by Jay Wexler
A few scholars and other observers think that because the language of Article I gives legislative power to Congress and nobody else, all this delegation of key policymaking power to agencies is simply unconstitutional. Even these critics, however, sort of have to concede that if they’re right about Article I, then the entire government as we know it would collapse. Perhaps recognizing this, the Supreme Court has long upheld congressional delegation of power to agencies, so long as Congress provides these agencies with some general “intelligible principle” to follow when the agencies go about their business. Theoretically, this “intelligible principle” test could be quite strict, but in fact the Court has held that almost anything—even Congress’s admonition to the Federal Communications Commission to regulate the airwaves “in the public interest”—counts as an intelligible principle. Indeed, the Supreme Court hasn’t struck down an act of Congress as violating this rule since 1935. The newly appointed members of the United States Metric Board may not have been particularly powerful, but at least they were constitutionally safe.
So, what exactly did the United States Metric Board do? By all accounts, one thing the members did a lot of was fight with one another. This was almost inevitable, since the Metric Conversion Act that created the board required the president to appoint people representing all sorts of different interests, some (like scientists or educators) in favor of metric conversion, and others (like labor unions and consumers) that were against the idea. This congressional restriction on the president’s appointment power is itself constitutionally questionable, but Presidents Ford and Carter went along with it and appointed a lot of people to the board who didn’t think much of switching to the metric system. No surprise, then, that the board did not insist on any kind of radical change.
The board did do some stuff. It issued publications, aired radio and television public-service announcements, and held town-hall-like meetings to persuade people how great the metric system could be. It urged gas stations to start dispensing gasoline by the liter instead of the gallon, and many stations complied. Other little changes came about at around the same time. Signs on the side of highways, for instance, started showing the distance to upcoming cities in both miles and kilometers (they still do, in some places near the Canadian border). Fifths of liquor—named because the bottle held a fifth of a gallon of liquid—were reformulated to hold 750 milliliters instead (the new bottles held only 0.2 ounces less than the old ones). Consciousness about the metric system among the general public was undoubtedly raised.
For the most part, though, the board did little and was subject to lots of public ridicule. On Saturday Night Live, for instance, Dan Aykroyd played a government spokesman explaining the new ten-letter “decabet”—an alphabet made out of only ten letters, including A, B, C, and D (“our most popular letters”); an E-F combo written sort of like a hangman’s noose; a smushed-together “GHI” letter; a similarly mashed together “LMNO” letter (“a boon to those who always thought that ‘LMNO’ was one letter anyway”); and one letter representing all of the so-called trash letters from P through Z. “Ten letters, ten fingers,” Aykroyd’s bureaucrat explains, beaming into the camera. “Simple, isn’t it?” He finishes the skit by working through some examples of how words will be pronounced under the new system (“mucus,” for instance, becomes “lmnoucus”) and then singing the new version of the now somewhat shorter ABC song.
With a public reception like this, it was no surprise when Ronald Reagan disbanded the board in 1982. The details of the board’s demise are interesting. According to a column written by former National Public Radio president Frank Mankiewicz shortly after the death of Ronald Reagan’s close assistant Lyn Nofziger in 2006, Mankiewicz had sent Nofziger a column back in 1981 “attacking and satirizing the attempt by some organized do-gooders to inflict the metric system on Americans.” This was one position—perhaps the only position—that the conservative Nofziger and the liberal Mankiewicz could agree on, and Mankiewicz reports that Nofziger used the column and other materials the two put together to “prevail on the president to dissolve the commission and make sure that, at least in the Reagan presidency, there would be no further effort to sell metric.” The two were delighted, but, as Mankiewicz recalls, it was a “victory . . . which we recognized would have to be shared only between the two of us, lest public opinion once again began to head toward metrification.”
In September 1982, the poor Metric Board issued its final report. Among its conclusions? The policy of having two measuring systems is “confusing to all segments of American society.” The perception that metric conversion would be difficult has “no basis.” And there are “no substantial legal barriers” or “technical problems” with metric conversion. Nonetheless, thirty years after the board issued those conclusions and then disappeared forever, the United States remains the only country in the world (with the possible exception of Myanmar) that has not converted to metric.
This is not to say, of course, that we Americans never use the metric system. Our fifths still contain 750 milliliters of booze, and our soda comes in two-liter bottles. Illegal drugs are regularly sold by the gram and kilogram. We run five-kilometer races and measure the dilated cervixes of women in labor in centimeters (not generally at the same time). Still, though, most of our daily measurements remain in the traditional system. Our lumber is sold as two by fours (actually one and a half inches by three and a half inches), and our guns (other than the 9mm) are calibrated in inches. Sammy Hagar has a difficult time driving fifty-five miles an hour. We measure increasing global temperatures caused by Bush administration environmental policies in Fahrenheit and Roger Clemens’s steroid-tainted urine in gallons. Al Gore and I measure our fluctuating weight in pounds and ounces. Sometimes, we even report the measure of force exercised by our Mars landers in pounds-seconds.
So let’s return now to the question we started with. Whom should we hold accountable for the Mars climate orbiter fiasco? My hunch is that most Americans blamed NASA, but what I’ve tried to suggest here is that much of the blame—maybe most of it—really should fall on Congress—or, more precisely, all the Congresses that failed to adopt the metric system as our official standard of measurement over the past couple of hundred years. The 1975 Congress that passed the wimpy Metric Conversion Act must get the brunt of the criticism for utterly failing to exercise its constitutional power under the weights and measures clause and creating a wishy-washy agency basically designed to fail to do its dirty work instead. Note that before we can assign Congress any blame for failing to implement some policy, we have to be sure that implementing that policy was in Congress’s power in the first place. On the issue of the metric system, that requirement is easily met.
Notice too how the existence of administrative agencies that exercise what rightly might be called legislative power under the Court’s lenient “intelligible principle” test complicates the issue of political accountability. Some of the blame for the Mars climate orbiter disaster has to be laid at the feet of the members of the Metric Board itself, for the board clearly had the power to do more to help the country transition to metric. And since the members of the board were appointed by Presidents Ford, Carter, and Reagan and could also be removed and replaced by these presidents, we should remember to include these three leaders on our list of people who deserve some blame for what happened out by the angry red planet.
The Mars probe problem illustrates an issue of immense concern to any country that calls itself a democracy. Critical to the legitimate functioning of any democratic state is the ability of citizens to hold elected officials accountable for their actions. We hold these leaders accountable in all sorts of ways—when we discuss issues with friends, when we evaluate the accomplishments of past leaders, when we speak up on talk radio shows or at town hall meetings, when we write letters and editorials, and, most importantly, when we go to the polls and vote.
When we do these things, we should always remember that Congress is the primary
lawmaking body in the United States. It might not always seem that way, since Congress regularly lets executive branch agencies make critical policy decisions. We may be inclined to blame the EPA, for example, when our air becomes dirty, or the FCC, when censors bleep out some celebrity saying “shitbag” on TV, or NASA when our spacecrafts crash into distant planets. And we’re right to assign some blame to these bodies, as well as to the president who supervises them and appoints their officials. Ultimately, though, it is Congress that holds the power to make most of our key policy decisions under Article I, Section 8, of the Constitution. As long as what we wish had happened was within Congress’s power to make happen, we shouldn’t let our legislature off the hook just because some other actor failed to double-check its figures.
CHAPTER 3
The Recess-Appointments Clause
Presidential Powers
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.
Article II, Section 2
When the Supreme Court declared that George W. Bush had “defeated” Al Gore in the election of 2000, the new president—lacking anything resembling a mandate from the American people—vowed to work together with Democrats to pursue common goals and heal a divided nation. Shockingly, however, when it came to nominating judges to fill vacancies on the federal judiciary, President Bush did not always choose moderate candidates who would appeal to both sides of the political aisle. One of the president’s nominees, for instance, was accused of being “racially insensitive” because, among other things, he had worked to reduce the sentence of a man who burned a cross on the lawn of an interracial couple. Another nominee, when asked about the opinions she had written on the Texas Supreme Court that she felt proudest about, pointed to such compassionate rulings as those finding against whistleblowers, plaintiffs harmed by faulty breast implants, and children with birth defects.
One of President Bush’s most controversial judicial appointments was William H. Pryor, a tough-minded conservative Catholic from Alabama, who Bush nominated to the Eleventh Circuit Court of Appeals (the federal appeals court that decides the law in much of the Southeast) in April of 2003. Pryor, a Republican since the sixth grade and the former attorney general of Alabama, came under fire from Democrats for being hostile to abortion rights, gay rights, and all sorts of other rights. Liberals, for instance, did not like that Pryor had called the Supreme Court’s decisions on abortion the “worst abomination of constitutional law in our history” or how he had argued in a legal brief that recognizing a right to gay sex would lead to legalizing sex with animals and dead people. The Constitution provides that government officials like federal judges must be confirmed by the Senate before they can take office. Because of Pryor’s radical conservative views, Senate Democrats opposed his appointment and used a congressional procedure known as a filibuster to block his nomination.
President Bush, however, was not deterred. In February of 2004, toward the end of a ten-day break in the Senate’s business, Bush used his power under the so-called recess-appointment clause to put Pryor on the Eleventh Circuit without Senate approval. Although presidents of both parties have used the recess-appointment power many times over the course of the country’s history, Bush’s clear intention to use the power as an end run around the typical appointment process pissed off Senate Democrats. Some, like Senator Ted Kennedy, who filed several briefs in cases challenging Pryor’s appointment, were angry enough to challenge Pryor’s recess appointment in court. They argued, among other things, that while the Senate may have been (with apologies to the television show Friends) “on a break,” it was not formally at “recess” when the appointment was made.
Were the senators successful? Did they convince the courts that President Bush’s appointment of Pryor violated the recess-appointment clause? Yeah, right, like I’m really going to tell you in the introduction to the chapter.
Much as Article I creates the legislative branch, Article II of the Constitution creates the executive branch. The relevant language in the two articles, however, is a bit different. Whereas Article I gives the “legislative powers herein granted” to the Congress, Article II grants the “executive power” to “a President.” The language of Article II gives rise to some esoteric but important issues. For one thing, does the fact that the executive power is given to a president rather than to the “executive branch” mean that the president must have complete control over everything that happens in the executive branch, or can Congress place certain parts of that branch outside direct presidential control, as it has routinely done when creating so-called independent agencies like the Securities and Exchange Commission and the Federal Trade Commission, the heads of which cannot be removed by the president absent actual negligence or malfeasance? Secondly, does the reference to “executive power” instead of something like “the executive powers listed here” mean that the president might possess some powers that are not actually listed in the Constitution but that were generally understood by the framers to be part of something known as executive power back in 1789?
Whatever the answer might be to this latter question, it is widely assumed that the Constitution confers a good number of powers upon the president, some of which are general and vague, and others of which are more specific.
As for general powers, the Constitution makes the president the commander in chief of the armed forces, with the authority to commit and direct troops; the head of state, with the exclusive authority to engage in diplomacy with foreign nations; and the nation’s top prosecutor, with authority to ensure that federal law is “faithfully executed.” By making the president the head of the executive branch, the Constitution also gives the president the authority to direct the activities of the executive branch through executive orders and proclamations and other memoranda. Recent presidents have used this power, for example, to require agencies to consider the costs and benefits of their regulations, to forbid (or allow) them to do research on embryonic stem cells, and to urge them to install low-flow toilets in their bathrooms to protect the environment.
On the more specific side, the Constitution gives the president the power, for example, to ask for the opinions of his cabinet, to convene the Congress, and to report on the state of the union. More importantly, the Constitution gives the president the power “to grant Reprieves and Pardons for Offenses against the United States.” Over the course of US history, presidents have used this power in some really controversial ways, in addition to using it once in a while to free a wrongly convicted poor person. Gerald Ford, of course, pardoned Richard Nixon for whatever crimes Nixon might have committed in office. President Carter used it to pardon Vietnam draft dodgers. And President Clinton left a bad taste in the country’s mouth when he pardoned “billionaire financier” Marc Rich right before leaving office.
I have a soft spot in my heart for the pardon power because in my two years at the Office of Legal Counsel, I did quite a lot of work on pardon questions. It might seem like legal issues arising under the pardon clause would be rare, and they are, but they do sometimes come up, and when they do, the stakes are always high. For instance, can a not-so the odd clauses 43 hot-on-the-death-penalty president grant a death row inmate a reprieve on his execution until the next administration takes over? Does a pardon have to be accepted for it to be valid, or can someone who would like to remain a martyr reject the president’s offer? Does granting a pardon require that the president deliver a formal document of some sort to the pardonee, and if so, can the president (or his successor) revoke the pardon before it’s actually been delivered? Can the president use the commutation power to move someone from a high-security prison to somewhere less awful, and if so, does that mean (as my boss at OLC once queried) that the president could use the same power to send over a “nice piece of fish” to a prisoner who is sick of eating meatloaf for dinner? Can presidents pardon themselves?
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 provided 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.
What the Constitution is saying here, in its typically crisp and straightforward way, is that the US government has two kinds of officers when it comes to appointments: “principal officers,” who must be appointed by the president and confirmed by the Senate; and “inferior officers,” whose method of appointment will be set by Congress, which can choose to have them appointed by the president, the courts, or the heads of agencies. One obvious question that arises from the appointments clause is how to distinguish an “inferior” officer from a “principal” one. Another issue is whether Congress can place qualification limits on who the president may nominate. Still another set of questions has to do with what counts as a “court of law” or “head of department.” If you find yourself interested in these issues, then I recommend you enroll at the Boston University School of Law and sign up for my Administrative Law Course, where I talk about them endlessly.
