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Can Custom Create a Constitutional Duty?
Michael Ramsey

Robin Bradley Kar and Jason Mazzone have substantially revised and reposted the article I noted earlier, now called What History and the Constitution Really Say About President Obama's Power to Appoint a Replacement for Justice Scalia (NYU Law Review: Online Features (2016)).  Here is the revised abstract: 

After Justice Antonin Scalia’s death, politicians wasted no time before teeing up a political battle over his replacement. Republican Senators—led by Senate Majority Leader Mitch McConnell—immediately announced that they will not consider or vote on any replacement nominees from the current President. Instead, Senate Republicans seek to transfer President Obama’s power to appoint Justice Scalia’s replacement to the next elected President. This plan has generated substantial debate, but the debates have not yet engaged with some of the most important historic, pragmatic, and constitutional risks of the plan. With Judge Merrick Garland’s nomination to the Supreme Court pending, this article seeks to bring greater attention to these risks.

We begin with history because, for two reasons, history provides a crucial source of insight into the propriety of the Senate Republicans’ current plan. First, the history of past Supreme Court appointments sheds light on long-standing senatorial traditions and practices of fair dealing. Second, history can sometimes ripen into a constitutional rule that affects the best interpretation of constitutional text and structure. Although many commentators have discussed the history of Supreme Court appointments in relation to the present controversy, they have often done so in partial or misleading manners. We therefore begin with an examination of the entire history of Supreme Court appointments, which aims to set the historical record straight.

We show a striking fact that has not yet been publicly recognized: there have been 103 prior cases in which an elected President has faced an actual vacancy on the Supreme Court and began an appointment process prior to the election of a successor. In all 103 cases, the President was able to both nominate and appoint a replacement Justice—by and with the advice and consent of the Senate. This is true even of all 8 such cases where the nomination process began during an election year. By contrast, there have been only 6 prior cases in which the Senate pursued a course of action that—like the current Republican Plan—deliberately sought to transfer a sitting President’s Supreme Court appointment power to a successor. In all 6 such cases, there were contemporaneous questions about the status of nominating President as the most recently elected President. The historical rule that best accounts for entrenched senatorial practices over the entire course of Supreme Court appointments is thus the following: while the Senate has the constitutional power to provide advice and consent to particular Supreme Court nominees and reject them on a broad range of grounds, the Senate may only withhold its advice and consent from all nominees from a particular President in order to deliberately transfer a President’s Supreme Court appointment powers to a successor in the highly unusual circumstance where the President’s status as the most recently elected President is in doubt. This historical rule is specific to the context of Supreme Court appointments. 

Given this two-century long pattern of historical practice, the Senate Republicans’ current plan marks a much greater departure from historical precedent than has thus far been recognized. There is, however, still a further question whether the historical rule we uncover reflects a mere senatorial tradition, which should govern internal senatorial practices of fair dealing, or has further ripened into a constitutional rule that should inform the best interpretation of constitutional text and structure. In either case, the consequences are serious. After describing both possibilities, we conclude that the Senate should therefore rethink its current plan so as to avoid a range of historical, pragmatic and constitutional risks. The Senate should instead do what it has always done in similar past circumstances: it should proceed to full Senate consideration leading to a vote on Judge Garland or any other nominees that President Obama submits in a timely manner.

This represents a considerable retreat from their earlier position (and a big improvement, in my view) -- they now focus mostly on practice rather than on the Constitution's text, and are tentative on the question whether the practice they identify is merely a "senatorial tradition."

For me, this raises an interesting theoretical question I had not considered before.  Is it possible for custom to create a constitutional limitation that does not exist in the Constitution itself?  Constitutional custom, of course, is often invoked, especially in separation of powers debates.  But the paradigm is for custom to relax stricter separation of powers rules apparently imposed by the Constitution.  The most cited invocation of custom, for example, is Justice Frankfurter's "historical gloss" in the Steel Seizure case, where he contended that Congress' implied consent to a longstanding executive practice might convey power to the executive even where the Constitution did not expressly do so.  Most other examples I can think of are similar: presidential war powers (the President is arguably allowed to use military force in ways not contemplated by the original Constitution); executive agreements (the President can make international agreements without the Senate's consent in ways not contemplated by the original Constitution); independent agencies (Congress can create agencies protected from presidential oversight in ways not contemplated by the original Constitution); recess appointments (per Noel Canning, President can make recess appointments in ways not contemplated by the original Constitution).

Professors Kar and Mazzone suggest something very different: that customary practice might create a constitutional limit on one branch's actions that the original Constitution does not impose.  Is this an argument that is commonly made?  I cannot think of many examples.  Consider, for example, the longstanding practice (before 1940) that a twice-elected President would not stand for election a third time.  Did this practice create a constitutional rule where one did not previously exist, or was it just a practice?  I would say the latter -- it took the 22nd Amendment to make it a constitutional rule.  (Otherwise Franklin Roosevelt's last two terms were unconstitutional, which I think Professors Kar and Mazzone probably do not want to claim).

Among other problems with finding a limiting rule from practice, it's hard to know what the people creating and following the practice think about it.  If they themselves do not think of it as a constitutional rule, but only as a courtesy, then it can't become a customary rule.  In international law, where limits do arise from custom, this is reflected in the idea of "opinio juris" -- the practice isn't binding unless the relevant actors think it is binding.  So even if Kar and Mazzone are right about the practice, is there any evidence that the Senate in following the practice thought it was creating a binding rule?

To their credit, Kar and Mazzone acknowledge the "question whether the historical rule we uncover reflects a mere senatorial tradition, which should govern internal senatorial practices of fair dealing, or has further ripened into a constitutional rule that should inform the best interpretation of constitutional text and structure."  I would think that at minimum the burden is on them to show "ripening."