Recess appointments: Is the Pryor appointment constitutional?

Ted Kennedy has written to the sitting judges on the 11th Circuit and suggested they might consider this question sua sponte, before Judge Pryor sits on a panel that decides a case that is then challenged on the ground that Pryor's appointment was an unlawful exercise of the President's recess appointment power under Article II, section 2, para. 3. Here's some reading you can do on the subject:

Sen. Kennedy's letter to the court, with attached staff research memo.

The Library of Congress' Congressional Research Service (CRS) memo on all known intrasession recess appointments to Article III courts. It's happened 13 times before, but never during an intrasession recess that was nearly this short (10 days).

Lou Fisher's CRS memo from 2001 on recess appointments to Article III courts.

DOJ's Office of Legal Counsel has relatively few of its opinions on-line, but one of them -- an opinion written in 1992 -- is on this topic.

a 1948 opinion of the Comptroller General -- 28 Comp. Gen. 30 (requires WestLaw password) -- covers some of the same ground.

Another OLC opinion -- this one from 1979 -- on intrasession appointments. This one has some additional useful citations:

The question whether an intrasession recess of the Senate constitutes a recess within the meaning of Article II, Section 2, Clause 3, of the Constitution has a checkered background. Attorney General Knox ruled in 1901 that an adjournment of the Senate during the Christmas holidays, lasting from December 19, 1901, to January 6, 1902, was not a recess during which the President could make recess appointments. 23 Op. Att'y. Gen. 599 (1901). That interpretation was overruled in 1921 by Attorney General Daugherty, who held that the President had the power to make appointments during a recess of the Senate lasting from August 24 to September 21, 1921. 33 Op. Att'y. Gen. 20 (1921). The opinion concluded that there was no valid distinction between a recess and an adjournment . . . . The Attorney General, however, closed with the warning that the term 'recess' had to be given a practical construction. Hence, he suggested that no one 'would for a moment contend that the Senate is not in session' in the event of an adjournment lasting only 2 days, and he did not believe that an adjournment for 5 or even 10 days constituted the recess intended by the Constitution. He admitted that by 'the very nature of things the line of demarcation cannot be accurately drawn.' He believed, nevertheless, that:

the President is necessarily vested with a large, although not unlimited, discretion to determine when there is a real and genuine recess making it impossible for him to receive the advice and consent of the Senate. Every presumption is to be indulged in favor the validity of whatever action he may take. But there is a point, necessarily hard of definition, where palpable abuse of discretion might subject his appointment to review.

This opinion was cited and quoted with approval by the Comptroller General in 28 Comp. Gen. 30, 34 (1948), and reaffirmed by Acting Attorney General Walsh in 1960 in connection with an intrasession summer recess lasting from July 3, 1960, to August 15, 1960. 41 Op. Att'y Gen. 463 (1960). Presidents frequently have made recess appointments during intrasession recesses lasting for about a month.

There does not appeal to be a hard and fast rule that provides concrete guidance in all this. The older authorities seem to agree that a weekend adjournment of a couple of days is not a "recess" for purposes of II-2-3, and some of the functional factors that might decide the question are far from definitive:

Is the adjournment of such duration that the members of the Senate owe no duty of attendance? Is its chamber empty? Is the Senate absent so that it can not receive communications from the President or participate as a body in making appointments?
In this connection I think the President is necessarily vested with a large, although not unlimited, discretion to determine when there is a real and genuine recess making it impossible for him to receive the advice and consent of the Senate. Every presumption is to be indulged in favor of the validity of whatever action he may take. But there is a point, necessarily hard of definition, where palpable abuse of discretion might subject his appointment to review.

This issue isn't going away of its own accord . . . .

Blackmun redux.

NPR has collected all of its reports (by Nina Totenberg) on the release of Harry Blackmun's papers in one place, and packaged them with previous interviews and other materials.

PBS' NewsHour ran excerpts from Harold Koh's 38-hour oral-history interviews with Harry Blackmun.

Linda Greenhouse's two articles ran in the NY Times ran on Wednesday and Thursday last week.

Norval Morris dead at 80.

Norval Morris, an author whose Brothel Boy stories have played an important part in my Law, Literature and Medicine course for many years, has died at the age of 80. The best obituary on him so far was in The New York Times, but the difficulty of finding a stable link to that article has sent me to The Seattle Times, which ran the Times' obit in full. Morris was an extraordinarily gifted writer whose explorations of criminal responsibility and justice were original and entertaining.

A 'Full Range' of Bioethical Views Just Got Narrower (washingtonpost.com)

Tomorrow's Outlook section of the Washington Post has the following article by Elizabeth Blackburn, the recently fired member of the President's Council on Bioethics. (The link will only work for 14 days.) Other material on this story can be found here, here, and here.

NY Times' second installment on the Blackmun papers.

Discussed at SCOTUSblog. I will have a complete set of links this weekend.

Just when you thought you'd heard it all.

Ralph Blumenthal's article in today's NY Times is certainly making the e-mail rounds today. It's about a website that lists medical malpractice plaintiffs and can be accessed by physicians who might decide they don't want to provide medical care to someone who has sued a doctor or hospital in the past. The website, most of which is off-limits to nonmembers is here. I have to admit, when I read this article and saw the website, I was stunned at the venality of the thing.

Drug testing in third-world countries.

In an article in today's NY Times, Gina Kolata explores the ethical issues confronting pharmaceutical manufacturers who test drugs in second- and third-world countries.

Justice Blackmun's papers released.

Fascinating pieces at SCOTUSblog on the NY Times and NPR stories based on the about-to-be-released papers of Justice Harry Blackmun. Check out:

• NPR story 1
• NPR story 2
• NY Times stories
• full scripts for all the stories Nina Totenberg will be doing about the papers for NPR

Most excellent: U.S. Department of Faith's proposed Federal Marriage Amendment(s)

This is one great site. Have to see it to believe it.

More on the Bioethics Council firings.

Ordinarily Leon Kass could expect to find some support for his actions from the journal Reason (subtitled "Free Minds, Free Markets"), but not when it comes to his op-ed piece in the Washington Post this week: "Leon Kass Learns to Spin". Does the President's Council on Bioethics have a shred of credibility after this sorry affair? I don't think so, and that's a shame.

Federal Marriage Amendment (FMA): Outlook Cloudy.

Today's Washington Post has some encouraging tidbits if you share my lack of enthusiasm for the Bush-endorsed FMA. In a story about the politics of gay marriage, Alan Cooperman and Dana Milbank report:

In Washington, the Senate held a contentious hearing on whether to amend the Constitution to restrict marriage to the union of one man and one woman. Sen. John Cornyn (R-Tex.), who presided over the hearing, argued that defending 'society's bedrock institution' should be 'a bipartisan issue.' But Democrats were having none of it.

'This is a divisive political exercise in an election year, plain and simple,' said Sen. Russell Feingold (D-Wis.), the ranking minority member of the Judiciary subcommittee on the Constitution.

In a sign that the constitutional amendment endorsed by President Bush may be running into trouble on Capitol Hill, the Judiciary Committee's chairman, Orrin G. Hatch (R-Utah), is preparing to introduce wording that would leave the definition of marriage up to the states.

Congressional aides said that Hatch, while vowing to support the version of the amendment favored by Bush, has drafted language to appeal to conservatives concerned that Bush's version would intrude on states' responsibilities.

Bush last week announced his support for an amendment banning gay marriage, such as the text introduced by Rep. Marilyn Musgrave (R-Colo.) and Sen. Wayne Allard (R-Colo), which would define marriage as the union of man and woman. Hatch's proposal would allow each state legislature to define marriage as it chooses and to decide whether to recognize the standards of marriage allowed in other states.

If Orrin Hatch thinks the current version of the FMA will be a loser in the Senate, the administration would do well to sit up and listen. But don't expect much action on any version of the FMA until after the election. The real question for members of Congress from both major parties is how to tee up the issue so that they have an issue to run on while avoiding a vote that will commit them to a position before November. After the election, who knows? One thing is for sure: the biggest backer of the FMA in Washington (Bush) won't need the issue for his reelection, no matter what the outcome is in the presidential race.

Chairman Kass responds to charge that Bioethics Council deck is being stacked.

Leon Kass wrote a strong denial of the charge in a Washington Post op-ed today: "We Don't Play Politics With Science". Among other things, Dr. Kass spins the personnel shakeup as one that is based on neutral principles, but the spin doctor may have gotten out ahead of the facts on this one. For example, he writes that Bill May wasn't pushed off the Council: he had expressed a desire to leave. But the Baltimore Sun reported today "that it wasn't his choice to leave the council. Although he and the chairman often disagreed, May said, the two had a good relationship." Reading between the lines, it sure sounds like the White House got its panties in a knot and axed two members in order to put some avowedly pro-life members on in their place.

Rationing in America.

For those few Americans who still believe that rationing is what the health care systems in Canada and the UK do, but not us, a subscription to the Wall Street Journal would be a real eye-opener. The Journal's been running stories about health-care rationing in the US for the past 6 months and has them collected on the home page of its special health care edition. The titles include:

• Six Prescriptions to Ease Rationing
12/22/03

• Universal Care Has a Big Price: Patients Wait
11/12/03

• Longer Dialysis Raises Hopes, but Poses Dilemma
10/02/03

• Stark Choices at a Texas Hospital
09/23/03

• Lilly Fuels Debate Over Rationing
09/18/03

• An Invisible Web of Gatekeepers
09/16/03

• Health Care's Big Secret: Rationing Is Here
09/12/03

Bush Ejects Two From Bioethics Council.

The President's Council on Bioethics lost two members yesterday and gained three, but in the process it lost *any* credibility it had as a source of public policy formulation. As reported in the Washington Post this morning, Bill May (my colleague here at SMU for the better part of 20 years, before his semi-retirement to Virginia last year) and Elizabeth Blackburn got their walking papers from the White House personnel office yesterday, presumably because of their outspokenness on the issue of stem-cell research, though the Post article mentions "[May's] views on . . . other topics had also run counter to those of conservative council members." You have to wonder whether his public comments lambasting the administration's Medicare prescription drug reform sealed his fate.

There are still a handful of excellent people on the Council, including Dan Foster from UT-Southwestern Medical Center here in Dallas. Like Bill May, Dan is someone whose learning and judgment I hold in the highest regard. But, frankly, a pink slip from this White House should be regarded as a badge of honor. It's all about politics all the time, isn't it, Karl?

U.S. to launch year-long study of prescription drug imports from Canada.

Ordinarily this would be good news. The FDA has been implacable in its opposition to such imports, so a study ought to provide a basis for reevaluation of their position, perhaps leading to the development of safety-related guidelines, or with more permissive rules for certain classes of drugs. But the headlines in today's papers tell a slightly different story, because the head of the study is Mark McClellan, the president's nominee to head CMS, current FDA Administrator, and the point man in the administration's very public drive to squelch imports. In the N.Y. Times, both aspects of the story appear in their headline: "U.S. to Study Importing Canada Drugs but Choice of Leader Prompts Criticism". The San Diego Union-Tribune's headline over the A.P. story wasn't nearly as balanced: "Foe of drug imports to lead study of the issue". In a presidential election year, every move by the administration is subject to scrutiny and evaluation for its political content. This decision, however, defies ready explanation. As obviously talented as Mark McClellan is, he is not the right person for this job. Putting him in charge of the study makes it look like this will be a worthless effort to shore up our existing anti-importation policy. And who gets hurt by this policy? In large numbers, retirees whose votes the administration was cultivating with their disastrous Medicare reform law.

Mary Ann Glendon on the Federal Marriage Amendment.

In today's Wall Street Journal there's an op-ed piece (requires paid subscription) by Harvard Law professor Mary Ann Glendon in support of the federal marriage amendment. It begins, "President Bush's endorsement of a constitutional amendment to protect the institution of marriage should be welcomed by all Americans who are concerned about equality and preserving democratic decision-making." She argues that same-sex marriage:

• constitutes "a bid for special preferences of the type our society gives to married couples for the very good reason that most of them are raising or have raised children";
• will be enormously expensive (in terms of retirement and health benefits);
• creates "a real problem of distributive justice";
• will impair the rights of children;
• means that "[i]n marriage-preparation and sex-education classes, children will have to be taught about homosexual sex";
• is a threat to religious freedom;
• and contributes to a "flagrant disregard shown by judges and local officials for the rights of citizens to have a say in setting the conditions under which we live, work and raise our children."

These are bare conclusions, and she has her reasons for each one. Her reasoning is worth considering, even if you find it unpersuasive.

McCain threatens to stall CMS head.

The Hill is reporting that Mark McClellan's nomination, which would move him from his current position as FDA Administrator to head of the Centers for Medicare and Medicaid Services, may be held up by Sen. John McCain unless McClellan starts answering McCain's questions about the FDA's intransigence on the issue of prescription drug imports from Canada. McCain, whose relationship with the Bush administration is strained at best, says he wouldn't necessarily put a hold on the nomination. Part of the problem may be Senatorial pique: McClellan was a no-show on two occasions when invited to the Hill to defend the FDA's anti-importation stance.

But Robert Pear is reporting in Wednesday's N.Y. Times that Sens. Byron Dorgan (D.-N.D.) and Debbie Stabenow (D.-Mich.) are considering holds of their own until they get some satisfaction from McClellan on the FDA's position.

Constitutional conundrum.

President Bush today threw his support behind a constitutional amendment that would make it clear that "marriage" can only be between one man and one woman. Here are his remarks:

Thank you. Please be seated. Good morning. Eight years ago, Congress passed, and President Clinton signed, the Defense of Marriage Act, which defined marriage for purposes of federal law as the legal union between one man and one woman as husband and wife. The act passed the House of Representatives by a vote of 342-67 and the Senate by a vote of 85-14.

Those congressional votes, and the passage of similar defense of marriage laws in 38 states, express an overwhelming consensus in our country for protecting the institution of marriage. In recent months, however, some activist judges and local officials have made an aggressive attempt to redefine marriage. In Massachusetts, four judges on the highest court have indicated they will order the issuance of marriage licenses to applicants of the same gender in May of this year.

In San Francisco, city officials have issued thousands of marriage licenses to people of the same gender, contrary to the California Family Code. That code, which clearly defines marriage as the union of a man and a woman, was approved overwhelmingly by the voters of California. A county in New Mexico has also issued marriage licenses to applicants of the same gender. And unless action is taken, we can expect more arbitrary court decisions, more litigation, more defiance of the law by local officials, all of which adds to uncertainty.

After more than two centuries of American jurisprudence and millennia of human experience, a few judges and local authorities are presuming to change the most fundamental institution of civilization. Their actions have created confusion on an issue that requires clarity. On a matter of such importance, the voice of the people must be heard.

Activist courts have left the people with one recourse. If we're to prevent the meaning of marriage from being changed forever, our nation must enact a constitutional amendment to protect marriage in America.

Decisive and democratic action is needed because attempts to redefine marriage in a single state or city could have serious consequences throughout the country. The Constitution says that full faith and credit shall be given in each state to the public acts and records and judicial proceedings of every other state.

Those who want to change the meaning of marriage will claim that this provision requires all states and cities to recognize same-sex marriages performed anywhere in America. Congress attempted to address this problem in the Defense of Marriage Act by declaring that no state must accept another state's definition of marriage. My administration will vigorously defend this act of Congress. Yet there is no assurance that the Defense of Marriage Act will not itself be struck down by activist courts.

In that event, every state would be forced to recognize any relationship that judges in Boston or officials in San Francisco choose to call a marriage. Furthermore, even if the Defense of Marriage Act is upheld, the law does not protect marriage within any state or city.

For all these reasons, the defense of marriage requires a constitutional amendment. An amendment to the Constitution is never to be undertaken lightly. The amendment process has addressed many serious matters of national concern, and the preservation of marriage rises to this level of national importance. The union of a man and woman is the most enduring human institution, honored and encouraged in all cultures and by every religious faith. Ages of experience have taught humanity that the commitment of a husband and wife to love and to serve one another promotes the welfare of children and the stability of society.

Marriage cannot be severed from its cultural, religious and natural roots without weakening the good influence of society. Government, by recognizing and protecting marriage, serves the interests of all.

Today, I call upon the Congress to promptly pass and to send to the states for ratification an amendment to our Constitution defining and protecting marriage as a union of a man and woman as husband and wife.

The amendment should fully protect marriage, while leaving the state legislatures free to make their own choices in defining legal arrangements other than marriage. America's a free society which limits the role of government in the lives of our citizens. This commitment of freedom, however, does not require the redefinition of one of our most basic social institutions.

Our government should respect every person and protect the institution of marriage. There is no contradiction between these responsibilities. We should also conduct this difficult debate in a matter worthy of our country, without bitterness or anger. In all that lies ahead, let us match strong convictions with kindness and good will and decency

First, has the president thrown his support behind the constitutional amendment currently pending before before both houses of Congress (S.J. Res. 26; H.J. Res. 56)? I don't believe so. It provides:

SJ 26 IS

108th CONGRESS

1st Session

S. J. RES. 26

Proposing an amendment to the Constitution of the United States relating to marriage .

IN THE SENATE OF THE UNITED STATES

November 25, 2003

Mr. ALLARD (for himself, Mr. BROWNBACK, Mr. SESSIONS, Mr. BUNNING, and Mr. INHOFE) introduced the following joint resolution; which was read twice and referred to the Committee on the Judiciary

--------------------------------------------------------------------------------

JOINT RESOLUTION
Proposing an amendment to the Constitution of the United States relating to marriage .

Resolved by the Senate and House of Representatives of the United States of America in Congress assembled (two-thirds of each House concurring therein), That the following article is proposed as an amendment to the Constitution of the United States, which shall be valid to all intents and purposes as part of the Constitution when ratified by the legislatures of three-fourths of the several States within seven years after the date of its submission by the Congress:

`Article--

`Marriage in the United States shall consist only of the union of a man and a woman. Neither this Constitution, nor the Constitution of any State, nor State or Federal law, shall be construed to require that marital status or the legal incidents thereof be conferred upon unmarried couples or groups.'.

As I read it, the amendment would ban same-sex marriage and civil union statutes such as Vermont's, and Bush said the amendment should "leav[e] the state legislatures free to make their own choices in defining legal arrangements other than marriage." But who knows? Maybe the president's call for an amendment will end up prohibiting civil unions, as well, whether he intends that result or not.

Second, is such an amendment a good thing or a bad thing for federalism? Is this an example of the federal government taking control of a state-law issue and shoving a single, one-size-fits-all answer down the throats of all 50 states? Or is this an example of appropriate federal protection for a social norm that has broad majority support at the state level? On the federalism point, it's been argued that there will be a federal answer sooner or later, either from the Supreme Court (interpreting the due process clause (Vth and XIVth Amendments) or the equal protection clause (XIVth Amendment) or from an amended constitution, so what's really wrong with the president jumping in there with a constitutional amendment before the issue gets to SCOTUS? But that argument gives away too much. Certainly one federalist response to the Massachusetts Supreme Judicial Court and to San Francisco's mayor would be to say that the federal constitution doesn't speak to these issues at all, so it's up to each state to figure out what its marriage rules should be. Another federalist response, if Bush cared at all about state's rights, would be a call for an amendment that put the Defense of Marriage Act (i.e., "no state is required to recognize a same-sex marriage that is legal in another state") into the constitution and leave it at that. But Bush's call is much broader than that.

Third, wouldn't Bush's amendment be a Romer-like statement of political animus against a group of citizens without parallel in our federal constitution since the repeal of Article I, sec. 2, cl. 3 by the XIVth Amendment? Put otherwise, I never thought I'd live to see a President of the United States propose a constitutional amendment that was so blatantly bigoted and discriminatory.

Do physicians have a duty to treat during epidemics?

I recently wrote (in an editorial for the Pediatric Infectious Disease Journal) that they do, but not beyond the point where heroism turns into martyrdom. There's a nice piece on the web site of the American Journal of Bioethics by Samuel Huber and Matthew Wynia that reaches about the same conclusion but develops the historical, social, and ethical themes at greater length than I did in my short piece. Here's the abstract:

The threat of bioterrorism, the emergence of the SARS epidemic, and a recent focus on professionalism among physicians, present a timely opportunity for a review of, and renewed commitment to, physician obligations to care for patients during epidemics. The professional obligation to care for contagious patients is part of a larger "duty to treat," which historically became accepted when 1) a risk of nosocomial infection was perceived, 2) an organized professional body existed to promote the duty, and 3) the public came to rely on the duty. Physicians' responses to epidemics from the Hippocratic era to the present suggests an evolving acceptance of the professional duty to treat contagious patients, reaching a long-held peak between 1847 and the1950's. There has been some professional retrenchment against this duty to treat in the last 40 years but, we argue, conditions favoring acceptance of the duty are met today. A renewed embrace of physicians' duty to treat patients during epidemics, despite conditions of personal risk, might strengthen medicine's relationship with society, improve society's capacity to prepare for threats such as bioterrorism and new epidemics, and contribute to the development of a more robust and meaningful medical professionalism.

The full piece is well worth reading . . .

Sierra Club files motion with full Court to have Scalia recused from Cheney's case.

The Sierra Club has taken the unusual, and usually futile, step of filing a motion with the full Court to get Justice Scalia recused from the Cheney case based upon his January duck-hunting trip with the Vice President, according to an Associated Press article filed by Gina Holland. It's unusual because the Supreme Court's Rule 21 -- which Sierra presumably invoked -- governs motions to the Court, while recusal motions are traditionally handled with a motion to the individual justice pursuant to Rule 22. The existence and rationale for this tradition are covered well today in Goldstein Howe's SCOTUSblog, and as recently as January 26th, CNN reported that Chief Justice Rehnquist dismissed senators' calls for recusal as "ill considered": "'It has long been settled that each justice must decide such a question for himself,' he said, although he added that justices often consult among themselves when such issues are raised."

Sierra Club hires savvy lawyers who know the odds. They have to know that the Court is not going to grant their motion and is likely not even to consider it on its merits. And despite the public comments of Scalia himself (at Amherst College on Feb 10: "It's acceptable practice to socialize with executive branch officials when there are not personal claims against them. That's all I'm going to say for now. Quack, quack."), SC must be thinking that Scalia will surely bow to the rising tide of calls for him to recuse himself (unlikely), and failing that, that the full Court will "consult among themselves" -- including Justice Scalia -- on the subject. (And never let it be said that the Sierra Club's motives are pure. They desperately want Scalia out of the case because they predict his will be a vote against their likely position on the merits, which has less to do with the National Energy Policy Cheney produced than it does the process by which the policy was developed and the authority of the federal district court to compel the Vice President to comply with discovery requests concerning that process.) As much as Scalia would not want to appear to be bowing to public pressure to bow out, he could change his mind for the good of the Court, and no one would think any less of him.