ESSAY CONTENTS INTRODUCTION I. THE PRAGMATIC CASE FOR PRESIDENTIAL APPOINTMENTS WITHOUT A SENATE CONFIRMATION VOTE II. THE CONSTITUTIONAL CASE FOR PRESIDENTIAL APPOINTMENTS WITHOUT A SENATE CONFIRMATION VOTE A. The Textual and Structural Argument that Senate Silence May Imply Consent B. Consideration of Other Interpretive Resources 1. Other Constitutional Provisions 2. Original Understanding 3. Subsequent Practice III. SOME LIMITS AND CAVEATS CONCLUSION
A widespread, seemingly unquestioned assumption regarding the process for appointing federal officers is that the Constitution requires the Senate to vote to confirm the President's nominee before the appointee may take office on a permanent basis. This Essay challenges that assumption by arguing that as a matter of constitutional text, structure, and history, it is not at all clear that the Senate must affirmatively vote in favor of a nominee in order to provide the required advice and consent. Rather, the Constitution can and should be read to construe Senate inaction on a nominee as implied consent to the appointment, at least under some circumstances.
The motivation for exploring this seemingly radical proposition is the widely shared belief that our system for appointing senior federal officials is a mess, and seems to be getting worse. Although scholars and the popular press have focused on judicial confirmation battles, the politics of executive branch appointments is arguably becoming even more dysfunctional. After all, even though judicial vacancies increase the strain on overworked federal judges (particularly district court judges), (1) the Article III judiciary continues to function reasonably effectively. By contrast, executive branch vacancies--particularly at the senior level--can make it difficult or impossible for important departments and agencies to fulfill their statutorily and constitutionally mandated functions. (2) Moreover, in many cases, the Senate faction that prevents action on executive branch nominees seems motivated less by an objection to the nominees themselves than by a desire to impair the Executive's ability to function or to extract substantive legislative concessions. (3)
By contrast, in the Senate, the faction opposing a judicial nominee typically objects to the nominee's ideology or qualifications, but does not seek to cripple the Article III judiciary as an institution. A couple of contemporary examples illustrate the point. For close to a year, a new federal agency--the Consumer Financial Protection Bureau (CFPB)--was hamstrung by the refusal of a minority in the Senate to allow a confirmation vote on President Obama's obviously qualified nominee, Richard Cordray. (4) Likewise, vacancies on the multimember National Labor Relations Board (NLRB) deprived that agency of the necessary quorum to take any action whatsoever, again because the Senate minority refused to allow a confirmation vote on the President's proposed replacements. (5) Although these recent incidents involved Democratic appointments stalled by Republicans in the Senate, the shoe easily could be--and has been--on the other foot. (6) Moreover, while historically the Senate has moved swiftly, and generally deferentially, with respect to the President's top-level appointments (such as cabinet secretaries), (7) if the CFPB and NLRB fights are harbingers of things to come, there is no guarantee that this will remain the case.
Excessive Senate obstructionism is made possible because the Senate's institutional rules give a minority of senators the ability to block an appointment without a formal vote. Under the Senate's current rules, sixty senators must vote in favor of cloture to overcome a threatened filibuster of a nominee, creating a de facto supermajority requirement. (8) Moreover, even a single senator can delay consideration of a nomination by placing a "hold" on the nomination, and can do so anonymously. (9) The Senate majority, or factions thereof, can also refuse to schedule a vote on a nominee even if the nominee would be confirmed if put to a vote. (10) Determined minorities have been known to use other tactics as well, such as refusing to attend committee hearings in order to deprive the committees of the necessary quorum. (11) While informal Senate norms historically constrained the abuse of these powers, such norms appear to have eroded in recent years, as both scholars and many senators themselves have observed. (12)
The response of the White House to Senate obstructionism on appointments--both in the Obama Administration and in its predecessors--has included both political and legal elements. Politically, Presidents have attempted to shame the Senate into acting, claiming that the Senate's (or Senate minority's) refusal to allow a vote on contested nominees is irresponsible and partisan. Legally, Presidents have tried to find ways to circumvent an intransigent Senate, most notably by invoicing their constitutional power to make "recess appointments" when the Senate is not in session. (13) This was the Obama Administration's strategy with respect to CFPB and NLRB appointments. That maneuver has in turn provoked Senate countermeasures, most notably the use of pro forma sessions to prevent the Senate from going into recess. (14) Virtually all of the attention to the constitutional aspects of the appointments controversy has focused on the recess appointment power, as scholars, administration lawyers, and others have developed ever more intricate arguments regarding the nature of senatorial "recess" and the extent of the President's recess appointment power. (15)
In this Essay, I propose a simpler constitutional route around (or through) the problem presented when an intransigent Senate minority prevents a vote on important executive branch appointments. The proposal is this: when the President nominates an individual to a principal office in the executive branch, where filling that office is essential for the President to fulfill his or her duty faithfully to execute the laws, the Senate's failure to act on the nomination within a reasonable period of time, despite good faith efforts of the nominee's supporters to secure a floor vote, shall be construed as providing the Senate's tacit or implied "Advice and Consent" to the appointment within the meaning of the Appointments Clause. (16) The argument, in other words, is that the appointment of certain senior executive officers does not require a Senate confirmation vote as a matter of constitutional law. Rather, although the Senate can always withhold its constitutionally required consent by formally voting against a nominee, the Senate cannot withhold its consent indefinitely through the expedient of failing to vote on the nominee one way or the other. Thus, according to this argument, instead of resorting to a recess appointment, it would have been constitutional for President Obama to declare (say, in late 2011 or early 2012) that Cordray, who was nominated to head the CFPB in July 2011, had been appointed to that position with the Senate's (tacit) consent--as a regular appointment, not a recess appointment- given that the Senate had failed formally to vote down his nomination within a reasonable period of time.
This Essay has two goals. The first is to offer some reasons why the lawsuit that would inevitably follow such drastic presidential action ought to be resolved in favor of the administration. The second is to "normalize" the arguments in favor of that seemingly radical legal conclusion, in the hope that the very existence of such arguments, if taken seriously in mainstream constitutional discourse, might alter the bargaining game between the President and the Senate in ways that decrease Senate obstructionism and help restore norms of Senate deference to senior executive branch appointments.
Put another way, this Essay is an exercise in constitutional (re-)imagination in response to some important and detrimental changes in constitutional practice (on the Senate side) that render old assumptions about the meaning of "Advice and Consent" less compelling as a functional matter. To that end, I suggest that a question that had seemed settled by practice--that a Senate confirmation vote is required--ought to be unsettled.
Part I of the Essay briefly sketches the pragmatic case for allowing the President to appoint certain senior officials without a Senate confirmation vote. Part II--the heart of the argument--seeks to establish that such a scheme is consistent with constitutional text, structure, precedent, and history. To be clear, I do not argue that the rule I propose is constitutionally required. Rather, Part II seeks only to establish that the Constitution is sufficiently ambiguous with regard to the necessity of a Senate confirmation vote that pragmatic arguments of the sort sketched in Part I can and should carry the day. Part III discusses and defends limits on the scope of the proposed constitutional rule. A brief Conclusion suggests that the simple recognition of the potential plausibility of my constitutional argument might have positive effects on the dysfunctional politics of appointment and confirmation, even if that argument were never tested.
I. THE PRAGMATIC CASE FOR PRESIDENTIAL APPOINTMENTS WITHOUT A SENATE CONFIRMATION VOTE
The pragmatic case for allowing the President to appoint senior executive branch officials without a formal Senate confirmation vote is a straightforward application of a set of familiar arguments for strong presidential control over the administration--arguments that emphasize the President's political accountability, comprehensive vision, and capacity for energetic and decisive action. (17) The current understanding of the Senate's role in confirming presidential nominees both creates a de facto supermajority requirement and releases senators opposed to an appointment from the disciplining effect of having to cast a formal and public "no" vote. This gives the Senate--or a minority of senators whose views would not prevail in a formal up-or-down confirmation vote-too much power, significantly and excessively weakening the President and impeding the functioning of the executive branch.
To be clear, I do not argue for the outright elimination of those features of the Senate's process that create de facto supermajority requirements for legislation (or, for that matter, for the appointment of judges and lower-level federal officials (18)). But supermajority requirements seem particularly ill suited to senior executive branch positions. For starters, one of the alleged virtues of supermajority rules is that they create or intensify a bias in favor of the status quo. (19) That may or may not be desirable when it comes to legislative action, but it seems like a particularly hard position to defend in the case of senior executive branch appointments, where the status quo is often a vacant office (or an office staffed by a less effective acting official (20)). Furthermore, the political accountability arguments often invoked to justify strong presidential control seem particularly salient in the context of presidential appointment of senior executive officers. After all, the nation elects (or re-elects) the President every four years with the expectation that the President will execute the nation's laws, and the incumbent President (or his or her copartisans and heir apparent) receives the credit or blame for how well the executive branch (or the government as a whole) has performed. Given this concentration of responsibility and accountability in the President, it is sensible to empower the President to staff key positions.
Moreover, minority obstructionism in the Senate is problematic because it leads to a lack of transparency--and hence a lack of accountability--to the electorate. This is a general problem, (21) but it may be particularly acute with respect to executive branch appointments, as the lack of transparency enables the President's political opponents in the Senate to undermine the effectiveness of the White House without the senators' ever having to take a formal and public vote rejecting the President's nominee. True, sophisticated political insiders know exactly what is going on, but forcing senators to vote on a nominee may affect their political calculations, as evidenced by cases in which nominees whose appointments had been bottled up are eventually approved by overwhelming majorities. (22)
This is not necessarily to endorse the strongest forms of the "unitary executive" argument, nor is it necessarily to say that the Senate should play no role in senior executive appointments (even if that were a constitutional option). It is simply to say that in this particular context--appointment of the most senior officials in the executive branch--the case for strong presidential authority is at its apex. The Senate does play an important checking role, even in the appointments context, and could continue to play this role by affirmatively voting down unacceptable nominees within a reasonable time (and taking the political heat for doing so). Yet it is plausible--and, in my view, probable--that the ability of a minority of senators to block senior executive branch appointments without the transparency associated with a formal confirmation vote shifts too much power away from the President.
Of course, this claim is virtually impossible to prove: it involves both contestable normative propositions regarding the appropriate balance of power between the President and the Senate and unproven (and perhaps unprovable) empirical conjectures about the probable consequences of different institutional arrangements. (23) I do not attempt, in this Essay, to marshal all the evidence and arguments that might be needed to convince a reader skeptical of my pragmatic case for recognizing a greater power in the President to appoint senior officers without a formal confirmation vote. Rather, this Essay is directed principally at readers who are sympathetic to the pragmatic arguments sketched above, but who believe that the Constitution requires an affirmative Senate confirmation vote for senior appointments. My goal in Part II is to convince such readers that this latter view is not correct.
II. THE CONSTITUTIONAL CASE FOR PRESIDENTIAL APPOINTMENTS WITHOUT A SENATE CONFIRMATION VOTE
A. The Textual and Structural Argument that Senate Silence May Imply Consent
Although scholars, judges, and laypeople speak casually of a constitutional requirement of Senate "confirmation" of presidential nominees, (24) the key constitutional text--Article II, Section 2's Appointments Clause--does not speak of Senate "confirmation," nor, for that matter, of a Senate "vote" on appointments. (25) Rather, the Appointments Clause reads:
[The President] shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law.... (26)
The critical phrase in this clause, for present purposes, is "by and with the Advice and Consent of the Senate." The question is whether this phrase necessarily implies an affirmative confirmation vote--that is, a form of express consent--or whether it is possible to read this phrase, in the context of the Appointments Clause, as entailing the possibility of tacit, implied, or constructive consent to a presidential nominee.
In preliminary support of the latter conclusion, consider that the ordinary understanding of the term "consent," as defined in both eighteenth-century and modern dictionaries, is broad enough to include both express and implied consent, depending on the context. For example, Samuel Johnson's 1755 Dictionary of the English Language defined "consent" as, among other things, "[t]he act of yielding or consenting." (27) Moreover, the term "consent," as used in other areas of law, is not always limited to express consent. Rather, consent can be understood either as requiring some affirmative, express act or declaration, or as something that can be given tacitly, through inaction or failure to object, depending on the context. Examples of settings where consent may be implied through a failure to object include criminal procedure, (28) tort law, (29) contract law, (30) and evidence law, (31) among others. (32) Indeed, a hoary English common law maxim, derived from Roman law, asserts that qui tacet consentire videtur ("one who keeps silent is understood to consent") (33)--a principle famously (and successfully) invoked by Thomas More at his trial for treason. (34) The notion that consent may be implied by failure to object in a timely fashion is also present in certain aspects of legislative practice, including in the U.S. Congress. (35)
Of course, the fact that consent can sometimes cover tacit or implied consent does not necessarily mean that the term should be understood that way in Article II, Section 2--particularly since there are also many other legal contexts in which consent does require some form of express, affirmative statement of agreement. (36) Nonetheless, the above evidence on the ordinary meaning of the term, as well as its usage in law and legislative practice, establishes that the text of Article II, Section 2 does not provide any prima facie reason to conclude that an affirmative Senate confirmation vote is always necessary.
Moreover--and here is where the interpretive argument intersects most strongly with the pragmatic arguments developed in Part I--the case for reading "Advice and Consent" in the Appointments Clause as encompassing tacit consent to the appointment of senior executive branch officials is bolstered by the Take Care Clause in Article II, Section 3, which declares that the President "shall take care that the Laws be faithfully executed." (37) The sheer breadth of the federal government's many functions means that the President cannot perform this constitutional task without assistance. As Chief Justice Taft put it in Myers v. United States (in a somewhat different doctrinal context): "The vesting of the executive power in the President was essentially a grant of the power to execute the laws. But the President alone and unaided could not execute the laws. He must execute them by the assistance of subordinates." (38) Thus, the inability of the President to staff the most senior offices of the executive branch makes it extraordinarily difficult for the President to fulfill this constitutional function. An 1846 Opinion of the Attorney General on …