Balkinization  

Monday, November 05, 2007

Torture and recess appointments: A further note on our defective Constitution

Sandy Levinson

The Senate, to its discredit, seems poised to confirm someone as Attorney General of the United States who is unwilling to give an honest answer to what is in fact the status of waterboarding with regard to torture. Even if one accepts, arguendo, the proposition that there may be a tenable argument that under some circumstances it would, nevertheless, be permissible, that doesn't in the least affect the validity of describing it as torture. Instead, one would be forced to argue that there are circumstances where the use of torture would not "shock the conscience" of someone we would regard as a "reasonable person." This is, incidentally, why I wish that the senators had been more skilled in distinguishing what I would call the "descriptive questions"--i.e., what do we call it?--from the legal ones--i.e., is it always the case the torture is illegal or unconstitutional? That would at least force us, as I have earlier argued, to confront the possibility that our vaunted Constitution allows torture, as against taking refuge in the absolutely dishonest and disgusting attempt to avoid recognizing the tortuous reality of waterboarding.)

But I'm basically repeating myself from an earlier post. So the new question is, What explains Sen. Schumer's disgraceful capitulation, beyond the all too likely possibility that he simply shallow and doesn't really care about torture (unlike his concern for protecting the tax privileges of hedge fund managers)? If one tries to be at least somewhat fair to Sen. Schumer, though, one might look at one justification that he offered, his fears that George W. Bush would simply name someone far worse--and one can easily think of people who are worse that Mukasey--to a recess appointment. This would, of course, completely eliminate any role of the Senate in deciding who serves as the country's highest legal officer within the Executive Branch. This is a realistic fear, but, of course, it's a fear that arises only because we have a Constitution that includes the recess appointment power. No doubt it made a great deal of sense in 1787, when the Senate was rarely in session. It makes almost no sense today; it serves exclusively to weaken the role of the Senate and to add to the unaccountable power of the president.

Needless to say, presidents of both parties have used it, Clinton most notably with regard to appointing Roger Gregory to the Fourth Circuit and Bill Lann Lee to head the Civil Rights Division of the Justice Department. I have earlier posted on why I believe that recess appointments to the federal judiciary are (or, at least, have become) a terrible idea, if we truly believe in an "independent" judiciary. (Incidentally, past recess appointments include both Oliver Wendell Holmes and William J. Brennan.) Indeed, I note that one source indicates that Clinton made 140 recess appointments during his two terms, which is 100 fewer than Ronald Reagan made in his two terms. One can understand Clinton's frustration at the Republican Senate, just as, of course, one can understand Reagan's or Bush's frustration at a Democratic Senate. But none of this adds up to a justification for allowing the President simply to do an end-run around the basic notion of Senate assent to those who would lead our country. The recess appointment power today functions as one of the monarchical prerogatives of the presidency, of which we already have too many.

Frankly, I'd be happy to support an amendment disallowing recess appointments except under extraordinary conditions (such as the short time after a direct attack on the US during which the Senate is in recess) that would take effect only with the next President (who will likely be a Democrat). I see no particular reason to see recess appointments as an issue that would divide us along standard-form political grounds, whether liberal/conservative or Democratic/Republican. The relevant distinction would presumably be congressionalists v. presidentialists, and I wonder how many of the Balkinization regulars are truly happy with the status quo.

Comments:

I'd certainly support such an amendment, but I'd like to point out that the Senate does not have to make things so easy for the President, by going into recess so frequently. Nor does it have to exacerbate the situation by failing to bring the Presidents' nominees to a timely up/down vote.

I would, in fact, suggest that the amendment in question address both issues, in order to reduce in an even handed manner the increasing conflict between the Executive and the Senate over nominations.
 

I have a question on the length of a recess appointment, and this may tie into the originalism discussion.

If the original intent would be to insure that there was someone filling a post during the (originally) long terms between sessions of the Senate, would that mean that recess appointments should only occur and be valid between recesses of the Senate; i.e., if one is appointed before the holiday recess, that their temporary term will expire at the end of the holiday?

I ask as I have not yet seen an argument regarding this, only acceptance that recess appointments made during short breaks of the Senate are good not only until they next convene, but until their next biannual session.
 

"would that mean that recess appointments should only occur and be valid between recesses of the Senate;"

Nope, because the clause in the Constitution giving the President authority to make recess appointments says,

"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."

Apparently they didn't want to force the Senate to take up those appointments as their very first order of business.
 

A major part of the problem here is the bizarre interpretation of the text of the Constitution that allows the President to make recess appointments in the circumstances at issue. The plain language of the Constitution is that recess appointments may be made to fill vacancies "that may happen during the Recess of the Senate". In other words, recess appointments are available when an office becomes vacant while the Senate is in recess. If an office becomes vacant while the Senate is in session, the President has no power to make an appointment merely because he fails to obtain the consent of the Senate to his nominee.

I am aware that there is a legal literature on both sides of this question, but I find the prevailing opinion incomprehensible. As both a native speaker of English and a professional linguist, I do not believe that the text has any interpretation other than the one I give it, and since there is no special legal usage of "may happen during", there is no basis for any interpretation other than this one.
 

Brett,

Even so, the end of their next session could be as short as until they take their next recess, temporary or not. A Senate leadership who wished to game the process could just declare a temporary recess, ending their session, and the term of the recess appointee.

billposer has the other explanation that I was looking for, that the appointment textually should only come if the vacancy happens during a recess. I know that this would change the handling policies of many Presidencies, but is that a bad thing, given the gaming of the recess appointments in recent years?
 

"A Senate leadership who wished to game the process could just declare a temporary recess, ending their session, and the term of the recess appointee."

Well, yes, and giving the President another opportunity to make some recess appointments.

Hm, I wonder if the Senate could go into recess for five minutes, without giving the President advance notice, and then reconvene? And THEN notify the President that all his recess appointments had expired?

That's what I'd do if I were directing the Senate's end of this fight.
 

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