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: