Thursday, August 04, 2005

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.


Well, I know of very few (if any) jurists, Judge Barkett included, who do not take plain meaning and structure very seriously. The disputes arise because some jurists recognize that plain meaning and structure do not resolve all constitutional questions, and that language and structure often must be considered *along with* other fairly standard modes of legitimate constitutional interpretation, including practice, precedent, ethos, etc. (The standard cite here is, of course, Phil Bobbitt.)

But here I'd simply like to take issue with T. More's assertion that if we "look at history and practice, . . . it seems hard to make a case that what the President did was unconstitutional." I think that's mistaken here -- or, at the very least, history and practice are decidedly a mixed bag, as we explain at length in our briefs. Until 1920, the fairly settled view, including in the Executive Branch, was that this sort of appointment was unconstitutional. The 1920 Daugherty Opinion concluded that the test should be a functional one -- viz., "whether in a practical sense the Senate is in session so that its advice and consent can be obtained." I think Daugherty was mistaken, but no matter: Even if one assumes Daugherty's functional test is controlling, it would permit the recess appointment only where the Senate is "absent so that it can not receive communications from the President or participate as a body in making appointments." DOJ subsequently construed this test to allow unilateral appointments only when it is as a "practical" matter "impossible," for the President to obtain the Senate's advice and consent because the Senate cannot receive presidential communications and "participate" in its constitutionally assigned functions when the office must be filled without delay. Accordingly, the power was almost always invoked only near the start of very long intra-session adjournments, and was rarely, if ever, used to appoint persons who had already been nominated but whom the Senate had declined to confirm. And, in light of modern Senate practices -- the Senate is now virtually always available to provide emergency consent -- this functional test is virtually *never* satisfied.

The Executive practice has changed *dramatically* in the past generation, so that the recess-appointment power now is used (by Democratic and Republican Presidents alike) primarily to *circumvent* the advice and consent function of the Appointments Clause. Indeed, many recent appointments have occurred just *before* the Senate returns from an adjournment. (Judge Pryor was appointed on a Friday before the Senate's Monday return.)

The RAC has, in other words, been turned on its head, and now serves objectives directly at odds with its intended purpose. *Much* more detail in our briefs, for anyone who's interested.

One other thing: Allegedly consistent history -- especially history of only a generation or two -- does not ordinarily resolve a separation of powers question. If it did, the Court would not have decided Chadha as it did.

I agree with the sentiments set forth by Marty Lederman here.

Also, the clause surely was at least in large part a reflection of early long recesses and the inability (which the President has the power to do) to call them back into secession that quickly. The appointment of Pryor really is ridiculous when one keeps this in mind.

Likewise, functionally, there was no compelling need to recess Bolton at this pt in time. Anne Patterson by various accounts was filling the role quite adequately. The rhetoric of compelling need leaves a bit to be desired.

The importance of the role also must be kept in mind, answering to a degree the point made by others that Clinton also made various recess appointments. Generally, though, some of his too was unconstitutional.

Yes, and yes, someguy. That is exactly the view the Administration has taken, thus breaking with over 200 years of history. Again, much more of this in our briefs.

T. More, of course we disagree about whether there is, or can be, any "formula" for proper constitutional interpretation, and perhaps about whether there was *ever* a time when originalist arguments carried the day (only to be usurped by "progressive legal education"). That said, be assured that your posts are never "silly," even with typos. (Self-referential, yes; but if I can cite my own briefs repeatedly, surely you can be excused your self-quotation from A Man for All Seasons! ;-) ) To the contrary: they're extremely civil, charateristically thoughtful, and provoke terrific debate.

Thanks, T. On the question of the "history" of originalism, the canonical cite is (with good reason) to H. Jefferson Powell, The Original Understanding of Original Intent, 98 Harv. L. Rev. 885 (1985).

Jack Rakove in his book Original Meanings suggested originalism started to be debated in the 1790s with the two major "Publius" participants often being on separate sides.

Various Framers interpreted its dictates differently. Likewise, since Madison thought the carriage tax upheld by the Supreme Court and many D-Rs thought justices that upheld the Alien and Sedition Act on circuit was both unconstitutional, original meaning surely was used as a criticism of the federal courts from almost the beginning.

Prof. Mike Rappaport has an article on precisely this issue, written last year. See Rappaport, The Original Meaning of the Recess Appointments Clause.

I've floated much the same idea myself. From an originalist perspective, in earlier times, state legislatures and the Continental Congress were not in session throughout the year, due to (I suspect) a combination of a paucity of business and (particularly in the case of the Continental Congress, the sheer physical demands of assembling the body in one place for any period of time. IIRC, during (and for a long time after) the revolutionary war, the Continental Congress was homeless and nomadic, further hampering the business of assembling it and transacting business.

The Framers cannot have been unaware of these concerns, and the chaos they brought to any attempt at national government. They therefore included in the Constitution the explicit instruction that there would be a single, official seat of government, possibly to remedy the second point I raised above. But in relation to the frist, they also included a clause that said that when Congress was not readily available to debate and confirm (or deny) executive appointments, the President should have the authority to fill those vacancies in the interim. It stands to reason that there was a strong presumption that an office which is necessary is an office which should be filled.

The mechanism, it seems to me, was foreseen to operate thusly: if the Congress wasn't in session, the President makes a recess appointment. Once Congress returns, it either votes to sustain that appointment, thus making it official - or it does not, the President therefore nominates someone else, and the process repeats until Senate confirmation. At midnight on the day following the end of the session of Congress, the person in the office filled by recess appointment will be a person who has been confirmed by Congress.

I have no axe to grind against John Bolton, and it bears pointing out that it's not as if President Bush is the first President to use recess appointments this way (President Clinton, for example, did so 140 times (see see Henry B. Hogue, CRS Report for Congress: Recess Appointments: Frequently Asked Questions). But I'm inclined to agree that this practise - while prevalent - is unconstitutional, if one subscribes (as I do) to an originalist view of the constitution. Of course, that's only if you're an originalist - don't tell me my liberal friends are now going to become quasi-originalists over the recess appointment clause, just as they are quasi-originalists where the second amendment is concerned? I don't really feel that it is so a la carte as to permit such selective use.

I second farnsworth vis-a-vis the unconstitutionality of Michael Bolton. I'm not sure if it falls within the original meaning of "cruel and unusual", but I'd be willing to make an exception, provided we can also so render Kenny G.

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John Robert Bolton (born November 20, 1948), is an American diplomat in several Republican administrations, who served as the Permanent US Representative to the UN from August 2005 until December 2006, on a recess appointment. He resigned in December 2006, when his recess appointment would have ended. sportsbook, Bolton is involved with a broad assortment of conservative think tanks and policy institutes, including the American Enterprise Institute (AEI), Jewish Institute for National Security Affairs (JINSA), Project for the New American Century (PNAC), Institute of East-West Dynamics, National Rifle Association, US Commission on International Religious Freedom, and the Council for National Policy (CNP).

It seems that recess appointments are becoming more center stage as more media sharing takes place. This a relevant topic that will never go old, one the continues to cause for an eviction notice to be handed out to those appointees.

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