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07/10/2017

Must the President Fill Executive Offices?
Michael Ramsey

At Lawfare, Christopher Fonzone & Joshua A. Geltzer, Can President Trump Just Leave Key Executive Branch Offices Unfilled? From the introduction:

Five months into Donald Trump’s presidency, the top ranks of the Executive Branch remain a lonely place. Commentators have, increasingly, noted the number of key positions that remain unfilled—emphasizing, in particular, critical national security roles that sit empty. For example, in April, Business Insider assessed that the Trump administration had yet to nominate candidates for 85 percent of positions requiring Senate confirmation, pointing to the concerns such absences raise for executing time-sensitive national security policies; and, in June, Vox focused on 14 vital national security positions that remained unfilled. Indeed, not only are these critical jobs empty, but there aren’t even potential officials proposed for most of them. 

Several reasons have been advanced for this slow pace: a transition that made less progress selecting appointees than previous hand-offs; internal disagreements over personnel policy; and so on. Perhaps most tellingly, consistent with his professed goal of “draining the swamp,” President Trump has said that a number of the Executive Branch slots are vacant simply because he doesn’t want those roles to exist: “A lot of those jobs I don’t want to appoint because they’re unnecessary to have. We have so many people in government. . . .  You don’t need all those jobs.” As Sarah Posner has noted in the Washington Post, simply failing to fill key jobs is Trump’s fastest and easiest way to deliver on Steve Bannon’s promise of the “deconstruction of the administrative state.”

And that raises an interesting and important question: Is the persistent and deliberate failure to identify candidates not merely a sign of inept governance and deadlocked politics but also, at least in certain cases, a legal failing as well?

And from the core of the argument:

[Some statutes establishing offices]  state that the president “shall appoint” certain officials: the Attorney Generalother high-ranking Department of Justice officialsInspectors General across the federal government, and many other critical positions.

These statutes are mandatory, not discretionary. Their language doesn’t simply permit the president to appoint an officer; they establish an office and require the president to fill it. 

Legal scholars debate whether the Appointments Clause’s use of “shall” places an affirmative duty on the president to fill statutory offices. Noting that the Constitution uses “shall” not only to assign duties but also to allocate authority or indicate that action will be taken in the future, many scholars point to historical practice and language from early Supreme Court decisions to argue that no such constitutional duty is created.

But even if one accepts this argument, these same scholars who deny the existence of a constitutional duty recognize that “shall” is understood very differently today. Consistent with Supreme Court case law on what that word means in federal statutes, the dominant view in modern statutory interpretation is that the use of “shall” ordinarily indicates an affirmative obligation, not merely an available choice. That’s especially true in the context of these statutes. As shown above, Congress has distinguished between offices that may be filled and offices that must be filled; and, unlike certain constitutional text using “shall,” these statutory provisions serve no “predictive” purpose—to the contrary, their apparent sole function is to impose an obligation on the president to create and fill roles in the Executive Branch.

At the New Reform Club, Seth Barrett Tillman disagrees: A Response to Fonzone & Geltzer’s Can President Trump Just Leave Key Executive Branch Offices Unfilled? The main argument:

The President can only make appointments to Supreme Court positions and certain other federal positions if the President has the advice and consent of the Senate. Sometimes Senate consent is required as a constitutional matter, and sometimes Senate consent is required as a statutory matter, and sometimes, a position requires Senate consent under the Constitution and as a statutory matter. In regard to all these positions, positions where Senate consent is required, my view is that the Senate cannot impose a mandatory duty on the President to make an appointment. There are two primary reasons for this. First, the President cannot make any such appointments absent Senate consent, and the Senate has no duty even to consider the President’s nomination.  [citations omitted]. The second reason is that in Marbury v. Madison, the Supreme Court described the 3-stage process of presidential nomination, Senate advice and consent, and presidential appointment. Justice Marshall did not characterize the President’s role in this process merely as “discretionary,” and if he had, such discretion-related language might extend no further than to the choice of nominee. Rather, the Marshall Court described the President’s role as one which was “voluntary.” Marbury v. Madison, 5 U.S. (1 Cranch) 137, 155–56 (1803) (Marshall, C.J., for a unanimous Court). Of course, Fonzone & Geltzer might respond: So what: John Marshall was just speaking about the President’s duty under the Appointments Clause, not under a federal statute. But that response is insufficient, Fonzone & Geltzer must show how a federal statute could turn a voluntary presidential power into a mandatory duty. Does anyone really believe Congress can do that? The President, under the Constitution, can sign bills, veto them, or leave them unsigned. Could Congress mandate that the President must sign or veto all bills? Could Congress mandate that the President sign all bills? I think not. So how could Congress mandate that the President must act where (according to the Court in 1803) he has discretion not to act at all?