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08/05/2017

Daniel Cohen: The Distribution of Power in the Appointments Clause
Michael Ramsey

In the current edition of the Virginia Law Review, Daniel S. Cohen: Do Your Duty (!)(?) The Distribution of Power in the Appointments Clause. Here is the abstract:

Judge Merrick Garland’s thwarted Supreme Court nomination has divided legal scholars over the meaning of the Appointments Clause. While some believe that the Senate and the President share the power to appoint principal officers, others contend that the President alone has the power to nominate and appoint them. To the former scholars, Article II, Section 2, enables the President to nominate whomever he or she wishes, but it also empowers the Senate to confirm or reject whomever it wishes. Accordingly, the appointment power is divided between the two, meaning it is only exercised when both branches utilize their respective and discretionary powers. To the latter scholars, the same text gives the President the sole power to nominate and to appoint, with appointment subject to the Senate’s mandatory duty to advise and decide on whether to consent. Therefore, advice and consent is a check by which the Senate prevents the President from abusing his or her appointment power, triggered by the President’s decision to nominate. This Note argues that the latter scholars are correct because the Founders’ intent, the Constitution’s text, the doctrines of separation of powers and checks and balances, and long-standing Senate practice indicate that the appointment power is solely a presidential power. For Judge Garland, this conclusion means the Senate violated its duty to hold hearings and to provide an opportunity for a vote on his nomination. More importantly for the nation, it means that the Appointments Clause requires the Senate to apply to every nominee the process that it has designed for securing its consent. Thus, the precedent established by the 114th Senate of blocking all Supreme Court nominations during presidential election years, which will likely be followed and perhaps extended to mid-term election years, contravenes the nation’s fundamental constitutional structure. By failing to perform its duty, moreover, the 114th Senate also deprived the nation of the benefits that the advice and consent process provides, such as greater accountability for the Senate’s confirmation or rejection of nominations and a more functional government. In doing so, the Senate has placed political expediency ahead of the public interest.