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« Senate Termination of Presidential Recess Appointments | Main | Terminating Presidential Recess Appointments: A Reply to Professor Brian C. Kalt »

January 31, 2007

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Beth Wellington

Professor Kalt,

I came across this article you published in January while researching an upcoming essay for llrx.com.

In it, you call the recess appointment clause moot and its current use a “a bludgeon rather than a bandage” used when the President has “nominated someone who will not get confirmed, but also will not get an up-or-down vote.”

You suggest that “If the Senate has the votes to take an affirmative step, it should take the simpler and less problematic step of voting on the nominee when it can. If the Senate does not like a nominee, it can say so by rejecting him.”

George W. Bush seemed to concur in his "Remarks on the Recess Appointment of John Bolton as Ambassador to the United Nations August 1, 2005," found in The Weekly Compilation of Presidential Documents, citing the lack of an up or down vote after nearly five months: “The United States Senate held thorough confirmation hearings, and a majority of United States Senators agree that he is the right man for the job. Yet because of partisan delaying tactics by a handful of Senators, John was unfairly denied the up-or-down vote that he deserves.”

But in the case of the Fox nomination, on March 28, the White House withdrew this nomination. According to Sam Hananel of the Associated Press, in his article which ran that date in USA Today as, "White House withdraws ambassador nominee, " the announcemnt came “less than an hour before the Senate Foreign Relations Committee gathered to vote on his nomination.”

Chris Dodd (D-CT) issued a statement that, “It is outrageous that the President has sought to stealthily appoint Sam Fox to the position of ambassador to Belgium when the President formally requested that the Fox nomination be withdrawn from the Senate because it was facing certain defeat in the Foreign Relations Committee last week. I seriously question the legality of the President's use of the recess appointment authority in this instance. I intend to seek an opinion on the legality of this appointment from the Government Accountability Office (GAO) and invite other Senators to join with me in that request. This is underhanded and an abuse of Executive authority -- sadly this behavior has become the hallmark of this administration.”

John Kerry and Chris Dodd had strongly opposed the nomination. Chris Dodd, joined by Kerry and Bob Casey of Pennsylvania, sent a letter April 5 to David M. Walker, Comptroller General Government Accountability Office requesting “that the Government Accountability Office examine a particular aspect of the legality of the Bush Administration’s recent recess appointment… as… Under 5 U.S.C. § 5503, in order for Mr. Fox to be paid for his services as Ambassador, his nomination would have to have been pending before the Senate on March 29th, when the Senate went into recess. Moreover, according to a separate statute, 31 U.S.C. § 1342, the U.S. Government cannot accept “voluntary services” from individuals except in an emergency. … the position in question is a statutory entitlement with a fixed rate of pay that cannot be waived (Section 401 of the Foreign Service Act of 1980 mandates a fixed rate of pay for the position of Ambassador).

Dodd also has a petition on his presidential campaign page urging opposition to the appointment. "

In your article, you continued “Although a President technically might try to recess-appoint a rejected nominee anyway, there is a good argument to be made that this would be unconstitutional.”

For authority, you cite Staebler v. Carter, which found that "A President could probably not consistently with the principle of checks and balances grant a recess appointment to one rejected for the particular position by a vote of the Senate.

You add, “At the very least, it would mean that the President would be the one committing a constitutional impropriety.”

Although Bush did not try to recess-appoint a rejected nominee, he had withdrawn the nomination before he could be rejected and then appointed him. I'd be interested to know what you have to say about the Fox appointment and, I'm guessing, so would your other readers.

Thanks.

Brian Kalt

>>>I came across the article you published in January while researching an upcoming essay for llrx.com. In it, you call the recess appointment clause moot and its current use a “a bludgeon rather than a bandage” used when the President has “nominated someone who will not get confirmed, but also will not get an up-or-down vote.”

I don't think I said that the clause is moot. I would say only that the original intentions motivating the drafting of the Clause are moot. But the Clause is still there, and if you don't believe in strong originalism, the Clause still has effects.

>>>Chris Dodd (D-CT) issued a statement that, “It is outrageous that the President has sought to stealthily appoint Sam Fox to the position of ambassador to Belgium when the President formally requested that the Fox nomination be withdrawn from the Senate because it was facing certain defeat in the Foreign Relations Committee last week. I seriously question the legality of the President's use of the recess appointment authority in this instance. I intend to seek an opinion on the legality of this appointment from the Government Accountability Office (GAO) and invite other Senators to join with me in that request. This is underhanded and an abuse of Executive authority -- sadly this behavior has become the hallmark of this administration.”

While it is true that Fox probably would have lost in Committee, and (I believe) this would have prevented the nomination from going to the floor, there were a couple of Democratic senators who had said they supported the nomination. Therefore, the president's side could claim that if the nomination had gotten to the floor, it would have passed. So that complicates things a bit.

That said, everyone knew what the rules were, and not getting to the floor because the committee defeated it is certainly less problematic than not getting to the floor because of committee inaction. The President's action is pretty close to the line here--and I'm not sure which side of the line it is on.

There is a continuum here. Worst case--nominee gets defeated, President recess appoints. I personally think that is unconstitutional, but the case law is pretty weak on the question, and it could certainly go either way.

Next (less) worst case--nominee is going to get defeated, President withdraws and recess appoints.
Next worst case--nominee is going to get defeated, but Senate doesn't act in time, President recess appoints.
Next worse case--potential nominee would likely face serious opposition, President doesn't make the nomination until a recess.

Under current case law (which I don't like, because it allows recess appointments for vacancies that arose before the recess, and for brief recesses during the session), I would argue that the first two are unconstitutional and the last two are, at worst, constitutional improprieties. Of course, just because I think it is unconstitutional doesn't mean that it is, or that (more importantly) a court would be able to decide the issue.

>>>John Kerry and Chris Dodd had strongly opposed the nomination. Chris Dodd, joined by Kerry and Bob Casey of Pennsylvania, sent a letter April 5 to David M. Walker, Comptroller General Government Accountability Office requesting “that the Government Accountability Office examine a particular aspect of the legality of the Bush Administration’s recent recess appointment… as… Under 5 U.S.C. § 5503, in order for Mr. Fox to be paid for his services as Ambassador, his nomination would have to have been pending before the Senate on March 29th, when the Senate went into recess. Moreover, according to a separate statute, 31 U.S.C. § 1342, the U.S. Government cannot accept “voluntary services” from individuals except in an emergency. … the position in question is a statutory entitlement with a fixed rate of pay that cannot be waived (Section 401 of the Foreign Service Act of 1980 mandates a fixed rate of pay for the position of Ambassador).
Dodd also has a petition on his presidential campaign page urging opposition to the appointment. "

Section 1342, which I would have cited in my article had I been aware of it, certainly strengthens Senator Dodd's argument. But it only sharpens the question. It doesn't decide it, because the President can argue that the statute unconstitutionally infringes on his recess-appointment power (I don't think he can plausibly invoke the emergency exception here, given the relatively low profile of the post). The argument is stronger than you might think, for this reason: the statute might make appointments that are valid under the constitutional clause nevertheless illegal under the statute. Section 5503 could also affect my bottom two scenarios above, and it isn't clear that those appointments would violate the clause.

In this case, though, I think Senator Dodd has a pretty good argument. His problem is going to be getting into court to argue it; I doubt that he has standing to sue to enforce section 1342. I can't imagine anyone having standing to sue in this case, except perhaps for the official that Fox is displacing, who could sue for back pay if Fox's appointment deprives the official of any compensation. If not, though, the case just won't get decided. You can't go into court just to argue that the law has been violated; you have to have a particularized, individualized, concrete injury. Dodd almost certainly doesn't have one. A general interest in following the law is not enough to get into court. Dodd's remedies are political--the Senate can retaliate against other nominees, not go into recess, etc. At the extreme, impeachment looms, but I doubt that this would be enough to win over the number of GOP senators you'd need to win.

>>>In your article, you continued “Although a President technically might try to recess-appoint a rejected nominee anyway, there is a good argument to be made that this would be unconstitutional.”
For authority, you cite Staebler v. Carter, which found that "A President could probably not consistently with the principle of checks and balances grant a recess appointment to one rejected for the particular position by a vote of the Senate.

Staebler is an interesting case, but a weak precedent. The relevant language is in a footnote, and the case was pretty low-level.

>>>Although Bush did not try to recess-appoint a rejected nominee, he had withdrawn the nomination before he could be rejected and then appointed him. I'd be interested to know what you have to say about the Fox appointment and I'm guessing, so would the readers.

That's what I think. To sum up, it is probably unconstitutional, but it would be hard to get the courts to take the case. Even if they did take it, the President might win. There is an argument that his action is constitutionally OK, and the history of recess-appointment court decisions is a history of the court allowing things that, to most experts, they should not have.

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