I had commented on Smirk's felonious abuse of authority in the wake of his arrogant installation of Bolton last week. Now it seems that lay opinion is backed by at least one legal one... Via the American Constitution Society (the progressive counterpoint to the treasonous Federalist Society) blog, acsblog.org, comes a legal opinion posted by Marty Lederman over at Bakinization blog...

John Bolton is Unconstitutional
Well, his so-called 'recess nomination' to be U.N. Ambassador is unconstitutional, at any rate—at least in this writer's humble opinion. And so is the recess appointment on Tuesday of Peter Flory to be Assistant Secretary of Defense... The Bolton appointment, and others like it, was ostensibly made pursuant to the Recess Appointments Clause (Art. II, sec. 2, cl. 3), which provides that 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"... There are two basic arguments as to why the Clause does not apply here. The first is discussed in great detail in several briefs that my co-counsel and I filed on behalf of Senator Kennedy in cases dealing with last year's "recess appointment" of U.S. Court of Appeals Judge William Pryor... The basic argument is that the term "the Recess" refers solely to recesses between "Sessions" of the Senate, and not to intra-session adjournments, such as the one the Senate began last Friday. (Indeed, as Senator Frist's statement demonstrates ("I ask unanimous consent the Senate stand in adjournment under the previous order under the provisions of H. Con. Res. 225. Thereupon, the Senate, at 8:35 p.m., adjourned until Tuesday, September 6, 2005, at 12 noon."), the current Senate break is not even a "recess" of any kind under governing legislative rules: It's an adjournment, which is another animal entirely, at least for internal congressional functions and possibly for constitutional analysis, as well.)

I won't bore you with the details of the argument—interested readers can find much more in those linked briefs—except to note that this was the accepted understanding of the Executive Branch itself for the first 132 years of practice under the Constitution...

Second, even if the Senate break that began last Friday were deemed "the Recess," the vacancy in the office of U.N. Representative did not "happen" during that recess—it occured instead while the Senate was sitting. This argument is discussed in footnote 11 of our Stephens amicus brief, and it is the principal basis of Judge Barkett's thoughtful dissent from the court of appeals' decision in Stephens. ...