Who Else Wants a Recess Appointment (Or: How to Pay Your Bolton)

by Mike on 11/15/2006

in Best of Release, Mob Rule, Perpetual Beta : Release

In the wake of the elections it is now apparent that, even insulated from any potential electoral consequences, the outgoing Senate majority – of the President’s own party – will not even give him the courtesy of an up-or-down floor vote on John Bolton, the President’s nominee for U.N. Ambassador. This has more to do with the arcane rules governing the Senate than it does any act of political will, but I have no doubt that Senator Frist and his Republican colleagues could, if they really wanted to, get Bolton to the Senate floor. (For example, by replacing Lincoln Chafee on the Senate Foreign Relations Committee.)

In the wake of that failure by the Senate to even take a vote on whether or not they want to confirm Bolton, the President has limited options. He seems to really want Bolton to be his man, and the past year Bolton has served in that post by recess appointment have belied Bolton’s critics and pleased his supporters. If the President wants to keep Bolton at the helm after his current appointment expires this year, he has two options: designate Bolton as “acting” Ambassador or give Bolton a second consecutive recess appointment.

The first question has been discussed more thoroughly elsewhere; as a lawyer I was drawn to the issue of consecutive recess appointments. The Constitution does not expressly address the issue, and prior to the mid-1800’s, the practice was not unheard of. But the widely-reported catch to a second appointment is that Bolton cannot be paid out of the U.S. Treasury. (Apparently, such folks don’t qualify for a “living wage.”)

Some folks advocate paying Bolton out of private funds. But like the good patriots over at TPMCafe, I’ve conducted a legal study and in my opinion, that would be totally unnecessary. If the President wants Bolton as his man, and the Senate won’t give him an up or down vote, he has some very powerful options.

First, let’s look at the law in question, Title 5, Section 5503 of the United States Code. It says that:

Payment for services may not be made from the Treasury of the United States to an individual appointed during a recess of the Senate to fill a vacancy in an existing office, if the vacancy existed while the Senate was in session and was by law required to be filled by and with the advice and consent of the Senate, until the appointee has been confirmed by the Senate.

This is the provision widely mentioned by the media and our anti-Bolton patriot friends. But the statute does not end there; it goes on to say:

This subsection does not apply—

(1) if the vacancy arose within 30 days before the end of the session of the Senate;

(2) if, at the end of the session, a nomination for the office, other than the nomination of an individual appointed during the preceding recess of the Senate, was pending before the Senate for its advice and consent; or

(3) if a nomination for the office was rejected by the Senate within 30 days before the end of the session and an individual other than the one whose nomination was rejected thereafter receives a recess appointment.

If the President can trigger one of these three exceptions, he can appoint Bolton to a second recess appointment and even pay him for his work. The first exception doesn’t apply here, since the vacancy has existed for some time now. But what about two and three? Neither of them apply now, because they require the President to appoint someone other than Bolton to fill the vacancy first.

Well, we know the Senate’s not going to confirm Bolton. Why not withdraw that nomination and put someone else forward? If the President does this less than 30 days before the end of session, one of three things happens:

1. The session ends with an appointment pending. Exception two applies and Bush can use a recess appointment for Bolton with full pay.

2. The Senate rejects the nominee, within 30 days before the end of the session. Exception three applies and a reappointed Bolton gets paid.

3. The President’s other nominee gets confirmed.

No matter how you slice it, the President wins. Legally speaking, the President could use this technique at the end of every session where the Senate has refused to act on a nomination, and keep every vacancy filled until the end of his term. This technique could not only be used to get the President’s picks in the their slots, it could also be used as a tactic to induce the Senate to give a nominee an up-or-down vote. As long as the actual nominee is more palatable to the Senate than the prospective recess appointment (imagine U.S. Ambassador Robert Bork), the Senate would be under pressure to move expediently on the pending nomination, and by confirming the more palatable nominee eject the unpalatable recess appointment. Properly used, in the long term this technique could be a powerful antidote to the Senate’s structural tendency towards inaction. And in the short term, it could keep John Bolton in the U.N. and keep him in the money.

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