John Bolton is Unconstitutional

Marty Lederman

Well, his so-called "recess nomination" to be U.N. Ambassador is unconstitutional, at any rate—at least in this writer's humble opinion. And so is the recess appointment on Tuesday of Peter Flory to be Assistant Secretary of Defense—and most of the other "recess" appointments made by this President, and by President Clinton before him.

The Bolton appointment, and others like it, was ostensibly made pursuant to the Recess Appointments Clause (Art. II, sec. 2, cl. 3), which provides that 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 President purported to make the Bolton appointment during a current "Recess of the Senate" that allegedly began last Friday.

There are two basic arguments as to why the Clause does not apply here. The first is discussed in great detail in several briefs that my co-counsel and I filed on behalf of Senator Kennedy in cases dealing with last year's "recess appointment" of U.S. Court of Appeals Judge William Pryor. The most detailed of those briefs can be found here and here. The basic argument is that the term "the Recess" refers solely to recesses between "Sessions" of the Senate, and not to intra-session adjournments, such as the one the Senate began last Friday. (Indeed, as Senator Frist's statement demonstrates ("I ask unanimous consent the Senate stand in adjournment under the previous order under the provisions of H. Con. Res. 225. Thereupon, the Senate, at 8:35 p.m., adjourned until Tuesday, September 6, 2005, at 12 noon."), the current Senate break is not even a "recess" of any kind under governing legislative rules: It's an adjournment, which is another animal entirely, at least for internal congressional functions and possibly for constitutional analysis, as well.)

I won't bore you with the details of the argument—interested readers can find much more in those linked briefs—except to note that this was the accepted understanding of the Executive Branch itself for the first 132 years of practice under the Constitution, affirmed by a well-reasoned opinion of Attorney General Knox in 1901 (23 Op. A.G. 599), only to be abandoned in a (misguided) 1921 Opinion of Attorney General Daugherty (33 Op. A.G. 20).

Second, even if the Senate break that began last Friday were deemed "the Recess," the vacancy in the office of U.N. Representative did not "happen" during that recess—it occured instead while the Senate was sitting. This argument is discussed in footnote 11 of our Stephens amicus brief, and it is the principal basis of Judge Barkett's thoughtful dissent from the court of appeals' decision in Stephens. (With respect to this question, the Executive Branch has since 1823 been of the view that the word "happen" must be construed to mean "exist," see 1 Op. A.G. 631, 632-33, although supporters of this argument "must, in candor, admit that their construction is not conformable to either the literal or the ordinary import of the words 'may happen,'" Case of Dist. Attorney of United States, 7 F. Cas. 731, 735 (E.D. Pa. 1868) (No. 3924).)

Not to worry—these arguments are not the mere fevered imaginings of the Senator from Massachusetts and some "activist" liberal law professors. They also find favor with much more conservative proponents of constitutional originalism and of "plain-meaning" interpretation. (There are, of course, formidable arguments on the other side, as well. See, for instance, pages 17-29 of this brief of the Solicitor General, and this paper.) This issue makes for strange bedfellows. As Professor Herz has written:

The Recess Appointments Clause occupies an interesting niche in
constitutional law. In terms of importance and vagueness—the two
essential ingredients of controversy and scholarly attention—it falls far shy of, for example, the Due Process Clause. On the other hand, it does not suffer from the irrelevance or the precision that have doomed the title of nobility prohibitions or the requirement that the president be thirty-five years old to the Siberia of constitutional discourse. There are stakes, but they are not too high; there is substantial text to work with, but no shortage of interpretive issues. In considering the scope of the clause, moreover, one is perforce behind a sort of Rawlsian veil of ignorance. A given interpretation may be good for your team at one point in history and bad at another. Therefore, ideology and the appeal of desired outcomes in the short-term can more easily be set aside here than when considering many substantive constitutional issues.

(As an aside, I higly recommend Professor Herz's short essay, 26 Cardozo L. Rev. 443, which is a reply to the countervailing views of Professors Hartnett (id. at 377) and Rapapport (52 U.C.L.A. L. Rev. 1487). Professor Herz uses the debates over the Recess Appointments Clause to probe some important questions in the modern clash between formalist and functional modes of constitutional interpretation, such as "whether considerations of purpose may lead to different interpretations of the same text in different settings; and . . . whether it is proper to stick to an old text and justify the constant understanding by changing purposes.")

Even if you're persuaded by our arguments, I wouldn't advise getting too excited about the prospect of John Bolton's eviction from the East Side of New York. In the context of this particular nomination, there's unlikely to be any context in which the constitutionality of Bolton's appointment will be justiciable. And even if the courts were to consider the question, recent history suggests that they may not be terribly receptive to the arguments propounded by opponents of such intra-session "recess" appointments. But cf. this opinion of Justice Stevens respecting a denial of certiorari.
Posted 6:27 AM by Marty Lederman [link]