In researching the constitutional crisis precipitated by George Bush’s claim to absolute power under the Commander in Chief language of the first clause of Article II, Section 2 of The Constitution of the United States of America:
Sect. 2. The President shall be Commander in Chief of the army and navy of the United States, and of the militia of the several states, when called into the actual service of the United States;
I began reading the Memorandum Opinion For The Deputy Counsel To The President regarding The President’s Constitutional Authority To Conduct Military Operations Against Terrorists And Nations Supporting Them authored by John C. Yoo, Deputy Assistant Attorney General, Office of Legal Counsel.
I have more reading to do on this…
… and the United States Signal Intelligence Directive 18 but during my reading of Mr Yoo’s opinion I noticed that he referenced Federalist #’s 23, 25, 70, 74, and 34 as part of the basis for his assumptions.
So I dusted off my copy of the Federalist papers (more reading to do there too). Federalist’s # 41-46 deal with powers with 41 specifically focusing on Military Powers. Federalist’s # 67 -77 however, deal with the Executive so I started there.
As I said, I’ve more research to do but I just wanted to throw out this little tidbit regarding Vacancies and Recess Appointments, as well as the Advice and Consent clause, as these are similar issues by which the Bush administration has attempted to establish absolute power in the Executive branch.
Article II, Section 2, states in part:
… and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise proved for, and which shall be established by Law; but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.
The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.
I had read opinions stating that this provision has long been misinterpreted as allowing the President to fill any vacancy during a Senate recess. That in fact this provision allows only for filling vacancies that occur during a recess. My own reading of this provision concurs… “Vacancies that may happen during the Recess”… is hard to interpret any other way.
In Federalist #67 Publius, Alexander Hamilton, clarifies this beyond a shadow of a doubt….
Click through to The 10,000 Things to read the rest.
