A Recess Appointment for Johnsen?
With the Senate recessed over the Memorial Day break, will President Obama name stalled nominee Dawn Johnsen to head the Office of Legal Counsel through a recess appointment? It's quite possible. Senate Democrats vigorously objected to the use of recess appointments by President Bush, going so far as to officially keep the Senate in session over holidays. Yet now that Obama is President, Senate Majority Leader Harry Reid has ended this practice, making recess appointments a possibility. Stay tuned.
UPDATE: A reader with a better memory than I notes that, according to at least one OLC attorney serving in this Administration, any recess appointment over the Memorial Day break would be unconstitutional.
Cheers,
JHA
CRS Report RL33009 - Recess Appointments: A Legal Overview
CRS Report RS21308
If the process is flawed, change the process. No need for tricks.
I guess time will tell whether your comment is a foolish insult without supporting evidence . . . do you have any reason whatsoever to claim that Lederman is a hack?
If Marty Lederman says that a recess appointment like the one contemplated here is OK, then it would be "pure partisan hackery" since Lederman argues that recess appointments are only appropriate between the actual sessions of Congress.
Funny, he wrote that the recess appointment question (unlike due process) is inherently apolitical because it, at various times, benefits or harms either political party. I tend to agree -- it's almost as close as one gets to a pure interpretive problem.
Of course, he's not the boss and, if Barry interprets the clause to allow the appointment despite Marty's argument to the contrary, he can either accept it or resign in protest.
Unfortunately, Art V does not allow such superficial fixes to be passed any easier than huge changes to the very fabric of the Constitution.
No amendment required here, if legislative procedure is the issue, then fix it. Otherwise, live with it, but no tricks allowed.
If we needed that lawyer bad enough, that lawyer would have been approved by now.
But if it happens and he does not resign, then you can infer something. Because he would be reporting to an "unconstitutionally" appointed person.
No, just a person appointed in a way that he personally thinks unconstitutional. Other people, including courts, do get to disagree with law professors.
Wait, Obama is President now, not Bush? I'm sorry, I meant to say that Mr. Obama has no choice because of the obstructionist Republicans who unconstitutionally require 60 votes for everything. Obama has every right to make this recess appointment.
Good God, I love the way everyone gets all worked up into such high dudgeon over a hypothetical example of the possibility of potential hypocrisy as put forth by a blogger who doesn't even claim to have reason to expect the hypothetical hypocrisy to actually take place. No wonder the national conversation is broken -- nobody can hear it above the noise.
If that happens, perhaps the GOP resistance to Johnsen's confirmation will mysteriously melt away.
I misunderstood your comment -- I thought you meant we needed to remove the recess appointment power entirely.
And, more importantly, law professors and government employees understand that it's not the end of the world when their opinion doesn't carry the day. If it's a matter of basic principle and they disagree strenuously, they'll resign. Otherwise, it's perfectly fine for regular human beings to say "Well, I disagree but I acknowledge that I'm not the final world about everything and therefore I accept (still disagreeing) the ruling/decision/order (did I mention that I still disagree?).
If that weren't the case, I can't imagine how government would function. Every disagreement would topple everything -- no police officer could work for a department in which the brass didn't believe in exactly his strategy, no park ranger could work for an BLM head of the opposite party, no secret service officer could protect a President with whom he had even the slightest disagreement about constitutional law.
Do you agree with the constitutionality of every decision made by your government? If not, why haven't you renounced your citizenship?
I didn't get on a high horse about how bad something was and then meekly accept it when it affected me personally.
The only conclusion would be that Lederman was not making a principled argument but made an argument to fit his conclusion.
(If the appointment happens, of course.)
Of course this whole discussion obscures the fact that Lederman is a hypocrite because he is serving a president who, other than cosmetics, is doing everything he "said" he hated about George Bush's policies. I guess Kerr's Law applies to him too.
IMO the clause has been misinterpreted. I assert that the interpretation that "End of their next Session" means the end of the two-year term of Congress is wrong -- if that interpretation were intended, the clause would say "End of their current Session" instead of "End of their next Session." I assert that "End of their next Session" means the next adjournment.
Anyway, there is no question that the Recess Appointment Clause has been abused for the purpose of evading the will of the Senate.
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