Monday, August 01, 2005

Bolton Recess Appointment is an Abuse of Power

Using the powers of recess appointment, President Bush has appointed John Bolton the U.S. ambassador to the UN. This move circumvents the Senate and will allow Bolton to serve, without official confirmation, until the next session of Congress begins in 2007.

Bush is hardly the first President to sneak in an unpopular nominee using the Constitutional power of a recess appointment. But that doesn’t make this move right or any less of an abuse of power.

Why is it an abuse if it appears in the Constitution?

Article II, Section 2, Clause 3 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.”

The operative words here are “Vacancies that may happen during the Recess of the Senate.” The U.N. vacancy did not happen during the recess. It happened well before and was being held up using legitimate Senate rules.

I seriously doubt that the Framers of the Constitution included the recess appointment as a means for the President to bypass the will of the Senate. Instead, the recess appointment was almost certainly created to ensure that important positions would not sit vacant for the long stretches Congress was away from Washington (Congress was originally in session only five months a year and thus took quite long recesses). Additionally, it was almost impossible to reconvene Congress if necessary due to the difficulty of travel 220 years ago.

Recesses now are much shorter and reconvening Congress would take just a day, not weeks or months. In a modern world, the recess appointment is not even necessary.

Now, we can also discuss if “advise and consent” permits the minority party the right to filibuster Presidential appointees, but that is another topic and another discussion. My concern today is with the abuse of the recess appointment. And, again, I am well aware that Bush is hardly the first to use this power as a means to bypass the Senate. But I don’t condone it and I don’t think we as a society should permit the executive to seize a power that the Framers never intended to grant.

Charging RINO has more analysis and fantastic commentary in the comments section.


At 7:50 PM, Anonymous Charles Amico said...

Good reference to Constitution phraseology. If I were a judge ruling on this I would agree with your analysis. THere is the question of whether the filibuster is also subject to Constitutional interpretation. I wished the ACLU or some other organization would pursue cases on these topics rather than focusing on abuse of our rights in inspecting backpacks of patrons going into public transit systems and subways.

At 8:04 PM, Anonymous Anonymous said...

Initially I thought it was apalling, but not an abuse of power, but as I read on, I thought you made good arguments (the historical context of a Congress out of easy physical contact with the executive branch, a vacancy that occurs after a recess rather than before). Nice work.

At 1:41 AM, Blogger AubreyJ said...

And as you say Alan, it has been used over and over throughout our history. This is not an isolated case by any means... And I for one see it not as an abuse of power but as a right of any President to use. It’s another one of those grand old check and balances that makes this country so great. It’s what makes all of this Capital Hill mess work so well…. It’s what makes me happy to be an American… It’s what makes the President office as powerful as it is and as powerful as it should always be… No more-- no less… Alan, it's in the eye of the beholder as to how one reads into all of this. You and I most certainly read it differently. I for one say good for you Mr. President... I just wish he had gone ahead and done this back during the 4th, but I know he was just giving the Dems one more shot at getting it right... They didn’t... He did.......

At 1:36 PM, Blogger Rob Jackson said...

The check and balance here is that the President doesn't get to appoint whomever he wants except in exceptional circumstances. This isn't a partisan issue. There are plenty of Democratic Presidents who have abused this and plenty of Republicans that don't like Bolten. The fact is, the American Public could care less about ambassador appointments because we've been led to believe that they're unimportant and usually filled by the President's friends and campaign contributors. If the President appointed a Supreme Court judge during a recess, would it be any more of an abuse of power? Of why isn't it an abuse of power in other circumstances?

At 1:11 AM, Anonymous Jamesaust said...

Its been going on since (I believe) the 1820's but its use has risen in recent times with greater partisanship.

Query for "original construction" types like Clarence Thomas: (assuming we could overcome standing issues and find someone with a "right" to sue over the appointment - let's pretend a Democrat Congress) how would a right-thinking, original constructionist rule in such a dispute? Do we go with the clear but different original intent? Or concede the the constitution, despite being written, is much like its British predecessor - accruing and changing with actual practices?

At 1:27 PM, Blogger Alan Stewart Carl said...


Scalia and Thomas should rule against the President in such a case because both strict constructionalism and originalism lead one to believe the appointment was NOT Constitutional. After that, it'd get interesting. Because the practice has been going on for such a long time, some Justices (like Kennedy or even Rehnquist) might rule that it is too much a part of established practice to change. The liberal block would probably agree with that BUT might not because they might see the recess appointment as violating the separation of powers.

It'd be an interesting case. But, as you said, who would have standing to bring it?


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