The Appointment Of Bolton Is Unconstitutional

[Floogeldy]

Article II, Section 2 of the Constitution states:

" . . . . 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 vacancy that Bolton is filling did not "happen during the Recess of the Senate." The vacancy happened prior to the recess.

I don't think I'm mincing words. When the Constitution grants specific powers to one of the branches, the language should be strictly interpreted, literally.

Bush has usurped his power by attempting to fill a vacancy that did not happen during the Recess!

[Greeby]

1. Bush committing an unconstitutional act?

Who'd have thunk ;)

[Walt Starr]

2. sorry, your argument runs counter to more than two centuries of precedent

Sorry, but your argument doesn't hold water when compared to over 200 years of precedent.

[Floogeldy]

5. Just show me the precedent.

That's all I ask.

[Walt Starr]

9. 140 recess appointments made by Clinton to start

We can go back administration by administration if you want.

[Floogeldy]

12. That doesn't make it constitutional.

!

[Walt Starr]

14. Yes, it does.

The vacancy existed during a recess, thus the recess appointment.

This is a precedent that goes back to Washington in 1789.

[FreedomAngel82]

20. Recess hasn't happened yet has it?

Bush and everybody hasn't gone on recess yet have they?

[Walt Starr]

22. It's when the Congress goes on recess

The Executive branch need not go on recess.

[Floogeldy]

23. Where does the Constitution address vacancies existing during Recess?

That's what I thought.

Now, if you will excuse me, I'm going to talk to another brick wall.

[Walt Starr]

24. Look to the precedent

You'd never make it past the first level of the federal court system with your argument.

Seriously.

It was a 100% consitutional move by Bush.

[Floogeldy]

26. Identify the Supreme Court case holding these appointments constitutional.

That's all I need.

[Walt Starr]

27. There needs to be no SCOTUS case for something to be constitutional

The reverse is true, so show me the SCOTUS case showing these appoointments to be unconstitutional.

[Floogeldy]

30. Your argument is . . .

. . . that if something has been happening for a period of time, then it is automatically constitutional as long as the practice has not been challenged and the Supreme Court has not found it to be unconstitutional.

But it has never worked that way. History shows us that unconstitutional acts and practices can go on for decades, or a century, before they are remedied.

[Walt Starr]

32. No, but in this case if there was any there there

an opposition party would have taken out the president they opposed long before now since Washington began the practice in 1789.

[OneTwentyoNine]

28. I knew Clinton made many--and Repukes pissed and moaned all the way..

But I didn't know he made 140! All Presidents do it and the other side bitches,its just the way it is....

[DefenseLawyer]

31. But, it would be interesting to see

what Scalia and Thomas and the "strict constructionists" would have to say on the matter. After all, we want justices that will stick to the words written by the Framers and all that jazz.

[AlGore-08.com]

3. Doubtful that it's unconstitutional

Recess appointments have been made this way for as long as there have been recess appointments. If you could make a case for it being unconstitutional somebody would have used it a long time ago to take down a President they didn't care for.

I'm just sayin'...

[FreedomAngel82]

21. What the original poster is saying I think

is that Bush appointed Bolton BEFORE recess began. Recess hasn't begun has it?

[Floogeldy]

25. No. That's not what I'm saying.

I'm saying that, before the appointment can be made, the vacancy has to happen during recess. The vacancy at the UN did not happen during the recess. It happened prior to the recess. :)

[dr.strangelove]

35. A vacancy happens during the recess regardless of when the vacancy starts

This was the decision which allowed Pryor's appointment to stand. The court addressed your concerns. While you may disagree with this decision, the Ninth, Eleventh and Second Circuits support this view. The Supreme Court denied review of the case, which makes it binding in those circuits, and persuasive authority in the other circuits. I'm not sure if the 2nd or DC Circuit would have jurisdiction over this matter. The appointment was in DC, but the positon is n NY. In teh Pryor case, the 11th Circuit did not grant objections to jurisdiction since Pryor was appointed to a job under their jurisdiction.

Sorry I can't link to the case but I got it off lexis, which is a pay site.

US COURT OF APPEALS FOR THE ELEVENTH CIRCUIT
---------------------------------
No. 02-16424, D. C. Docket No. 01-00009-CV-JTC-3
PETER EVANS et al v. DENIS STEPHENS


“Vacancies” Need Not Arise During the Recess in Order to be Filled

About the phrase in the Recess Appointments Clause that speaks of filling
“Vacancies that may happen during the Recess,” we accept this phrase, in context, means that, if vacancies “happen” to exist during a recess, they may be filled on a temporary basis by the President. This view is consistent with the understanding of most judges that have considered the question, written executive interpretations from as early as 1823, and legislative acquiescence. See United States v. Woodley, 751 F.2d 1008, 1012 (9th Cir. 1985) (en banc) (noting that contrary interpretation “conflicts with a common sense reading of the word happen, as well as the construction given to this word by the three branches of our government”); United States v. Allocco, 305 F.2d 704, 709-15 (2d Cir. 1962); see also In re Farrow, 3 F.112 (N.D. Ga. 1880).

On its face, the phrase is open to more than one interpretation. For example, the word “happen” can be defined as “befall” which has been defined as “happen to be.” Compare 6 Oxford English Dictionary 1096 (2d ed. 1989) (1928) with 2 Oxford English Dictionary at 62. Therefore, the phrase’s most accepted interpretation (upon which the President has relied and that we too accept) does not contradict the plain meaning rule.

In addition, as we understand the history, early Presidents -- when delegates to the Constitutional Convention were still active in government -- made recess appointments to fill vacancies that originated while the Senate was in Session. For example, President Washington, during a Senate break in 1789, appointed Cyrus Griffin to fill a judgeship created during a previous Session; and President Jefferson, during a Senate break in 1801, appointed three judges to fill vacancies created during a previous Session.

Congress at least implicitly agrees with this view of recess appointments.
That Congress is willing, under certain circumstances, to pay recess appointees filling vacancies that had existed while the Senate was in Session suggests to us that it is the view of the majority of Congress that the President’s making of such appointments is likely not unconstitutional. To interpret the statute’s significance any other way would seem to attribute to Congress an intent to countenance what they saw as an unlawful practice.

We do not agree that the different language of Article I, Section 3, Clause 2 (addressing the filling of Senate vacancies during recesses of state legislatures) shows that what has long been the common interpretation of the Recess Appointments Clause is wrong. Nor do we agree that Hamilton's capitalization or italicization of the words “during the recess of the Senate” in Federalist 67 and 76 indicates that the vacancy to be filled (as opposed to the appointment itself) must occur in the recess. See 5 U.S.C. § 5503 (1996) (discussing salary requirements for officers appointed to fill a vacancy that existed while Senate was in session). Furthermore, interpreting the phrase to prohibit the President from filling a vacancy that comes into being on the last day of a Session but to empower the President to fill a vacancy that arises immediately thereafter (on the first day of a recess) contradicts what we understand to be the purpose of the Recess Appointments Clause: to keep important offices filled and the government functioning.

[Lerkfish]

4. i hope you're right.

[wli]

6. this has been debunked

The language is ambiguous, and the precedent is that it is an vacancy that exists during a recess regardless of when the seat became vacant.

[Floogeldy]

10. I disagree with your assertion that the language is ambiguous

It is not too difficult to understand the concept of a vacancy happening during a Recess, as opposed to happening at some other point in time. It means what it says.

[Beaver Tail]

7. Sorry - Debunked

Someone called Randi Rodes show yesterday with the exact same argument. She debunked it as well.

[Rainscents]

11. Hey, we can still hope!

:hi:

[Floogeldy]

13. Is there a Supreme Court case upholding such appointments?

Randi is not my constitutional authority.

[soda]

8. so what?

Do you think anybody in America will do anything about it other than post? roll over and take it once more, and more and more, the frogs water is heating up nicely and he´s not going to jump, scary

[Dr Fate]

15. Are any Democrats with media access saying this?

If not, then so what.

[DawnneOBTS]

16. Faux News Channel...

said that Christopher Dodd (Senator D-CT) was ready to support Bolton this morning. Is this true?

[Shrek]

17. Here's an article that supports your position

But it's from a right-wing source.

What does that tell you?

[Floogeldy]

29. What does that tell me?

It tells me I agree with that person's interpretation of the recess appointment clause.

What does that tell you?

[SmokingJacket]

18. I agree with you that the language has probably been misinterpreted

Why bother with the Senate hearings at all, if you can just wait until recess and let in whomever you want?

I'd bet dollars to donuts the original intent was that vacanies that *occurred* during recess could be filled during recess... not that it was okay to wait until everyone was out of town to sneak people in.

Of course, now precendent is more important than whatever the original intent might have been. Still. It seems like a dumb loophole.

[northzax]

33. hm, but that doesn't take into account

what would happen if Congress failed to approve anyone the President appointed. (this was designed for ambassadors and the like) imagine an opposition congress that simply failed to discuss any presidential appointees at all.

[FreedomAngel82]

19. Exactly

It happened too early. Impeach the bastard!

[onenote]

34. not unconstitutional

As usual, Walt has it right. While the words "may happen during the Recess of the Senate" certainly could be interpreted as limiting the recess appointment power to situations where a vacancy comes into being during the recess, it also can be interpreted as covering vacancies that exist during the recess. And an unbroken string of opinions from attorneys general and the courts dating back to the early 1800s argues that what was intended was the latter. These opinions conclude hat the underlying purpose of the recess clause was to ensure that the functions of government can be carried out during a recess and that the broader interpretation is necessary to fulfill the framers' desire to avoid the risk of governmental paralysis.

Are these decisions "right"; is what Chimpy (and every other president for the past 200 years) did "unconstitutional"? The answer is that it is constitutional until a higher court concludes otherwise. So the answer is that, right now, recess appointments for vacancies that occurred before the recess are not "unconstitutional".

onenote