A Response to Fonzone & Geltzer’s Can President Trump Just Leave Key Executive Branch Offices Unfilled?

Christopher Fonzone & Joshua A. Geltzer, Can President Trump Just Leave Key Executive Branch Offices Unfilled?, Lawfare (July 5, 2017, 11:40 AM), http://tinyurl.com/yb8aq5dm.

A Response:

In a recent post on Lawfare, Christopher Fonzone and Joshua A. Geltzer ask the question: “Is the persistent and deliberate failure to identify candidates [for appointed federal positions] not merely a sign of inept governance and deadlocked politics but also, at least in certain cases, a legal failing as well?” Their answer is basically: yes. Their position is worth pondering. I do think several of their arguments do not work, and several others are not well supported.

The Appointments Clause. Fonzone & Geltzer quote the Appointments Clause. See U.S. Const. art. II, § 2, cl. 2. They note that this Clause uses shall-language in regard to presidential appointments. Such language is frequently understood to connote a mandatory duty. But here, they don’t make that argument, which was wise, that the Appointments Clause imposes any mandatory duty on the President. Instead, they argue that certain federal statutes give the President the power to make appointments to federal offices, and those statutes use mandatory shall-language, rather than discretionary may-language. They reason that under such statutes the President has a mandatory duty to make the called-for appointments.

Senate Consent. The President can only make appointments to Supreme Court positions and certain other federal positions if the President has the advice and consent of the Senate. Sometimes Senate consent is required as a constitutional matter, and sometimes Senate consent is required as a statutory matter, and sometimes, a position requires Senate consent under the Constitution and as a statutory matter. In regard to all these positions, positions where Senate consent is required, my view is that the Senate cannot impose a mandatory duty on the President to make an appointment. There are two primary reasons for this. First, the President cannot make any such appointments absent Senate consent, and the Senate has no duty even to consider the President’s nomination. See Jonathan H. Adler, The Senate Has No Constitutional Obligation to Consider Nominees, 24 George Mason L. Rev. 15 (2016) (citing Tillman extensively). To put it another way: “Responsibility in order to be reasonable must be limited to objects within the power of the responsible party . . . .” The Federalist No. 63, at 338 (James Madison) (J.R. Pole ed., 2005); Enoch Powell, M.P. (for South Down, N.I.), Christianity and the Curse of Cain, in Wrestling with the Angel 13 (1977) (“No one can be responsible for what he does not control.”); see also C.H. McIlwain, Constitutionalism and the Changing World 282 (1939) (same). The second reason is that in Marbury v. Madison, the Supreme Court described the 3-stage process of presidential nomination, Senate advice and consent, and presidential appointment. Justice Marshall did not characterize the President’s role in this process merely as “discretionary,” and if he had, such discretion-related language might extend no further than to the choice of nominee. Rather, the Marshall Court described the President’s role as one which was “voluntary.” Marbury v. Madison, 5 U.S. (1 Cranch) 137, 155–56 (1803) (Marshall, C.J., for a unanimous Court). Of course, Fonzone & Geltzer might respond: So what: John Marshall was just speaking about the President’s duty under the Appointments Clause, not under a federal statute. But that response is insufficient, Fonzone & Geltzer must show how a federal statute could turn a voluntary presidential power into a mandatory duty. Does anyone really believe Congress can do that? The President, under the Constitution, can sign bills, veto them, or leave them unsigned. Could Congress mandate that the President must sign or veto all bills? Could Congress mandate that the President sign all bills? I think not. So how could Congress mandate that the President must act where (according to the Court in 1803) he has discretion not to act at all?

Presidential Appointments to Inferior Offices and Positions Where Congress Has Waived Senate Advice and Consent. In regard to these positions, the President has the power under a statutory provision to make an appointment without Senate advice and consent. Here, the responsibility-requires-power argument does not apply. And Marbury, which spoke to the 3-stage appointment process involving Senate consent, is not precisely on-point. One might argue that the Marshall Court’s “voluntary” characterization which applies to offices subject to the 3-stage process should apply equally to positions directly subject to presidential appointment. But the law here is undeveloped. Some have suggested that Congress has greater power in regard to these positions. Cf. Hanah Metchis Volokh, The Two Appointments Clauses, 10 U. Pa. J. Const. L. 745 (2008). One consequence of that greater power might be that Congress has the power to impose a mandatory duty on the President to fill the position. This takes us to a wider question: Can Congress directly regulate the President qua President in regard to how he carries out his official duties? When I was a child, all (or nearly all) would have said: “Of course, yes Congress has such a power!” But after Zivotofsky, we cannot be sure what Presidential powers can be regulated and limited by statute.

Congressional Intent. That takes us to (as I see it) the weakest part of Fonzone and Geltzer’s argument. Their position is that Congress’s statutes impose a mandatory duty on the President as indicated by Congress’s using shall-language, which is generally mandatory. They cite a CRS report which collects authority on this point. But as the report itself indicates, concluding that the use of shall-language imposes a mandatory duty is “context” dependent. See CRS Report at 8–9, https://fas.org/sgp/crs/misc/97-589.pdf. Fonzone and Geltzer never examine the actual language and context of even one such appointments-related statute. But there is a larger problem with their argument. Most of the case law, if not all that case law for all I know, which asserts that shall-language in a modern statute imposes a mandatory duty, relates to agency action and subordinate executive officers. Fonzone and Geltzer do not point to even one such case where a federal court concluded that a statute imposed a mandatory duty on the President based merely on the statute’s shall-language. Perhaps such a case exists, but Fonzone and Geltzer do not point it out, or explain if its holding relates to the appointments context. The better view, I think, is that shall-language is insufficient to communicate that Congress intended to impose a mandatory duty on the President. Rather, to do so, the statute must expressly name the President, set a deadline, and create an express sanction for failure to adhere to the deadline. Cf. id. at 40. Only then can we know that Congress really means to impose a mandatory duty on the President, and only then will a President have a sufficient incentive to use his veto should Congress’s statute be overly burdensome.

Take Care Clause. Lastly, Fonzone and Geltzer suggest that if Congress can lawfully impose a mandatory duty on the President to make appointments, the President’s failure to make such an appointment is a violation of the Take Care Clause. The Take Care Clause is a bit of an enigma. So it is difficult to say anyone is entirely right or wrong. I would say this: If Congress has lawfully imposed a mandatory duty on the President to make an appointment, then his failure to make such an appointment is unlawful and a violation of his Article VI oath (or affirmation). But such a failure is not a violation of the Take Care Clause. The Take Care Clause imposes a duty on the President to supervise Executive Branch subordinates (and state officers carrying out federal duties). The President’s duty under the Take Care Clause is like that of a traditional fiduciary in private law. The President must not tell his subordinates to break the law; he must act in some fashion if he should discover that his subordinates have acted unlawfully; and he must put in place mechanisms to discover unlawful action by his subordinates and meaningfully act when those mechanisms reveal unlawful conduct. But the Take Care Clause does not apply to the President’s own duties in relation to his own conduct (or inaction). As Chief Justice Taney explained:

[The President] is not authorized to execute [the law] himself, or through agents or officers, civil or military, appointed by himself, but he is to take care that they be faithfully carried into execution [by others], as they are expounded and adjudged by the co-ordinate branch of the government to which that duty is assigned by the constitution.

Ex Parte Merryman, 17 F. Cas. 144, 149 (C.C.D. Md. 1861) (No. 9487) (Taney, C.J.) (emphasis added); 4 (pt. 1) A Collection of In Chambers Opinions 1400 (Cynthia Rapp & Ross E. Davies comps., 2004), http://tinyurl.com/judtw8q. Obviously, not all agree on this point, in part because the Take Care Clause was, is, and is likely to remain enigmatic. 

Seth

Seth Barrett Tillman, A Response to Fonzone & Geltzer’s Can President Trump Just Leave Key Executive Branch Offices Unfilled?, New Reform Club (July 7, 2016, 3:00 PM), http://tinyurl.com/ycczek9a.