Monday, August 01, 2005

Executive Power Flexes its Muscle

Bush installed Bolton as U.N. Ambassador, over the Senate's refusal to vote on the matter. I may have been too squeamish in backing down from reader "Ignatius Loyola" who admonished me for defending the executive's authority to view the Senate's refusal to vote as an obstruction which executive power had the authority to overcome. Bush's argument that "this post is too important to leave vacant any longer, especially during a war and a vital debate about UN reform" is a strong one.


Blogger Ignatius Loyola said...

John, you would have to re-post your original thoughts, and mine, in order for me to respond to the exact details of your post today.

But it seems to me that there is nothing wrong with a "recess appointment," constitutionally speaking; although, of course, this sort of thing could hardly be deemed to be in line with the "original intent" behind the provision for such appointments. But with the unpopularity of the Federalist Society these days, one can see the need to dispense with overt obeisance to original intent.

Bush and Frist were unable to bring to the Senate to a vote on Bolton's nomination. That is, ultimately, the political and constitutional failure of this appointment. Nothing can change that.

Now, in most instances, and for whatever intra-congressional reason (John Tower, Bill Weld, James Hormel come to mind) such nominations are quickly dispensed with. That is, the nomination is withdrawn. And for good reason -- in order to be an ambassador, one needs to be approved by the Senate. It's right there, right in the text. So, Bolton shall be our "recess ambassador." A placeholder.

Bush has his political reasons for appointing Bolton in the absence of consent (and, as I say, the possibility of such an absence of consent is clearly provided for) but one could hardly run a government this way. Nor do these recess appointments offer an alternative to actually procuring a majority Senate vote for ambassadorships, cabinet posts, and the like, in the future.

Perhaps a real test of executive Macht would be to appoint Bolton to the post permanently, sans anyone's consent, rather than waiting for the next Congress to grant its approval (which, of course, is already the problem). That would be muscle -- dispensing with the other branch altogether. No more waiting around until 2007; we're at war.

Using a mechanism already provided for within the Constitution hardly seems (aside from the swagger and posturing involved) precedent-setting, nor does it seem -- to me -- to add anything to the powers of the presidency, except to reveal the intransigence of particular administrations.

1:17 PM  
Blogger John Coumarianos said...

This comment has been removed by a blog administrator.

11:05 PM  
Blogger John Coumarianos said...

OK, Iggy, a recess appointment isn't exactly over-the-top "macht", though U.N. Ambassador isn't a chump position. Anyway, it gets the job done. It forces the Senate to vote next time or have the pick shoved down their throat. I doubt Bolton would leave in the absence of a down vote.

I'm not sure the inability to get a vote the first time is a "political and constitutional failure." Or, if it is, it's the Senate's failure. As for not being able to run a government this way, I wouldn't underestimate executive power so much. Let's face it, fillibustering at every turn isn't exactly the way to run a government either.

If you hope for a constitutional decision, let's begin by having the Democrats respect the fact that the Republicans have a majority in the Senate by virtue of winning more elections. If the Democrats wish to rule, let them win more elections instead of using a pseudo-constitutional device to hijack the confirmation process.

I should have saved the original exchange. Sorry about that.

11:15 PM  
Blogger Ignatius Loyola said...

Those are all good points, John. I do wonder what might occur if the next president, following the 2006 elections, tried to re-nominate Bolton for the position (highly unlikely, considering who that president will be), with a similarly constituted Senate balance.

"It forces the Senate to vote next time or have the pick shoved down their throat. I doubt Bolton would leave in the absence of a down vote."

He, along with his mustache, would be shipped back to New York again via recess appointment, most likely.

But, let's say the Republicans win a 60-plus majority in the Senate by virtue of election. That would solve the problem for at least two years; they would have, via the electoral process, solved the filibuster dilemma. Until that time, it seems completely reasonable to use the rules of the Senate to whatever ends one deems necessary. Or to change the Senate's rules.

I think our dispute comes down to the role of the Senate. I can't see it as a majoritarian body. At all. There's no need for a particular senator to worry one whit about whether or not the institution is heeding the will of a majority (whether that of the Senate or the country as a whole).

If I were a Senator -- which seems unlikely at this time -- I would feel no need to respect any sort of majority, taking into consideration the purpose of the institution as intended by the framers. It is perfectly designed (though there's been some tinkering) to forestall majoritarian pressures from the House and the public -- this was demonstrated quite beautifully during the impeachment process. And I've written before about "holds" and the intra-institutional devices giving individual senators highly anti-majoritarian (not to mention anti-democratic) power within the Senate.

There's nothing earth-shattering about that, naturally, but I'm just trying to describe some of the ground on which I'm standing here: a filibuster *is* a constitutional decision.

I am reconsidering the username "Ignatius Loyola," by the by. If there ever was a proponent of executive fiat, it was Ignatius.

6:36 PM  
Blogger Jacob Golbitz said...

So Ignatius, as you imply some knowledge of this the rest of us lack, who will the next president be?

11:42 AM  
Blogger Ignatius Loyola said...

Kein Wissen, nur eine Voraussicht, dass diese dynastischen Kriege weitermachen werden.

I'm not going to say more than that. You know of whom I speak.

3:25 AM  

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