George Bush and the Creative Demolition of the Constitution

by shamanic

As Cernig wrote yesterday, the Constitutional issues surrounding the recess appointment of Sam Fox as Ambassador to Belgium are growing. Raw Story posted a letter sent by Sens. Dodd, Kerry, and Casey to the Government Accountability Office asking for clarification on the statutory issues involved, but the inherent issue here is the authority invested by the Constitution in the office of the President, and the intentional, reckless misuse of that authority by the man who currently occupies that office.

The Constitution is quite clear on the authority it gives the president. From Article II, Section 2:

...and he [the President] shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for...

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.

Call me crazy, but it seems like the answer here is for the congress to define "recess" in statute. Indeed, it seems as though the term itself has been the cause of much discussion between presidents and their attorneys general, but unlike President Bush, most presidents' attorneys general have been marginally independent.

George Bush is, ironically enough, a man who lives and dies by the definitions of words. His administration has coined new terms to keep plenty of things beyond the reach of commonly accepted legal norms (enemy combatant, detainee), so it seems that the clearest solution would be for congress to legislate a definition of "recess" that is responsive both to potential executive abuse of power and the constitution's wise recognition that posts may have to be filled in the Senate's absence.

After all, the congress doesn't generally work on Sundays. Technically, there's no reason that George Bush couldn't make recess appointments every week, skipping the Senate entirely. Decency, comity, and a sense of duty to the nation certainly won't bound his behavior. It's long past time for the Congress to do so. We have a president who thinks nothing of precipitating constitutional crises. Rein him in.