ConfirmThem

By DanCT Posted in Senate Rules — Comments () / Email this page » / Leave a comment »

Andrew McCarthy expands on the notion that by refusing to act on nominees, the Senate is encroaching on the President's Constitutional obligation to fill vacancies in the courts and other federal offices and that filibustering a President's nominees is indeed unconstitutional. The gist of his argument is as follows:

Could the Senate, for example, make a rule that said: “the Senate will only consider presidential appointments in even-numbered years�? After all, the Senate may make its own rules and, as with the filibuster, there is nothing in the Constitution that expressly says such a rule is impermissible. But of course, such a rule would have the effect of grinding government to a halt. It would nullify the president’s express constitutional authority to appoint most high government officials (art. II, sec. 2, cl. 2). That is, such a Senate rule could force the president to try to govern not only bereft of the ability to choose judges but, in fact, with no Cabinet and sub-Cabinet officials.

Similarly, if in a fit of pique a rule were adopted that the Senate would no longer consider nominees to the Supreme Court, that would eventually leave the Supreme Court empty, notwithstanding that it is the repository of the judicial power and a branch made co-equal to Congress by the constitution. The branches are supposed to compete, but a construction that allowed one to dissolve another’s powers would, in short, destroy the foundations of the Constitution.

Clearly, there must be some objective limits to the Senate’s authority despite the fact that the clause granting it rule-making power does not expressly admit of any. What should our guiding principle be in determining what those limits are? I believe they ought to be (and in fact are) those points at which the Senate’s powers intersect with the powers of the coordinate branches. That is, the Senate may make rules that control any matter over which it uniquely exercises legitimate authority. Beyond that, its rules must yield to the enumerated powers of the other branches.

If the Senate chooses to consider — or not to consider — health care, crime, tax reform, Social Security or any of the plethora of other areas in which it might legislate, that is for it to decide. Neither the House nor the other branches may legally force the Senate to act (although they may of course try to persuade it to do so). The Senate is well within its rights in those circumstances to determine the rules under which it will proceed. But where its powers cross paths with the recognized prerogatives of the other branches, mere Senate rules may not nullify the constitutional powers of those branches. The president’s warrant to make appointments is such a power.

He raises a number of other interesting and important issues. A must read. Also, be sure to check out the energetic and insightful new bench memos blog at NRO.