Constant's pations

If it's more than 30 minutes old, it's not news. It's a blog.

Saturday, September 23, 2006

Peter D. Keisler: Illegal Recess Appointment

Peter D. Keisler's nomination during a recess to a new position is not a lawful exercise of Presidential authority. The President only has the power to fill vacancies which occur during a recess. Keisler's position never existed. It is illegal to appoint Keisler to the DC Court of Appeals under Article II Section 2.

If Keisler is sworn to the DC Court of appeals despite his illegal appointment, the Judicial Branch faces a legitimacy problem and will have to re-try all cases Keisler reviews.

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The Constitution outlines recess appointments. This President is violating the US Constitution. His recess appointments are not lawful, and those officials do not have lawful authority to continue to engage in contractors, or provide lawful direction or oversight.

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Consider this precedent: There are Constitutional bars to elibility for a judge. Senator Graham failed to meet all Constitutional requirements; the Constitution remains the standard which Keisler must also meet.

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To qualify under Article II Section 2, the vacancy, not the appointment, must occur during the recess. Nominations are not the same as vacancies; Nominations during the recess period are not protected by the Constitution.

The President has no lawful power to enforce his recess appointments unless the vacancy occurred during the recess. Where there never existed a position to fill, the President has illegally reappointed Keisler in violation of the US Constitution. The President's appointment of Keisler to the DC Court of Appeals is not lawful, and all attorneys have fair warning that any legal opinion Keisler may issue while on the DC Court of appeals is not lawful, and may legally be challenged.

The President's practices are illegal. It is illegal to fill a vacancy that occurs before a Senate recess.

The Constitution

Article II Section 2: 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.

The President's custom of appointing personnel during a recess is meaningless. The Constitution only allows him to fill vacancies that occur during the recess.

The Constitution does not allow him to do anything else. The current practice is to fill all vacancies which occur before the recess, but delay those appointments until the Senate recess. This is unconstitutional.

For example, when there is no position to fill on the DC Court of Appeals, the Constitution does not allow the President to create a position during a Senate recess; nor does the Constitution allow the President to re-appoint someone which the senate has rejected in a subsequent recess.

State Level Interest

The State level efforts to prosecute state-associated DoJ Staff counsel continues.

States should work with international partners to ensure that the federal positions are vacated during normal Senate working periods, to prevent the President from filling positions using illegal procedures.

It shall be illegal for the States to agree to delay prosecution until the Senate recesses. Rather, the States shall timely ensure the war crimes prosecutions proceed irrespective of whether the Senate is or is not in session.

The President does not have the power to compel any state official to delay or accelerate state level prosecutions, and subsequent removal actions at the federal level, to conveniently coincide with Senate recesses.

States may lawfully prosecute any DoJ staff counsel assigned to their state disciplinary board, or a member of their state bar. The Department of Justice may not threaten to prosecute any state official for lawfully prosecuting DoJ Staff counsel for violations of state criminal statutes which prevent illegal, extortionate threats against state level officials. Once those DoJ Staff counsel and US attorneys are lawfully removed from office, it is a separate matter whether the vacancy does or does not occur during a recess.

Once the New DoJ Staff is in place, the States may lawfully begin another round of prosecutions to remove this DoJ Staff from office, and disbar them. There are plenty of other attorneys willing to enforce the law and not engage in war crimes, or illegally argue, as Keisler has allegedly done, that the laws of war do not apply.

The issue is whether Keisler will or will not remain relevant on the legal landscape.


The Senate-Presidential agreement to create and fill new positions is not lawful. The President only has the power to appoint personnel when those vacancies occur during a recess.

In the case of Peter D. Keisler, where there is no existing position, the President has illegally re-appointed Kreisler during a recess. This is not permitted, and contrary to the Constitution. The Constitution only allows him to appoint and fill a position during a recess when the position vacates; it makes no difference when the Senate rejects that position or appointment. The President has no power to reappoint anyone to a position which never existed; it makes no difference when that appointment was made during a Senate Recess.

The President and Senate rules are not in harmony with the Constitution. Keisler has no legal standing to challenge any efforts which thwart his appointment. The President has illegally created a new position outside what the Constitution permits.