Can the president appoint principal executive officers without a senate confirmation vote?

Yale Law Journal

Volumn 122, Issue 4, 2013, Pages 940-979

  Stephenson, Matthew C ^a  

^a HARVARD LAW SCHOOL   (United States)

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EID: 84872671014     PISSN: 00440094     EISSN: None     Source Type: Journal    
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References (323)

1. SEE John Roberts, U.S. SUPREME COURT, 2010 YEAR-END REPORT ON THE FEDERAL JUDICIARY 7-12 (Dec. 31, 2010), http://www.supremecourt.gov/publicinfo/year-end/2010year-endreport.pdf
2. Gordon Bermant, Jeffrey A. Hennemuth & A. Fletcher Mangum, Judicial Vacancies: An Examination of the Problem and Possible Solutions, 14 MISS. C. L. REV. 319, 327-28 (1994).
3. See, e.g., Anne Joseph O'Connell, Vacant Offices: Delays in Staffing Top Agency Positions, 82 S. CAL. L. REV. 913+935-46 (2009) (discussing how agency vacancies can impede agency functioning)
4. Alexander I. Platt, Note, Preserving the Appointments Safety Valve, 30 YALE L. & POL'Y REV. 255+284-86 (2011)
5. Press Release, Tom Harkin, Senator, Senate Comm. on Health, Educ., Labor & Pensions, Harkin Statement on President Obama's Appointments to the NLRB and CFPB (Jan. 26, 2012), http://www.help.senate.gov/newsroom/press/release/?id=cf2288b9-4906-448a -91ff-bba7424e9b05&groups=Chair [hereinafter Harkin Statement].
6. See Jim Puzzanghera, GOP Stalls Confirmation of Consumer Agency Nominee, L.A. TIMES, Sept. 7, 2011, http://articles.latimes.com/2011/sep/07/business/la-fi-consumer-bureau-c ordray-20110907
7. Press Release, Richard Shelby, Senator, 44 U.S. Senators to Obama: No Accountability, No Confirmation (May 5, 2011), http://shelby.senate.gov/public/index.cfm/2011/5/44-u-s-sens-to-obama-no -accountability-no-confirmation
8. Laura Meckler & Melanie Trottman, Obama's NLRB Appointments: Why the Rush?, WALL ST. J.: WASH. WIRE (Jan. 6, 2012, 12:34 PM), http://blogs.wsj.com/washwire/2012/01/06/obamas-nlrb-appointments-why-th e-rush.
9. See Josh Chafetz, Congress's Constitution, 160 U. PA. L. REV. 715+765-66 (2012)
10. Ezra Klein, What's Behind President Obama's Recess Appointments, WASH. POST, Jan. 5, 2012, http://www.washingtonpost.com/business/economy/whats-behind-president-ob amas-recess-appointments/2012/01/05/gIQAyJgidP_story.html
11. Puzzanghera J. supra note 3
12. Harkin Statement, supra note 2.
13. President Obama used a controversial and legally contested recess appointment to appoint Cordray to this post in January 2012.
14. See Helene Cooper & Jennifer Steinhauer, Bucking Senate, Obama Appoints Consumer Chief, N.Y. TIMES, Jan. 4, 2012, http://www.nytimes.com/2012/01/05/us/politics/richard-cordray-named-cons umer-chief-in-recess-appointment.html
15. Klein, supra.
16. In the case of the Consumer Financial Protection Bureau (CFPB), the absence of a director not only has the usual detrimental effects on agency performance, see O'Connell, supra note 2, at 935-46
17. but the CFPB is also legally disabled, by the terms of the Dodd-Frank financial reform legislation, from moving ahead with new regulations of various financial entities see Puzzanghera J, supra note 3.
18. See New Process Steel, L.P. v. NLRB, 130 S. Ct. 2635 (2010)
19. Platt, supra note 2, at 290-91
20. Klein, supra note 4
21. Harkin Statement, supra note 2.
22. As with the CFPB, President Obama recently sought to circumvent the Senate by making three recess appointments to the NLRB, though the Senate continued to hold pro forma sessions, leading the President's opponents to declare these alleged recess appointments unlawful.
23. See Uncharted Territory: What Are the Consequences of President Obama's Unprecedented "Recess" Appointments?: Hearing Before the H. Comm. on Oversight & Gov't Reform, 112th Cong. 23-24 (2012) (statement of Sen. Michael S. Lee), http://oversight.house.gov/wp-content/uploads/2012/06/02-01-12-Full-Comm ittee-Hearing-Transcript.pdf
24. Cooper & Steinhauer, supra note 4
25. Klein, supra note 4.
26. For example, in 2003, Senate Democrats blocked a scheduled vote on President George W. Bush's nomination of Governor Mike Leavitt to head the Environmental Protection Agency by failing to attend the committee hearing, thereby depriving the committee of a quorum under Senate rules.
27. See J.R. Pegg, Democrats Boycott Vote on Bush EPA Nominee, ENV'T NEWS SERVICE, Oct. 1, 2003, http://www.ens-newswire.com/ens/oct2003/2003-10-01-11.html.
28. The Democrats themselvesac knowledged that "the boycott of the meeting ha[d] little to do with Leavitt's qualifications and everything to do with the Bush administration refusal to release information about some of its environmental policies."
29. Id.
30. see also Katharine Q. Seelye, Contentious Hearing for EPA Nominee/Democrats Pledge To Block Leavitt's Confirmation, S.F. CHRON., Sept. 24, 2003, http://sfgate.com/green/article/Contentious-hearing-for-EPA-nominee-Demo crats-2572746.php (discussing this incident).
31. This is but one particularly vivid example. Indeed, in a 2008 speech, President Bush complained about the large number of executive branch offices that remained vacant due to the Senate's failure to vote on his nominees and about the adverse impact this had on the executive branch's ability to fulfill its functions.
32. See President George W. Bush, Address at the White House (Feb. 7, 2008) (transcript available at http://georgewbush-whitehouse.archives.gov/news/releases/2008/02/2008020 7-8.html)
33. see also Press Release, The White House, Office of the Press Secretary, Fact Sheet: Senate Must Act on Nominations to Federal Courts and Agencies (Feb. 7, 2008), http://georgewbush-whitehouse.archives.gov/news/releases/2008/02/2008020 7-9.html (accusing the Senate of failing to act on President Bush's pending nominations, and asserting that Senate inaction is impeding the ability of the executive branch to carry out key functions).
34. See O'Connell, supra note 2, at 966-67.
35. See Aaron-Andrew P. Bruhl, The Senate: Out of Order?, 43 Conn. L. Rev. 1041+1044-45 (2011)
36. E. Stewart Moritz, "Statistical Judo": The Rhetoric of Senate Inaction in the Judicial Appointment Process, 22 J.L. & POL. 341+357 (2006).
37. See Aaron-Andrew P. Bruhl, supra note 8, at 1045
38. Alexandra Arney, Recent Development, The Secret Holds Elimination Act, 48 HARV. J. ON LEGIS. 271+271-72 (2011).
39. See Aaron-Andrew P. Bruhl, If the Judicial Confirmation Process Is Broken, Can a Statute Fix It?, 85 NEB. L. REV. 960+971 (2007)
40. Moritz, supra note 8, at 357.
41. See supra note 6.
42. See Examining the Filibuster: Hearings Before the S. Comm. on Rules & Admin., 111th Cong. 145-47 (2010) (statement of Hon. Walter F. Mondale)
43. Michael J. Gerhardt, The Federal Appointments Process: A Constitutional And Historical Analysis 65 (2003)
44. THOMAS E. MANN & NORMAN J. ORNSTEIN, The Broken Branch: How Congress Is Failing America And How To Get It Back On Track 162-69 (2006)
45. Joel D. Aberbach & Bert A. Rockman, The Appointments Process and the Administrative Presidency, 39 PRESIDENTIAL STUD. Q. 38, 44-45+55 (2009)
46. Brannon P. Denning, Reforming the New Confirmation Process: Replacing "Despise and Resent" with "Advice and Consent," 53 ADMIN. L. REV. 1, 4, 12-13+15-17 (2001)
47. Catherine Fisk & Erwin Chemerinsky, The Filibuster, 49 STAN. L. REV. 181, 184, 220 (1997)
48. Tom Udall, The Constitutional Option: Reforming the Rules of the Senate To Restore Accountability and Reduce Gridlock, 5 HARV. L. & POL'Y REV. 115-115, 118-122 (2011)
49. Tim Devaney, Consumer Nominee Richard Cordray Facing Filibuster, WASH. TIMES, Dec. 7, 2011, http://www.washingtontimes.com/news/2011/dec/7/consumer-nominee-richard- cordray-facing-filibuster.
50. But see Aaron J. Saiger, Obama's "Czars" for Domestic Policy and the Law of the White House Staff, 79 FORDHAM L. REV. 2577-2590 n.70 (2011) (arguing that the confirmation process has long been "arduous and slow," and that this is not a recent development).
51. U.S. CONST. art. II, § 2, cl. 3 ("The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.")
52. see infra note 15.
53. See Cooper & Steinhauer, supra note 4.
54. When the positions were reversed, Senate Democrats also used the device of pro forma sessions to stop President George W. Bush from making recess appointments of several controversial nominees, most notably by blocking Steven Bradbury's appointment to head the Department of Justice's Office of Legal Counsel. See Associated Press, Senate Meets Briefly To Block Bush Appointment, USA TODAY, Dec. 26, 2007, http://www.usatoday.com/news/washington/2007-12-26-quick-senate_N.htm
55. see also Carl Hulse, Democrats Move To Block Bush Appointments, N.Y. TIMES, Nov. 21, 2007, http://www.nytimes.com/2007/11/21/washington/21recess.html (discussing Senate Democrats' use of pro forma sessions to prevent President Bush from making recess appointments).
56. President Obama, however, took a step that President Bush declined to take by declaring that the pro forma sessions did not count as a legitimate recess for purposes of the Recess Appointments Clause.
57. See Jonathan Weisman, Appointments Challenge Senate Role, Experts Say, N.Y. TIMES, Jan. 7, 2012, http://www.nytimes.com/2012/01/08/us/politics/experts-say-obamas-recess- appointments-could-signify-end-to-a-senate-role.html.
58. See, e.g., Lawfulness of Recess Appointments During a Recess of the Senate Notwithstanding Periodic Pro Forma Sessions, 36 Op. O.L.C. 1 (2012)
59. Vivian S. Chu, CONG. RESEARCH SERV., RL33009, RECESS APPOINTMENTS: A LEGAL OVERVIEW (2011)
60. Blake Denton, While the Senate Sleeps: Do Contemporary Events Warrant a New Interpretation of the Recess Appointments Clause?, 58 CATH. U. L. REV. 751 (2009)
61. T.J. Halstead, Recess Appointments: A Legal Overview, in RECESS APPOINTMENTS: AN END-AROUND PRACTICE (Chambers Y. Nells ed., 2006)
62. Edward A. Hartnett, Recess Appointments of Article III Judges: Three Constitutional Questions, 26 CARDOZO L. REV. 377 (2005)
63. Michael Herz, Abandoning Recess Appointments?: A Comment on Hartnett (and Others), 26 CARDOZO L. REV. 443 (2005)
64. Steven M. Pyser, Recess Appointments to the Federal Judiciary: An Unconstitutional Transformation of Senate Advice and Consent, 8 U. PA. J. CONST. L. 61 (2006)
65. Michael B. Rappaport, The Original Meaning of the Recess Appointments Clause, 52 UCLA L. REV. 1487 (2005)
66. Platt, supra note 2.
67. U.S. CONST. art. II, § 2, cl. 2.
68. See, e.g., Steven G. Calabresi, Some Normative Arguments for the Unitary Executive, 48 ARK. L. REV. 23, 48-70+81-86 (1995)
69. Christopher C. DeMuth & Douglas H. Ginsburg, White House Review of Agency Rulemaking, 99 HARV. L. REV. 1075, 1081-82 (1986)
70. Philip J. Harter, Executive Oversight of Rulemaking: The President Is No Stranger, 36 AM. U. L. REV. 557, 568 (1987)
71. Elena Kagan, Presidential Administration, 114 HARV. L. REV. 2245, 2331-46 (2001)
72. Lawrence Lessig & Cass R. Sunstein, The President and the Administration, 94 COLUM. L. REV. 1, 85-106 (1994).
73. See infra text accompanying notes 104-112
74. infra Part III.
75. See John O. McGinnis & Michael B. Rappaport, Majority and Supermajority Rules: Three Views of the Capitol, 85 TEX. L. REV. 1115-1120+1155-58 (2007) (discussing how the combination of supermajority rules and an attractive status quo can improve welfare)
76. Matthew C. Stephenson, Information Acquisition and Institutional Design, 124 HARV. L. REV. 1422+1468-69+117 (2011).
77. See infra Part III.
78. For a discussion of this problem in the context of judicial appointments, see Brannon P. Denning, The "Blue Slip": Enforcing the Norms of the Judicial Confirmation Process, 10 WM. & MARY BILL RTS. J. 75, 89-90 (2001)
79. Brannon P. Denning, supra note 12, at 28
80. Christopher L. Eisgruber, Politics and Personalities in the Federal Appointments Process, 10 WM. & MARY BILL RTS. J. 177+183-84 (2001)
81. Moritz, supra note 8, at 394
82. E. Martín Enriquez, Comment, Tyranny of the Minority: The Unconstitutional Filibuster and the Superimposed Supermajority on the Advice and Consent Clause of the Constitution, 21 T.M. COOLEY L. REV. 215, 235-36 (2004)
83. Lee Renzin, Note, Advice, Consent, and Senate Inaction-Is Judicial Resolution Possible?, 73 N.Y.U. L. REV. 1739+1741-51 (1998).
84. See Josh Chafetz & Michael J. Gerhardt, Debate, Is the Filibuster Constitutional?, 158 U. PA. L. REV. PENNUMBRA 245-256 (2010), http://www.pennumbra.com/debates/pdfs/Filibuster.pdf (Gerhardt)
85. Tom Harkin, Fixing the Filibuster: Restoring Real Democracy in the Senate, 95 IOWA L. REV. BULL. 67-74 (2010)
86. Arney, supra note 9, at 276.
87. For example, changing the default rules related to appointment might affect the bargaining game between the President, the House, and the Senate at the earlier legislation stage, thus changing the substance of any legislation that is enacted.
88. Cf. Nolan McCarty, The Appointments Dilemma, 48 AM. J. POL. SCI. 413+420-24 (2004) (deploying a formal game-theoretic model to explore how different appointment and removal rules can affect the strategic interaction between an executive and a legislature).
89. See, e.g., David M. Driesen, Toward a Duty-Based Theory of Executive Power, 78 FORDHAM L. REV. 71, 117 (2009)
90. Jeffrey S. Sutton, What Does-and Does Not-Ail State Constitutional Law, 59 U. KAN. L. REV. 687, 702 (2011)
91. Arthur Ago, Case Note, Presidential Appointments and the Doctrine of Constitutional Estoppel, 65 GEO. WASH. L. REV. 584-584 (1997).
92. The only provision of the Constitution that refers directly to a confirmation vote is Section 2 of the Twenty-Fifth Amendment, which states: "Whenever there is a vacancy in the office of the Vice President, the President shall nominate a Vice President who shall take office upon confirmation by a majority vote of both Houses of Congress." U.S. CONST. amend. XXV, § 2
93. see infra Section II.B.
94. U.S. CONST. art. II, § 2, cl. 2.
95. SAMUEL JOHNSON, A DICTIONARY OF THE ENGLISH LANGUAGE 452 (1755) (emphasis added).
96. Likewise, Frederick Barlow's 1772-73 dictionary defined the verb form of "consent" as "to agree in opinion," "[t]o comply with a request," and "[t]o permit." FREDERICK BARLOW, THE COMPLETE ENGLISH DICTIONARY 284 (1772-73).
97. The current version of Black's Law Dictionary defines "consent" as "[a]greement, approval, or permission as to some act or purpose, esp. given voluntarily by a competent person; legally effective assent," BLACK'S LAW DICTIONARY 346 (9th ed. 2009), and further defines, as types of consent, both "express consent" ("[c]onsent that is clearly and unmistakably stated") and "implied consent" ("[c]onsent inferred from one's conduct rather than from one's direct expression")
98. id.
99. For example, failure to object may indicate legal consent to a police search that goes beyond the scope of the initial search.
100. See United States v. Jones, 356 F.3d 529, 534 (4th Cir. 2004) ("Thus, a suspect's failure to object (or withdraw his consent) when an officer exceeds limits allegedly set by the suspect is a strong indicator that the search was within the proper bounds of the consent search.")
101. United States v. Espinosa, 782 F.2d 888, 892 (10th Cir. 1986) (similar)
102. Audrey Benison, Matthew J. Gardner & Amy S. Manning, Annual Review, Warrantless Searches and Seizures, 87 GEO. L.J. 1124-1165 (1999) ("In addition to express consent, consent may be implied by the circumstances surrounding the search, by the person's prior actions or agreements, or by the person's failure to object to the search." (emphasis added) (footnotes omitted)).
103. However, while consent to an initial search can also be implied rather than express, courts have held that such implied consent requires some affirmative action (including body language), rather than mere failure to object.
104. See Lopez-Rodriguez v. Mukasey, 536 F.3d 1012-1017 (9th Cir. 2008) (suggesting that implied consent to a search requires some affirmative action by the occupant suggesting assent)
105. United States v. Shaibu, 920 F.2d 1423-1428 (9th Cir. 1990) ("[I]n the absence of a specific request by police for permission to enter a home, a defendant's failure to object to such entry is not sufficient to establish free and voluntary consent.").
106. For example, in most jurisdictions, consent is a complete defense to a battery claim.
107. See Giron v. Corr. Corp. of Am., 191 F.3d 1281-1288 (10th Cir. 1999)
108. Nelson v. City of Irvine, 143 F.3d 1196-1207 (9th Cir. 1998)
109. RESTATEMENT (SECOND) OF TORTS § 892A(1) (1979).
110. Many courts have held that such consent can be inferred by the plaintiff's silence or failure to object to the defendant's alleged battery.
111. See Barnes v. Am. Tobacco Co., 161 F.3d 127-148 (3d Cir. 1998) ("[I]mplied consent may be manifested when a person takes no action, indicating an apparent willingness for the conduct to occur.")
112. Young v. Oakland Gen. Hosp., 437 N.W.2d 321-324 (Mich. Ct. App. 1989)
113. RESTATEMENT (SECOND) OF TORTS § 892 cmt. b (1979) (stating that consent "may be equally manifested by silence or inaction").
114. Likewise, A negligence claim can be defeated by a showing that the plaintiff assumed the risk via her implied or tacit consent, which can be shown by silence or failure to object despite knowledge of the risk.
115. See Farmers Coop. Elevator Ass'n Non-Stock v. Strand, 382 F.2d 224-230 (8th Cir. 1967)
116. Citing Schwab v. Allou Corp., 128 N.W.2d 835-841 (Neb. 1964), for the proposition that "[a]ssumption of risk is predicated upon an implied consent to be treated negligently"
117. Anderson v. Hedstrom Corp., 76 F. Supp. 2d 422-432 (S.D.N.Y. 1999)
118. citing Turcotte v. Fell, 508 N.E.2d 964, 968 (N.Y. 1986), for the proposition that the assumption of risk doctrine is that "participants properly may be held to have consented, by their participation, to those injury-causing events which are known, apparent or reasonably foreseeable consequences of the participation".
119. For example, some courts have held that one party's failure to object to the other party's material modification of a contract can, in some circumstances, manifest consent to the modification (though in this context courts more often use the term "ratification" or "assent" rather than "consent").
120. See Union Oil Co. of Cal. v. Mercantile Ref. Co., 97 P. 919-921 (Cal. Ct. App. 1908) ("[W]here a document has been altered, and notice of such alteration is brought to the attention of the parties affected, it is their duty to disavow it... or they are bound by the document as altered.")
121. 30 Williston On Contracts § 75:11 n.79 (4th ed. 2012)
122. see also Randy E. Barnett, The Sound of Silence: Default Rules and Contractual Consent, 78 VA. L. REV. 821 (1992) (arguing that according to a consent theory of contract, silence can be meaningful, and that its meaning should sometimes influence policymakers' choice of default rules).
123. For example, it is generally the case that the failure of a litigant (or litigant's counsel) to object to the introduction of particular evidence or testimony constitutes consent to the introduction of that evidence, thus waiving any future objection that the evidence was inadmissible.
124. See, e.g., Israel v. McMorris, 455 U.S. 967-969 (1982) (Rehnquist, C.J., dissenting from denial of certiorari) ("In our adversarial system of criminal procedure, testimony from witnesses and documentary exhibits are generally admitted into evidence unless the opposing party objects. In a sense, any such objection by the prosecution is a 'refusal' to consent or to stipulate to the admissibility of the evidence.").
125. Additionally, a client's failure to object to disclosures otherwise in violation of the attorney-client privilege may be construed as having waived the privilege, at least in some contexts.
126. See Christopher B. Mueller & laird C. Kirkpatrick, 2 FEDERAL EVIDENCE § 5:33, at 666 (3d ed. 2007) ("A client who fails to object to disclosure impliedly consents to disclosure.").
127. A couple of additional miscellaneous examples should suffice. In United States v. Midwest Oil Co., 236 U.S. 459-481 (1915), the Supreme Court found that Congress had implicitly consented to presidential deviation from a statute regulating oil on public lands.
128. And in United States v. Butler, 426 F.2d 1275 (1st Cir. 1970), the First Circuit rejected a claimed violation of the Sixth Amendment speedy trial right, reasoning that "where a defendant is aware of his rights and implicitly consents to a delay by remaining silent," he cannot subsequently raise a speedy trial objection.
129. See Frank R. Herrmann & Brownlow M. Speer, Standing Mute at Arrest as Evidence of Guilt: The "Right to Silence" Under Attack, 35 AM. J. CRIM. L. 1, 6 & nn.32-33 (2007)
130. see also United States v. Irvine, 511 U.S. 224-242 (1994) (Scalia, J., concurring) (providing a rare modern judicial citation of the qui tacet maxim by its Latin name).
131. See Peter Marshall, The Last Years, in THE CAMBRIDGE COMPANION TO THOMAS MORE 116-130 (George M. Logan ed., 2011). Of course, despite More's successful invocation of the qui tacet canon, the trial ended badly for him.
132. For example, the Senate, and to a lesser extent the House of Representatives, regularly uses the procedural device of "unanimous consent agreements" to limit debate and amendment for a specific bill (as well as for other matters). When a senator seeks unanimous consent for some alteration or waiver of the usual procedural rules, there does not need to be a formal vote granting such consent; rather, the failure of any senator to make a timely objection is construed as unanimous consent.
133. See Floyd M. Riddick & Alan S. Frumin, Riddick's SENATE PROCEDURE: PRECEDENTS AND PRACTICES, S. DOC. NO. 101-28, at 1355-56 (1992) ("When a unanimous consent request is submitted and the Chair inquires if there is objection, and hearing none, announces that the request is agreed to, it is too late for another Senator to object.")
134. Senate Legislative Process, U.S. SENATE, http://www.senate.gov/legislative/common/briefing/Senate_legislative_pro cess.htm (last visited Oct. 2, 2012)
135. see also WM. HOLMES BROWN, HOUSE PRACTICE: A GUIDE TO THE RULES, PRECEDENTS AND PROCEDURES OF THE HOUSE 861-69 (1996) (describing procedures for unanimous consent agreements in the House of Representatives). Indeed, the use of unanimous consent agreements-and that particular terminology-has a long history.
136. See Senate Legislative Process, supra ("Even several of the Senate's early rules incorporated unanimous consent provisions to speed the Senate's routine business.").
137. This is true in many areas. One of the most obvious is sovereign immunity. The Supreme Court has consistently held that waivers of sovereign immunity-that is, consent by the sovereign to be sued-must be express and may not be implied.
138. See United States v. White Mountain Apache Tribe, 537 U.S. 465-472 (2003).
139. U.S. CONST. art. II, § 3.
140. There is a longstanding academic and jurisprudential debate over whether the Take Care Clause is an affirmative grant of power to the President, or whether it is better seen as the imposition of a duty on the President.
141. Compare Mary M. Cheh, When Congress Commands a Thing To Be Done: An Essay on Marbury v. Madison, Executive Inaction, and the Duty of the Courts To Enforce the Law, 72 GEO. WASH. L. REV. 253-275 (2003) (arguing that the Take Care Clause imposes a duty on the President but does not confer any powers)
142. and Peter M. Shane, Independent Policymaking and Presidential Power: A Constitutional Analysis, 57 GEO. WASH. L. REV. 596-613 (1989) (same)
143. with John F. Manning, Separation of Powers as Ordinary Interpretation, 124 HARV. L. REV. 1939+2036-37 (2011) (suggesting that the imposition of duties on the President under the Take Care Clause could imply the grant of sufficient powers to ensure those duties are fulfilled).
144. For the purposes of my argument, one need not resolve this question.
145. 272 U.S. 52-117 (1926). Chief Justice Taft cited several earlier Court opinions in support of this proposition.
146. See Russell Motor Car Co. v. United States, 261 U.S. 514-523 (1923) ("Executive power, in the main, must of necessity be exercised by the President through the various departments.")
147. In re Neagle, 135 U.S. 1, 63-64 (1890) ("The Constitution, section 3, Article 2, declares that the President 'shall take care that the laws be faithfully executed,' and he is provided with the means of fulfilling this obligation by his authority to commission all the officers of the United States, and, by and with the advice and consent of the Senate, to appoint the most important of them and to fill vacancies [The heads of the executive departments] aid him in the performance of the great duties of his office, and represent him in a thousand acts to which it can hardly be supposed his personal attention is called, and thus he is enabled to fulfil the duty of his great department, expressed in the phrase that 'he shall take care that that the laws be faithfully executed.'")
148. Williams v. United States, 42 U.S. (1 How.) 290-297 (1843) ("The President's duty in general requires his superintendence of the administration; yet this duty cannot require of him to become the administrative officer of every department and bureau, or to perform in person the numerous details incident to services which, nevertheless, he is, in a correct sense, by the Constitution and laws required and expected to perform.")
149. United States v. Eliason, 41 U.S. (16 Pet.) 291-302 (1842) ("The Secretary of War is the regular constitutional organ of the President for the administration of the military establishment of the nation; and rules and orders publicly promulgated through him must be received as the acts of the executive, and as such, be binding upon all within the sphere of his legal and constitutional authority.")
150. Wilcox v. Jackson, 38 U.S. (13 Pet.) 498, 513 (1839) ("The President speaks and acts through the heads of the several departments in relation to subjects which appertain to their respective duties.").
151. Power of the President To Appoint to Office During Recess of Senate, 4 Op. Att'y Gen. 523+525-26 (1846).
152. See infra text accompanying notes 104-119.
153. See infra text accompanying notes 113-119.
154. U.S. CONST. art. I, § 5, cl. 2 ("Each House may determine the Rules of its Proceedings").
155. See, e.g., Laura T. Gorjanc, Comment, The Solution to the Filibuster Problem: Putting the Advice Back in Advice and Consent, 54 CASE W. RES. L. REV. 1435-1455 (2004) ("The Rules of Proceedings Clause grants the Senate the authority to decide how to express its consent to a nominee.").
156. This idea has recently been floated, though not yet developed or defended in the scholarly literature. See Gordon Bermant, Jeffrey A. Hennemuth & A. Fletcher Mangum, Judicial Vacancies: An Examination of the Problem and Possible Solutions, 14 MISS. C. L. REV. 319-344 n.78 (1994)
157. Adam D. Chandler, Letter to the Editor, N.Y. TIMES, Mar. 3, 2012, http://www.nytimes.com/2012/03/04/opinion/sunday/sunday-dialogue-getting -judges-confirmed.html?pagewanted=2
158. Tom Davis, 90-Day Up-or-Down Vote on Presidential Nominations, THE HILL'S CONGRESS BLOG (Feb. 13, 2012, 4:47 PM), http://thehill.com/blogs/congress-blog/politics/210375-90-day-up-or-down -vote-on-presidential-nominations.
159. Rule XXXI: Executive Session-Proceedings on Nominations, U.S. SENATE COMMITTEE ON RULES & ADMIN., http://www.rules.senate.gov/public/index.cfm?p=RuleXXXI (last visited Oct. 2, 2012).
160. Id.
161. This section of the Rule also states that if the Senate adjourns or takes a recess of greater than thirty days, all pending nominations "shall be returned... to the President."
162. Id.
163. Cf. Tuan Samahon, The Judicial Vesting Option: Opting Out of Nomination and Advice and Consent, 67 OHIO ST. L.J. 783+801-03 (2006) (arguing that the Senate filibuster is constitutionally suspect because although Article I, Section 5 gives the Senate the power to make its own procedural rules, this power cannot be construed to impose a supermajority requirement for confirmation rather than the simple majority requirement implicit in the Appointments Clause, because "no rule promulgated pursuant to the Rules of Proceedings Clause may conflict with another provision of the Constitution or else the Rules of Proceedings Clause would defeat the Framers' carefully enumerated safeguards by permitting the rest of the Constitution to be swallowed by the exercise of power under the Clause").
164. This assertion implicates a related debate about whether the Rules of Proceedings Clause authorizes the House and Senate to adopt supermajority rules for passing legislation.
165. See Bruce Ackerman et al., Comment, An Open Letter to Congressman Gingrich, 104 YALE L.J. 1539 (1995)
166. Neals-Erik William Delker, The House Three-Fifths Tax Rule: Majority Rule, the Framers' Intent, and the Judiciary's Role, 100 DICK. L. REV. 341+344-56 (1996)
167. John O. McGinnis & Michael B. Rappaport, The Constitutionality of Legislative Supermajority Requirements: A Defense, 105 YALE L.J. 483+485-500 (1995)
168. John O. McGinnis & Michael B. Rappaport, The Rights of Legislators and the Wrongs of Interpretation: A Further Defense of the Constitutionality of Legislative Supermajority Rules, 47 DUKE L.J. 327 (1997)
169. Max Minzner, Entrenching Interests: State Supermajority Requirements To Raise Taxes, 14 AKRON TAX J. 43 (1999)
170. Jed Rubenfeld, Rights of Passage: Majority Rule in Congress, 46 DUKE L.J. 73 (1996).
171. Even this has been challenged as unconstitutional, precisely because the effect of this nominally "procedural" rule is to alter the constitutional rules for passing legislation or appointing officials, which the Rules of Proceedings Clause does not permit.
172. See Josh Chafetz, The Unconstitutionality of the Filibuster, 43 CONN. L. REV. 1003+1011-17 (2011)
173. Samahon, supra note 47, at 801-03
174. Enriquez, supra note 21, at 252-54.
175. My argument is less ambitious in that it does not require attention to de facto effects of nominal procedural rules. Rather, I argue that the Senate should not be able unilaterally to define, by rule, the constitutional term "Consent."
176. See INS v. Chadha, 462 U.S. 919+955-56 n.21 (1983)
177. United States v. Ballin, 144 U.S. 1, 5 (1892) ("The Constitution empowers each house to determine its rules of proceedings [but i]t may not by its rules ignore constitutional restraints")
178. see also supra notes 47-48 (summarizing the debate).
179. See generally Akhil Reed Amar, Intratextualism, 112 HARV. L. REV. 747 (1999) (discussing this methodology for use in the constitutional context).
180. U.S. CONST. art. II, § 2, cl. 2.
181. One could conceivably make an even more aggressive form of expressio unius argument, in that the specific reference to the concurrence of two-thirds of the Senate in the Treaty Clause, combined with the absence of any such language in the Appointments Clause, indicates that a Senate vote is not required in the latter context. I do not think such a strong inference can be drawn
182. However it is more plausible to conclude that the meaning of "Advice and Consent" is ambiguous in both Clauses, and that the additional language in the Treaty Clause does not resolve the ambiguity in the Appointments Clause one way or the other.
183. It is also worth noting that the meaning of "Advice and Consent" in the Treaty Clause is perhaps less clear-cut than has traditionally been assumed.
184. Jean Galbraith, for example, has argued persuasively that the Constitution does not require the Senate to ratify a treaty after it has been negotiated, but rather that the Treaty Clause permits the President to get the Senate's prospective advice and consent to negotiate and sign a treaty.
185. See Jean Galbraith, Prospective Advice and Consent, 37 YALE J. INT'L L. 247 (2012).
186. Although Professor Galbraith's argument is necessarily different from mine, she presumes, as do I, that an affirmative vote is still required in the Treaty Clause context, and argues that this vote can take place before the President negotiates and signs a treaty. Her argument is also similar in spirit and motivation to mine, in that it also seeks to unsettle assumptions about the meaning of "Advice and Consent," and to show that the longstanding conventional practices are both pragmatically undesirable and not, in fact, constitutionally required.
187. See Adrian Vermeule & Ernest A. Young, Commentary, Hercules, Herbert, and Amar: The Trouble with Intratextualism, 113 HARV. L. REV. 730 (2000)
188. cf. Walter Wheeler Cook, "Substance" and "Procedure" in the Conflict of Laws, 42 YALE L.J. 333-337 (1933) ("The tendency to assume that a word which appears in two or more legal rules, and so in connection with more than one purpose, has and should have precisely the same scope in all of them, runs all through legal discussions. It has all the tenacity of original sin and must constantly be guarded against.").
189. Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1-19 (1831).
190. Gerhardt, supra note 12, at 16.
191. U.S. CONST. art. I, § 5, cl. 4 ("Neither House, during the Session of Congress, shall, without the Consent of the other, adjourn for more than three days, nor to any other Place than that in which the two Houses shall be sitting.").
192. See Lawfulness of Recess Appointments During a Recess of the Senate Notwithstanding Periodic Pro Forma Sessions, 36 Op. O.L.C. 1 (2012)
193. Gary L. Goldberg, Dodd-Frank Act at One Year: An Overview, 65 CONSUMER FIN. L. Q. REP. 229+234-35 (2011)
194. Dan Friedman, Why Pro Forma Has Become a Way of Life, NAT'L J. DAILY (D.C.), Dec. 11, 2011, http://www.nationaljournal.com/member/daily/why-pro-forma-has-become-a-w ay-of-life-20111211.
195. U.S. CONST. art. I, § 8, cl. 17.
196. Id.
197. art. I, § 9, cl. 8 ("[N]o Person holding any Office of Profit or Trust under [the United States] shall, without the Consent of the Congress, accept any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.").
198. Id.
199. art. I, § 10, cls. 2-3 ("No State shall, without the Consent of the Congress, lay any Imposts or Duties on Imports or Exports, except what may be absolutely necessary for executing its inspection Laws No State shall, without the Consent of Congress, lay any duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.").
200. Id.
201. art. IV, § 3, cl. 1 ("New States may be admitted by the Congress into this Union; but no new States shall be formed or erected within the Jurisdiction of any other State; nor any State be formed by the Junction of two or more States, or Parts of States, without the Consent of the Legislatures of the States concerned as well as of the Congress.").
202. See, e.g., Wright v. United States, 302 U.S. 583-590 (1938)
203. Lawfulness of Recess Appointments During a Recess of the Senate Notwithstanding Periodic Pro Forma Sessions, 36 Op. O.L.C. 1 (2012).
204. See Ward v. United States, 1 Cl. Ct. 46+48-49 (1982).
205. See Fort Leavenworth R.R. Co. v. Lowe, 114 U.S. 525+538-39 (1885)
206. Hayes v. United States, 367 F.2d 216-219 (10th Cir. 1966).
207. See Virginia v. Tennessee, 148 U.S. 503-519-21 (1893). That said, implied consent in this context is thought to require some form of legislative act implicitly endorsing or acquiescing to the compact, rather than mere inaction.
208. See id.
209. See supra text accompanying notes 56-63.
210. U.S. CONST. amend. XXV, § 2.
211. Indeed, one might go further and suggest a structural reason why it makes sense to require a confirmation vote in the Twenty-Fifth Amendment context but not in the context of other executive branch appointments: the selection of a Vice President (ordinarily an elected position) should require more input from the House and the Senate (as representatives of the people).
212. Adam J. White, Toward the Framers' Understanding of "Advice and Consent": A Historical and Textual Inquiry, 29 HARV. J.L. & PUB. POL'Y 103 (2005).
213. White frames his article as a response to a different claim from the one I advance in this Essay: he takes on the claim that the Senate is constitutionally obligated, by the Appointments Clause, to vote on all presidential nominees. Nonetheless, his originalist arguments would cut against my proposal as well.
214. MASS. CONST. art. IX ("All judicial officers... shall be nominated and appointed by the governor, by and with the advice and consent of the council")
215. see White, supra note 71, at 114 (citing 1 THE RECORDS OF THE FEDERAL CONVENTION 1787, at 41 (Max Farrand ed., rev. ed. 1937)).
216. See White, supra note 71, at 135-37.
217. To be clear, and as noted above, see supra note 71, White's main concern is with the claim, advanced by other scholars, that the phrase "advice and consent" requires the Senate to vote on all nominees, or else the Senate would be withholding its constitutionally obligatory "advice,"
218. see infra note 103.
219. Therefore, the point that White emphasizes, and persuasively establishes, is that under the Massachusetts Constitution, the term "advice and consent" was equivalent to the term "advice," and that both meant "assent" (as opposed to "formal opinion one way or the other").
220. Insofar as White establishes that claim, it would indeed undermine at least some of the arguments to the effect that a Senate vote is constitutionally required. It would not, however, refute the claim that Senate consent could be implied even in the absence of such a vote-which is the claim I advance here.
221. In fact, White's own evidence indicates that the Council expeditiously confirmed the overwhelming majority of appointees, suggesting an almost pro forma function.
222. See White, supra note 71, at 136-37.
223. See Antonin Scalia, Common-Law Courts in a Civil-Law System: The Role of United States Federal Courts in Interpreting the Constitution and the Laws, in A MATTER OF INTERPRETATION: FEDERAL COURTS AND THE LAW 3, 35-38 (Amy Gutmann ed., 1997).
224. See Jack M. Balkin, Original Meaning and Constitutional Redemption, 24 CONST. COMMENT. 427+444-45 (2007)
225. Charles A. Lofgren, The Original Understanding of Original Intent?, 5 CONST. COMMENT. 77, 79 (1988)
226. Henry P. Monaghan, Our Perfect Constitution, 56 N.Y.U. L. REV. 353+375 n.130 (1981).
227. See Steven G. Calabresi & Saikrishna B. Prakash, The President's Power To Execute the Laws, 104 Yale L.J. 541+576 (1994)
228. Stephen L. Carter, Constitutional Improprieties: Reflections on Mistretta, Morrison, and Administrative Government, 57 U. CHI. L. REV. 357+372 n.48 (1990)
229. Martin S. Flaherty, The Most Dangerous Branch, 105 YALE L.J. 1725+1801-02 (1996)
230. H. Jefferson Powell, The Original Understanding of Original Intent, 98 HARV. L. REV. 885 (1985).
231. But see Vasan Kesavan & Michael Stokes Paulsen, The Interpretive Force of the Constitution's Secret Drafting History, 91 GEO. L.J. 1113+1118 (2003) (asserting that, contrary to the "conventional wisdom," the secret drafting history can shed light on the original meaning of the Constitution, but also cautioning that this material should not be used to try to discern the Framers' or ratifiers' subjective intentions).
232. See The Federalist NO. 66, at 405 (Alexander Hamilton) (Clinton Rossiter ed., 1961) ("[The Senators] may defeat one choice of the Executive, and oblige him to make another but they cannot themselves choose-they can only ratify or reject the choice, [the President] may have made Thus it could hardly happen that the majority of the Senate would feel any other complacency towards the object of an appointment than such as the appearances of merit might inspire and the proofs of the want of it destroy.")
233. The Federalist NO. 76, supra, at 457 (Hamilton) ("[The President's] nomination may be overruled..., yet it can only be to make place for another nomination by himself.")
234. The Federalist NO. 77, supra, at 461 (Hamilton) ("The censure of rejecting a good [nomination] would lie entirely at the door of the Senate, aggravated by the consideration of their having counteracted the good intentions of the executive.").
235. See John Adams, Three Letters to Roger Sherman, on the Constitution of the United States, in 6 THE WORKS OF JOHN ADAMS, SECOND PRESIDENT OF THE UNITED STATES 427+436 (Charles Francis Adams ed., Boston, Charles B. Little & James Brown 1851)
236. Debates in the Convention of the State of North Carolina on the Adoption of the Federal Constitution, in 4 THE DEBATES IN THE SEVERAL STATE CONVENTIONS ON THE ADOPTION OF THE FEDERAL CONSTITUTION AS RECOMMENDED BY THE GENERAL CONVENTION AT PHILADELPHIA, IN 1787, at 1, 134 (Jonathan Elliot ed., 2d ed., Philadelphia, J.B. Lippincott Co. 1891) (quoting the speech of James Iredell)
237. James Wilson in the Pennsylvania Convention, in Pennsylvania and the federal constitution, 1787-1788, 327 (John Bach McMaster & Frederick D. Stone eds., 1888)
238. Reprinted in 3 THE RECORDS OF THE FEDERAL CONVENTION OF 1787, at 162 (Max Farrand ed., 1911).
239. See White, supra note 71, at 129-31.
240. See William G. Ross, The Senate's Constitutional Role in Confirming Cabinet Nominees and Other Executive Officers, 48 SYRACUSE L. REV. 1123+1131 (1998) ("The fact that so many delegates who had favored appointment by the Senate alone were willing to assent to [the advice and consent language] suggests that those delegates did not contemplate that the Senate would passively exercise its power of 'advice and consent.' On the other hand, the consent of those delegates who favored sole appointment by the President indicates that many delegates did not foresee a particularly active role for the Senate.")
241. cf.
242. Joseph A. Grundfest & A.C. Pritchard, Statutes with Multiple Personality Disorders: The Value of Ambiguity in Statutory Design and Interpretation, 54 STAN. L. REV. 627 (2002) (discussing this phenomenon in the statutory context)
243. Ernest A. Young, Making Federalism Doctrine: Fidelity, Institutional Competence, and Compensating Adjustments, 46 WM. & MARY L. REV. 1733-1749 (2005) (arguing that "constitutional ambiguity on federalism... represents a deliberate strategy on the part of the Framers to allow the mechanics of federalism to be worked out and adapted through practice over time").
244. See White, supra note 71, at 120-21.
245. See Curtis A. Bradley & Trevor W. Morrison, Historical Gloss and the Separation of Powers, 126 HARV. L. REV. 411 (2012), http://ssrn.com/abstract=1999516
246. Michael J. Gerhardt, Non-Judicial Precedent, 61 VAND. L. REV. 713, 714-18 (2008)
247. Michael J. Glennon, The Use of Custom in Resolving Separation of Powers
248. Caleb Nelson, Originalism and Interpretive Conventions, 70 U. CHI. L. REV. 519 (2003)
249. Peter J. Smith, The Marshall Court and the Originalist's Dilemma, 90 MINN. L. REV. 612+623-40 (2006)
250. David A. Strauss, Common Law Constitutional Interpretation, 63 U. CHI. L. REV. 877+916-24 (1996).
251. There are a handful of district court cases that touch on issues related to presidential appointment of executive branch officials without Senate consent; these cases reject the idea that the President has inherent constitutional power to make appointments outside the Appointments Clause or duly enacted statutory requirements, but none of these cases is really germane. In both Olympic Federal Savings & Loan Ass'n v. Director, Office of Thrift Supervision, 732 F. Supp. 1183 (D.D.C. 1990)
252. and Williams v. Phillips, 360 F. Supp. 1363 (D.D.C. 1973), federal district courts held that the President does not have the inherent constitutional power to appoint officers temporarily, absent a Senate recess, emergency situation, or legislation allowing the President to make temporary appointments.
253. See Olympic, 732 F. Supp. at 1199-1200
254. Williams, 360 F. Supp. at 1368-69+1371.
255. In George v. Ishimaru, 849 F. Supp. 68 (D.D.C. 1994), a district court rejected a presidential attempt to appoint an agency staff director-not an "officer" in the constitutional sense-without following a statutorily mandated procedure, concluding that Article II gave the President no such power.
256. The only court of appeals opinion even somewhat on point is the D.C. Circuit's denial of the government's request for a stay in the Williams case, in which the court stated that [i]t could be argued that the intersection of the President's constitutional obligation to "take care that the laws be faithfully executed" and his obligation to appoint the director of [the agency in question] "with the Advice and Consent of the Senate" provides the President an implied power, in the absence of limiting legislation, upon the resignation of an incumbent [agency] director, to appoint an acting director for a reasonable period of time before submitting the nomination of a new director to the Senate. Even if the court should sustain such a view, in its disposition on the merits, that would not establish that the President was entitled, for a period of four and a half months from the date the President obtained the resignation of the incumbent director, to continue the designation of Phillips as acting director without any nomination submitted for Senate consideration.
257. Williams v. Phillips, 482 F.2d 669+670-71 (D.C. Cir. 1973).
258. See generally Ross, supra note 86, at 1133-43 (discussing the history of Senate scrutiny of executive branch nominees, and giving several examples of nominations that were effectively blocked by the Senate, or by a minority of Senators, without a formal vote).
259. See, e.g., The Pocket Veto Case, 279 U.S. 655-689 (1929) (asserting that "[l]ong settled and established practice is a consideration of great weight in a proper interpretation of constitutional provisions [relating to separation of powers]")
260. Nelson, supra note 88.
261. See Gerhardt, supra note 12, at 143-44
262. Denning, supra note 21, at 76.
263. See Harold H. Bruff, The Incompatibility Principle, 59 ADMIN. L. REV. 225-249 (2007).
264. Indeed, after the invalidation of the legislative veto in INS v. Chadha, 462 U.S. 919 (1983), a legal requirement that the appropriations committees must play this role would be unconstitutional.
265. For example, there was a longstanding practice, beginning with Thomas Jefferson, that the President would only deliver his State of the Union message to Congress in writing; this was no mere convenience, but came to be seen as a reflection of constitutional values. But President Woodrow Wilson broke with this practice, and the ultimate acquiescence by other political actors and the general public in President Wilson's action demonstrated (after the fact) that what many had assumed was an entrenched constitutional rule was in fact not.
266. See Adrian Vermeule, Conventions of Agency Independence, 113 COLUM. L. REV. (forthcoming 2012) (manuscript at 20-21), http://ssrn.com/abstract=2103338 (citing HERBERT W. HORWILL, THE USAGES OF THE AMERICAN CONSTITUTION 199 (1925)).
267. Recent work by Curtis Bradley and Trevor Morrison, building on earlier work by Michael Glennon and others, has made some progress on developing a more general theory, or set of mid-level principles, that could help distinguish those patterns of interbranch interaction that generate new constitutional understandings from those that do not.
268. See Bradley & Morrison, supra note 88
269. Glennon, supra note 88.
270. Some of Bradley and Morrison's suggestions might cut against the proposal advanced here, in that they suggest historical practice is more likely to resolve (constitutional) separation of powers questions when the executive acquiesces in a congressional assertion of power (rather than the other way around), and when the practice has attracted the support of both parties. Without fully engaging Bradley and Morrison's substantive arguments here, it suffices to say that even if their claims are correct (and they are certainly plausible), they are clearly not absolute, as the examples in the main text illustrate-and Bradley and Morrison never claim otherwise. The other recent work on this general question is by Adrian Vermeule, who in related papers has explored both the emergence of constitutional "conventions"
271. see Adrian Vermeule, supra note 95, and the phenomenon of the "atrophy" of constitutional powers (whereby a power, if not used, becomes unusable, not only politically but legally)
272. see Adrian Vermeule, The Atrophy of Constitutional Powers, 32 O.J.L.S. 421 (2012).
273. Vermeule provides a lucid exploration of the mechanisms by which conventions can emerge and atrophy can occur, but his analysis does not directly answer the question of whether a court (or other relevant actor) should decide that a given actor, in this case the President, cannot exercise a particular power because he or she has not exercised it, particularly when such an exercise seems not to have been seriously considered.
274. But see Adrian Vermeule, supra note 95 (manuscript at 19-21 & n.93) (noting that, as an empirical matter, this does sometimes occur).
275. See Seth Barrett Tillman, Noncontemporaneous Lawmaking: Can the 110th Senate Enact a Bill Passed by the 109th House?, 16 CORNELL J.L. & PUB. POL'Y 331+342 (2007) ("[H]istory only ratifies one of a number of ambiguous meanings of a constitutional provision, if the asserted meaning was actually contested and the non-prevailing institution acquiesced or otherwise adopted the practice.").
276. But see Aaron-Andrew P. Bruhl, Against Mix-and-Match Lawmaking, 16 CORNELL J.L. & PUB. POL'Y 349+361-62 (2007) (arguing that the failure of political actors ever to attempt something that might seem expedient is valid evidence of a widespread understanding that such action would be constitutionally impermissible).
277. See Lessig & Sunstein, supra note 17, at 12-42.
278. Other scholars have challenged Lessig and Sunstein's interpretation of the original understanding, see, e.g., Calabresi & Prakash, supra note 81, at 599-635, but that disagreement is not relevant here.
279. See Lessig & Sunstein, supra note 17.
280. See supra note 12 and accompanying text.
281. See Ross, supra note 86, at 1133-43 (providing a history of the appointments process)
282. supra note 12 and accompanying text.
283. See, e.g., John Cornyn, Our Broken Judicial Confirmation Process and the Need for Filibuster Reform, 27 HARV. J.L. & PUB. POL'Y 181, 197-99 (2003)
284. Douglas W. Kmiec & Elliot Mincberg, The Role of the Senate in Judicial Confirmations, 7 TEX. REV. L. & POL. 235-252+262 (2003)
285. Renzin, supra note 21, at 1751-52.
286. Note in this regard that this argument, like mine, proceeds from the premise that there are two norms that ought to go together: the norm that the President only appoint officials whom the Senate confirms in an up-or-down vote, and the norm that the Senate actually hold such votes for all (important) presidential nominees.
287. The sources cited above presume that the first norm is constitutionally required, and argue that the second norm-which has eroded-should therefore also be constitutionally required. My approach is the mirror image: because the second norm has eroded, the first norm should as well, and should not be construed as constitutionally required. Nor should historical practice be deemed dispositive with respect to the constitutional question, in light of the fact that the historical practice emerged primarily when the latter norm, though nonconstitutional, was firmly in place.
288. That general statement is not entirely accurate for independent agencies headed by directors or commissioners who serve fixed terms, but in practice each President has ample opportunity to replace such officials, and there is regular turnover.
289. See, e.g., Charles Babington & Shailagh Murray, A Last-Minute Deal on Judicial Nominees, WASH. POST, May 24, 2005, http://www.washingtonpost.com/wp-dyn/content/article/2005/05/23/AR200505 2301970.html.
290. See supra note 1 and accompanying text.
291. See supra text accompanying notes 2-5.
292. U.S. CONST. art. II, § 3.
293. One could imagine an extreme case in which this might not be true. For example, suppose that as a result of Senate intransigence, there were so many judicial vacancies that the courts could not function, and the President could not execute the laws because there were too few courts to handle the enforcement activities initiated by the executive. In that case, one could perhaps construct a scenario in which the President's obligations to take care that the laws are faithfully executed might conceivably justify a reading of the Appointments Clause that would enable the President to circumvent a recalcitrant Senate minority. I do not, however, take up that possibility here.
294. In the case of ambassadors, the case for inferring Senate consent from silence is buttressed not only by implications from the Take Care Clause, but also by the President's long-acknowledged authority as the voice of the nation in foreign affairs.
295. As with the judiciary, one can imagine situations in which widespread vacancies even in more junior executive officer positions do significantly impede the President's ability to carry out the functions of the executive branch, even if the most senior positions are filled.
296. See supra note 109.
297. For evidence that widespread vacancies, even at more junior levels, can undermine the performance of the executive branch, see O'Connell, supra note 2.
298. If so, this might justify a more expansive version of my proposal. In this Essay, however, I defend only the more limited version of my proposal, restricted to senior positions.
299. A related difficulty here is identifying the senior executive positions to which my proposal should apply. As is true with many legal rules that try to draw categorical distinctions of this sort, although there are some positions that should clearly be covered and others that clearly should not, there is a potentially large gray zone in between. But that is a generic problem, and one to which I have little new to contribute. My instinctive preference, in this context, is to use a relatively simple categorical rule based on hierarchy within the relevant department or agency, rather than trying to make finer distinctions based on how important the agency is to the overall functioning of the executive branch (for instance, by trying to decide which ambassadorships are critical to U.S. foreign policy and which are more like ceremonial positions given to loyal supporters of the President).
300. My tentative suggestion to allow silence to imply consent only in the case of senior executive appointments, but not in the case of judicial or more junior executive appointments, concededly creates an interpretive anomaly, in that the term "Consent" as used in the Appointments Clause means two different things depending on the officer being appointed. This is admittedly awkward, but it is not unheard of for the same term (in the same clause) to mean somewhat different things.
301. For example, the Fifth Amendment states that "[no] person [shall] be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself." U.S. CONST. amend. V. (The former provision is the Double Jeopardy Clause; the latter is the Self- Incrimination Clause.) Courts have construed the same word-"person"-to include corporations for purposes of the Double Jeopardy Clause but not for purposes of the Self- Incrimination Clause, despite the fact that both Clauses take the same (single) use of the word "person" as their subject.
302. See Thomas W. Merrill, The Landscape of Constitutional Property, 86 VA. L. REV. 885+956 (2000) (citing E. Enters. v. Apfel, 524 U.S. 498, 557 (1998) (Breyer, J., dissenting)).
303. While this sort of differentiation is unusual and generally disfavored, it may sometimes be justified. Indeed, Akhil Reed Amar-one of the leading expositors of an "intratextualist" methodology that strives to give words or phrases consistent meaning throughout the Constitution
304. see Amar, supra note 50-has argued specifically (though in relation to a somewhat different question) that the phrase "Advice and Consent" in the Appointments Clause may mean different things depending on the official being appointed: The Constitution gives the Senate the power of Advice and Consent, as to both Cabinet officials and Supreme Court Justices.
305. But these words sensibly mean different things in these two contexts. Constitutionally, Cabinet officers are members of the President's team; Justices are not. Thus, the Senate historically gives more deference to the President's nominees when Cabinet officers (who will leave when the President leaves) are at stake, than when Justices (who will be in place for life) are involved. The same words-"advise [sic] and consent"-must be understood in different ways when they interact with different clauses with different structural implications.
306. Akhil Reed Amar, On Prosecuting Presidents, 27 HOFSTRA L. REV. 671+673-74 (1999) (footnotes omitted).
307. But see Jonathan Turley, "From Pillar to Post": The Prosecution of American Presidents, 37 AM. CRIM. L. REV. 1049+1058-61 (2000) (disputing the plausibility of Professor Amar's interpretive claim).
308. The limitation of my proposal to senior executive officers, as noted in the text, is based primarily on pragmatic arguments and structural implications from the Take Care Clause, which in my view probably outweigh the interpretive anomaly created by allowing Senate silence to imply consent for some but not all appointees covered by the Appointments Clause. That said, as noted at the beginning of Part III, this limitation is not critical to my central argument, and it would certainly be plausible to allow Senate silence to imply consent in all cases.
309. U.S. CONST. art. II, § 3.
310. See 5 U.S.C. §§ 3345-3349d (2006).
311. See id. § 3345(c)(2).
312. See Spencer Bachus, Op-Ed., Obama Should Not Appoint Consumer Financial Protection Bureau Head in Recess, POLITICO (D.C.), May 27, 2011, http://www.politico.com/news/stories/0511/55771.html.
313. See 5 U.S.C. § 3349c(1)(a)
314. Catherine L. Fisk, The Role of the Judiciary When the Agency Confirmation Process Stalls: Thoughts on the Two-Member NLRB and the Questions the Supreme Court Should Have, but Didn't, Address in New Process Steel, L.P. v. NLRB, 5 FLA. INT'L U. L. REV. 593-610 (2010)
315. O'Connell, supra note 2, at 933 n.103.
316. See 5 U.S.C. § 3346. That said, according to this statutory provision, a duly appointed acting official can continue to serve in that capacity indefinitely while the (first or second) nomination for the office is pending in the Senate, so the time limitation on acting officials under the Vacancies Act is a less important concern than the other limitations discussed in this paragraph.
317. See O'Connell, supra note 2, at 937-46.
318. But see id. at 946-50 (discussing some potential benefits of acting officials).
319. See supra note 15 and accompanying text.
320. See, e.g., BETSY PALMER, CONG. RESEARCH SERV., RL 32684, CHANGING SENATE RULES: THE "CONSTITUTIONAL" OR "NUCLEAR" OPTION (2005)
321. Michael J. Gerhardt, The Constitutionality of the Filibuster, 21 CONST. COMMENT. 445-474 n.82 (2004)
322. Martin B. Gold & Dimple Gupta, The Constitutional Option To Change Senate Rules and Procedures: A Majoritarian Means To Overcome the Filibuster, 28 HARV. J.L. & PUB. POL'Y 205 (2005)
323. John C. Roberts, Majority Voting in Congress: Further Notes on the Constitutionality of the Senate Cloture Rule, 20 J.L. & POL. 505 (2004).