obama’s recess appointments will likely appear before the U.S. Supreme Court. However, there is a strong chance that the Court will determine that the controversy in a nonjusticiable political question.

Although the government failed to argue that the court lacked jurisdiction, the issue is unlikely to escape Chief Justice John Roberts. He has made it perfectly clear that his Court will not be an “activist” court that delves into political affairs.

In addition to relying on the seminal case of Marbury v. Madison, the justices will likely also look to Goldwater v. Carter, in which several members of Congress challenged President Jimmy Carter’s power to nullify a defense treaty.

The Facts of the Case

In 1979, President Carter terminated a defense treaty with Taiwan without notifying the Senate. Senator Barry Goldwater and several other members of the Senate filed a lawsuit, challenging the constitutionality of the action. They argued that the President exceeded his powers under the U.S. Constitution by unilaterally terminating the treaty without the advice and consent of the United States Senate or the approval of both houses of Congress.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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