Can the President Appoint Principal Executive Officers without a Senate Confirmation Vote?

Article excerpt

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

INTRODUCTION

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. …