Friday, July 29, 2005

Recess Appointments: Historical Artifact & Modern Need

Today, the NYT insinuated that recess appointments were inappropriate because the supposed rationale for allowing them no longer existed.

"The Constitution's provision allowing for recess appointments harkens back to an era when lawmakers took days to get to the national capital and when recesses routinely stretched for months -- conditions that, of course, no longer apply."

This is a problematic, and journalistically inappropriate, comment to make.

1. They are offering this as the _only_ rationale for why recess appointments were allowed. This is simply not the case. This is the justification used to explain why the Founders allowed for recess appointments, but frankly, we really don't know.
2. Regardless of "why," this was enacted, the Constitution allows for recess appointments. Frankly, it doesn't matter that the justification, if any, has changed. If you don't like it...amend it. Period.
3. While pre-tech Congresses might have had to travel, making recess appointments necessary, pre-tech Congresses certainly didn't have a record of holding up appointments (the Midnight Judges [aka Marbury] excepted) during the "regular" term of the President (i.e. before he became an official lame duck, i.e. after the election results for the next President were already known).

Sum: It doesn't matter why the Constitution says what it does, the President has the power to make such an appointment, and the need for this power (and the Founders Wisdom) is even greater now that Minority parties have to respect for the Executive Branch's constitutional power; nor respect for their own role in voting (yea or nea) on each appointed official.

U.S. Constition:

Article I, Section 3
Clause 2: Immediately after they shall be assembled in Consequence of the first Election, they shall be divided as equally as may be into three Classes. The Seats of the Senators of the first Class shall be vacated at the Expiration of the second Year, of the second Class at the Expiration of the fourth Year, and of the third Class at the Expiration of the sixth Year, so that one third may be chosen every second Year; and if Vacancies happen by Resignation, or otherwise, during the Recess of the Legislature of any State, the Executive thereof may make temporary Appointments until the next Meeting of the Legislature, which shall then fill such Vacancies.


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