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In light of this disagreement, the Governor has proposed legislation that would “clarify” state law with regard to vacancies. Specifically, with respect to Senate vacancies, the proposed legislation would require the Governor to proclaim a special election whenever the unexpired term equals or exceeds two years and six months. If the vacancy occurs one hundred and twenty days or more before the next general election, the Governor would be required to set the special election on the general election date. If the vacancy occurs less than one hundred and twenty days before the special election, the Governor can set any special election date, as long as it is not within sixty days, and no more than one year from, the occurrence of the vacancy. In addition, the Governor is required to set a special primary election, which may not be within sixty days of the special election.
In the meantime, the Governor has named a temporary appointee for the vacant office. (Although I have not seen the formal certificate of appointment, the Governor presumably has executed or will execute such a certificate by next week, when the appointee’s credentials are apparently to be presented to the Senate).
These machinations raise a couple of interesting questions. First, can the Governor properly appoint a temporary Senator before issuing a writ of election setting the date of the special election? The language of the Seventeenth Amendment arguably implies that the writ of election comes first, a reading suggested by the following language from the Seventh Circuit’s discussion of the Obama vacancy in Illinois: “The principal clause [of the Seventeenth Amendment] describes a chain of events: when a vacancy happens, the state executive issues a writ of election, which calls for an election in which the people will fill the vacancy. The proviso qualifies this chain of events by permitting an appointee to intercede temporarily between the start of the vacancy and the election that permanently fills that vacancy.”
Second, if the Governor makes an appointment in accordance with state law, can the legislature subsequently change the date on which the special election is to occur? Extremely alert readers will recall that this issue arose in connection with the Obama vacancy. After Governor Blajojevich appointed Roland Burris to fill the vacancy, the Illinois legislature discussed changing the law to require a special election to be held earlier than the date provided by existing law. Burris argued that such a change would be unconstitutional and threatened to fight it in court. As I discussed at the time, a post-appointment change in the election date may be unprecedented and presents serious constitutional issues.
If the West Virginia legislature were to adopt the law proposed by the Governor, the Governor would be required to set a special primary election at the very beginning of September, and the special election would be held on the general election date in November. This is on the assumption that the Byrd vacancy occurred on June 28 (the date of his death), which would be more than one hundred and twenty days before the general election (127 by my count). Of course, it is arguable that this result is the same as was required under pre-existing law, in which case the second constitutional issue would not arise.
The West Virginia Attorney General has issued this opinion rejecting the Secretary of State’s legal conclusion that a special election to fill the Byrd vacancy cannot be held until November 2012. The Attorney General’s reasoning is essentially the same as what I suggested in these prior posts (see here and here), namely that the West Virginia legislature’s evident intent to require a special election when to fill a vacancy with an unexpired term of more than two years and six months, combined with the Seventeenth Amendment’s purpose of ensuring popular election of Senators, requires reading the ambiguous provisions of West Virginia law so as to allow the calling of a special election as soon as possible. The Attorney General also distinguishes the Robb v. Caperton case on the grounds that it dealt solely with state judicial offices.
The Obama administration announced this week that the President will give a recess appointment to Donald Berwick to serve as administrator of the Centers for Medicare and Medicaid Services. The appointment will come during the Senate’s current eleven and a half day adjournment for the Independence Day holiday.
Berwick was nominated for the position in April, but the Senate Finance Committee has yet to schedule a hearing on the nomination. The recess appointment was denounced not only by Senate Republicans, but by Committee Chair Max Baucus (D-Mont.), who stated: “Senate confirmation of presidential appointees is an essential process prescribed by the Constitution that serves as a check on executive power and protects Montanans and all Americans by ensuring that crucial questions are asked of the nominee — and answered.”
The Recess Appointments Clause (
A number of legal scholars have argued that “the recess” referred to in the clause is the recess between sessions of Congress, which normally occurs only once a year. The intrasession periods of adjournment are not recesses within the meaning of the clause, they argue, and the President has no constitutional power to recess appoint anyone during those periods. In addition, some scholars argue that a recess appointment can only be made if the vacancy has arisen during that recess. A vacancy that has occurred earlier did not “happen during” that recess, and therefore is not eligible for a recess appointment. Professor Michael Rappaport laid out these two arguments in his article, The Original Meaning of the Recess Appointments Clause, 52 UCLA L. Rev. 1487 (2005).
If either of these arguments is correct, President Obama’s appointment of Berwick is unconstitutional. I will leave consideration of the merits of these arguments for another day. For present purposes, I would just note that one of the foremost academic supporters of the Rappaport position is Marty Lederman, formerly a law professor at the Georgetown University Law Center. Lederman was outspoken in criticizing President Bush’s recess appointments on the grounds that they violated the Recess Appointments Clause as properly interpreted. Lederman, for example, was on the legal team that filed a brief (on behalf of the late Senator Edward Kennedy) challenging the constitutionality of Bush’s recess appointment of Judge William Pryor to the Eleventh Circuit Court of Appeals.
In addition, Lederman criticized Bush’s recess appointments on the grounds that, regardless of whether they complied literally with the Clause, they constituted abuses of the recess appointment power because they were designed for no purpose other than to circumvent the Senate’s advice and consent function. For example, Lederman argued that recess appointments made during an eleven and a half day Senate adjournment were obviously not for the purposes intended by the Clause, namely to deal with emergencies where the Senate was unavailable to provide its consent. Instead, he contended that such appointments “make a mockery of the procedure contemplated in the Appointments Clause” and represented “constitutional cynicism of the highest order.”
Lederman now serves as Deputy Assistant Attorney General for the Office of Legal Counsel. Which naturally raises the question—has he advised Obama that Donald Berwick is unconstitutional?
The Governor of West Virginia, apparently not entirely satisfied with the Secretary of State’s determination that the Byrd vacancy cannot be filled by a special election until November 2012, has asked the Attorney General to opine on the question of when such an election is to take place. The Governor’s letter notes that “[t]he issue of when such an election may lawfully occur raises questions of law that, when examined by persons of sound legal training and experience, may be answered in a way that reasonably calls into question the constitutionality or legislative intent of the law.”
I am not sure exactly what that means, but I interpret it as saying that the Secretary of State’s legal determination, while not unreasonable, is arguably in conflict with the intent of the West Virginia legislature, as well as with the requirements of the U.S. and West Virginia Constitutions. If that is what he means, I agree with the Governor.