« New version of Connectedness and its Discontents | Main | Is Jim Cramer Advocating Securities Law Violations? »

Friday, March 23, 2007

Constitutionally suspect?

In the context of the current controversy over the President's USA "dismissals", as he called them the other day, this is a relatively minor legal point. But hey, this is a blawg, so I'll make it anyway.

The DOJ has claimed that the pre-2006-amendment statutory procedure for interim filling of a USA vacancy was "constitutionally-suspect".

On page 3 of this email thread involving former COS to the Attorney General Kyle Sampson, on the one hand, and Senate Judiciary Committee staffer Jennifer Duck (as well as some others), Sampson writes as follows (see especially the last paragraph, and point (3) in it--you can see a larger version of the text by clicking on the image):

Emailimageexcerpt_3

So what?

Here's what Article II, Section 2 of the US Constitution says about presidential power:

He shall have power, by and with the advice and consent of the Senate, to make treaties, provided two thirds of the Senators present concur; and he 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.

I am certainly not an expert on constitutional law. But the text here seems quite clear: "the Congress may by law vest the appointment of such inferior officers, as they think proper...in the courts of law...". So what part of having district courts appoint interim USAs, pursuant to statute, is constitutionally suspect? Am I missing something?

[Update/Note: This post by Orin Kerr is definitely worth a read on the general issue of statutory authority, though Kerr doesn't address in it the specific questions about which I'm wondering.]

Perhaps the constitutional concern is this part of Article II, Section 2:

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.

I guess the idea would be that, since the President is constitutionally empowered to fill "all vacancies", then Congress can't tell constrain the mode of filling these vacancies. But this provision quite clearly concerns only those vacancies that "happen during the recess of the Senate", and not any others. So it seems to me that only recess vacancies could possibly be protected from statutory rules for filling them, and even then I wonder if it is constitutionally possible for Congress to limit this power of the President's by statute (please comment if you know the specifics regarding Congress's authority to limit the recess-appointment power).

Finally, if you look at the post-amendment statutory language of § 546 (below), you'll see that the new statute allows the President's interim choice to serve until confirmation of a permanent replacement. Doesn't that conflict with the "shall expire at the end of [the Senate's] next session" clause of the text above? So if Congress cannot limit the recess-appointment authority, in which case the pre-amendment statute would seem to be unconstitutional as applied to recess appointments, then doesn't the new statute provide unconstitutionally long terms for interim USAs appointed by the President?

For what it's worth, prior to the 2006 amendment, the relevant statutory text was

§ 546. Vacancies (a) Except as provided in subsection (b), the Attorney General may appoint a United States attorney for the district in which the office of United States attorney is vacant. (b) The Attorney General shall not appoint as United States attorney a person to whose appointment by the President to that office the Senate refused to give advice and consent. (c) A person appointed as United States attorney under this section may serve until the earlier of—

(1) the qualification of a United States attorney for such district appointed by the President under section 541 of this title; or
(2) the expiration of 120 days after appointment by the Attorney General under this section.

(d) If an appointment expires under subsection (c)(2), the district court for such district may appoint a United States attorney to serve until the vacancy is filled. The order of appointment by the court shall be filed with the clerk of the court. [70]

28 U.S.C. § 546 (2000 ed., Supp IV).

Here's the text that results from the 2006 revision (note that para (c) is the key one i think, tho (b) means that the administration can't choose someone whom the Senate has voted down):

§ 546. Vacancies

(a) Except as provided in subsection (b), the Attorney General may appoint a United States attorney for the district in which the office of United States attorney is vacant.
(b) The Attorney General shall not appoint as United States attorney a person to whose appointment by the President to that office the Senate refused to give advice and consent.
(c) A person appointed as United States attorney under this section may serve until the qualification of a United States Attorney for such district appointed by the President under section 541 of this title.

Note that I got this from wikipedia (http://en.wikipedia.org/wiki/2006_Dismissal_of_U.S._Attorneys_controversy#USA_PATRIOT_Act_revisions); please let me know if you spot any errors in the text here.

Posted by Jonah Gelbach on March 23, 2007 at 03:00 PM | Permalink

TrackBack

TrackBack URL for this entry:
https://www.typepad.com/services/trackback/6a00d8341c6a7953ef00d835256dbc69e2

Listed below are links to weblogs that reference Constitutionally suspect?:

Comments

Ah yes, I see. I agree with you on that one. (Do you know if that's what the current 'replacements' are doing, or were they confirmed before the scandal broke?)

Posted by: Chris Bell | Mar 26, 2007 10:17:57 PM

chris

you ask

By open-endedness, do you mean the fact that it looks like the President can just do what he wants with those positions without asking the Senate?

Not exactly. My question regards the fact that the post-amendment statute appears to allow a given USA to serve until a replacement has been confirmed. Since confirmation can't happen before nomination, this statute appears to give the President authority to keep an unconfirmed interim choice in office past the end of a Senate session by simply declining to nominate a permanent replacement.

Sorry if I was unclear about that.

j

Posted by: jonah gelbach | Mar 26, 2007 7:37:40 PM

j,

Yes, your 2nd comment reflects what I was trying to say. That explains why I think the PRE-amendment text was unconstituional, because only the President has the power to fill vacancies in 'superior' offices.

Turning to the POST-amendment language, I don't see the problem. Nonetheless, I'm still interested in how the post-amendment statute's open-endedness can be constitutional.

By open-endedness, do you mean the fact that it looks like the President can just do what he wants with those positions without asking the Senate? Don't forget to check out s.541, which is clearly incorporated by reference and DOES require Senate approval.

(Of course, if what I am saying is true, then how did the President fill those positions with his "new Bushies"? Did the Senate give advice and consent before the scandal broke? Otherwise, surely the Senate would have rejected the replacements as too partisan.)

Posted by: Chris Bell | Mar 24, 2007 5:50:28 PM

Chris

Re-reading your comment, I realized I misinterpreted part of your point. I see now that you were saying (or clearly implying) that USAs are not "inferior officers" since their appointment involves confirmation, i.e., advice and consent.

Again, I'm no expert, and that seems sensible (and consistent with what else I can find in a quick google search), so I'll be happy to accept that you're right about this.

Nonetheless, I'm still interested in how the post-amendment statute's open-endedness can be constitutional.

Thanks again

j

Posted by: jonah gelbach | Mar 24, 2007 2:13:16 PM

Chris

Thanks for your comment. You may well be right (as I say, I don't know the answers to these questions).

But don't you think the clause after "fill all vacancies", i.e., "that may happen during the recess of the Senate, by granting commissions which shall expire at the end of their next session", has some meaning?

If so, how can the post-amendment provision be constitutional in its open-endedness? And if the reason it's constitutional is that Congress can choose to suspend the "recess" and "end of their next session" qualifiers, why can't it also override the "fill all [recess] vacancies" part? Perhaps the reason is that a branch can relinquish some of its own powers (though I'm not sure of either the existence or scope of that ability), but not encroach on another branch's. But in this case it seems to me that a Presidential decision to fill vacancies when the Senate is in session in a manner contrary to statute would be such an encroachment.

So I'm still left with my question: how can the post-amendment statute be constitutional if the pre-amendment one isn't?

Posted by: jonah gelbach | Mar 24, 2007 12:51:21 PM

As I understand it, the power to appoint inferior officers can be vested in the courts, but that power refers to the original appointment (and possibly replacement) of inferior officers - those where the Senate doesn't give their advice and consent.

The President's power to 'fill all vacancies' refers to vacancies in offices that require advice and consent.

Therefore, I agree with the DOJ.

Posted by: Chris Bell | Mar 24, 2007 11:11:56 AM

The comments to this entry are closed.