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Jack Balkin: jackbalkin at yahoo.com Bruce Ackerman bruce.ackerman at yale.edu Ian Ayres ian.ayres at yale.edu Corey Brettschneider corey_brettschneider at brown.edu Mary Dudziak mary.l.dudziak at emory.edu Joey Fishkin joey.fishkin at gmail.com Heather Gerken heather.gerken at yale.edu Abbe Gluck abbe.gluck at yale.edu Mark Graber mgraber at law.umaryland.edu Stephen Griffin sgriffin at tulane.edu Jonathan Hafetz jonathan.hafetz at shu.edu Jeremy Kessler jkessler at law.columbia.edu Andrew Koppelman akoppelman at law.northwestern.edu Marty Lederman msl46 at law.georgetown.edu Sanford Levinson slevinson at law.utexas.edu David Luban david.luban at gmail.com Gerard Magliocca gmaglioc at iupui.edu Jason Mazzone mazzonej at illinois.edu Linda McClain lmcclain at bu.edu John Mikhail mikhail at law.georgetown.edu Frank Pasquale pasquale.frank at gmail.com Nate Persily npersily at gmail.com Michael Stokes Paulsen michaelstokespaulsen at gmail.com Deborah Pearlstein dpearlst at yu.edu Rick Pildes rick.pildes at nyu.edu David Pozen dpozen at law.columbia.edu Richard Primus raprimus at umich.edu K. Sabeel Rahmansabeel.rahman at brooklaw.edu Alice Ristroph alice.ristroph at shu.edu Neil Siegel siegel at law.duke.edu David Super david.super at law.georgetown.edu Brian Tamanaha btamanaha at wulaw.wustl.edu Nelson Tebbe nelson.tebbe at brooklaw.edu Mark Tushnet mtushnet at law.harvard.edu Adam Winkler winkler at ucla.edu Compendium of posts on Hobby Lobby and related cases The Anti-Torture Memos: Balkinization Posts on Torture, Interrogation, Detention, War Powers, and OLC The Anti-Torture Memos (arranged by topic) Recent Posts Torture and recess appointments: A further note on our defective Constitution
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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.)
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."
Post a Comment
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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