"There is always a philosophy for lack of courage."—Albert Camus

Friday, April 01, 2016

Part IV: Why Senate Inaction As A Response To A Presidential Nomination Is Constitutional

Part IV: Why Senate Inaction As A Response To A Presidential Nomination Is Constitutional

Quodlibet #2. Replying to Professor Ramsey’s Response to Professors Kar & Mazzone.

Professor Ramsey wrote:

[Professors Kar & Mazzone’s] claim [properly stated] is that the Senate action transfers (not delegates) the President’s appointment power to a successor. . . . While [that] point . . . might seem like a quibble, it’s not. Once the correct word is used, it should be clear that there is no transfer of power. President Obama’s power is to nominate and, with the Senate’s consent, to appoint. . . . President Obama continues to have that power (as will his successor, if the vacancy is not filled). No power has been taken away, transferred or granted by the Senate’s failure to act. The only way one could think otherwise is if one thought that the Senate had an obligation to formally consider the nomination in the first place. But the point of the article is to show that the Senate has an obligation to consider the nomination—so the entire argument is circular. If the Senate doesn’t have an obligation to act on the nomination (and the text imposes none) then its failure to act on the nomination doesn’t transfer (or, obviously, delegate) any power to anyone.

[here] (latter two emphases added by Tillman).

I want to expand on Ramsey’s critique of Kar & Mazzone. I agree that Senate inaction does not work a delegation, and I also agree that Senate inaction does not work a transfer. But my reasoning is (ever so) slightly different.

Senate inaction could be thought to work a delegation or transfer if the Constitution vested the nomination and appointment of statutory officers in the “current President” or the “President in office” or the “President in being.” As I understand them, Kar & Mazzone imagine these powers are tied to a particular person holding the presidency such that if his or her personal exercise of them are frustrated the Constitution has been frustrated, and in effect, power has been wrongfully transferred, delegated, etc.

But, as I read it, the Constitution’s text just vests the nomination power and the appointments power in the “President.”

Different people are President at different times and come into office in different ways. But the office of President is a continuous entity (like the houses of Congress are continuous bodies) existing across time, although held by different people. That is why—in theory—a President can nominate a person to office, the Senate can give its advice and consent, and if the President should be displaced by election or succession, then the successor President can make the appointment. As long as each step is done by a President and Senate, as long as each step is in the right sequence, then, as a matter of constitutional law, the identity of the person holding the presidency makes no difference. (Likewise, it does not matter, as a matter of constitutional law, if the Senate which acts on a nomination is: (i) the Senate in being at the time the nomination is made or (2) the next Senate following an election.) There are a few provisions in the Constitution with express time limits, but the Appointments Clause is not one of them.

Senate inaction leaves the nomination power with the President. The fact that that power will be meaningfully exercised by a successor is (as Professor Ramsey) stated not properly characterized as either a delegation or a transfer. That characterization only makes sense if the Senate had a duty to act within the nominating President’s term or during some fixed amount of time. Of course, the Constitution’s text says nothing of the kind.

Likewise, Senate inaction leaves the appointment power with the President. The fact that that power will be meaningfully exercised by a successor is (as Professor Ramsey) stated not properly characterized as either a delegation or a transfer. That characterization only makes sense if the Senate had a duty to act within the nominating President’s term or during some fixed amount of time. Again, the Constitution’s text says nothing of the kind.

(Bonus) Quodlibet #3. Kar & Mazzone state:

The only remaining lapsed appointments relate to judges on lower federal courts. Federal judges are not inferior officers and they have Article III protections. These appointments are nevertheless distinguishable from Supreme Court appointments because the Constitution creates the Supreme Court whereas lower federal courts are created by legislative act. Once again, Congress’s greater power to create or extinguish lower courts therefore arguably includes the lesser power to allow the Senate to let certain late appointments to those courts lapse shortly before a presidential transition. However, the Supreme Court remains distinct.

[here] (footnotes omitted) (emphasis added). Professor Ramsey has an extensive, thoughtful response to Kar & Mazzone’s point. [here]. I do not disagree with his response.

But it strikes me that there is a much simpler response to Kar & Mazzone. When we speak of the greater power includes the lesser power, generally, we are talking about the same entity exercising closely related powers having different scope, degree, or intensity. The greater power of Congress (via statute) to create courts, includes the lesser power of Congress (via statute) to provide compensation and budgets for judges, other personnel, and facilities.

To extinguish an extant lower federal court, Congress (at the very least) must pass a statute. Again, because Congress has this greater power (to create courts), Congress can also exercise lesser (related) powers (to budget for facilities). But that rule—the greater power includes the lesser powerwould only apply to Congress (the holder of the greater power), not to the Senate (which does not hold the greater power).

The Senate has no power to pass a statute, thus it cannot extinguish extant lower federal courts. Thus, I do not think it makes sense for Kar & Mazzone to suggest that the Senate could let an appointment lapse as a “lesser power.” That would be like saying: because Congress has the greater power to extinguish federal regulations relating to national railways crossing state lines, so the Senate can exercise the lesser power of extinguishing federal, state, and/or municipal regulations relating to national railways crossing state lines in regard to activities in federal enclaves or territories. To put it another way, where the Constitution vests a greater power in Congress (to be put into effect via statute), that power and all lesser powers must be exercised by Congress. Neither House (acting alone) can exercise even the smallest bit of a greater congressional power on its own, and neither House (acting alone) can exercise even the smallest bit of a lesser congressional power on its own. That’s the whole meaning of bicameralism. See Article I, Section 7, Clause 2; INS v. Chadha.

If Kar & Mazzone’s greater power includes the less power argument falls, then all presidential appointments must be analyzed under the same general rubric.

It follows that there is no special legal analysis for Supreme Court appointments. All presidential appointments should be treated the same.

Seth 

PS: My co-bloggers do good work. So, please have a look around New Reform Club

Twitter: https://twitter.com/SethBTillman ( @SethBTillman )

My prior post is [here ]: Seth Barrett Tillman, Part III: More On Why The Senate Has Not Defaulted On Its Purported Constitutional Duty (Apr. 1, 2016, 8:37 AM). 


See Professor Jonathan H. Adler, The Senate Has No Constitutional Obligation to Consider Nominees, 24(1) George Mason L. Rev. 15, 19 nn.22–23, 32 n.85 (2016) (citing Tillman & Tillman’s Fragment on Shall and May and two NRC posts), http://tinyurl.com/zvd7o3r, http://ssrn.com/abstract=2823802

4 comments:

Fat Man said...

I am very frustrated with this whole situation. When we have to worry about the health, lifespan, or politics of judges it should be a sign to us that something is seriously wrong with the institution. The judicial system has accumulated far too much power, and has exercised that power, as men inevitably will, without wisdom or restraint, or democratic accountability.

There have been a lot of proposals made to decrease the power of individual justices by imposing term limits, or increasing the size of the court. I think those proposals are worth considering. There have been some proposals to make appointment or retention of justices subject to a popular vote. I am not very enthusiastic about those. Looking at the trouble we are having finding suitable presidential candidates, and the expense of national campaigns, I am not sure I want to handle the Supreme Court that way.

As an institution, it think the legal system has a number of very deep rooted problems. Some of them are internal, but hard to change in any reasonable time frame. One of those institutional problems is the transformation of legal education from an apprenticeship to an academic system. That transformation in turn allowed the slow poison of German Philosophy to infuse its way into the legal system. The doctrine called legal realism came from that source.

Legal realism claims that when deciding cases, judges reach their conclusions based on their political and social ideas, and then use the language of the law to sell their decisions. As the Red Queen said: “Sentence first – verdict afterwards”.

It will no doubt puzzle scholars of future ages that American legal academics could insist on legal realism and the wonderfulness of Supreme Court Opinions in their favorite cases.

But, changing the system of legal education and seeing its effects is the work of generations. That does not mean it is not worth doing, but that even if we do it, the effects will be along time coming, and the Supreme Court will have done even more damage than they have already done.

I have been thinking about things that Congress could do by law to limit the power of the courts without amending the Constitution.

First, the Supremacy Clause (Art VI) makes the Constitution, that Laws and the Treaties the supreme law of the land. The Laws are the bills passed by Congressm (see Art I §7). The judgments of the courts are interpretations of those laws, they are not laws themselves. Congress should make it clear that a judgement binds only the parties to the judgment, not third parties, and is not a law. The rules of precedent, authority, and stare decisis should be declared dead.

Congress could change a number of procedural rules that would clip the courts’s wings; for instance abolishing declaratory judgments and most class actions, over-ruling the doctrine of collateral estoppel, and revising Rule 11 to allow lawyers to file pleadings regardless of previous judicial pronouncements.

Another lane would be for Congress to reinstate many of the rules about standing, ripeness, and adverseness that the Court once declared, and has since abandoned. Those rules should be declared to be jurisdictional.

Congress should re-assert its power under §5 of Am XIV to be the sole source of remedies under that amendment.

I am sure that there are other ideas that should be pursued. I encourage you to think of them.

Tom Van Dyke said...


Congress should re-assert its power under §5 of Am XIV to be the sole source of remedies under that amendment.


Unfortunately, Congress is quite content to keep its skirts clean of controversy, and let the other branches do all the dirty work--for good or ill, it matters not.

Fat Man said...

I was not setting forth a program that I thought had any immediate chance of adoption. I was trying to find a way out of the blind alley we find ourselves in.

We, and by we, I mean American conservatives, have for years complained about the ever increasing power of SCOTUS. It has decided to be the arbiter of what is wise social policy, and it has, despite the loud cheers of the Elite Media, been a dismal failure. Can anyone doubt that their next frontier will be girls locker rooms? Further, it has abetted the growth of the Federal Leviathan, rather than restraining it to the scope compassed by the founding fathers. The pathologists who anatomize the failure of the American republic, will point their fingers at SCOTUS and say: "for shame" about a court that could not shut down the obviously unconstitutional abomination of Obamacare.

At this pass, the death of Antonin Scalia, zt'l, leaves us distraught. There are only two real conservatives on SCOTUS, and another untimely death, combined with the election of Hillary, will ensure a Democrat majority for many years to come. As the Emperor Ming, the Merciless, said: "Pathetic earthlings... who can save you now?"

Will the Donald save us? The Trumpeters believe that, but I find their faith, although childlike and touching, completely unmoored in reality. But, even if we dodge that bullet, we need to deal with the reality that Republicans have not done a good job of finding, nominating, and confirming conservative justices. Indeed, they have been responsible for many complete catastrophes, like William Brennan, John Paul Stevens, and David Souter. The court that give you Roe vs Wade, had 7 Republicans, of whom, only one (Rehnquist) dissented.

I think that we need to draw a lesson here. I would propose a rule of political design, to wit: Any time an institution produces undesirable results, the problem is not the personnel in key positions, it is the structure of the institution.

The basic problem of institutional design is that there are ten vain, foolish, rash, selfish, and stupid men, for every wise, prudent, magnanimous, and intelligent man.

The Founding Fathers understood this problem and designed the Federal Government to vitiate it.

I am trying to look at the problem of an out of control SCOTUS from that perspective. I want to know what could we do reduce the damage that SCOTUS does without relying on good personnel choices.

As a not yet disbarred lawyer, I have spent a lot of time in my quest thinking about the procedural tools that SCOTUS has forged to make its word a terror to all the world. I named a few of them above. What I would like to do is produce a comprehensive list of changes in statutes and rules that could be a program to bring SCCOTUS, and the court system to heel. That list would then serve as the basis for discussion, and once it is widely accepted, as a plan of political action.

It is true that Congress has acquiesced in many of SCOTUS's depredations. But, until the citizenry can articulate what it is that they want done, other than the erection of gibbets, Congress will continue to their feckless ways.

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