Adopt A Box O’ Docs: John G. Roberts On Recess Appointments.
(Links to the box of documents that we are citing are directly below, as well as a link to the site to review them for yourselves. These are pdf files, and you must have Adobe Acrobat to read them. The first link is our box; the second is the site to review them, by box and subject.)
http://www.reagan.utexas.edu/roberts/Box47JGRRecessAppointments3.pdf
http://www.reagan.utexas.edu/roberts/
Let us start out by thanking Hugh Hewitt for giving us this chance to review the documents that have been made available to the Senate Judiciary Committee regarding the confirmation hearings of Judge John G. Roberts. This man has had a hand in quite a few subjects. We opted to pick the idea of recess appointments.
This box of documents had 23 pages to sort through. The first set of memos deals with how the president has the power to make recess appointments—whether he can if someone, a holdover, occupies the "vacant" seat. There is also a partial history of presidential recess appointments from Truman, Carter, and Reagan.
The only document within the box that seemingly comes from Judge Roberts is one regarding the Marine Mammal Commission; more appropriately whether a statute prohibited a recess appointment. Judge Roberts makes quick work of the question by stating: "The question practically answers itself. A mere statute cannot prohibit the president from exercising his constitutional power to make recess appointments." And he is correct. Nothing can prevent the president from making such an appointment.
Further, he adds that prior to 1982, such appointments were not made by the president. It was amended in 1982 making it to where "the Commission shall be composed of three members who shall be appointed by the President, by and with the advice and consent of the Senate." This, he contends, makes it to where the president may recess appoint a member to the commission. The dispute arose when then-Senator Bob Packwood contended that the rules change made it to where no recess appointment could be made to the Commission. As Judge Roberts pointed out, "To read a provision requiring Senate confirmation as implying an intent to bar recess appointments would mean all recess appointments would be prohibited.
Roberts was correct. He adds that no act of Congress can contravene this power of the president. It is within the Constitution under Article II, Section 2, Clause 3. It is one of the direct powers the president possesses. He also reassures Fred Fielding, whom he prepared the memo for, that the Justice Department does not agree with Senator Packwood.
There could be a point of contention with this memo when it comes to those Democrats on the Judiciary Committee, as he did come down against Senator Packwood. However, he is constitutionally correct. The president’s power to make recess appointments can’t be curtailed or prohibited in anyway. It is an enumerated power of the presidency—specifically spelled out within the Constitution. The president has this power, and with it, may bypass the Senate’s confirmation process when the Senate is out of session for longer than three days.
The following memo from Mr. Fielding to one Ms. Susan Borchard echoes what Judge Roberts wrote, and made it quite clear, as Thomas and I have, that the president’s power to make a recess appointment cannot be stopped through the enactment of a statute. It cannot overrule the Constitution. He even reminds Ms. Borchard that a recess appointment can only be made when a Senate confirmation is required. As the statute was amended in 1982, which required a Senate confirmation, the president had the right to exercise his duly-enumerated powers.
The remainder of the box deals with an issue regarding the Pay Act, which Judge Roberts had nothing to do with. As was the information previous to the memo he actually penned. In our educated opinion, there is nothing within this box of documents that could Roberts a single problem in his confirmation unless the Democrats wish to make an issue of a former member of their party had the door slammed on his idiotic notion of what is and isn’t an allowable recess appointment.
And as we stated above, Roberts makes short work of the notion through a reasoned and competent understanding of the Constitution; a decision that Thomas and I both agree with. The president’s powers to make a recess appointment cannot be taken away from him, provided the nominee must go through Senate confirmation. This is precisely what Judge Roberts asserted. He was correct. And so are we: There is nothing here that can hurt Judge Roberts.
In fact, I’d be surprised if the Democrats tried to hang their hat on this one. There are other subjects that are among these documents, and many of them are sure to come up. From abortion to pro-bono opinions and school prayer to the Supreme Court, itself. Plenty of subjects exist for the Democrats to pick him apart on. (And based on those that I have read already—this one included—they won’t have much to hang their hat on with any subject other than abortion.)
TY to Mr. Hugh Hewitt for allowing us to participate in this.
The Bunny ;) & Publius II
(Links to the box of documents that we are citing are directly below, as well as a link to the site to review them for yourselves. These are pdf files, and you must have Adobe Acrobat to read them. The first link is our box; the second is the site to review them, by box and subject.)
http://www.reagan.utexas.edu/roberts/Box47JGRRecessAppointments3.pdf
http://www.reagan.utexas.edu/roberts/
Let us start out by thanking Hugh Hewitt for giving us this chance to review the documents that have been made available to the Senate Judiciary Committee regarding the confirmation hearings of Judge John G. Roberts. This man has had a hand in quite a few subjects. We opted to pick the idea of recess appointments.
This box of documents had 23 pages to sort through. The first set of memos deals with how the president has the power to make recess appointments—whether he can if someone, a holdover, occupies the "vacant" seat. There is also a partial history of presidential recess appointments from Truman, Carter, and Reagan.
The only document within the box that seemingly comes from Judge Roberts is one regarding the Marine Mammal Commission; more appropriately whether a statute prohibited a recess appointment. Judge Roberts makes quick work of the question by stating: "The question practically answers itself. A mere statute cannot prohibit the president from exercising his constitutional power to make recess appointments." And he is correct. Nothing can prevent the president from making such an appointment.
Further, he adds that prior to 1982, such appointments were not made by the president. It was amended in 1982 making it to where "the Commission shall be composed of three members who shall be appointed by the President, by and with the advice and consent of the Senate." This, he contends, makes it to where the president may recess appoint a member to the commission. The dispute arose when then-Senator Bob Packwood contended that the rules change made it to where no recess appointment could be made to the Commission. As Judge Roberts pointed out, "To read a provision requiring Senate confirmation as implying an intent to bar recess appointments would mean all recess appointments would be prohibited.
Roberts was correct. He adds that no act of Congress can contravene this power of the president. It is within the Constitution under Article II, Section 2, Clause 3. It is one of the direct powers the president possesses. He also reassures Fred Fielding, whom he prepared the memo for, that the Justice Department does not agree with Senator Packwood.
There could be a point of contention with this memo when it comes to those Democrats on the Judiciary Committee, as he did come down against Senator Packwood. However, he is constitutionally correct. The president’s power to make recess appointments can’t be curtailed or prohibited in anyway. It is an enumerated power of the presidency—specifically spelled out within the Constitution. The president has this power, and with it, may bypass the Senate’s confirmation process when the Senate is out of session for longer than three days.
The following memo from Mr. Fielding to one Ms. Susan Borchard echoes what Judge Roberts wrote, and made it quite clear, as Thomas and I have, that the president’s power to make a recess appointment cannot be stopped through the enactment of a statute. It cannot overrule the Constitution. He even reminds Ms. Borchard that a recess appointment can only be made when a Senate confirmation is required. As the statute was amended in 1982, which required a Senate confirmation, the president had the right to exercise his duly-enumerated powers.
The remainder of the box deals with an issue regarding the Pay Act, which Judge Roberts had nothing to do with. As was the information previous to the memo he actually penned. In our educated opinion, there is nothing within this box of documents that could Roberts a single problem in his confirmation unless the Democrats wish to make an issue of a former member of their party had the door slammed on his idiotic notion of what is and isn’t an allowable recess appointment.
And as we stated above, Roberts makes short work of the notion through a reasoned and competent understanding of the Constitution; a decision that Thomas and I both agree with. The president’s powers to make a recess appointment cannot be taken away from him, provided the nominee must go through Senate confirmation. This is precisely what Judge Roberts asserted. He was correct. And so are we: There is nothing here that can hurt Judge Roberts.
In fact, I’d be surprised if the Democrats tried to hang their hat on this one. There are other subjects that are among these documents, and many of them are sure to come up. From abortion to pro-bono opinions and school prayer to the Supreme Court, itself. Plenty of subjects exist for the Democrats to pick him apart on. (And based on those that I have read already—this one included—they won’t have much to hang their hat on with any subject other than abortion.)
TY to Mr. Hugh Hewitt for allowing us to participate in this.
The Bunny ;) & Publius II
posted by Syd And Vaughn | 2:09 AM
3 Comments:
To the both of you: BRAVO!
You did a find evisceration of the information, and touched on the main point of the assignement, which was address the information directly connected to Roberts. I read this myself, through your link, and not only was Roberts correct, but so were the both of you.
The president has the right to make recess appointments--only on positions that must be confirmed by the Senate--and it can't be stopped by a mere act of legislation.
The other memos contained within the box are irrelevent to the issue he directly addressed. As for this memo, in particular, being a point of contention amidst the Democrats on the Judiciary Committee, that is a moot point. There is no controversy in this memo.
Mistress Pundit
To our beloved moderator:
TY very much for the kind words. We shall see the reception it receives.
We looked at the information in hand, focused on Roberts, and made a reasoned assessment of the issue he dealt with. You're correct that the other pieces within the box are visrtually irrelevent to the issue he dealt with directly.
This was not like the FDIC issue, which had someone sitting in a holdover position, and the Pay Act had nothing to do with the question presented regarding the Marine Mammals Commission. None of them had anything to do with the question of whether or not the statute Sen. Packwood was citing, nor his inadequate interpretation of it.
Publius II
Well written blog. Excellent work. The Constitution is clear and concise. Just a side light. If my memory serves me correctly Packwood would be what we today call a rino and a drunk in the Teddy mode. He was also a lawyer that apparently flunked Con Law. He was drummed out of the senate by no less than Boxer! He apparently thought being a senator gave him privileges. I am impressed with how quickly and concise Robert's answers a legal question. He right.
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