By Richard A. Epstein | Wall Street Journal
A lame-duck President Trump appointed Heidi Stirrup to a three-year term on the Board of Visitors to the U.S. Air Force Academy in December 2020.
Joe Biden became president the following month, and his administration launched a frontal assault on the independent status of the board, along with its counterparts at the Army’s and Navy’s academies.
First, without any statutory authorization, Defense Secretary Lloyd Austin usurped the boards’ system of internal governance by suspending all board activities while he conducted a “zero-based review” of their operation—a review that could have gone on without that suspension.
Next, Mr. Austin assumed the authority to delegate the business of the boards to subcommittees, none of whose members had to be member of the boards.
Then in September 2021, he terminated all remaining Trump appointees on one day’s notice.
No other administration, including Mr. Trump’s, has ever purged rival members of the boards, who by statute are required to exercise their independent judgment and offer balanced perspectives on the academies’ activities not only to the president but to Congress, the service academies and the public at large.
Press secretary Jen Psaki clumsily justified this crude sacking by complaining that they didn’t back Mr. Biden’s victory on Jan. 6, 2021, or share his “values.”
Ms. Stirrup sued. On the merits, she had the government dead to rights.
Six members of the boards were appointed by the president for staggered three-year terms, along with five by the Senate president pro tem and four by the House speaker for one-year terms.
If they exercised significant executive authority, their appointments would be unconstitutional under Buckley v. Valeo (1976), in which the Supreme Court held that Congress had no constitutional power to make executive appointments (apart from the Senate’s advice-and-consent role).
In addition, Wiener v. U.S. (1958) held that President Dwight Eisenhower couldn’t replace members of the War Claims Commission, a judicial body, appointed by President Harry S. Truman. Ms. Stirrup’s view was that she had independent powers similar to those of the war-claims judges.
In an unpublished June 7 opinion, the U.S. Court of Appeals for the District of Columbia Circuit ducked Ms. Stirrup’s case by holding that the government had rendered the case moot by running out the clock in litigation. By the time the case reached the circuit, her term would have ended.
She responded that the live threat of similar actions in the next administration kept the case alive under Roe v. Wade (1973), which rejected a claim of mootness for disputes “capable of repetition, yet evading review.” Roe in turn relied on Moore v. Ogilvie (1969), which applied this same test to allow a plaintiff’s challenge to ballot access, even though the disputed 1968 election was over.
The D.C. Circuit ignored both by citing Dearth v. Holder (2011), which conferred standing on a disappointed Canadian who hoped to reapply for a gun permit. The court misread the case to conclude that mootness applied where only “the same complaining party” was involved in both cases. But Dearth didn’t address the converse situation approved by Roe and Moore, where the same issue could recur with different parties.
That massive judicial failure to address the merits leaves everything hanging for next year, when a President Trump could replay the Biden gambit.
But why wait? No new information is needed to decide this question of law now. Nothing is gained and much is lost by waiting for this unfortunate episode to recur.
If it took Ms. Stirrup’s appeal, the Supreme Court could easily craft a clear and enforceable remedy: It simply has to tell the president not to remove Board of Visitors members during their terms of office, period.
The gaping omissions by the D.C. Circuit cry out for judicial correction, which should address not only standing but all the structural issues raised by Wiener and Buckley that the circuit court shoved under the rug.
Mr. Epstein is a law professor at New York University, a senior fellow at the Hoover Institution, and an emeritus professor at the University of Chicago. He was on the legal team representing Ms. Stirrup in the D.C. Circuit.
Leave a Comment