America's Unwritten Constitution: The Precedents and Principles We Live By (97 page)

13
  For discussion of a recent controversy involving Congress’s efforts to compel testimony from executive-branch officials Josh Bolton and Harriet Miers, see Chafetz, “Executive Branch Contempt.”

14
  Physical delivery of the commission is not required. Although this nondelivery rule does not explicitly appear in the written Constitution, it was proclaimed by no less a case than
Marbury v. Madison
, and thereafter became settled usage.

         
As for the Obama oath re-do in 2009, here are the key points to keep in mind: A new president-elect receives his official designation—his commission-equivalent—from Congress as a whole, which bears responsibility for counting electoral votes, resolving any disputes (such as those which arose in 1876–1877), and, if necessary, choosing among the top electoral-vote-getters (if no candidate has enough electoral votes to prevail, as occurred in 1824–1825). The president-elect, by dint of the explicit command of the Twentieth Amendment, legally becomes president at the precise stroke of noon on January 20. The clock and not the oath does the work. In this explicit text, we see on display the perfect seamlessness and continuity of the American presidency, which, unlike courts and Congress, never goes out of session—an obvious carryover from the seamlessness of the British system (“The [old] king is dead; long live the [new] king!”). Textually, it is clear from the words of Article II that the oath is a duty imposed on the person who is already president, not a magic spell that makes him president: “Before he [the president] shall enter on the Execution of his Office, he shall take the following Oath or Affirmation.…” In Britain, it was not uncommon for months or even years to elapse between the start of a monarch’s official reign and the taking of the official Coronation Oath with all its pomp and ceremony. Prior to the ratification of the Twentieth
Amendment, which contains the word “noon,” a nice question had arisen about whether the magic moment of presidential transition was midnight or noon (or some other instant). The original text did not specify an hour, but early unwritten practice identified midnight as the magic moment. Hence the storied efforts of John Adams and his staff to sign and seal judicial commissions late into the evening of his final hours on the job in an effort to vest his “midnight judges” with the proper authority.

15
  For the Senate’s expressed views in 1960, see S. Res. 334, 86th Cong., 2d sess., 106 Cong. Rec. 18145 (Aug. 29, 1960):
“Resolved
, That it is the sense of the Senate that the making of recess appointments to the Supreme Court of the United States…should not be made except under unusual circumstances and for the purpose of preventing or ending a demonstrable breakdown in the administration of the Court’s business.” The Resolution’s sponsor, Senator Philip Hart of Michigan, expressly conceded that the gloss of history had established the constitutionality of recess appointments to the Court, in particular, and the federal judiciary, in general. Ibid., 1830. For tallies of actual judicial recess appointments, see Second Supplemental Brief of the United States,
United States v. Woodley
, No. 82-1028, Ninth Circuit, at A1–A25, cited in Louis Fisher,
Federal Recess Judges
(CRS Report of Feb. 2, 2005, RS 22039); Brief for the United States, at app.,
Miller v. United States
, 2004 WL 2112791 (No. 04-38) (Supreme Court 2004). Fisher also mentions the recess appointments of Judge Roger Gregory by President Clinton in December 2000 and of Judges Charles Pickering and William Pryor by President George W. Bush in early 2004. See also Edward Hartnett, “Recess Appointments of Article III Judges: Three Constitutional Questions,”
Cardozo LR
26 (2005): 377;Thomas A. Curtis, “Note, Recess Appointments to Article III Courts: The Use of Historical Practice in Constitutional Interpretation,”
Columbia LR
84 (1984): 1758.

16
  Beyond the nice questions raised by recess appointments of judges and justices, two other questions concerning recess appointments in general deserve mention. First, may a president use his special recess-appointment power to fill any vacancy that happens to
exist
during a particular Senate recess, or only those vacancies that happen to
arise or open up
during that recess? Washington’s attorney general, Edmund Randolph, took the narrow view of presidential power in 1792, whereas President Madison apparently acted in accordance with the broad view. In 1823, Attorney General William Wirt clearly embraced the latter interpretation. Since then, the overwhelming mass of actual practice has supported the broad view, generating another example of how customary usage can operate to gloss an ambiguous text. On this question, the definitive gloss has emerged from a process involving all three branches. Specifically, for nearly two centuries presidents and senators have recognized the broad view in the give-and-take of the nomination-and-confirmation process. In addition, framework statutes (enacted with ordinary bicameralism and presentment) have presupposed the propriety of the broad view while establishing salary rules applicable to recess appointees. Finally, the judiciary has consistently recognized the legitimacy of officers appointed under the broad view. For an informative debate, compare Hartnett, “Recess Appointments,” with Michael B.
Rappaport, “The Original Meaning of the Recess Appointments Clause,”
U.C.L.A. LR
52 (2005): 1487. Note that in upholding the broad view—that a president may use the recess-appointment power to fill any vacancy that exists during a Senate recess, even if the vacancy first arose during a Senate session—Judge (later Justice) William Burnham Woods explicitly relied upon “the practice of the executive department for nearly 60 years, the acquiescence of the senate therein, and the recognition of the power claimed by both houses of congress. “
In re: Farrow
, 3 F. 112, 115 (C.C. N.D. Ga. 1880). To this we should now add another 130 years of confirmatory practice, acquiescence, and supportive legislation. See, generally, Patrick Hein, “In Defense of Broad Recess Appointment Power: The Effectiveness of Political Counterweights,”
California LR
96 (2008): 235.

         
Second, what counts as a Senate recess? In particular, should we distinguish between the Senate’s traditional
intersession
recess (the break between its first session and its second session) and the
intrasession
recesses that have become increasingly common as technology has made it easier for senators to bounce back and forth between their house and their homes? Should we distinguish between long recesses and short ones, and, if so, where should we draw the line? Should nominees who were recently bottled up in the Senate confirmation process be treated differently from other possible recess appointees? Here, actual usage has not always precipitated fixed rules, but instead has structured a conversation between presidents and senators resulting in evolving understandings, conventions, and truces. In general, recent presidents and senators have often recognized broad presidential authority to treat even relatively short intrasession Senate breaks as formal opportunities to make recess appointments. Similar negotiations between presidents and Congress have resulted in elaborate arrangements specifying which congressional bills are properly subject to ordinary veto rules and which are instead governed by pocket-veto rules triggered by congressional adjournments of one sort or another.

17
  Senators as such are not officers and are thus not impeachable as senators or removable from the Senate via the impeachment process. Under Article II, section 4, only “civil Officers” are impeachable. (Presidents and vice presidents are also mentioned separately in this clause, perhaps to blunt any argument that their role atop—or in the VP’s case, potentially atop—the military chain of command removes them from the category of “civil” officers.) Although the word “only” does not expressly appear in Article II, section 4, the word is implicit, as strongly confirmed by both structure and history. Unless Article II is read as limiting impeachment to civil officers, even private persons would be subject to impeachment and potential disqualification from future officeholding without the usual safeguards of trial by local jury, proof beyond reasonable doubt, and so on. And unless “civil Officers” means
only
civil officers, the House would play an improper role in Senate membership decisions, and vice versa. Article I, section 5, envisions each house policing its
own
membership via its powers to judge elections and qualifications and to expel by a two-thirds vote. Also, Article I, section 3, is emphatic that punishment in impeachments “shall not extend further than…removal from Office, and disqualification
to hold and enjoy any [federal] Office.” Since it is clear that ordinary membership in Congress is not an office—see Article I, section 6 (“[N]o Person holding any Office under the United States, shall be a Member of either House”)—how could impeachment effect the ouster of a member of Congress from the House or Senate? See Akhil Reed Amar, “On Impeaching Presidents,”
Hofstra LR
28 (1999): 291. Senate practice coheres with the foregoing analysis. Early on, the Senate correctly determined that Senator William Blount was not a proper subject of impeachment. For details, see Currie,
The Constitution in Congress
, 275–281. For more on the distinction between “officers” and members of Congress, see Akhil Reed Amar and Vikram David Amar, “Is the Presidential Succession Law Constitutional?,”
Stanford LR
48 (1995): 113.

18
  Act of March 3, 1863, ch. 108, 12 Stat. 804. On Day One and the days immediately preceding and following it, see “From Washington. The Roll List of the Members of the House Completed. None of the Southern Delegations Included in the List,”
New York Times
, Dec. 3, 1865, 1; “The New Congress. Completion of the Roll List of the House of Representatives. Exclusion of the Members from the Lately Rebellious States,”
New York Herald
, Dec. 3, 1865, 1; “The Meeting of Congress—-The Republican Programme,”
New York Herald
, Dec. 4, 1865, 4; “The Thirty-Ninth Congress—Movements Preliminary to the Organization To-Day,”
Boston Herald
, Dec. 4, 1865, 2; “The New Congress,”
New York Herald
, Dec. 5, 1865, 1; “The Opening of Congress—The Organization,” ibid., 4; “Letter from Washington,”
Daily Picayune
, Dec. 10, 1865, 1; “A Peep Behind the Political Coulisses,”
New York Herald
, Dec. 11, 1865, 1; Benjamin J. Kendrick,
The Journal of the Joint Committee of Fifteen on Reconstruction
(1914), 37, 133–154; Eric L. McKitrick,
Andrew Johnson and Reconstruction
(1960), 258–259; Eric Foner,
Reconstruction: America’s Unfinished Revolution
(1988), 239; Bruce Ackerman,
We the People: Transformations
(1998), 166–169.

19
  See Act of March 3, 1863, ch. 108, 12 Stat. 804; Act of Feb. 21, 1867, 14 Stat. 397. For the current version, see 2 U.S.C. 26. See also John Harrison, “The Lawfulness of the Reconstruction Amendments,”
U. Chicago LR
68 (2001): 375, 399 n. 125.

20
  A similar vision underlies the power of each house to act as a judge in adjudicating contested elections and qualifications of its members and in exercising disciplinary power over its members.

21
  For details, see S. Doc. No. 89-103 (Aug. 19, 1966) (analysis of “The Classification of United States Senators,” by Floyd M. Riddick, Senate Parliamentarian).

22
  On the centrality of the House-size issue in the ratification debates, see Amar,
Bill of Rights
, 8–17; Amar,
ACAB
, 76–84.

23
  The use of certain particular apportionment formulas and rounding rules might occasionally generate the paradoxical result that an increase of overall House size might actually reduce the absolute number of seats that a given state might get. See George G. Szpiro,
Numbers Rule
(2010), 119–133.

24
  The only drop of note occurred in 1842, when Congress passed an Apportionment Act shrinking the overall size of the House by about 5 percent and also obliging states to
elect representatives in single-member districts. Act of June 25, 1842, 5 Stat. 491. See Johanna Nicol Shields, “Whigs Reform the ‘Bear Garden’: Representation and the Apportionment Act of 1842,”
Journal Early Republic
5 (1985): 355. For more on the single-member-district issue, see Chapter 10, text accompanying nn. 19–20. For the 1911 statute, see Act of Aug. 8, 1911, ch. 5, 37 Stat. 13, 14. When Alaska and Hawaii became states, the number of representatives temporarily increased to 437, then dropped back to the traditional 435 after the next census. Note that a House of gargantuan size would foreclose the sort of face-to-face deliberation that the House was obviously intended to effectuate and would also eliminate the ability of individual House members to retain any status as national leaders. Why would House members ever agree to this form of institutional and personal disarmament? True, it is possible to imagine House members agreeing to a drastic shrinkage in House size so long as the shrinkage were to go into effect after a very long time delay—long enough so as not to disturb the hopes of most incumbents to secure indefinite reelection. But this delayed-shrinkage hypothetical suggests that a radical reduction in House size would operate more like a typical constitutional amendment—that is, as a long-term change designed for posterity rather than as a typical statute designed for immediate effect. For more on the classic time horizons applicable to constitutional amendments as distinct from ordinary statutes, see Chapter 12.

25
  In August 1937, Congress passed and FDR signed a law that did reform the federal judiciary in small ways, but nothing in the text of this law addressed the constitutional propriety of Court-packing. Act of Aug. 24, 1937, ch. 754, 50 Stat. 751.