----- Original Message ----- From: "Volokh, Eugene" <[EMAIL PROTECTED]> To: <[EMAIL PROTECTED]> Sent: Saturday, June 14, 2003 4:28 PM Subject: Re: More on recess appointments
> I certainly agree with Sandy's descriptive claim that the Court is > "capable of deciding that Article II doesn't control" here. But that's a > separate question from the normative claim of whether the Court should so > decide. That the Court may have decided the sovereign immunity cases in a > way that's inconsistent with the text and the original meaning (if that is > indeed so) doesn't mean that the Court ought to likewise set aside the text > and the original meaning in this instance (and I know of no evidence that > the text and the original meaning differ here). > > Moreover, as I understand the state sovereign immunity cases -- and > I hasten to say that I'm not an expert on the history of the subject -- they > are at least supported by a pretty long line of precedent going back to Hans > v. Louisiana and in some measure before, and there is at least some > contemporaneous evidence (for instance, a statement in the Federalist) that > state sovereign immunity was meant to be preserved by the Constitution. > That original meaning or traditional understanding may sometimes trump text > is one thing; it doesn't follow, it seems to me, that pretty general > structure should trump a pretty specific text and traditional understanding. > > It seems to me that this is especially so with regard to questions > such as who appoints high government officials, even temporary ones. This > seems to me to be the sort of question for which it's especially important > to have a pretty definite answer. The text provides a fairly definite > answer; the history cements it; it seems to me that we should stick with > that, despite the plausible structural arguments against it. > > Recall, incidentally, that there's a plausible structural argument > in favor of temporary appointments, too -- judicial vacancies can cause a > pretty serious interference with federal business, and would have caused > even more in the early Republic, where having judges from neighboring courts > sit by designation would have been much more difficult. > > Eugene > > > -----Original Message----- > > From: Levinson [mailto:[EMAIL PROTECTED] > > Sent: Saturday, June 14, 2003 11:58 AM > > To: [EMAIL PROTECTED] > > Subject: Re: More on recess appointments > > > > > > David Wagner writes: > > > > Recess appointees look anomalous from a constitution-maker's > > perspective, but the Constitution we actually have provides > > for them (Art. II. Sec. 2, paragraph 3). The reference here > > to "vacancies" presumably refers to the wide range of > > officers listed in paragraph 2. Is there a textual argument > > that paragraph 3 is inapplicable to Art. III judges? > > > > > > I don't think there's a "textual" argument available, but so > > what? There's certainly a strong structural argument and now > > a strong precedential argument, especially if one takes last > > week's case seriously. There is no more reason to read the > > Article II text as "absolute" than there is, say, to read the > > First Amendment or the Contract as absolute, whatever their > > grammar (why doesn't "no law" mean "no law"?). A court > > capable of deciding the recent bunch of structural > > federalism/no federal jurisdiction cases, in the teeth of the > > language of the 11th amendment, is certainly capable of > > deciding that Article II doesn't control with regard to > > something so important as preserving judicial independence > > and the appearance of same. That recess appointments go way > > back shouldn't count for this court. After all, it had no > > trouble saying that the Chisholm v. Georgia court simply > > engaged in an obvious misunderstanding of the Constitution > > (whatever the text) in upholding diversity juri! sdiction, > > so that, presumably, the 11th amendment was wholly unncessary > > (except to reverse the court's inexplicably stupid decision). > > > > sandy > > >
