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 power—would 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.