The debate in Washington over who’s to blame for the slow pace in filling judicial vacancies (or whether the pace is even slow to begin with) reflects an assumption that is shared by both sides: that the Senate should generally defer to the President in the confirmation process.
Jennifer Mascott gave a talk at the University of San Diego Originalism Center on her new paper, which is to be published in the Stanford Law Review, on Who are the Officers of the United States? The paper engages in originalist research on an important topic that modern originalist scholars have largely neglected: how to distinguish between officers, who are subject to the Appointments Clause procedures, and employees, who are not. Mascott concludes that many more government positions constitute offices than modern law allows and therefore are subject to the requirements of the Constitution’s Appointments Clause. For many years, the question of…
President Elect Donald Trump has announced that he will be nominating James “Mad Dog” Mattis to be Secretary of Defense. However, a statute requires “retired military officers to be out of uniform for seven years before they can become the civilian head of the armed forces.” While it seems quite possible that Congress will be willing to pass a law exempting Mattis from the requirement, a question is whether the requirement is constitutional. The main issue is whether the Constitution (1) allows the Congress to establish qualifications for offices or (2) gives to the President and the Senate the full…
We live in a world where an increasing number of things that are supposed to be done by the Congress are done by the executive. Treaties are supposed to be approved by the President with the ratification of two thirds of the Senate, but the President makes many agreements on his authority based on a variety of claims. Legislation is supposed to be passed by Congress but agencies do most of the legislating through rulemaking. And wrongdoing by executive officials is generally reviewed by executive officials rather than by congressional impeachment. Some of these actions may be constitutional under the original meaning, but some are not.
Another way that the executive takes action that is supposed to be shared with Congress is through appointments. The Constitution provides that appointments are to be made by the President with the advice and consent of the Senate, but the President often makes appointments on his own. Sometimes this was done through a broad understanding of the Recess Appointments Clause (which a majority fo the Supreme Court accepted, but see here for what I regard as the better view).
At other times, the President makes unilateral appointments of the White House staff on the ground that these staff members – however important their positions seem to be – do not constitute officers of the United States under the Appointments Clause. The reason is that these staff members are said merely to give advice, to engage in nonbinding conversations with officials, or to convey messages from the president to officials – actions that would not involve the exercise of substantial authority and therefore would not implicate the Appointments Clause under the Supreme Court case of Buckley v. Valeo. The public policy problem is that the number of these White House staff members is growing and therefore the power of the federal government is increasingly exercised by people who have not secured the consent of the Senate. Again, some of these actions concerning appointments may be constitutional under the original meaning and some may be unconstitutional.
The National Constitution Center is doing a series of essays on the provisions of the Constitution. It asked Peter Shane of the Moritz College of Law at Ohio University and me to write about The Treaty Power and the Appointments Clause which together compromise Article 2, Section 2. We wrote a joint essay describing where the Supreme Court case law leaves us and then short essays of our own summarizing where the law should be.
Mine sharply criticizes the Court’s jurisprudence for its departures from the original meaning of the Clause, Its opinions on the Appointments Clause are often self-serving because they generally maximize the Court’s discretionary powers at the expense of clearer rules actually contained in the Constitution. The resulting discretion allows them to be political and policy decision makers rather than faithful servants of the law. Here is my general take on the interpretive method that should be followed:
The practice and jurisprudence of the Treaty and Appointments Clauses err when they depart, as they too often do, from the original meaning of the Constitution. The original meaning is the meaning that would have been most likely embraced by a reasonable person at the time of the Framing. Because the Constitution is written in the language of the law, the original meaning is constituted by the text in its historical and legal context.
In particular, I am critical of the Court’s usurpation of decisions about when the President can fire his executive officers:
In my last post, I noted how the Supreme Court worked hard to hold the Independent Counsel statute to be constitutional, presumably on the ground that it was essential good government, only to find the political system rejecting it as poor policy a decade later. In this post, I criticize some of the arguments the Supreme Court used to hold the statute constitutional.
One key feature involved the appointment of the Independent Counsel. The statute provided that the IC would be appointed by a court. This appointment method would be constitutional only if the IC were an inferior officer, since the Constitution requires that superior (or non-inferior) officers must be appointed by the President with the advice and consent of the Senate.
Thus, the Supreme Court argued that the IC was an inferior officer, claiming that four factors suggested the result. The argument here really was quite laughable. The IC is an extremely important position and the IC is not subject to the supervision of anyone in the government. The idea that the IC was an inferior officer, who was not important enough to require senatorial consent, was absurd. When Ken Starr was investigating Bill Clinton, he was arguably the second most important officer in the entire government (after the President). Yet, the Court treated his position as that of an inferior officer. If that is not bad enough, the Court actually argued that the conclusion that the IC was an inferior officer was clearly true and therefore it was unnecessary for the court to draw a more precise line.