[Hanah Metchis Volokh, guest-blogging, November 6, 2007 at 6:52am] Trackbacks
Advice, Consent, and Statutory Qualifications:

This is the third in a series of posts about my paper, The Two Appointments Clauses: Statutory Qualifications for Federal Officers Sorry for the blogging hiatus; I had an unexpected confluence of deadlines. Fortunately, I managed to meet them all, and I can get back to the fun stuff in life, namely blogging.

Our Constitution is one of limited and enumerated powers. Thus, the first question is whether the Constitution grants Congress the power to impose statutory qualifications for federal officers, not whether anything affirmatively prevents Congress from doing so. An obvious first place to look is in the text of the Appointments Clauses themselves.

Let's look first at the Confirmation Appointments Clause. That clause states that the President "shall nominate, and by and with the Advice and Consent of the Senate, shall appoint" officers. One might argue that imposing a statutory qualification is a form of advice and consent. But this is wrong, for several reasons.

A statutory qualification is binding, not advisory. Laws generally tend to be mandatory unless they state otherwise (as in, for instance, a law granting a discretionary power to an executive official). And certainly the language of actual statutory qualification laws looks mandatory, using phrases such as, "shall be a citizen of the United States." Since a statutory qualification imposes a mandatory limit on whom the President may appoint to office, it does not count as "advice."

But wait a minute. "Advice" can't be binding, but "consent" certainly is. Without the consent of the Senate, the President cannot appoint an officer through the Confirmation Appointment method. Maybe statutory qualifications are a form of consent.

This second argument runs into two problems. First, consent is generally understood as occurring after a specific proposal has been floated. That is, the President nominates an individual for office, and then consent is granted or denied. If it's denied, the process starts over: the President proposes another candidate, and the Senate again decides whether to consent or not. It is a bit strange to pass a law in advance that categorically rules out certain potential nominees, and to call that law a form of "consent."

The second problem is that viewing statutory qualifications as a form of consent (or advice, for that matter) under the Advice and Consent power conflates two distinct entities: Congress and the Senate. The Advice and Consent power is given to the Senate. But statutory qualifications, being statutes, must be passed by both houses of Congress (and additionally, must be signed by the President or passed over his veto). The Senate and House often have to compromise to get a statute passed through both houses. Any given statutory qualification might well have been added to a bill at the insistence of the House of Representatives, against the will of the Senate but agreed to reluctantly. Is it really fair to call such a measure the consent of the Senate?

In a later post, I will discuss more of the structural implications of involving the House of Representatives in appointments. But before I get to that, my next posts will examine the text of the Vested Appointments Clause and the Necessary and Proper Clause to search for other textual foundations for the power to impose statutory qualifications.

Related Posts (on one page):

  1. As They Think Proper:
  2. Advice, Consent, and Statutory Qualifications:
  3. Statutory Qualifications
  4. Two Appointments Clauses:
Joshua Macy:
It seems to me a worse problem than the fact that the statute might be a compromise between the Senate and the House is that the statute might not represent the current Senate's opinions. Say the statute was passed when there was a Republican majority in both, but now there's a non-veto-proof majority of Democrats in the Senate and every time the Senate tries to change the law, the President vetoes it. Is it really reasonable to regard that statutory qualification as in any way reflecting the Advice and Consent of the current Senate?
11.6.2007 7:39am
Hanah Volokh (mail) (www):
Joshua: I think you're absolutely right that the current Senate, not a past Senate, must give its advice and consent to a nomination. I discuss this briefly in Part III of my paper, among other structural arguments. It also helps shed light on the possibility that the Senate might pass a single-house resolution declaring that only people with X qualification may be appointed to office. Would that resolution be binding on the Senate that passed it? On the next Senate after an election?
11.6.2007 7:52am
Sorry for the blogging hiatus; I had an unexpected confluence of deadlines.

This doesn't cut it. Lady, this is the Internet; you need to bring your A game.
11.6.2007 8:22am
I'll be waiting with bated breath for an explanation of why 28 U.S.C. 505 is or isn't constitutional.
11.6.2007 11:17am
Cullen (mail):
I'm not sure why, in the appointment/consent context, a statutory qualification is not, as a matter of logic, a description of the scope of the Senate's consent.

For the statutory qualification to have been enacted it, by definition, required a majority vote in the Senate, which is no different than the vote required after the President nominates. That the House also agrees with the qualification, and that the President may also, doesn't diminish the fact that the Senate has also effectively said, "We will not consent unless this qualification is met."

That the vote in the Senate might have been close, or only grudgingly given, seems of little import. Senators (and legislators everywhere) sometimes vote for one measure or another while holding their nose or after being bullied into doing so or as part of some bargain for a reciprocal vote on some other provision. That happens every day and in appointment consent votes, too. None of that changes the result that the Senate has voted and, whatever any individual Senator may believe in his or her heart of heart, the Senate has decided the question.

I also think it makes perfect sense that the Senate, in conjunction with the House or not, might anticipatorily set the parameters of its consent. Doing so effectively tells the President, "Don't bother sending someone over unless she meets the conditions we've already described for you in various sections of the Code as a condition for our consent." Doing so also has the happy consequence of making public some qualifications and, of course, doesn't at all limit the Senate's ability to withhold consent for any other reason.

I am interested in Joshua and Hannah's comments that a current Senate may not be bound by a previous Senate's statutory qualification, or at least not by operation of the previous Senate's limitation on the next Senate's "consent power." How does this argument fit:

The Senate is a political entity. Its official actions have legitimacy and consequence by virtue of its status as an institution. If its membership should change, or its calendar evolve, those are things that are unrelated to the instituion's rights and perquisites. If the Senate has a right to withhold consent for any reason or no reason, which is a great power, then it should have the right to choose how to grant that extent, which is a lesser power. One of the ways the Senate can choose to focus its use of the consent power is to pass a law that says, "We will not consent unless X is proven first."

If the Senate wishes to retrieve the power it has forsaken by legislative action, it can, as an institution, work to pass a law to reclaim the forsaken power. Presumably the Senate understood that by passing a law, with the cooperation of the House, forsaking power, it could only reclaim that power by passing another law with the cooperation of the House.

A contrary result would require the conclusion that duly enacted laws, with no expiration date in their text, nevertheless expire at the end of a given Congress, notwithstanding that no provision of the Constitution says as much. If the power to do a large thing implies the power to do smaller constituent things, then it seems to me unremarkable that the Senate can, as an institution, bind itself to a rule for how it will exercise its power.

All that said, I wonder if a statutory qualification is unconstitutional for INS v Chadha-like reasons to the extent it gives the House some role to play in determining how the Senate should exercise its consent power. I haven't considered the issue before this post, so I'll be interested to see your views.

Cullen Seltzer
11.6.2007 12:59pm
MLS (www):
It seems fairly obvious to me, for the reasons you (and Joshua) give, that authorization for statutory qualifications cannot come from the Senate's advice and consent power. But if the Senate wanted to exercise its advice and consent power through a standing Senate Rule (eg, providing that a point of order could be raised against a judicial nominee who is not a lawyer), I don't know why it could not do so.

As for statutory qualifications, there the issue would seem to be whether the power to establish an office (and define its duties) by law also includes the power to provide (some types of) qualifications for its occupant. Which issue I assume will be the subject of future posts.
11.6.2007 1:40pm
I don't see how the Senate would ever have an interest in statutory qualifications. The current Senate would not want to be bound by statutes from the past, and could impose its views on the future only to the extent it could get the current President or a veto-proof majority in both houses to go along, and even then only it would be liable to being overturned in the future. Besides which the Senate doesn't seem to think that far ahead. What would be the advantage of a statute over a Senate Rule, 'sense of the Senate', or just informally coming to an understanding that "we won't approve any candidate who is X"?
11.6.2007 3:10pm
Mary (mail):
If the President is vetoing laws that would remove a statutory qualification to an office, I think we can take it for granted that he won't be proposing candidates that won't fit it. The Senate can advise him not to veto it, but it can only consent to the candidates he puts forth.

Better to argue that the House of Representives won't pass the bill.
11.6.2007 7:56pm