The Political Spectrum

Just so this post doesn’t get hijacked by pure politics, let me say up front that I’m going to cede the argument that Senate Democrats shouldn’t have "filibustered" John Bolton’s nomination to be UN Ambassador. I use quotes, because unlike the judicial filibuster, in this case the President was given a clean out, namely, divulge the documents that were sought and the nomination gets though. Also, it should be noted that at least one Republican Senator (Voinovich) was opposed to Bolton’s appointment and likely others would have been (Chafee, Snow, Collins) had not other political considerations factored in. Regardless, I’ll admit that Bolton likely would have gotten the 51 votes required had a floor vote been permitted. So for the record, tongue in cheek of course, Senate Democrats, and some RINO’s are nothing more than obstructionists who are hell bent on nothing more than hijacking the President’s Constitutional right to make appointments to federal offices and doing nothing to help unite this country around the common enemy that is terrorism. There, everyone happy?

While the politics are interesting and of course will be what all the comments from my conservative friends are about, that is not why I wanted to post on this topic. Personally, I could care less about the politics because UN Ambassador is really a stepping stone to nowhere. (Can anyone even name the last 5 people to serve, I mean for crying out loud, Allen Keyes once held this post and look what’s happened to his carpetbagging behind, he couldn’t even get 20 percent of the vote in Illinois) The man will have no real power to "reform the institution," even if we all agree it needs to be done (which I do), but again I digress. No, the interesting thing about this story is the use of the recess appointment by the President on the first day that the Senate recesses for its annual August break. Even if one starts from the proposition that the Senate was wrong to hold up/block the nomination, it is far from clear that the President was right to use the recess appointment.

Since modern legal thought places a strong emphasis on the text and plain meaning of the Constitution, lets examine them closely shall we. The recess appointments clause, Article 2, Section 2, clause 3 states that "[t]he President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session." The first ambiguity is the phrase "vacancies that may happen." If the term "happen" is interpreted as referring only to vacancies that occur during a recess, it necessarily follows that the President would lack authority to make a recess appointment to a vacancy that existed prior to the recess. Hence, there would be a strong argument against the Bolton nomination as the vacancy did not occur while the Senate was in recess. Conversely, if "happen" is construed more broadly to encompass vacancies that exist during a recess, the President would be empowered to make a recess appointment to any vacant position, irrespective of whether the position became vacant prior to or during "the Recess of the Senate." Since I don't fully ascribe to so-called "textualism" or "strict constructionism," I'll eagerly await my conservaitve collegues's responses, but it seems to me that the former interpretation of the word "happen" is the better of the two arguments. I read "vacancies that may happen during the recess of the Senate" to mean that if the recess appointment power only arises when the office becomes vacant while the Senate is not in session, not when a vacancy is merely available and the Senate has failed to act prior to recessing.

This analysis leads us to the second textual ambiguity, the phrase "recess of the Senate." Historically, this phrase has been the subject of much debate. For example, in 1901 the Attorney General (AG) concluded that the phrase applied only to adjournments between sessions of Congress (commonly referred to as "intersession" recesses). In reaching this determination, the AG placed significant weight on the use of the definite article "the" in the Clause, noting that "[i]t will be observed that the phrase is ‘the recess.’" The AG also concluded that if recess appointments were allowed during periods other than an intersession recess, nothing would prevent an appointment from being made "during any adjournment, as from Thursday or Friday until the following Monday." Conversely, a latter 1921 opinion by a different administration's AG stressed the functionality of the Clause, noting that:

It was evidently intended by the framers of the Constitution that it
[Article II, sec. 2] should mean something real, not something imaginary;
something actual, not something fictitious. They used the word as the mass of
mankind then understood it and now understand it. It means, in our judgment, in
this connection the period of time when the Senate is not sitting in regular or
extraordinary session as a branch of the Congress or in extraordinary session
for the discharge of executive functions; when its members owe no duty of
attendance; when its chamber is empty; when, because of its absence, it can not
receive communications from the President or participate as a body in making
appointments.... This is essentially a proviso to the provision relative to
appointments by and with the advice and consent of the Senate. It was carefully
devised so as to accomplish the purpose in view, without in the slightest degree
changing the policy of the Constitution, that such appointments are only to be
made with the participation of the Senate. Its sole purpose was to render it
certain that at all times there should be, whether the Senate was in session or
not, an officer for every office, entitled to discharge the duties
thereof.

When discussing this part of the clause it should also be noted that it is really only in modern times that the Senate took numerous intrasession breaks. Generally, the body stayed in session much more frequently, recessing only for major holidays, thus the opportunity for recess appointments is much greater now than it was historically.

Just to drive the point home, here is some evidence of what the framers thought at the time of ratification and debate. In Federalist No. 67, Alexander Hamilton refers to the recess appointment power as "nothing more than a supplement...for the purpose of establishing an auxiliary method of appointment, in cases to which the general method was inadequate." During the ratification debates in Pennsylvania, a delegate, Thomas McKean. noted with approval the sharing of the appointive power with the Senate and stated that the Senate need not "be under any necessity of sitting constantly, as has been alleged, for there is an express provision made to enable the President to fill up all vacancies that may happen during their recess; the commissions, to expire at the end of the next session." Likewise, during the ratification debates in North Carolina, Archibald Maclaine stated:

It has been objected...that the power of appointing officers was something
like a monarchical power. Congress are not to be sitting at all times; they will
only sit from time to time, as the public business may render it necessary.
Therefore the executive ought to make temporary appointments...This power can be
vested nowhere but in the executive, because he is perpetually acting for the
public; for, though the Senate is to advise him in the appointment of officers,
&c., yet, during the recess, the President must do this business, or else it
will be neglected; and such neglect may occasion public inconveniences.

While not conclusive, these quotes hardly seem to be a ringing endorsement of a broad Presidential power to appoint persons to advice and consent positions simply because the Senate, properly or not, is not cooperative. A strong argument can be made that the recess appointment should be used sparingly and only in cases where it is absolutely necessary to ensure the proper functioning of the government, or at a time when the Senate is unable, and not merely for political reasons, to carry out its Constitutional function of advice and consent..

Even if the Senate is wrong on Bolton, the President’s use of the recess appointment may also be wrong, and what’s worse it may be damaging to our system of checks and balances. For example, I don’t think I would be wrong in predicating outrage by my conservative friends if the following were to occur: a Democrat is elected President in 2008; the GOP retains control of the Senate and threatens to block the President’s cabinet nominations if they are too "liberal" for mainstream America; thus, for purely political reasons, the President simply waits until the first Senate recess to appoint all members of the cabinet and other confirmable positions, thereby bypassing the body altogether. Such an action would be wrong and I would support my conservative friends in speaking out against it. Clearly, we would all agree that a GOP Senate would be wrong to block a President’s cabinet members just like the Democrats are wrong regarding Mr. Bolton. That, however, begs the question; why do two wrongs not make a right in that case, but are acceptable with respect to Mr. Bolton? Thoughts...