Advice and Consent
If the president appoints John Bolton to the U.N. ambassadorship during the Senate’s recess, he could well be in violation of the Constitution.
Here’s what the Constitution 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.
(Article II, Section 2)
The words “happen during the recess” would seem to be pretty clear, but presidents have increasingly used (or abused) their authority to get around a stubborn Senate. “Happen” has come to mean “exist,” and “recess” has come to mean anything longer than a three day weekend.
Believe it or not, the “recess appointment power” has yet to be tested in the Supreme Court. The latest attempt to get it before the Court was a suit by Massachusetts on the grounds that a Bush judicial appointment during a ten day “recess” was clearly improper, but the Supremes refused to hear it. In declining to hear it, however, the Supreme Court took pains to state that no inference should be drawn as to how the Court would actually decide such a case. As it happens, the Court was particularly reluctant to hear the case because if it had ruled the appointment unconstitutional, then every case the appointee had heard could be invalidated.
The intention of the clause is difficult to misconstrue. But we have a president who has become expert in finding loopholes and distorting the meaning of treaties and laws. Which doesn’t stop him from talking out of the other side of his mouth, and insisting that he wants “strict constructionists” on the Supreme Court.
Probably the president (or those who actually make the decisions) will weigh everything up and decide that a recess appointment of Bolton will cause more problems than it will solve, and that Bolton is more valuable if he is kept in play– giving the administration a continuing excuse for pointing the obstructionist finger at the Senate.
–SG
What do you think? Please enter a comment below.
July 2nd, 2005 at 8:41 am
Who can tell me what a lobbyist is ?
A guy with a master’s degree in bribery ?
from a BC cartoon. R M News 7/2/05
July 5th, 2005 at 8:09 am
“…we have a president who has become expert in finding loopholes and distorting the meaning of treaties and laws…”
you must be referring to his handlers, SG. This fella’d have trouble fumbling himself out of his trousers to take a leak.
July 8th, 2005 at 3:25 pm
Would a John Bolton recess appointment be a bad thing?
Using the logic in this SC article, one might be able to extrapolate that a John Bolton recess appointment might not be a bad thing for those who strictly oppose his confirmation in the senate.
First, it is not that uncommon for recess appointments to take place. So it should be no surprise that this president would utilize this tool. He is simply playing the game we call politics. True, one could argue that he is abusing this power by utilizing it in a way that might not be constitutional, in order to push his own agenda. But, both parties have used recess appointments in the past.
President Regan: 240 recess appointments
President Bush 41: 77 recess appointments
President Clinton: 140 recess appointments
President Bush 43: 110 recess appointments
I could not find total recess appointments in a short amount of time other than those listed above, but I’m sure this tool has been used numerous times in our nation’s history. President Kennedy appointed Thurgood Marshall to the bench during a recess because he feared opposition from Southern senators. President Eisenhower appointed three justices during recesses.
You can guess that in most cases in the history of recess appointments, the Senate was not very happy and neither were those who opposed the nominations in the first place.
So how do we get to the point where the recess appointment authority given to the president can only be used for what our forefathers intended it to be used for?
Simple solution, use of SG’s logic of what could happen at the Supreme Court level. First, Bush appoints John Bolton. His appointment is contested all the way to the Supreme Court. The Supreme Court hears the case because they are not afraid of having to overturn other court cases. The court decides that Bush’s appointment is unconstitutional. This could settle what the words “happen during the recess” actually mean.
And wouldn’t it be better for the current Supreme Court to hear this case, than a court that has multiple Bush appointments? How much harm could Bolton do at the UN in the mean time?
July 9th, 2005 at 10:03 am
As I read SG I see stuff that hasn’t been in the news, and a real and valuable tendency not to repeat a lot of background stuff, or at least summarizing it. So I think you should look at what would be different about a recess appointment of John Bolton– namely, the Senate has already had a chance to do confirm him and has failed to do so. Bush can say that the Senate is being obstructionist but in my opinion he is on very shaky ground because he has refused to give the Senate information that has been requested.
I’ve seen those numbers too, Small Man, and wished I had time to track down the circumstances. Maybe SG can do it, but I just cannot figure out how many of those appointments were purely consitutional, how many were convenient for all concerned, and (most important) how many had already been entered into the Senate confirmation process.
Also when you say “all the way to the Supreme Court” you should know that the Supreme Court has original jourisdiction in cases between the states, and between the states and the federal government.
Me, my main objection to mr bolton is that he is a lying, arrogant prick and I would not appoint him as ambassador to the WWF.
August 2nd, 2005 at 9:49 am
Let the games begin! I really didn’t think Bush would abuse the recess appointment for John Bolton, but I guess he did. I think both conservatives and liberals are at fault here. Conservatives should have released the documents that the liberals were asking for, and the liberals should have at least allowed a up or down vote anyway.