Monday, December 19, 2005

Federalist #67 and Recess Appointments

In researching the constitutional crisis precipitated by George Bush's claim to absolute power under the Commander in Chief language of the first clause of Article II, Section 2 of The Constitution of the United States of America:

Sect. 2. The President shall be Commander in Chief of the army and navy of the United States, and of the militia of the several states, when called into the actual service of the United States;


I began reading the Memorandum Opinion For The Deputy Counsel To The President regarding The President's Constitutional Authority To Conduct Military Operations Against Terrorists And Nations Supporting Them authored by John C. Yoo, Deputy Assistant Attorney General, Office of Legal Counsel.

I have more reading to do on this and the United States Signal Intelligence Directive 18 but during my reading of Mr Yoo's opinion I noticed that he referenced Federalist #'s 23, 25, 70, 74, and 34 as part of the basis for his assumptions.

So I dusted off my copy of the Federalist papers (more reading to do there too). Federalist's # 41-46 deal with powers with 41 specifically focusing on Military Powers. Federalist's # 67 -77 however, deal with the Executive so I started there.

As I said, I've more research to do but I just wanted to throw out this little tidbit regarding Vacancies and Recess Appointments, as well as the Advice and Consent clause, as these are similar issues by which the Bush administration has attempted to establish absolute power in the Executive branch.

Article II, Section 2, states in part:

... and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise proved for, and which shall be established by Law; but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.

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.


I had read opinions stating that this provision has long been misinterpreted as allowing the President to fill any vacancy during a Senate recess. That in fact this provision allows only for filling vacancies that occur during a recess. My own reading of this provision concurs... "Vacancies that may happen during the Recess"... is hard to interpret any other way.

In Federalist #67 Publius, Alexander Hamilton, clarifies this beyond a shadow of a doubt. This particular essay was written to dispel an accusation that the President would have the Power to appoint Senators of his chosing should a seat become vacant. Hamilton soundly destroys this piece of disinformation but also answers our question quite clearly in the process:

The ordinary power of appointment is confided to the President and Senate jointly, and can therefore only be exercised during the session of the Senate; but as it would have been improper to oblige this body to be continually in session for the appointment of officers; and as vacancies might happen in their recess, which it might be necessary for the public service to fill without delay, the succeeding clause is evidently intended to authorise the President singly to make temporary appointments "during the recess of the Senate, by granting commissions which should expire at the end of their next session."


Two important intentions of the framers become abundantly clear here:

"The ordinary power of appointment is confided to the President and Senate jointly"

This statement by Hamilton makes clear that the "Advice and Consent" phrase is one of equality between Executive and Senate when it comes to the normal process of appointments. It is not nominate and rubber stamp but rather an equal power shared between the Senate and the Executive jointly.

"as vacancies might happen in their recess"

This statement alone makes clear that it refers to vacancies that occur while the Senate is already in recess. It is strengthened further still by the preceeding description of not wanting to require the Senate to remain in session permanently solely for the purpose of appointments and further still by the description of positions that need to be filled without delay. This clearly does not refer to vacancies that become open during Senate session and remain months later during a subsequent recess.

This is a problem going back many presidencies so it is not just Bush. However, it blows the Bush administrations argument of sole power of appointment and the ability to fill vacancies whenever they want. They will have to resort to forcing Supreme Court Justices to die and UN Amabassadors to resign during Senate recess in order to escape their Consitutional obligation to work jointly with the Senate in these matters.

The Executive Branch is not absolute and unchecked in it's power.

2 comments:

Anonymous said...

I just want to observe that the construction "by and with the advise and consent of" is used to include the Lords Spiritual and Temporal and Commons in the headings of British Acts of Parliament. Those bodies are hardly subordinate to the Crown legally or in fact.

A D Moore

Andrew C. White said...

More information on the contentious history of recess appointments here and here curtesy of Elwood Dowd over at DailyKos.