Part III: More On Why The Senate Has Not Defaulted On Its Purported Constitutional Duty

Two Infructuous Quodlibets for Professor Michael Ramsey (and Professors Kar & Mazzone)

There are two legal academics who I never disagree with. I will not embarrass them by naming them, as an association with me might not be equally beneficial to them in all social circles. (Heck—who says I lack a sense of self-awareness?) I have repeatedly had the experience of reading their writings, and saying to myself: That’s got to be wrong, entirely wrong, if only for reasons (a), (b), (c), and (d)! But other priorities led me to address other seemingly more pressing or more interesting legal questions. After some months, I would read something new (perhaps by them) and say to myself: OK, they are wrong, they are still wrong, very wrong, but not entirely wrong, it’s a jury question, and reasonable minds can disagree, and then some months—or, perhaps, years—later, I would reconsider yet again, and say to myself: I begin to see it their way, it’s a close question, and then lastly, after suffering a few of life’s many, miserable disappointments, I would arrive at my all too obvious final destination:

I guess they were right after all.[1]

It may be that I should add Professor Ramsey to my short list of two legal academics. But not quite yet, at least, not today.

Quodlibet #1. In Order For The Senate To Take A Decision On Any Matter, That Is, A Decision Affecting Binding Legal Relations, That Decision Must Take The Form Of An “Order, Resolution, or Vote”[2]

In a prior post, I wrote:

I also see some discussion suggesting that the Senate has told the President not to nominate anyone or that the Senate has told the President to send over no nominees, and further suggesting that in doing so the Senate has defaulted on its duty. I know of no proceedings by the Senate—as a collective body—taking any such course of action. I know of no order, resolution, or vote (per Article I, Section 7, Clause 3) committing the Senate to rejecting the President’s current or future Supreme Court nominees. The position of individual senators (even if in the leadership) makes for good politics, but it does not answer the question of whether the Senate has acted in good faith and in compliance with the law of the Constitution, its norms, aspirational purposes, and historical conventions.

[here]. In a well-considered response, Professor Ramsey wrote:

I think communications from leadership (and most importantly, from leadership whom the Senate empowered, at least in the first instance, to make the critical decisions on hearings and votes) counts as advice from the Senate. The leadership purports to be speaking for the Senate, not as individual Senators. I see no requirement that the advice be given through a formal vote (it is not covered by Article I, Section 7 because it is not an “Order, Resolution or Vote to which the Concurrence of the Senate and House of Representatives may be necessary”).

[here]. I agree with Professor Ramsey that nominations per the Appointments Clause are not controlled by Article I, Section 7, Clause 3 (a/k/a the Order, Resolutions, and Votes Clause or ORV Clause). Senate advice and consent under the Appointments Clause is single-house action, and thus it is not “an “Order, Resolution or Vote to which the Concurrence of the Senate and House of Representatives may be necessary.” But I stand by my original position. Here is why.

Article I, Section 7, Clause 2 lays out the process by which a bill becomes a law: bicameral passage, presentment, veto, and veto override. The next clause is the ORV Clause. It states:

Every Order, Resolution, or Vote to which the Concurrence of the Senate and House of Representatives may be necessary (except on a question of Adjournment) shall be presented to the President of the United States; and before the Same shall take Effect, shall be approved by him, or being disapproved by him, shall be repassed by two thirds of the Senate and House of Representatives, according to the Rules and Limitations prescribed in the Case of a Bill.

U.S. Const. Article I, Section 7, Clause 3 (emphasis added). The standard view[3] of the ORV Clause is that it serves an anti-evasion purpose. According to this view, Congress might try to call a bill something other than a bill—e.g., an “order,” “resolution,” or “vote”—and deny the President the opportunity to use his veto. This anti-evasion purpose only works if “orders, resolutions, and votes” represent the entire universe of single-house final decision-making purporting to affect binding legal relations.

To put it another way, the ORV Clause does not say, “Every order, resolution, or vote, or any other parliamentary instrument either House may denominate a bill-alternative.” If there were any such alternative, if any such alternative instrument were possible, then the entire anti-evasion purpose of the ORV Clause could be evaded merely by naming a would-be bill something other than an order, resolution, or vote. The standard view of the clause only works because “orders, resolutions, and votes” run the entire gamut of single-house parliamentary instruments.

Of course, no such single-house parliamentary instrument—no such order, resolution, or vote—of the Senate states that the Senate will not act on the current President’s nomination. So the Senate cannot be said to be in default of any purported constitutional duty (even assuming there is a duty to act on presidential nominations).

Now you might ask: Seth, huh?. Why do you think orders, resolutions, and votes represent the entire gamut of single-house decision-making affecting binding legal relations? Several reasons. First, it is supported by the standard narrative. There is no other way to make that narrative work. Second, if there were another such instrument, why has not some uncooperative Congress tried using it in order to evade the President’s veto? Third, if you think such an instrument exists, the burden is on you to find a history of its use. You have the whole corpus of federal, state, and American colonial practice and pre-1776 British (and English) practice as your oyster. Friend—you go find that pearl. It is not my job to prove that something does not exist; it is your burden to prove that it does.

Finally, consider my correspondence with the late Harry Evans, Clerk of the Senate, Parliament of Australia, the dean of Commonwealth parliamentarians. I wrote:

Aus. Senate Standing Orders 86 & 87 use the phrase “order, resolution, or vote.” Could I ask you to expound upon what is meant here. Are these three mechanisms meant to be distinct from one another and/or perhaps exclude other vehicles for majority action not mentioned under the [Senate] rule. Or, alternatively, is the purpose to include all mechanisms by which the Senate majority may act and the standing order is merely trying to list different labels by which the majority may label Senate action? Why isn’t bill or act included in this list?

Evans replied:

A bill is not included in the list because passage of a bill occurs by a series of orders, resolutions and votes. Every decision taken by the Senate falls into one of those three categories.

Again, short of an order, resolution, or vote affirmatively stating that the Senate will not act on the President’s nominations, it makes no sense to say that the Senate has refused or will refuse to act on the President’s nominations. Whatever individual members, even members in the leadership, say in debate on the floor, or off the floor, or even on Senate letterhead—that does not speak for the Senate. It does not speak for the Senate because it cannot do so. And those who think otherwise, and who convince others that the House or Senate can act through procedural mechanisms other than those expressly stated in the text of the Constitution, as ratified by unbroken practice for more than 200 years, are knowingly or inadvertently taking the same position as those who believe Congress has robust, independent substantive powers not stated in the text of the Constitution. There is no difference. 

Quodlibet #2. This will appear in another New Reform Club post.

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, On Ted Cruz’s Eligibility for the Presidency, The New Reform Club (Mar. 31, 2016, 9:56 AM). 

---

[1] Fortunately, on all these occasions, I kept my mouth shut, and I kept my pen, powder, and credibility at the ready for situations where I could add some genuine value. Cf. James Boswell, The Life of Samuel Johnson, LL.D. 341 (London, John Sharpe 1830) (reproducing SJ’s epitaph for OG, stating, in part: “Nullum quod tetigit non oravit” (emphasis in the original)). So the real-life’s lesson is that frequently you can do yourself, your career, your profession, and your polity a meaningful service by staying quiet. A lesson all too many never learn.

[2] U.S. Const. art. I, § 7, cl. 3.

[3] I have published on other occasions that the standard view of the ORV Clause is wrong. But the differences between the standard view and my view do not relate to the analysis presented here. For those interested in my alternative to the standard view, see [here], [here], and [here].