On Recess Appointments
Ramesh Ponnuru’s “Obama vs. the Constitution” (September 10) is absolutely appropriate for consideration by intelligent voters come November 6. However, I believe he was imprecise in describing the recess-appointments power of the president.
Specifically, Mr. Ponnuru, in commenting on the four recess appointments that President Obama made on January 4, 2012, three to the National Labor Relations Board and one to the Consumer Financial Protection Bureau, cites the president’s power as arising “when the Senate is not in session to provide its advice about and consent to his nominations.” But that summary misses the mark when, as in the case of these four appointments, the positions were empty before the Senate went into recess.
The Constitution gives the president the “power to fill up all Vacancies that may happen during the Recess of the Senate” (emphasis added). The four vacancies in question did not happen during the recess; the positions were vacant before the Senate ever convened. The CFPB position, being new, had never been filled.
As I see the matter, a first order of business for (hopefully) a new Republican Senate in 2013 is a return to the original understanding of the recess-appointments power, so that these constant battles (games?) about whether the body is in recess can be made rare events, given the rarity itself of an already-filled position’s becoming vacant during what appears to be a recess of the Senate.
Winter Park, Fla.
Ramesh Ponnuru Replies: Michael Rappaport, a professor at the University of San Diego School of Law, has argued that the original meaning of the recess-appointment clause allows the president to fill only those vacancies that arise between Senate sessions. Under this interpretation, the president’s power is very limited, and almost all modern uses of it have been unconstitutional. I think Rappaport’s argument has real force. Even on the more expansive modern understanding, however, President Obama’s use of the power was an abuse. If Rappaport’s theory is correct, it is merely a further and worse abuse of the power.
A Dose of Free Speech
In “Scholars with Spine” (August 27), Jay Nordlinger mentions Princeton-in-Beijing, an intensive summer Mandarin course held in China’s capital. Nordlinger suggests that, after China stopped giving visas to Perry Link, a co-founder of the program, in retaliation for his translation and publication of documents relating to the Tiananmen Square massacre, Princeton might have relocated the course to Taiwan. Indeed it might have, and perhaps it should have. But there is a small consolation. I attended Princeton-in-Beijing in the early 2000s and can report that the course materials included a number of Chinese newspaper articles and editorials on politically sensitive issues. The program’s director, a Taiwanese man, said this was good for language-learning: Students were more likely to take an interest if the topics were controversial. It seemed clear, however, that another of his motives was to expose the Chinese instructors to criticisms of their government — the inevitable outcome, since students often dissented from Beijing-approved views. He also invited victims of oppression during the Cultural Revolution — for example, the son of a famous poet — to speak to the students and teachers about their memories of that time.