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[Hanah Metchis Volokh, guest-blogging, October 23, 2007 at 9:04am] Trackbacks
Two Appointments Clauses:

I'm going to lay out the arguments in my paper in a series of posts. This post provides some background information about the Constitution's procedures for appointing officers of the federal government, and explains why I make a distinction between two separate Appointments Clauses.

Readers who have a bit of familiarity with what is generally called the Appointments Clause of the U.S. Constitution will somewhat surprised at the title of my paper, The Two Appointments Clauses: Statutory Qualifications for Federal Officers. What is this second appointments clause, and where did it come from?

Those with a more extensive knowledge of that clause, Article II, Section 2, Clause 2, should be able to guess that I'm talking about the same old Appointments Clause but am dividing it into two parts. The Constitution actually sets up two different methods for appointing federal officers, and it does so in a single, very long sentence. (Actually, it's just most of a sentence, since the first clause in the sentence describes the treaty power.) It's worth quoting in full:

[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: but the Congress may by law vest the appointment of such inferior officers, as they think proper, in the President alone, in the courts of law, or in the heads of departments.

It doesn't take a very close reading to see that this creates two different processes. In the first one, the President nominates an officer and, with the advice and consent of the Senate, appoints the officer. In the second, Congress may allow the President, a court, or the head of a department to appoint an officer without Senate confirmation. Both of these processes are frequently used. You read about and watch confirmation hearings for judges, the Attorney General, the director of FEMA, and so forth. But you'd never see a confirmation hearing for, say, the Deputy PTO Director, because Congress has vested the appointment of the Deputy PTO Director in the Secretary of Commerce. (If you don't believe me, you can look it up in 35 U.S.C. § 3(b)(1).)

Having these two separate procedures makes a lot of sense. The question of who counts as an officer and who is just a federal employee is debated in the literature, but on any definition there are thousands of officers in the federal bureaucracy and the judiciary. If the Senate had to confirm each one, they would have little time to do anything else. But when the officer in question will hold a very powerful office, or one with lots of political considerations involved, Senate confirmation is an important check on the President's power. The publicity of a confirmation hearing (though a hearing is not actually required for confirmation) also helps to create accountability.

Two other obvious points. First, the Constitution requires Senate confirmation for certain very important and politically sensitive officers: "ambassadors, other public ministers and consuls, [and] judges of the Supreme Court . . . ." Second, for inferior officers, Senate confirmation is the default method. To avoid Senate confirmation, Congress must take the affirmative step of passing a statute conferring power on one of the constitutionally-recognized appointers to appoint the officer.

Existing scholarship has assumed that these few considerations basically exhaust the differences between the two appointments procedures. When assessing the constitutionality of something having to do with appointment or removal of officers, few people make any distinction based on which of the two Appointments Clauses is being used.

My argument is that the differences go deeper than initially appears. The text of the Appointments Clauses points to differences, and the different structures of power created by the two procedures lead to different constitutional considerations as well. In my paper, I discuss the phenomenon of statutorily-imposed job qualifications for federal officers and explain how they should be viewed differently for officers appointed under each method.

MLS (www):
Hanah- I hope you will also discuss your article on the congressional immunity statute, which is a particular interest of mine.
10.23.2007 11:05am
Hanah Volokh (mail) (www):
MLS: Sure, by popular demand I'd be happy to discuss my first article once I'm done with the series of posts on The Two Appointments Clauses. Since the Appointments Clauses paper is not yet published, I hope to get some good comments from people that I can use in revising my article. The Congressional Immunity Grants paper is already in print, so any posts on that one would just be for general interest. Thanks for asking!
10.23.2007 11:15am
Bill Dyer (mail) (www):
If you're taking requests: Care to weigh in on whether there's an implied obligation to provide an up-or-down vote on judicial nominees that's inconsistent with the Senate using its cloture rules to filibuster them? (This is, of course, a reference to the variously called "constitutional option"/"nuclear option," as threatened before the "Gang of Fourteen" compromise when Republicans still controlled the Senate.)
10.23.2007 11:47pm
MLS (www):
Bill- I know your request is not to me, but I will take a crack at it anyway. My view is that there is no obligation to give nominees (judicial or otherwise) an up or down vote. The Constitution gives the Senate the power to make its own rules, and those rules establish how a nomination may be brought to the floor for an up or down vote. By making those rules, the Senate provides the procedure by which a nomination can obtain the consent of the Senate-- and until that consent is obtained, the nominee is not confirmed. There is nothing in the constitutional text to suggest that that a nominee is entitled to an up or down vote. It merely provides that an appointment, as opposed to a nomination, requires the advice and consent of the Senate. I don't see how that prohibits the Senate from establishing any procedure it wishes for obtaining the consent.

Indeed, I am not sure that a negative vote by the Senate has any legal/constitutional signficance. It is just a refusal to give consent. Unless the President withdraws the nomination, the Senate could change its mind the next day and confirm the nominee. (I have to admit that I am not sure whether this is true under Senate rules, but I can't see why as a constitutional matter it wouldn't be).

A different question is whether the Senate by majority vote could repeal the cloture rule with respect to judicial nominations (the so-called nuclear option). I think the answer to this must be yes. But it would be very dangerous to the Senate as an institution for it to take this step. Remember, no outside entity enforces the Senate (or House) rules against the body. The force of these rules exists solely by the willingness of the body to adhere to them. Thus, just as the authority of the Constitution in the United States ultimately depends on our collective recognition of that authority, so the authority of the Senate rules depends on the Senate's collective recognition of their authority. The Senate has chosen to impose on itself certain super-majority voting requirements. If it chooses to revoke one of those rules by a simple majority, which constitutionally it could, it is in essence rejecting the authority of all of the super-majority rules and thus changing the nature of the institution itself.
10.24.2007 2:02am