Remember that as the U.S. attorney scandal unfolded the Right’s knee jerk response was that all USa’s are political appointments and dismissing them at will is a regular habit of all presidents – failing as usual to acknowledge the details of those other presidents and the motivations. In many ways the firing of U.S. attorneys for purely political reasons is deeply radical and is indicative of the Bush administration’s war on the co-equal branches of government and the apparently now old school idea that the law might be at least a hair above politics. So it is with Bush’s use of “recess” appointments. Bush put Republican water carrier and hitman Sam Fox up for Ambassador to Belgium and by most accounts that nomination was doomed. No problem for the Bushies just withdraw Fox’s nomination and use the recess appointment as a back door. Those Unconstitutional “Recess” Appointments, Redux
The excuse the President offers is the Recess Appointments Clause (RAC) of the Constitution, art. II, sec. 2, cl. 3, which provides that “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 Senate is currently in the midst of an eleven-and-a-half-day adjournment; presumably Fox and the other three “recess appointees” will be appointed toward the very tail end of that Senate recess, just before the Senate returns.
The President’s view is (i) that this short Senate adjournment, in the middle of a “Session,” is “the Recess” to which the RAC refers, and (ii) that the vacancies for Ambassador to Belgium and the other federal offices “happen” during this “recess,” even though the offices became vacant long before the Senate adjourned.
As Marty Lederman points out this is clearly an assault, a back of the hand to Appointments Clause. Left unchallenged Bush doesn’t just set a precedent for the next Republican president, but for any president. This is where the national debate becomes deeply dishonest. I for one do not want any president of any party to encroach on the balance of powers among the three branches of government by recess appointments or the partisan use of law enforcement officials. This is the true nightmare of Big Government where one branch executes its agenda without check, without over sight. If the conservative movement is truly for small government where is the reaction against this kind of behavior. Are these same conservatives that are quick to rattle off lame excuses for Bush going to be silent when a Democratic president does the same because of the legal precedents that Bush has set. Remembering that the The Federalist Papers are not law, but have served to inform interpretation of the Constitution, Alexander Hamilton in No. 67 writes,
The last of these two clauses, it is equally clear, cannot be understood to comprehend the power of filling vacancies in the Senate, for the following reasons: First. The relation in which that clause stands to the other, which declares the general mode of appointing officers of the United States, denotes it to be nothing more than a supplement to the other, for the purpose of establishing an auxiliary method of appointment, in cases to which the general method was inadequate. The ordinary power of appointment is confined to the President and Senate JOINTLY, and can therefore only be exercised during the session of the Senate; but as it would have been improper to oblige this body to be continually in session for the appointment of officers and as vacancies might happen IN THEIR RECESS, which it might be necessary for the public service to fill without delay, the succeeding clause is evidently intended to authorize the President, SINGLY, to make temporary appointments “during the recess of the Senate, by granting commissions which shall expire at the end of their next session.”
We needed most urgently to have an Ambassador to Belgium? Only the most cynical, juvenile and arrogant interpretation of the laws intent could afford the the Decider an excuse for his behavior. There is some good news today in the way of Congress asserting its authority. The House has stepped up and served a subpoena on the Department of Justice and no one can say with a straight face that Congress didn’t give Attorney General Alberto Gonzales plenty of time and room to negotiate – Conyers calls effort last resort after weeks of negotiations with Justice
“We have been patient in allowing the department to work through its concerns regarding the sensitive nature of some of these materials,” Rep. John Conyers, D-Mich., wrote Gonzales in a letter accompanying the subpoena. “Unfortunately, the department has not indicated any meaningful willingness to find a way to meet our legitimate needs.,”
“At this point further delay in receiving these materials will not serve any constructive purpose,” Conyers said. He characterized the subpoena as a last resort after weeks of negotiations with Justice over documents and e-mails the committee wants.
The legal angle and implication at Firedoglake, Rep. Conyers Issues Subpoena Duces Tecum For DOJ Docs
Another week means another round of troubles for the beleaguered Justice Department and its barely-hanging-on chief, Attorney General Alberto Gonzales. First came word on Good Friday of the resignation of Monica Goodling, the high-ranking Justice official who helped choreograph the dismissal last year of eight U.S. Attorneys. She is thus no longer under the control of the government and now, theoretically anyway, is free to cut her own deal with Congress if she decides to cooperate with the investigation into the circumstances surrounding the dismissal of the federal prosecutors. Don’t bet on that. But it’s more likely today than one week ago.
Next came word over the weekend of the extraordinary influence at the Justice Department of graduates of a law school called Regent University School of Law, founded by televangelist Pat Robertson. Even if you put the religious angle aside, even if you are comfortable with the idea of federal lawyers having such close ties to religious ideology, it is not exactly a high-water mark for the Department that it is recruiting candidates from a school ranked in the “fourth-tier” of law schools around the country—136th to be exact. Gone, apparently, are the days when the Department sought after and obtained the best and brightest legal minds.
We all know by now from being asleep at the wheel on 9-11, to Katrina, to lying the nation into Iraq and the way that war was subsequently conducted and the Walter-Reed veterans care scandal that ideology has and will always trump good governance and the common good among conservatives. This is an except that Digby posted from “Jesus Plus Nothing: Undercover among America’s secret theocrats.”
At the 1990 National Prayer Breakfast, George H.W. Bush praised Doug Coe for what he described as “quiet diplomacy, I wouldn’t say secret diplomacy,” as an “ambassador of faith.” Coe has visited nearly every world capital, often with congressmen at his side, “making friends” and inviting them back to the Family’s unofficial headquarters, a mansion (just down the road from Ivanwald) that the Family bought in 1978 with $1.5 million donated by, among others, Tom Phillips, then the C.E.O. of arms manufacturer Raytheon, and Ken Olsen, the founder and president of Digital Equipment Corporation. A waterfall has been carved into the mansion’s broad lawn, from which a bronze bald eagle watches over the Potomac River. The mansion is white and pillared and surrounded by magnolias, and by red trees that do not so much tower above it as whisper. The mansion is named for these trees; it is called The Cedars, and Family members speak of it as a person. “The Cedars has a heart for the poor,” they like to say. By “poor” they mean not the thousands of literal poor living barely a mile away but rather the poor in spirit, for theirs is the kingdom: the senators, generals, and prime ministers who coast to the end of Twenty-fourth Street in Arlington in black limousines and town cars and hulking S.U.V.’s to meet one another, to meet Jesus, to pay homage to the god of The Cedars.
There they forge “relationships” beyond the din of vox populi (the Family’s leaders consider democracy a manifestation of ungodly pride) and “throw away religion” in favor of the truths of the Family. Declaring God’s covenant with the Jews broken, the group’s core members call themselves “the new chosen.” (emphasis mine)
The objection here isn’t simple faith and the freedom to practice that faith. The issue is working against fundament American values clearly stated in our founding documents.
Authored by American diplomat Joel Barlow in 1796, the following treaty was sent to the floor of the Senate, June 7, 1797, where it was read aloud in its entirety and unanimously approved. John Adams, having seen the treaty, signed it and proudly proclaimed it to the Nation.
Art. 11. As the Government of the United States of America is not, in any sense, founded on the Christian religion; as it has in itself no character of enmity against the laws, religion, or tranquillity, of Mussulmen; and, as the said States never entered into any war, or act of hostility against any Mahometan nation, it is declared by the parties, that no pretext arising from religious opinions, shall ever produce an interruption of the harmony existing between the two countries.
“A wicked fellow is the most pious when he takes to it. He’ll beat you all at piety.” – Samuel Johnson (1709-1784)