Re: More on recess appointments

[Chris SCHROEDER]

Once I get into the spirit of the discussion, I think that Sandy's VP vacancy scenario can be side stepped.  It seems (most?) plausible to me that the modifier "all" in the recess appointment power refers to "all" the vacancies in the positions in the immediately preceding paragraph of Art II, which defines the appointment power in terms of specific offices of the United States.  The VP is not mentioned in that paragraph, so the recess appointment power does not apply to that position.    I think there is, however, a textualist argument that at least casts a shadow over recess appointments to Art III positions.  Article III  stipulates that judges shall hold their offices during good behavior.  The Court has said that this life tenure provision is essential to the exercise of Article III power.  This means that the text of the recess appointment power in Article II is at least in tension, if not in conflict, with the text of Article III, simply because the Article II language plainly provides that any appointee holding office pursuant to a recess appointment does not have life tenure.  One provision has to give way to the other:  Either recess appointees can exercise Art III power without life tenure, or the recess appointment power is inapplicable to Art III vacancies.  I think there is a textual argument in either direction.  I call this a tension because it could be resolved in a way that gave effect to both provisions by allowing recess appointment to an Art III judgeship, but then declining to allow that person to exercise any Art III powers.  This produces a right to a salary with almost none of the responsibilities (such persons do somethings, like serve on the administrative committees, rules committees and such, that they might still be able to do).  I doubt whether anyone would seriously advocate this resolution, though.   Chris.    >>> [EMAIL PROTECTED] 06/15/03 11:45AM >>> Article II gives the President the power to "fill all Vacancies" when the Senate is in recess.  I am suggesting that this be read as referring to vacancies in the Executive Branch, period.  Thus no judicial recess appointments.  Others believe that "all" means "ALL."  Fair enough, but now consider a "vacancy" in the office of the Vice presidency (a not unknown phenomenon).  Why doesn't the President, even prior to the 25th amendment, simply get to fill "that vacancy"?  I presume that the answer lies in the fact that the Senate plays no role in choosing vice presidents (prior to the 25th amendment).  But now let's factor in the 25th Amendment, in which both the House and Senate have a role. Assume that something happens to the vice president    (either Gore or Cheney:  I don't intend to make a partisan point).   I believe, with Akhil Amar, that the Succession in Office Act is unconstitutional; perhaps more to the point, I agree with Norman Ornstein that it is a monstrous stupidity in its potential mischief for the smooth operation of the US government.  In any case, assume that the demise of the VP happens just after Congress has adjourned.  The President could (absolutely sensibly) believe that the US can't afford to be without a VP until Congress returns to Washington and revs up the confirmation machinery, not least because, say, the Speaker of the House, who would unconstitutionally succeed to the White House if something happened to the President, is also a member of the opposite party (Gingrich, Tip O'Neill during the Reagan era) or has no ascertainable qualities for which we look to in a Chief Executive (John MacCormack, Dennis Hastert, for starters).  S! o why doesn't the "literalist" Article II argument give the President the right to make a recess appointment for VP.  (To be sure, Section II of the 25th Amendment provides that the President shall nominate and both houses shall confirm the new vice president, but how does this *really* differ from the process by which people are supposed to become Article III judges?). sandy sandy