America's Unwritten Constitution: The Precedents and Principles We Live By (56 page)

Here is yet another element of symmetry: Just as George Washington’s attempt to create federal crimes by executive decree was later judicially denounced, because this aspect of his Neutrality Proclamation had plainly misread the written Constitution’s letter and spirit, so, too, early
congressional practices have been subsequently repudiated insofar as these practices clearly strayed from the terse text. Recall the words of the 1927
McGrain
Court: Early practice can “fix” (that is, conclusively determine) the meaning of the written Constitution where the issue is “otherwise doubtful”—not where the practice violates the document’s plain meaning or deep structure.

For example, the now-infamous Sedition Act of 1798, which criminalized the expression of antiadministration political opinion, has failed the test of time. In the twentieth century, this act was emphatically rejected by judges, lawmakers, and scholars across the political spectrum. This modern consensus is easy to defend precisely because the 1798 act did indeed flout the written Constitution’s plain meaning and core principles—whether we attend to the document’s explicit text (in the First Amendment’s guarantee of freedom of speech), or ponder its implicit structure (founded upon popular sovereignty and the closely related principle that citizens must be free to exchange political views among themselves and to chastise their public servants), or heed the enactment process by which the document sprang to life (via an extraordinary outburst of free speech). In an adjudication infected by the same appalling judgment that had brought forth the Sedition Act, the Senate in 1800 punished publisher William Duane for contempt, merely because he had criticized the upper house in print. Like the Sedition Act itself, the Duane precedent has now been repudiated by both modern Supreme Court precedent and modern Senate practice.
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IF THE HOUSE, THE SENATE, AND THE FEDERAL JUDICIARY
can claim certain inherent powers, so can the president, of course, as we saw in our earlier survey of presidential powers crystallized by the practices of George Washington. One more Washingtonian assertion of implied executive power deserves mention at this point, as it exists in tension with the congressional inquest power that we have just examined.

Although the written Constitution does not give the president any explicit “executive privilege” to protect confidential conversations with aides or to shield sensitive diplomatic communications, most modern lawyers and judges agree that some such privilege exists. Support for this view may be found in no less canonical a case than
Marbury v. Madison
—in an oral
exchange that, curiously, is almost never assigned or even read by modern constitutional scholars. When Attorney General Levi Lincoln was summoned to give evidence before the
Marbury
Court, he told the justices that “he felt himself bound to maintain the rights of the executive.…He was of the opinion, and his opinion was supported by that of others whom he highly respected, that he was not bound, and ought not to answer, as to any facts which came officially to his knowledge while acting as secretary of state.” In response to Lincoln’s concerns, the
Marbury
Court opined that “[t]here was nothing confidential required to be disclosed. If there had been he was not obliged to answer it; and if he thought that any thing was communicated to him in confidence he was not bound to disclose it.”
¹¹

Executive privilege can be seen as one aspect of the Constitution’s overall architecture of separation of powers, which entitles each branch to a confidential deliberative space within its own domain. Candid, freewheeling, off-the-record conversations between a president and his advisers in the Oval Office thus structurally resemble similar private deliberations that occur in the Senate cloakroom and in the confidential weekly conferences of the nine justices. These private preliminary communications are necessary for the ultimate discharge of each institution’s public functions.

Legal metaphors of institutional separation have literally been built into the very physical design of the national capital, with different buildings (“houses”) for different institutions (“houses”). Each institution at times claims a quasi-territorial authority to act as the lord within its own castle and to resist the efforts of other institutions to penetrate its unique physical space and zone of autonomy within its walls. We saw hints of this spatial separation-of-houses sensibility in the nice etiquette questions about where President Washington and the Senate should meet: His place or theirs? Whose man would guard the doors? Who would play host and who would play guest? Who would sit where—and who would decide this? Other elements of this spatial sensibility are visible in contempt-power doctrine, under which the House, the Senate, and the judiciary each claims special powers to punish misbehavior occurring within its own walls.

Textually, some version of “executive privilege” can also be seen as an implicit element of the catchall “executive Power…vested in [the] President” by the opening words of the Executive Article. The precise boundaries of
this implicit privilege are debatable, but so are the boundaries of many an explicit constitutional provision, and indeed, the boundary might sensibly vary depending on context. For example, executive privilege vis-à-vis the House of Representatives would seem to be weakest when the House is investigating possible executive-branch misconduct in an impeachment inquiry, and much stronger when the president seeks to maintain certain diplomatic secrets in the absence of a specific showing of the House’s need to know.

This was precisely the position that none other than President George Washington himself took in 1796 against none other than Representative James Madison in the wake of the Jay Treaty. After the Senate had agreed to the treaty, and Washington had officially proclaimed the treaty’s validity, the matter came before the House, whose assent was needed to pass implementing and funding legislation. Initially, the House, led by Madison, balked, asking Washington to provide details of his earlier treaty negotiations with Britain. Invoking an early version of executive privilege, Washington refused to provide sensitive information that he deemed irrelevant to the issue pending before the House. In this intense inter-branch stare-down, the House blinked first, passing the legislation without ever seeing the negotiating papers.
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This episode established that presidential claims to secrecy might sometimes prevail; however, it did not stand for the more sweeping conclusion that secrecy claims would always win out. Unlike the statutory language that emerged from the Decision of 1789, nothing in Congress’s implementing legislation conceded any profound point of constitutional principle to the executive.

Later Congresses have thus remained free to challenge broad claims of executive privilege and have often exercised this freedom. When the seemingly irresistible force of congressional inquest has met the apparently immovable object of presidential privilege, the results have been all over the map. Sometimes, presidents have had to abandon their initial claims of privilege (as in the Watergate scandal of the early 1970s); other times (as in the Jay Treaty showdown between Washington and Madison), would-be congressional investigators have retreated when presidents have stood their ground. The varied results have all been within the boundaries
of America’s Constitution. The written document’s express language and general structure do not clearly specify that one branch should invariably prevail over the other in these matters, and custom has not precipitated any clear rule or principle resolving the textual and structural indeterminacy.
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NO ACCOUNT OF AMERICA’S CONSTITUTION
would be complete without some attention to the written and unwritten rules governing the internal structure and composition—the constitution—of the House, the Senate, and the Court. One basic set of issues concerns how each entity is replenished over time as senior members leave and junior ones arrive. Given the obvious importance of institutional replenishment to the smooth operation of government, one might initially assume that the written Constitution definitively answers all the important questions. But in fact the text does not work in isolation. It works only when read through the lens of institutional practice.

FOR THE COURT,
many of the rules are straightforward: A sitting justice officially leaves upon death, resignation, or removal, and a new justice officially arrives the instant her commission is signed by the president and sealed by his ministry.
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But a wrinkle in this generally smooth process arises when a president makes a recess appointment to the Court. Textually, Article II entitles a president 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.” Does this clause apply even to judicial vacancies—in particular, to Supreme Court vacancies?
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On the one hand, “all Vacancies” would seem to mean
all
vacancies, including judicial vacancies. On the other hand, the fact that the commissions of recess appointees expire in a matter of months jars with the textual
requirement that “the Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour.” Any judicial-recess appointee would not really hold his office for good behavior, but provisionally. In effect, he would lose his judicial office unless he received a vote of confidence from the Senate at its next session; and the Senate would be free to withhold such a vote simply because senators might dislike his initial rulings. If “all Vacancies” means
all
vacancies, shouldn’t “shall hold” office during good behavior likewise mean
shall
hold? How can these two seemingly contradictory clauses be harmonized?

Had we only the text and its animating structure to guide us, the best resolution would probably be to give maximum effect to both clauses: Presidents may appoint temporary justices (and lower court judges) who either pledge at the outset to step down at the end of their temporary term or are treated by the Senate as if they had so pledged, and are thus categorically ineligible for confirmation. That way, all vacancies could be presidentially filled in prompt fashion, and all judges could freely ignore senatorial preferences and pressure.

But that is not the only plausible interpretation of the written Constitution, and that is not how practice has in fact unfolded. Rather, in 1795, George Washington himself made a recess appointment to the Court, and his appointee, John Rutledge, made no promise to sit for a merely temporary period. When the Senate chose not to confirm Rutledge because various senators apparently disliked some of the things that Rutledge had recently said, the special vulnerability of judicial-recess appointees became clear to all. Yet every one of the next seven presidents made recess appointments to the federal bench, and most presidents since then have done the same, generating more than three hundred judicial-recess appointments in all. Many judicial-recess appointees have taken the bench immediately upon being commissioned, and none have been obliged by their fellow judges to recuse themselves until confirmation. In deciding whether to confirm or reject these provisional appointees, the Senate has generally felt free to consider their initial judicial rulings. Thus, the Senate has gained a special power, not otherwise allowed, of de facto removal over these sitting but unconfirmed federal judges.

True, no recess appointment has been made to the Supreme Court since
President Eisenhower put Earl Warren, William Brennan, and Potter Stewart on the Court during Senate recesses in the 1950s. And in 1960, the Senate itself adopted a recommendatory resolution generally advising against recess appointments to the highest court in the land. But presidents of both parties have continued to name recess appointees to the lower federal judiciary, and senators have continued to confirm many of these appointees to permanent posts.
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The strongest argument in support of the constitutionality of these curious appointments thus comes not from text or structure, but from longstanding usage. Here, as elsewhere, an ambiguous text has been definitively glossed by what has in fact been done early and often by leaders from across the political spectrum. All three branches have blessed probationary appointments to the bench—the president by continuing to make recess appointments without extracting a public pledge of temporary tenure; the Senate by continuing to confirm some recess appointees and to reject others, based, in part, on the judicial rulings of these probationary appointees; and the judiciary by allowing these merely provisional judges to wear robes and sit on the bench.
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LIKE THE SYSTEM OF JUDICIAL REPLENISHMENT,
the process of legislative replenishment has involved elements of both written and unwritten constitutionalism.

The senatorial renewal process usually works quite smoothly. Members leave the Senate early upon death, resignation, or expulsion. Otherwise, a senator departs the Senate whenever his term is up, unless, of course, he is reelected and reseated. New members arrive by dint of their popular election or their temporary gubernatorial appointment, pursuant to the rules of the Seventeenth Amendment. Officially, the Senate itself decides—“Judge[s],” in the phraseology of Article I, section 5—whether a newly elected (or appointed) senator was
duly
elected (or appointed) and whether he meets the Constitution’s eligibility rules.
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The Senate is structured to ensure that it never turns over all at once in the wake of a regular biennial election. Ordinarily, two-thirds of the Senate’s members remain in their seats after an election, and at any single moment the vast majority of senators are typically duly seated holdovers
from previous election cycles. Thus, there is virtually always a quorum of continuing senators able to rule on any questions that might arise concerning the contested credentials of a new senator or group of new senators—even a sizable group, as when the holdover senators in late 1865 confronted a significant number of controversial southern claimants simultaneously seeking admission.