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Tuesday, August 02, 2005

Recess Appointments and The Constitution

On Monday, President Bush nominated/installed John Bolton as Ambassador to the United Nations and on Tuesday, nominated/installed Peter Cyril Wyche Flory to be assistant secretary of defense for international security policy. In both cases, the President made the appointments pursuant to his authority under Article II, Section 2, Clause 3 of the United States Constitution. Does that clause in fact give the President the authority to install Bolton and Flory in this way, at this time? Interestingly, the Supreme Court has yet to definitively rule on the scope of the President's power under Article II, Section 2, Clause 3, though a number of circuit courts have passed on the question and upheld presidential recess appointments.

The clause, commonly known as the Recess Appointments Clause, states: "The 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 term "Vacancies" refers to the offices listed in the preceding clause: "Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law." Dispensing with the easier element first, it seems clear that these men were the type of officers contemplated by the framers as being able to appointed under this clause. The more difficult question is whether the appointments are for the types of vacancies contemplated and within the time frame contemplated.

The eleventh circuit recently, in Evans v. Stephens, addressed the constitutionality of Judge Bill Pryor's appointment by the President during an intra-session recess and found the appoint constitutional. In addition, The Second and Ninth Circuits have also decided that the Recess Appointments Clause reaches appointments to Article III courts. See United States v. Woodley, 751 F.2d 1008 (9th Cir. 1985) (en banc); United States v. Allocco, 305 F.2d 704 (2d Cir. 1962). In looking at the Bolton appointment, I would suggest that for two key reasons, the appointment is beyond the scope of the original meaning and purpose of the appointments clause. First, a textual reading of the clause suggests that it was intended to deal with cases where a vacancy arose during a long recess where there was no intent of Congress to return before another session. The vacancies that can be filled are ones that, by the text, happen during the recess. This suggests the framers wanted to limit the clause to cases where Congress had never had the chance to even contemplate the existence of a vacancy, not where they made a (perhaps) conscious decision to leave the post vacant while they recessed. Second, the clause is probably best understood as applying not to intra-session recesses, but to inter-session recesses where Congress was not returning. I say this because the remedy, a commission for the entire session, would otherwise be far greater than the problem at hand. Why, if the clause was also meant to include intra-session recesses, did the Commission not run until the Senate had a chance to act on the nomination consistent with the more natural appointment process. If we accept that, as Hamilton said it was in the Federalist, the Recess Appointments Clause was a gap-filler, intended to deal with the sometimes impractical nature of the Appointments clause, then the clause is more properly limited to inter-session appointments. Otherwise, the session-long commission, which might be given upon only a day recess, seems entirely disproportionate. Common sense history might also suggest a narrower understanding, given that the framers were likely more concerned with politicians being out of Washington for good, which given the difficulty of travel and the shortness of sessions, was almost definitely more likely to happen during an inter-session recess.

I will not endeavor here to attempt to fully canvas the original literature, nor to entirely convince the reader that this narrower reading of the Recess Appointments Clause is correct. I would however suggest that the interested reader peruse the different opinions in Evans. A close reading suggests that Judge Barkett in dissent, usually no originalist, has the better of the originalist, textualist and purposivist arguments as opposed to the majority. The majority is lukewarm at best in its attempt to justify its decision as an originalist interpretation. They instead seem fully satisfied to rest their decision though on a Midwest Oil, Frankfurtian "historical gloss" argument, and in so doing, they might reach the right conclusion for today's modern government. It is beyond the scope of this post to attempt to address whether we should read a historical gloss onto provisions of the Constitution. However, I would suggest that a close reading of the Recess Appointments clause suggests that perhaps it is being interpreted too broadly as a matter of original meaning, and perhaps it is time for the Supreme Court to settle the question once and for all.


Anonymous Anonymous said...

Not sure what the technical term is for recess-appointing but don't think it's "nominated" - the President's right to do that is unquestioned. Maybe appointed or installed would be more descriptive?

1:55 AM  
Blogger T. More said...

This is a nice post, Phocion, though I disagree that the Court should take up the issue, unless they can somehow come to a unanimous decision. If that fails in conference they should punt and claim that cert was improvidently granted.

The reason for this is that the nature of disagreements about recess appointments is fraught with politics, and one way of thinking about the "political question" doctrine is that some issues are best settled by the political forces that restrain the actors. The Court's ability to give a convincing answer on such an issue is diminished to the degree that it divides along partisan lines (need I reference Bush v. Gore?). So, if they could all agree to go Midwest Oil (which I think is the right course) or with the original meaning (which in the end I will never object to and which I think does not envision appointments like Bolton's), or if at least 7 of them went one way or another, then great. But a narrowly divided court on such a question might be a bad idea.

9:45 AM  
Blogger Rod said...

Undoubtedly, the question of recess appointments has a great deal of "political" flavor tied up with it. And I agree that for the most part, it is the political forces which will do much of the restraining. The entire point of course of the Constitution was to create a system of structural safeguards. I agree that this might be a difficult issue, bordering on a political question. Furthermore, one could quite easily argue that as long as the Senate is refusing to hold floor votes on Presidential nominees, the Recess Clause should be read broader to counter-balance this constitutional development, and to at least give the President some degree of bargaining power. A purposivist argument might go that since the Appointments Clause original meaning is being frustrated through the failure to allow the full Senate to advise and consent, the Recess Clause, an auxiliary way of appointing, must expand to ensure necesarry posts are filled adequately.

My main point is still not obscured however: the appointment of Bolton in this way was not the type envisioned by the Framers. Perhaps it is a neccessary appointment given the institutional failures to carry out constitutional duties. And perhaps the historical gloss should carry the day. But at the very least, the power claimed should be examined as it was meant to have been used in our constitutional structure.

11:32 AM  
Blogger Joe said...

I too enjoyed this post.

As to the "political" question matter, this really is not a reason to punt. First, as you note, it hits to a textual based structured safeguard. Second, other structural safeguards have been dealt with by the SC (some in close opinions), so why should this get special treatment?

Finally, this simply is not on the level of B v. G. And, given the originalist arguments, the voting might be unexpected. This might actually increase respect of the Supreme Court.

As to the remedial argument, the Senate in the past has also held up appointments for extended periods of time. This too is history. And, current realities work both ways, both sides at times arguably not doing its constitutional duties. Giving the President additional power therefore seems unjustified.

7:23 PM  

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