Marty Lederman has an essay on Jack Balkin's page arguing that the recess appointment of John Bolton as our Ambassador to the UN is unconstitutional, as are almost all such appointments made not just by Bush but by Clinton and most presidents before him. I fully agree with him. Lederman authored several briefs for a case brought against the recess appointment of Judge William Pryor and his briefs are right on the money, in my view. The Recess Appointments clause says that 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." There are two reasons why the Bolton appointment, and most others, violates the original understanding of this clause.
First, because the phrase "may happen" clearly refers to vacancies that happen while the Senate is not in session to get a replacement confirmed, not to vacancies that were already there but where the nomination likely wouldn't be confirmed. The clause is intended to provide for the smooth functioning of government during a time when the Senate was not in session year round as it is now, not to provide a way around the need for Senate confirmation.
Second, because "recess" was intended not to refer to any time the court adjourns (which could include weekends and holidays as well) but only to that time between actual sessions of Congress. This was the standard interpretation from the time of the Constitution until 1901. The Constitution uses the term "adjournment" to refer to brief periods of time within sessions, demanding that the term "recess" be limited to the time between sessions.
There is much more to be said on this, but I agree with Lederman that such appointments are unconstitutional whether one looks at the original understanding, the text and structure of the constitution, or the purpose for which the provision exists.
But does it matter?
Is there a remedy?
Unlike a piece of legislation where a court has authority to decide and rule, is this interpretation not a political question? If so only Congress can decide and they may say "yes' today and "no tomorrow.
But does it matter? Is there a remedy? Unlike a piece of legislation where a court has authority to decide and rule, is this interpretation not a political question?
Actually, this is a judicial matter. The courts can overrule executive actions as well as legislation (Marbury v Madison, the first instance of judicial review, was such a case). Will they? I doubt it. But that doesn't stop me from giving my opinion on it.
If the present interpretation were correct, the President could avoid a confirmation fight by simply waiting until the Senate adjourned for the weekend, and making his appointment on Saturday.
As Mr. Lederman points out, these appointments are unlikely to be justiciable.
"Let us be realistic about the U.N. It has served our purposes from time to time; and it is worth keeping alive for future service. But it is not worth the sacrifice of American troops, American freedom of action, or American national interests."
- John Bolton, from the 1997 Cato Institute Tract Delusions of Grandeur.
Does anyone have a legal theory under which this can be brought before a court?
From a political standpoint, it doesn't really matter. The mere fact that the Bush administration nominated Bolton was a literal "f--k you" to the "international community," whose assistance the US needs now that it has gotten itself bogged down in Iraq.
It would sincerely be hilarious, if it wasn't so sad.