Balkinization: John Bolton is Unconstitutional

Comments:

Michael Bolton should also be unconstitutional, but his slide into obscurity would probably make the issue moot.

Coming from you, this argument sounds reasonable and persuasive. Coming from the killer of Chappaquiddick, it sounds like congressional interference with the judiciary, not unlike sending a letter to a judge asking him to alter a defendant's sentence.

Perhaps unfortunately, it looks like the answer to your argument is 80 years of acquiescence in the current practice. Maybe if the culture wars cool off and the political parties start acting reasonably, this argument will work in 20 years.

Or maybe if Republicans would step up and file the briefs challenging recess appointments, that might work...

# posted by

Farnsworth : 8:12 AM

No one should worry that this argument springs from Ted Kennedy's fevered imagination. After all, just a few short years ago he was convinced of both the wisdom and the constitutionality of the practice.

That isn't to say anything about the merits of the position, but just to note that, whatever its merits, one shouldn't expect that all of those making the argument are uninterested or unmotivated by partisan gain.

# posted by

Thomas : 11:26 AM

Marty,

I agree with you on the unconstitutionality of the recess appiontment as a matter of original meaning. I really find it amusing, though, when people who otherwise have no sympathy with original meaning find it helpful and persuasive to their side and suddenly are gung-ho about it (one time only, please!).

I'm not necessarily lumping you into this camp, though your recent comment at Volokh to the effect that liberals have to "settle" in some sense for Breyer and Ginsburg ("moderates") suggests it's likely to be true. A fine example is the dissent by Judge Barkett in the Pryor case at the 11th Circuit. She definitely has the better of the argument on originalist grounds; but it is hard to take seriously as a matter of jurisprudence when she rarely cares at all for that sort of analysis.

There is a line of Separation of Powers cases associated with an old chestnut called Midwest Oil that suggests one way of thinking about this sort of executive power is to look at history and practice, and on these grounds it seems hard to make a case that what the President did was unconstitutional.

Cheers,

T. More

# posted by

T. More : 4:57 PM

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.

# posted by

Marty Lederman : 6:55 PM

Marty,

All fair points but you will recall that the chief point of the Midwest Oil line of cases is that Congressional acquiescence is the crucial factor, not the self-understanding of the executive branch.

So the strongest argument here would not be inconsistency with the DOJ memos, but perhaps that the Bolton nomination crosses a line of importance that places it out of the range of prior practice.

Of course, I began this amicable exchange by agreeing with you, and ultimately I do in this case. I would not be surprised, however, nor terribly disappointed, if the court punted on a version of "political question" analysis, that the best way to resolve this sort of dispute (about a constitutionally ambiguous Senate practice, the veto, versus a constitutionally ambiguous practice, the recess appointment) is to let the branches work it out with the voters as their ultimate referee.

I've had a number of very amicable discussions with Judge Barkett about when to be an originalist and when not, and I must say that I cannot make head or tail of the formula other than, decide first, backfill with arguments later. Of course, you don't need to cite Bobbitt on the question whether a judge should operate without looking at anything but original meaning--not even Justice Thomas has totally abandoned stare decisis, for instance. Justice Scalia's opinion in Raich is a similar demonstration, and since he has voted "the other way" in other marijuana cases, it cannot be dismissed in terms of his social/political preferences.

My point in raising the tension that is apparent when self-styled progressives suddenly start sounding like Scalia is to note that they are a little too late to the party. It is very hard to win such arguments when most of legal education amounts to an attempt to attack the very notions of meaning and interpretation as they are understood by originalists.

Recall the exchange that More and Roper have in Robert Bolt's Man For All Seasons:

Roper: So now you'd give the devil the benefit of law?

More: Yes. What would you do? Cut a great road through the law to get after the devil?

Roper: I'd cut down every tree in England to do that.

More: Oh, and when the last law was down and the devil turned on you where would you hide Roper, all the laws being flat? This country is planted thick with laws from coast to coast, man's laws not God's, and if you cut them down - and you're just the man to do it - do you really think that you could stand upright in the winds that would blow then? Yes, I'd give the devil the benefit of the law, for my own safety's sake.

I think that so many years of progressive jurisprudence and especially progressive legal education have taken their toll on the bite of originalist arguments. But if I'm wrong, all the better!

# posted by

T. More : 8:02 PM

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.

# posted by

Joe : 8:03 PM

Oops--I meant not "veto" but "the veto of presidential nominations by minority filibuster"--which I do regard as problematic constitutionally, at least sufficiently so to give the court pause in a case like Bolton's where he pretty clearly would have won approval if the Democrats had not held up a vote. But somehow I deleted everything but "the veto" making my post rather silly indeed!

T

# posted by

T. More : 8:06 PM

I'm no lawyer but the present interpretation of "recess" seems absurd from any perspective. Doesn't this mean (by logical extension of the precedent) that the President can appoint whom ever he wants, as long as he does it after 6pm or on the weekends? And if so doesn't that pretty much make the notion of "advice and consent" utterly meaningless?

# posted by

someguy : 4:58 AM

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.

# posted by

Marty Lederman : 6:32 AM

I'm curious. Before John Marshall became Chief Justice, had the issue of originalism been raised in the Supreme Court? When is the first time a Court decision was timely challenged as not being in conformance with original intent/meaning? One would think that decisions of the Court shortly after the Constitution was in place would closer reflect originalism than in subsequent years after many changes in the U.S. Or was it many years after such early decisions that they were attacked for failing to comport with original intent/meaning?

# posted by

Shag from Brookline : 7:32 AM

Marty,

Thanks much for the kind words. Both your last post and "shag from brookline's" raise the question whether originalism is rooted in history or practice, which if we should find it wasn't would be at least ironic.

A couple of quick points: I think that the Constitution's text and structure suggest that originalism is the best among the alternatives for judicial behavior. The very act of writing down a law and appointing lawyers as arbiters of the meaning of law is an attempt to fix a meaning, not to empower Platonic guardians as superlegislators. There can be little doubt that the invention, for instance, of substantive due process, which so mangles text and history, indeed mangles meaning itself, constituted a superlegislative act. So the structure of having judges declare what laws are, with the presumption that the Constitution is the supreme law and that there is a legislature to write other laws, suggests that judges should take up a stance that seeks to understand what the law meant when it was passed.

Whether this is how judges behaved until 50 years ago or not (that's the figure Justice Scalia used in his very fine speech on Constitutional Interpretation at the Woodrow Wilson Center, which you can watch on c-span.org) is not entirely important to me. I think that Justice Scalia's figure is a bit fishy, since there were decent cases to be made for legal realism more than 50 years ago. Nonetheless, the 20th Century did see an acceleration in the movement toward viewing the Supreme Court as a a governing body, culminating, as Scalia notes in that speech, in our current predicament of searching for "moderate" justices. Is there a moderate way of interpreting meaning? Scalia wonders whether a moderate is one who chooses a meaning halfway between the original meaning and the meaning the judge might prefer. Fair question.

But the reason I do not think the history is very important is that what one wants is the best jurisprudence to serve the rule of law as it is laid out in that structure of the Constitution, and in the idea of having a written constitution in the first place. (The Brits do not, nor do they have judicial review in the fashion that we do. But ours is a system with judicial review, committed to the notion that meaning may be fixed by legislatures into written texts). One would want this even if one discovered that Marshall or Holmes or Scalia wanted otherwise.

If it is impossible, being human, always to get interpretation correct, that does not make the enterprise foolish. We might think of a commitment to originalism in this way like a commitment to human rights: something we approach asymptotically--it is an idea in the background of our Constitution, and ideal we strive after, but we recognize that we might not always or even ever reach it fully. But originalism nevertheless stands as the best among a set of inadequate options to achieve the rule of law, rather than of human whim.

I wrote about originalism this way (to be self-referential) in a post over at the group blog to which I sporadically contribute: http://expost.blogspot.com/2005/03/scalias-inconsistency-who-cares-or-how.html

Cheers,

T.

# posted by

T. More : 11:56 AM

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).

# posted by

Marty Lederman : 12:10 PM

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.

# posted by

Joe : 6:25 PM

On the subject of originalism, Justice Thomas has stated that the original meaning of “Commerce” differs significantly from the meaning applied over the centuries in Supreme Court decisions such that such decisions may not be appropriate. It is not clear to me whether he wants to undo these decisions or not to expand them. Article I, Section 8, provides that “The Congress shall have Power … [Clause 3] To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes ….” This should be compared to Congress’ Power in Clause 8 “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” We all recognize that in over 200 years, the concepts of “Commerce” have changed, particularly as a result of technology (i.e., “Discoveries”). But Justice Thomas wants us to revert to the meaning of “Commerce” back at the beginning. I wonder if Justice Thomas would also suggest that we revert to the original meanings of “Writings” and “Discoveries”. Consider the extent to which the concept of invention (“Discoveries”) has expanded over this same period of time.

Much of the problem of originalism is the difficulty discovering the original intent/meaning/understanding of textual material written over 200 years ago. Do we have to channel back in time to discover such? And if we can do so, would it be clear that there was unanimity or strong consensus of the framers/founders/ratifiers? It would seem that the greater the distance from the beginnings, critics seem to know more about original intent/meaning/understanding than those in earlier years. Clause 8 provides for promoting the “Progress of Science and useful Arts”; perhaps it is appropriate for the Supreme Court to provide for progress of constitutionalism by recognizing major changes in interpreting and construing the Constitution. The Constitution is not lost; perhaps those channeling back in time are.

# posted by

Shag from Brookline : 8:26 AM

Shag,

The first thin you might want to do is look at Justice Scalia's published Tanner Lectures which go under the title "A Matter of Interpretation" which will set you straight on whether one is "channeling" or just trying to get a fair understanding of the meaning of words (not of intent, but of meaning).

Now, as to the problems you adduce about how the meanings of words like "discovery" may have changed, lets just roll with your view that they have changed. Why would we think that a new meaning for a term, one not known to or envisioned by the person who wrote the law, bears any binding relationship to that law? Well, we say to ourselves, this word didn't mean that then, so this law did not mean that to the person who bothered to write the law down, but what the heck, let's pretend that it did and bind ourselves to the old written law with the new meaning. Why would that make sense? You might say that the lesson from this is to abandon our model of having a written Constitution, but then let's just do that and go British, rather than pretending we care about what others wrote and ratified even where, as your examples suggest, the words no longer mean to us what we believe they meant to their authors. And note that other problems of your persist--when we say "this is what it means to us now" who are the "us"? And who determines it? Or do you think we have unanimity that is apparent to 5 out of 9 members of the Court on just the way words have come to mean something new rather than what they used to mean?

Of course, the idea of writing down laws then and now is that words do have some meaning, and that legislators should try to write such that the meaning of what they are doing is indicated by the text that they pass (again, that's just the very idea of writing down a law) so that we DON'T have to imagine, whether the law is the Constitution or one passed last week, that we can reconstruct the thoughts of a critical mass of its authors. So the text should do most of the work, though some historical spade work will generally be helpful, especially with older texts, to clarify how the terms were generally understood by ordinary people at the time.

Again, originalism as a form of interpretation is not mechanical or infallible--that's why we want cases decided by human beings and not scantron machines. Nevertheless, it may be the worst option except for all the rest (all of which, far more than originalism on its worst day, invite the judge to import his/her own preferences under the guise of interpretation, if only because they involve more levers to manipulate meaning).

# posted by

T. More : 9:19 AM

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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# posted by

luke : 6:10 PM

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). http://www.enterbet.com

# posted by

Unknown : 1:33 PM

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.

# posted by

Doug Ison : 4:10 AM