This is the third in a series of posts about my paper, The Two Appointments Clauses: Statutory Qualifications for Federal Officers Sorry for the blogging hiatus; I had an unexpected confluence of deadlines. Fortunately, I managed to meet them all, and I can get back to the fun stuff in life, namely blogging.
Our Constitution is one of limited and enumerated powers. Thus, the first question is whether the Constitution grants Congress the power to impose statutory qualifications for federal officers, not whether anything affirmatively prevents Congress from doing so. An obvious first place to look is in the text of the Appointments Clauses themselves.
Let's look first at the Confirmation Appointments Clause. That clause states that the President "shall nominate, and by and with the Advice and Consent of the Senate, shall appoint" officers. One might argue that imposing a statutory qualification is a form of advice and consent. But this is wrong, for several reasons.
A statutory qualification is binding, not advisory. Laws generally tend to be mandatory unless they state otherwise (as in, for instance, a law granting a discretionary power to an executive official). And certainly the language of actual statutory qualification laws looks mandatory, using phrases such as, "shall be a citizen of the United States." Since a statutory qualification imposes a mandatory limit on whom the President may appoint to office, it does not count as "advice."
But wait a minute. "Advice" can't be binding, but "consent" certainly is. Without the consent of the Senate, the President cannot appoint an officer through the Confirmation Appointment method. Maybe statutory qualifications are a form of consent.
This second argument runs into two problems. First, consent is generally understood as occurring after a specific proposal has been floated. That is, the President nominates an individual for office, and then consent is granted or denied. If it's denied, the process starts over: the President proposes another candidate, and the Senate again decides whether to consent or not. It is a bit strange to pass a law in advance that categorically rules out certain potential nominees, and to call that law a form of "consent."
The second problem is that viewing statutory qualifications as a form of consent (or advice, for that matter) under the Advice and Consent power conflates two distinct entities: Congress and the Senate. The Advice and Consent power is given to the Senate. But statutory qualifications, being statutes, must be passed by both houses of Congress (and additionally, must be signed by the President or passed over his veto). The Senate and House often have to compromise to get a statute passed through both houses. Any given statutory qualification might well have been added to a bill at the insistence of the House of Representatives, against the will of the Senate but agreed to reluctantly. Is it really fair to call such a measure the consent of the Senate?
In a later post, I will discuss more of the structural implications of involving the House of Representatives in appointments. But before I get to that, my next posts will examine the text of the Vested Appointments Clause and the Necessary and Proper Clause to search for other textual foundations for the power to impose statutory qualifications.