- The Washington Times - Thursday, August 10, 2000

President Clinton's recess appointment of Bill Lann Lee is a direct assault on America's constitutional foundation. It is another, even more flagrant, abuse of power, and it's about time Congress does something about it.

Everyone knows that Mr. Clinton stokes racial animosity to achieve political goals, all while trying to soothe us with talk of "one America" and reconciliation. If that's being a "new" Democrat, so be it. But Americans have to draw the line when Mr. Clinton undermines constitutional rule.

By separating the federal government's power into three branches, the Constitution does not allow any of them to get everything they want. While the president may nominate individuals to important positions, actually appointing them requires Senate approval. The Senate is a "check and balance" on the president's power. As the Supreme Court said in 1991, this system exists "to ensure protection of our fundamental liberties."

The one exception to the Constitution's requirement of Senate consent allows the president "to fill vacancies that may happen during the recess of the Senate, by granting commissions which shall expire at the end of their next session." The reason for this very narrow exception is obvious. In the early days of the republic, Senate sessions were shorter and recesses longer. Vacancies occurring during a recess could take months to fill.

Thus, America's Founders provided for an emergency mechanism to fill vacancies that occur during recesses, lifting the formal consent requirement but limiting length of service.

On Aug. 3, Mr. Clinton used this mechanism to appoint Mr. Lee to be assistant attorney general for civil rights. Even for a president known for abusing his power, this was particularly egregious for several reasons.

First, Mr. Clinton's move violates the plain language of the Constitution, which only allows presidents to avoid Senate confirmation when filling vacancies "that may happen during the recess of the Senate." Even Mr. Clinton, who can be definitionally challenged, should know what that means. The civil rights post at the Department of Justice did not become vacant during a Senate recess.

Second, Mr. Clinton's move violates even the spirit of the Constitution. The Senate has chosen not to consent to Mr. Lee's appointment. In fact, it was Judiciary Committee Democrats who blocked a committee vote on the nomination because they knew it would not be approved. Who could possibly think that a specific emergency exception to the Senate confirmation rule could be used simply to avoid the Senate confirmation rule altogether? This makes a mockery out of the Constitution's system of checks and balances.

Third, Mr. Lee has been in the very position to which he has been recess-appointed for more than two years. That's right Mr. Clinton did not need to make an unconstitutional recess appointment to install Mr. Lee because he already had installed him. Mr. Lee has been the "acting" assistant attorney general since December 1997. Why would Mr. Clinton take this unconstitutional step, if not to install the person he wanted? To make the political equivalent of an obscene gesture at the Republican Congress and to further stir the pot of racial division.

Fourth, this is not the first unlawful gimmick Mr. Clinton has used to keep Mr. Lee in power. The Vacancies Act is a statute with the same purpose as the Constitution's recess appointment clause: temporary appointment of certain officials under specific circumstances to ensure that government can function while the ordinary constitutional appointment process continues. It allows appointment to an "acting" position of only two categories of individuals, the immediate subordinate of the position or some other official who had been confirmed by the Senate. Since Mr. Lee fit neither of these categories, he was unlawfully appointed and has been unlawfully serving.

When statesmen governed America, they cared first about protecting the constitutional fundamentals. Today, the politicians who run the country care only about partisan political goals. In 1868, Congress impeached President Andrew Johnson for appointing someone without Senate consent. The Senate did nothing when Mr. Clinton unlawfully appointed Mr. Lee to his "acting" status. But the Senate must now take action in the face of Mr. Clinton's unconstitutional recess appointment.

Senators each took an oath before God to preserve, protect and defend the Constitution. To keep that oath, they must impose consequences for flagrant constitutional violations. And the consequences must fit the violation. Since Mr. Clinton has so abused his constitutional appointment power, the Senate should refuse to facilitate any further exercise of that power.

Democrats will play the race card and lie about vacancies. They will howl about how nominees are treated and whine about obstruction. Senate Republicans should tell them that 46 percent of the federal judiciary is more than Mr. Clinton should have been allowed to appoint in the first place. Senate Republicans should say that the ends do not justify the means and that if Mr. Clinton will not honor his oath of office, they must honor theirs. Confirmations must stop.

Thomas L. Jipping is director of the Free Congress Foundation's Judicial Selection Monitoring Project.

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