The Odd Clauses (7 page)

One of President Bush's most controversial judicial appointments was William H. Pryor, a tough-minded conservative Catholic from Alabama, who Bush nominated to the Eleventh Circuit Court of Appeals (the federal appeals court that decides the law in much of the Southeast) in April of 2003. Pryor, a Republican since the sixth grade and the former attorney general of Alabama, came under fire from Democrats for being hostile to abortion rights, gay rights, and all sorts of other rights. Liberals, for instance, did not like that Pryor had called the Supreme Court's decisions on abortion the “worst abomination of constitutional law in our history” or how he had argued in a legal brief that recognizing a right to gay sex would lead to legalizing sex with animals and dead people. The Constitution provides that government officials like federal judges must be confirmed by the Senate before they can take office. Because of Pryor's radical conservative views, Senate Democrats opposed his appointment and used a congressional procedure known as a filibuster to block his nomination.

President Bush, however, was not deterred. In February of 2004, toward the end of a ten-day break in the Senate's business, Bush used his power under the so-called recess-appointment clause to put Pryor on the Eleventh Circuit without Senate approval. Although presidents of both parties have used the recess-appointment power many times over the course of the country's history, Bush's clear intention to use the power as an end run around the typical appointment process pissed off Senate Democrats. Some, like Senator Ted Kennedy, who filed several briefs in cases challenging Pryor's appointment, were angry enough to challenge Pryor's recess appointment in court. They argued, among other things, that while the Senate may have been (with apologies
to the television show
Friends
) “on a break,” it was not formally at “recess” when the appointment was made.

Were the senators successful? Did they convince the courts that President Bush's appointment of Pryor violated the recess-appointment clause? Yeah, right, like I'm really going to tell you in the introduction to the chapter.

Much as Article I creates the legislative branch, Article II of the Constitution creates the executive branch. The relevant language in the two articles, however, is a bit different. Whereas Article I gives the “legislative powers herein granted” to the Congress, Article II grants the “executive power” to “a President.” The language of Article II gives rise to some esoteric but important issues. For one thing, does the fact that the executive power is given to a president rather than to the “executive branch” mean that the president must have complete control over everything that happens in the executive branch, or can Congress place certain parts of that branch outside direct presidential control, as it has routinely done when creating so-called independent agencies like the Securities and Exchange Commission and the Federal Trade Commission, the heads of which cannot be removed by the president absent actual negligence or malfeasance? Secondly, does the reference to “executive power” instead of something like “the executive powers listed here” mean that the president might possess some powers that are not actually listed in the Constitution but that were generally understood by the framers to be part of something known as executive power back in 1789?

Whatever the answer might be to this latter question, it is widely assumed that the Constitution confers a good number of powers upon the president, some of which are general and vague, and others of which are more specific.

As for general powers, the Constitution makes the president the commander in chief of the armed forces, with the authority to commit and direct troops; the head of state, with the exclusive authority to engage in diplomacy with foreign nations; and the nation's top prosecutor, with authority to ensure that federal law is “faithfully executed.” By making the president the head of the executive branch, the Constitution also gives the president the authority to direct the activities of the executive branch through executive orders and proclamations and other memoranda. Recent presidents have used this power, for example, to require agencies to consider the costs and benefits of their regulations, to forbid (or allow) them to do research on embryonic stem cells, and to urge them to install low-flow toilets in their bathrooms to protect the environment.

On the more specific side, the Constitution gives the president the power, for example, to ask for the opinions of his cabinet, to convene the Congress, and to report on the state of the union. More importantly, the Constitution gives the president the power “to grant Reprieves and Pardons for Offenses against the United States.” Over the course of US history, presidents have used this power in some really controversial ways, in addition to using it once in a while to free a wrongly convicted poor person. Gerald Ford, of course, pardoned Richard Nixon for whatever crimes Nixon might have committed in office. President Carter used it to pardon Vietnam draft dodgers. And President Clinton left a bad taste in the country's mouth when he pardoned “billionaire financier” Marc Rich right before leaving office.

I have a soft spot in my heart for the pardon power because in my two years at the Office of Legal Counsel, I did quite a lot of work on pardon questions. It might seem like legal issues arising under the pardon clause would be rare, and they are, but they do sometimes come up, and when they do, the stakes are always high. For instance, can a not-so
the odd clauses
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hot-on-the-death-penalty president grant a death row inmate a reprieve on his execution until the next administration takes over? Does a pardon have to be accepted for it to be valid, or can someone who would like to remain a martyr reject the president's offer? Does granting a pardon require that the president deliver a formal document of some sort to the pardonee, and if so, can the president (or his successor) revoke the pardon before it's actually been delivered? Can the president use the commutation power to move someone from a high-security prison to somewhere less awful, and if so, does that mean (as my boss at OLC once queried) that the president could use the same power to send over a “nice piece of fish” to a prisoner who is sick of eating meatloaf for dinner? Can presidents pardon themselves?

Perhaps the most important power that the Constitution confers upon the president is the power to appoint the government's top officials. The “appointments clause” of Article II, Section 2, says that the president

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 provided 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.

What the Constitution is saying here, in its typically crisp and straightforward way, is that the US government has two
kinds of officers when it comes to appointments: “principal officers,” who must be appointed by the president and confirmed by the Senate; and “inferior officers,” whose method of appointment will be set by Congress, which can choose to have them appointed by the president, the courts, or the heads of agencies. One obvious question that arises from the appointments clause is how to distinguish an “inferior” officer from a “principal” one. Another issue is whether Congress can place qualification limits on who the president may nominate. Still another set of questions has to do with what counts as a “court of law” or “head of department.” If you find yourself interested in these issues, then I recommend you enroll at the Boston University School of Law and sign up for my Administrative Law Course, where I talk about them endlessly.

The procedure for appointing principal officers—nomination by the president and confirmation by the Senate—works just fine most of the time. If the Senate is in session, it can easily vote to confirm or not confirm the president's nomination to a top post. But what if the Senate is not in session, and the president wants to appoint someone to a very important position in the government? Should the president have to wait until the Senate gets back? The question is important, because the Senate is by no means always in session. Each Congress (e.g., the 103rd Congress, the 97th Congress, etc.) lasts for two years and generally consists of two sessions and one intersession recess. The length of both the sessions and the intersession recess has varied over the years. Prior to the Civil War, the sessions lasted somewhere between three and six months, with the intersession recess lasting between six and nine months. These days, however, the sessions are longer, and the intersession recesses are shorter; the recesses now last somewhere between one and three months. Just as an example, the first session of the 108th Congress ran from January 7, 2003, until December 9 of the
same year, and the second session ran from January 20, 2004, through December 8. The intersession recess between the two sessions, then, lasted about six weeks.

Even when the Senate is in session, though, it's not like the senators spend their whole lives together, eating from a communal soup bowl and having pajama parties every night on the floor of the Senate chamber. The senators break for lunch and go home at night and ordinarily have holidays and weekends off. They also enjoy a number of intrasession breaks (I'd call them “recesses” except that whether they deserve to be called “recesses” is kind of the whole problem). In the early days of the Republic, these breaks were rare, but now each session might include anywhere between half a dozen and a dozen breaks, some of which can last a while. During the second session of the 108th Congress, for instance, Congress took nine breaks, most of which were about ten days long, but a couple of them lasted over a month, not much shorter than the intersession recess that divided the first and second sessions of the Congress.

The framers of the Constitution knew that the Senate would not always be in session, and they worried about what might happen to important presidential appointments if the senators who needed to confirm them were back in their home states or vacationing at Niagara Falls or something. Especially because getting from place to place was not nearly as easy as it is these days, when we can just hop on a plane and sit on the runway for six hours before zipping off to our destination, the framers were concerned that the nation might be without a secretary of state or other important official for months at a time. Thus, the recess-appointments clause:
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.
If the Senate is in recess, and the president needs to fill an important post, he can do it without getting Senate
confirmation, although the person appointed to the post can only remain in that position until the end of the session after she takes office (unless the Senate comes back and confirms her). The framers thought that the clause was important, but there's no evidence that they thought it would be used particularly often. As Alexander Hamilton wrote in
The Federalist Papers,
the recess-appointments clause was meant “to be nothing more than a supplement to the [appointments clause] for the purpose of establishing an auxiliary method of appointment, in cases to which the general method was inadequate.”

The framers might not have envisioned that presidents would use the recess-appointments clause a whole lot, but from the very beginning of the Republic, they have. George Washington appointed John Rutledge to be the chief justice of the Supreme Court by using the recess-appointment power. James Madison used the power to appoint John Quincy Adams, among others, as an envoy to negotiate the peace treaty that ended the War of 1812. Abraham Lincoln used the power hundreds of times, as did Andrew Jackson. Modern presidents, too, have relied heavily on the recess-appointment clause. Ronald Reagan made 243 recess appointments. Bill Clinton made 139, once using the clause to appoint the first openly gay ambassador in the nation's history. George W. Bush used the power to appoint 171 officials, including John Bolton, his unpopular and reportedly insufferable nominee to be ambassador to the United Nations. Bolton, probably one of the only United Nations ambassadors ever to publicly proclaim that “there is no such thing as the United Nations,” stepped down from his position in December 2006 when it became clear that the Senate was not going to confirm him.

Some recess appointments are uncontroversial. If the secretary of state were to die on the third day of an intersession recess, and the president felt the need to get a new secretary
of state in there before the Senate returned in a month, surely nobody would object. If the same thing happened at the very beginning of a month-long intrasession break, again most likely the president's decision to unilaterally appoint a new secretary wouldn't raise many eyebrows. But what if instead the president wants to make an appointment during a weeklong intrasession break? What if the president wants to wait until the very last day of such a break to make the appointment? The idea that the president has to act immediately because the Senate isn't in session is a complete fiction; the senators will be back tomorrow, or at least by the next week. Moreover, if the president
is
allowed to make a recess appointment at the end of a weeklong intrasession break, why wouldn't it be possible to make a recess appointment after the Senate goes home for the evening, or when it steps out for a coffee break? Can the president really use the recess appointment power in this way? These are some tricky questions, and they bring us back to the case of William H. Pryor.

If there is any office for which the recess-appointment power never needs to be used, it's the office of federal judge. The country is not going to fall apart if some court happens to have a vacancy or two for a month while our senators get some rest and relaxation in the Bahamas. And indeed, although early presidents did use the recess-appointment power to appoint judges, such recess appointments have been rare in modern times. Between 1980 and 2000, for example, not a single federal judge was put on the bench during a Senate recess or break. In recent years, though, as the country has become more bitterly divided politically, fights over federal judicial nominations have become ferocious, with Democrats refusing to confirm Republican nominees and vice versa. So perhaps it is no surprise that presidents, facing a series of
Senate stonewalls, have begun using the recess-appointment power to appoint judges. Clinton put a judge on the federal court of appeals during the Christmas break right before his term ended, and George W. Bush made two such recess appointments—Pryor and the cross-burner-helper guy.