Are Filibusters of Executive Branch Nominees Constitutional?

President Obama’s announcement today making three nominations to the National Labor Relations Board should remind us that the GOP is the party of permanent constitutional crisis.  It has been quite clear from the beginning of the Obama Administration that the Republicans simply have no interest in allowing the NLRB to function.  That shouldn’t be much if a surprise: it’s what you believe if you are a plutocrat.  Besides, it’s nothing new: Republicans have explicitly stated that they will not allow any nominee to head the Consumer Financial Protection Bureau to come to a vote unless the statute is changed.

But it seems to me that this attitude has a constitutional dimension.

Article II of the Constitution not only vests “executive power” in the President, but it commands him to “take care that the laws be faithfully executed.”  The problem is that the President cannot do this if the Senate will not confirm any of his nominations.  And make no mistake: that’s the Republican goal here.  It does not want the CFPB or the NLRB to operate; it does not want the law to be faithfully executed.  But the Senate has the constitutional power to reject nominations.  So the clauses conflict — a quite common feature of the founding charter.  Does the Constitution contradict itself?  Very well, then it contradicts itself.  It is not large, but it contains multitudes.

Is there anything that the law can do about this?  On the most basic level, I think that the answer is no.  When it comes to the CFPB, the Republicans might be opening themselves up to criticism for violating the Constitution, but if anything would be a political question, it would be this.  I cannot imagine any court trying to review the intentions of Senators about why they vote against nominees: that would be the paradigmatic political question.

Nevertheless, I do believe that it makes the filibuster of executive branch nominations constitutionally suspect.  First, we should not read the Constitution to magnify opportunities for one branch to deny the other its core powers.  Second, we should not read the Constitution to enhance interbranch conflict: there is enough of it built into the document already.  Third, we should read the Constitution to enhance public accountability — one of the framers’ central goals — and the filibuster of executive branch nominations undermines it: the law isn’t being faithfully executed, and everyone is pointing fingers at everyone else.  Finally, the Constitution should not permit the empowerment of ”false conflicts” between branches, and the filibustering of an executive branch nomination is not really an interbranch conflict at all: it represents a conflict between the President and a minority of one of the houses of Congress.

Yes, I know: Article I Section 5 gives each House the power to “determine the rules of its Proceedings.”  But this is not an absolute rule.  Obviously, it would be unconstitutional for a House to refuse to seat someone because of his race, but there is nothing in the text of the Constitution that would forbid it.  (The Equal Protection Clause applies only to the states, not the federal government: applying it to the federal government took a Supreme Court decision with a fairly shaky doctrinal basis).  We would probably not allow the Senate to remove an impeached official by flipping a coin.  Ironically enough, the decision giving the Senate wide latitude in impeachments, Nixon v. United States(not about the 37th President!), hung much of its decision on the Constitution’s granting the “sole” power of removal to the Senate.  But of course the power to determine rules is not “sole.”

I emphasize that the foregoing applies only to executive branch nominations.  I don’t see it as applying to judicial branch nominations because those do not implicate the Take Care Clause.  And it does not implicate other congressional actions that impede Presidential execution of the laws, such as refusing appropriations, because the power of the purse is as core to legislative power as execution of the laws is to executive power: preventing filibusters in such cases might disrupt the balance of power between branches.

In an era where virtually everything is partisan, this should not be.  It should apply to President Obama with a Republican Senate minority and to a President Jindal (God help us) with a Democratic Senate minority.  There is enough severe political and ideological conflict in this country, which threatens the basic functioning of the government.  Surely it makes sense to help the Constitutional framework function as effectively as possible.

Comments

  1. Ebenezer Scrooge says

    Jonathan’s argument parses as a logical matter. However, I’m not much of a fan of legal arguments that cannot be resolved in courts of law.

    The Constitution, in many ways, is our national Bible, and can support moral argumentation. What bothers me is that this is a Protestant country, many parts of which are cursed with the Baptist tradition that everybody gets to interpret their own Bible, whether they are learned or not. It’s okay for Baptists: the only punishment in their system for error was eternal damnation. Unfortunately, the Baptist tradition collided with the Puritan tradition: dogma is public, and the public punishes heretical behavior. The Puritans had learned interpreters; all Baptists interpreted their own Bible. This collision spawned the worst of both systems: the Southern-fried tradition of roll-your-own readers of the Constitution doing their best to punish those who don’t roll with them.

    I try to push back with a bit of Catholicism or Shi’ite Islam: there is an accepted hierarchy of interpreters of the Constitution, and there is no Constitutional sense in arguing outside of the decisions of this hierarchy. I think that a lot of people in the Jewish or Sunni or mainstream Protestant traditions believe in learned communities of interpretation, and produce posts like Jonathan’s. In a different country, this might work fine. In America, I don’t know if we have that choice. Any attempt to take Constitutional interpretation away from the workings of the court system will simply play into the hands of the roll-your-own crowd.

    • Jonathan Zasloff says

      I’m glad you find it logical, because you’re a tough critic. But actually, I think that this COULD be resolved by a court. A court could not inquire into the motives of Senators if they vote against an executive branch nominee. But a nominee who is filibustered could bring an action for a judgment declaring executive branch filibusters to be unconstitutional. I do not believe that that would be a political question, and would thus be justiciable.

      • Katja says

        I’m not sure I’m agreeing that this can be resolved easily by the courts.

        Consider, first, a different case. Assume it wasn’t a filibuster, but that the Senate simply kept rejecting any and all candidates nominated by the President, either because the President’s party didn’t have a majority or because the president kept nominating unsuitable candidates. What would the courts do? Force the Senate to accept whatever candidate the President is submitting? Substitute its own judgement about the suitability of candidates for the Senate’s “advice and consent”? This would be terribly problematic. Yes, the Senate may simultaneously be creating a law for the President to execute and keep denying him the opportunity to do that, but any fix to that situation would dramatically change the role of the courts.

        And I don’t see the filibuster as fundamentally different. Formally, a filibuster means that cloture is being denied; not that a candidate is being rejected, but that there’s either debate that’s still ongoing or used as a pretense to deny a candidate a vote. On the face of it, it may not be as problematic if a court said, “enough is enough, and you’re not being serious, anyway; vote already”. But I’m not sure if a court setting time constraints for debate on a nomination is fundamentally that much different from substituting its own judgement for that of the Senate.

        In practice, I think that the Supreme Court would not touch the question with a ten foot pole as being fundamentally political in nature, so I don’t think it’s a question that’s actually going to be resolved any time soon.

        I do agree that the situation is problematic; parliamentary democracies, for good reasons and out of experience, generally do not let their legislatures micromanage the composition of the executive. On the other hand, parliamentary democracies also have the ability to remove a prime minister via a motion of no confidence and short of impeachment. In the end, I think we’ll have to figure out our own solution; I hope and expect it won’t involve the judiciary, though.

        • NCG says

          As you say, though, they can always vote no. It would just be telling them, this is part of your job and you have to do it. I don’t see how that’s wrong. And I would hope the Supreme Court would have some appreciation for the importance of a functioning federal bench.

        • Dennis says

          Katja, I can assume my mother has tires, but it won’t make her a truck.

          The point under discussion is filibustering executive appointments, not the the Senate voting the appointees down. I agree, the Courts have no business looking into the motives of any Senator’s vote. What we are discussing is voting to not vote on the motion. I think the Courts are competent to rule that particular procedure unconstitutional.

          • Katja says

            So, what’s the remedy? Remember that making a filibuster impossible requires some fairly deep editing of the Rules of the Senate; it’s not just “you can’t filibuster nominees for executive positions”. There’s no clear dividing line between legitimate debate and a filibuster, especially since Senate minority members are not the only ones who can engage in dilatory tactics; cutting off debate may prevent an appropriate inquiry in a candidate’s background, too.

            You cannot just strike down rule XXII.2; that would not just eliminate the filibuster, but cloture in its entirety and would make dilatory tactics even easier. The Supreme Court would have to write a new rule in its stead.

            It might be possible to declare, on a case-by-case basis, refusal to consider cloture unconstitutional and require the Senate to vote; but good luck with bringing every single executive appointment where you can’t achieve cloture before the Supreme Court. The Senate minority would likely routinely argue that it was the president and/or the Senate majority who denied them the necessary information to properly provide advice and consent on the nominee, and then you’d have a lengthy trial for each case where the merits need to be dissected.

  2. Mike says

    I could understand the Republican stubbornness on such nominations if the candidates or the president’s policies represented some radical difference that was worth the politics of fighting over. In fact, all they’re fighting over is a fig leaf at the NLRB. There will be no fig leaf of protection for workers under Republican rule, while the Democrats insist the fig leaf of the NLRB is needed to protect capitalism from its own worst excesses.

    Either way, the workers are screwed.

    Having been a victim of sloppy NLRB work and a dubiously called election under Clinton, there’s not a lot of difference between the two parties in how they treat the interests of workers. Would you like that with or without the fig leaf?

  3. MikeM says

    I’d like to see Jack Balkin weigh in on this. I don’t think he would be very supportive of your contention. And besides, it would take the rest of Obama’s term to resolve.

  4. says

    Article II, Section 2:

    “He shall have power, by and with the advice and consent of the Senate, to make treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States, whose appointments are not herein otherwise provided for, and which shall be established by law: but the Congress may by law vest the appointment of such inferior officers, as they think proper, in the President alone, in the courts of law, or in the heads of departments.”

    The President’s power to “appoint ambassadors…” depends on “the advice and consent of the Senate.” What about the argument that this requires the Senate to give its advice — that is, take a vote — whether or not it gives the advice a President hopes for or consent to particular nominees?

    This would cover judicial appointees as well.

    • Ebenezer Scrooge says

      Originally, George Washington took the advice and consent clause seriously, and asked the advice of the Senate for his appointments. He quickly got disgusted with it, and the words “advice and” disappeared from the operational Constitution.

      • Dennis says

        There is the exception of US Attorney appointments. For these appointments, the President traditionally asks the Senators of the State in question for nominees and the Senators are given a de facto veto over nominees. A similar process apparently goes on with District Court judgeships.

        But by and large, there isn’t much advice and President Obama is seeing nearly no consent.

  5. Brett Bellmore says

    “And no Person shall be convicted without the Concurrence of two thirds of the Members present.” So, no, the Senate can’t do it with a coin toss, the requirement for a two thirds vote is constitutional.

    I think this argument is a stretch. The Senate is entitled to vote down Presidential nominees, would this line of reasoning suggest that they would be constitutionally obligated to eventually approve one, no matter how offensive the Presidents’ picks were? If not, what’s the difference between leaving a position unfilled by voting down nominees, or by not voting them up? It’s still empty.

    Moreover, if we’re going to take the “take care” clause so seriously as to over-ride the Senate’s authority to make it’s own rules, we’ve got bigger fish to fry, the whole notion of selective enforcement and executive discretion comes into question, and there’s the little matter of that illegal war in Libya, too. Presidents, at the stringent level you’re suggesting, are in massive violation of the “take care” clause.

    So I don’t think you really take your own argument seriously, or you’d be focused on other matters, first.

    • Ebenezer Scrooge says

      Brett, I think you misunderstood Jonathan’s argument. He is, as far as I understand, arguing that supermajority rule (i.e., the filibuster) magnifies the Senate’s power to deny nominations, which he argues is in tension with the “Take Care” clause. I think he views the tension as acceptable for majority rule, but not for supermajority rule.

      And your “focused on other matters first” argument is something not worthy of a 17-year old. Why do you ever blog here about guns and the Constitution when your family is more important? If that sounds weak, so do your last two paragraphs.

      • Brett Bellmore says

        I think it perfectly appropriate to question if somebody is serious about an argument, if they apply it only to cases where it is dubious, and pass over cases where it’s a lead pipe cinch. Like somebody who wants to prosecute someone for exceeding the speed limit by 1mph, and shows no interest in the guy who’s routinely breaking it by 75mph.

        How, for instance, can it be legitimate for a President to decide immigration law doesn’t really need to be enforced, to systematically leave it unenforced, if the take care clause is so strict the Senate can’t even refuse to hold a vote on a nominee because an empty position in the executive branch might get in the way of a President enforcing a law?

        No, Johnathan’s position is incoherent. He MUST object to the greater violations, if he is to have standing to complain of the lesser.

        • kellandros says

          The most likely thing you are referencing as inconsistent is last year’s executive order on immigration.

          This was backed by a public letter signed by numerous legal scholars outlining legal options:
          http://immigrationimpact.com/2012/05/31/law-professors-push-white-house-to-grant-administrative-relief-to-dreamers/

          The key words are prosecutorial discretion- last year, they chose to focus on expelling those with violent criminal charges against them first (i.e. those recklessly speeding), not those who are living quietly(people overstaying student or tourist visas?). Your example does not match your argument- systematically applying immigration laws against all targets would be very much like going after everyone for going even 1 mile per hour over the speed limit.

          On top of that, ICE is at the limit of its budget for deportations, last year I believe was just over 400,000 people expelled from the US- far more than under previous Administrations despite illegal border crossings dropping because of the economic troubles (does having every Presidential Administration for the last 30 or so years failing to meet your high standard mean they are all equally ‘selective’?).

          We know there are many more people in this country that shouldn’t legally be here still. Have Republicans voted to increase spending on immigration enforcement? No, Paul Ryan’s budgets have included cutting millions from Border Patrol, the Sequester did not exclude border enforcement either. Then we are to the question of how to apply limited resources to a larger problem- you can’t deport half of a person for half the cost.

          • Brett Bellmore says

            Yes, that’s what I’m referencing: “Prosecutorial discretion” is inconsistent with a conception of “take care” being so overwhelmingly strong that it forces the legislative branch to hold votes on Presidential nominees on the theory that not filling every posting might get in the way of enforcing a law the President has discretion to not enforce.

            Yeah, you can be consistent going after everyone who exceeds the speed limit by as much as 1mph, what you can’t do consistently is nail the guy who’s 1 mile over, and ignore the 50 who are 25mph over.

          • Kellandros says

            Again, which group represents 1 mph over and which 50mph? I would assume violent offenders, drug traffickers, and whatnot would be the much more flagrant targets. The people who are holding down a job (with under the table money or whatnot) are doing the least harm, and should be the least prioritized.

            Or to extend the metaphor, children who were brought over by their parents were just passengers in the car and had no say in the destination, route taken, or any laws broken along the way. Why shouldn’t they be given a much lower priority on prosecution?

            —–
            And secondly, I think there is a big difference between having the choice not to do something and not being able to. Not filling some of these posts have larger harms beyond such a narrow focus as immigration. I think the number of lawsuits and prosecutions hasn’t been declining noticeably.

            The fewer judges available to hear a case makes larger caseloads for the few who are available. Less time taken per case can lead to mistakes (in both directions; some defendants might be released from custody simply to free up space on a bad day, or a mother might get shipped off to the wrong country with her children left behind in the US).

  6. Mitch Guthman says

    Thorny constitutional issues can be fairly resolved by the courts. Just not by this particular Supreme Court nor any since the appointment of William Rehnquist. Unless Justice Scalia decides to get a head start on damnation by hanging himself tomorrow, the odds on five members of this court ruling that one of the most important levers of power being manipulated by the Republican Party is unconstitutional are vanishing small.

    I have to agree with Ebenezer. This is no longer a branch of law; it’s a branch of theology. Constitutional law (as written about by liberals) has long since devolved into something closely akin to torah scholarship. If it amuses you to talk about the Constitution then, certainly, have fun. But the Republicans on the court are united and committed to wielding power in support of their movement; they don’t really care how many angels can dance on the head of a pin. Republicans understand power. They took it and they’re going to keep it. And the Republicans in the judicial branch are going to support their brethren in Congress to the hilt.

    • Jonathan Zasloff says

      I don’t disagree with you on the GOP Will To Power. But I think and hope that the beauty of the rule is that it will apply both to Republican and Democratic Presidents. It will serve President Obama, and it will serve President Jindal or Rubio or whomever. I suppose you might respond that it might make more sense to wait until a Republican is President to bring the case, and Scalia et al will know what they are supposed to do. Perhaps.

  7. CharleyCarp says

    I do not think a court has the authority to compel the Senate to end debate on a nomination, for whatever office. Failing that, there’s no remedy a nominee can seek that a court can grant.

  8. CharleyCarp says

    Which is why this has to be resolved in the Senate. WWLBJD? No action on anything the Republicans want the until pending nominations are acted upon, and make them talk their filibusters.

    • Jonathan Zasloff says

      Not exactly sure why either your comments is right, Charley. Why couldn’t a court compel the Senate to vote? It could if its order was obeyed, which is always the case. In Powell v. McCormack, it ordered the House to seat Adam Clayton Powell (on policy grounds, much harder than this!). It ordered Nixon to turn over the tapes. It ordered literally every state in the country to redistrict itself. It ordered hundreds of school districts to desegregate. In contrast, the remedy I am proposing is simple. The Senate must vote on executive branch nominees. In terms of administrability — one of the key prongs of the political question doctrine — it’s child’s play.

      Not clear to me that your solution — with which I am very sympathetic — would really change things. The Republicans just want to bring everything to a halt. Chaos benefits them. In any event, this is actually more of a bipartisan problem: each individual senator wants to be able to gum things up, and so it happy to sacrifice the smooth functioning of the chamber. It’s something of a classic political process failure. I’m not sure that LBJ could fix it, and my reading of Master Of The Senate is that he didn’t, although he accomplished more than anyone else had.

      • CharleyCarp says

        The exclusion of Powell could be measured against the clear directives of the Constitution. (And I think they gave a declaratory judgment, and dodged the remedy question). This is a completely different kettle of fish from the court deciding that Senators have had enough time to consider a nominee, and must now vote. The Senate is not formally *refusing* to vote on nominations, it is declining to do so until debate is complete. I don’t see that you’re got anything like Dupe Process or Equal Protection (or even the Republican Form of Government) clauses to hang you hat on to reverse that ruling.

        My use of the word authority may have thrown you off. I didn’t mean that courts can’t make other branches do stuff, when the duties are ministerial or a course of conduct is unconstitutional. I just don’t think there’s a body of law that let’s a judge say ‘enough talk, vote already.’

        • Jonathan Zasloff says

          I think that your point is a good one, but I’m not sure that it is dispositive. The key thing is the discrepancy between the rule cutting off debate and the rule to make a decision. I think that the way to square the circle is to say that the two rules would have to be the same. That way, the judiciary isn’t telling senators when to cut off debate; it is saying that whatever the decision on the debate is, it is the same as it would be concerning the substantive issue — which as a practical matter, is what it always has been. If the Senate wanted to decide to require 60 votes on the substantive motion, it could do so. That could create other problems, and wouldn’t be solved by this. But if we can get rid of the filibuster for executive branch appointments, I’d take that.

          Very much agree that there isn’t a body of law about this. But of course that’s always the case with changing constitutional law. There wasn’t a body of law that justified, say, Shelley v. Kraemer. There wasn’t a body of law that justified Baker v. Carr. And of course there wasn’t a body of law that justified NFIB v. Sebelius. Or Alden v. Maine. Or State Farm (the punitive damages case). In my view, we do this all the time, with far greater consequences than what I am proposing here.

          • CharleyCarp says

            I think you go too far in the realist direction with the argument that those other cases arose from whole cloth. We’ll have to agree to disagree.

            [We're going to have a state play on this coming up: our Montana legislature has a rule that all the members have to be present, and if someone is absent, any 5 members can stop all activity while the absent members are brought back. Last Friday was the deadline for Senate passage of legislative referenda (that is putting items directly on the ballot, evading the governor's veto) and there were a couple of Koch funded items that the Republicans had suddenly introduced that needed to be passed that day. One Dem senator -- who is also a member of the tribal council at a reservation some 3 hours away from the capitol -- went home on tribal business. The senate was on a recess when it was realized that he was gone, so the majority leadership spent a couple of hours talking it through amongst themselves. (Can the sergeant of arms compel a tribal legislator to leave a reservation? Interesting question!) They came up with the following: after the senate resumed, they went through the usual order of things, and when it came to motions (and the "call of the senate" is a priority motion) the Republican leader refused to recognize the Democratic leader to let him make the motion. Instead they went to the Koch items. Dems shouted and banged their desks, and refused to vote, and the Koch items passed. Then the call of the senate was issued, and all action stopped. I'm sure this will get to the courts. We have a Dem secretary of state (who will need to know whether these Koch items are properly on the ballot) and a Rep attorney general. And a CJ who, I am guessing, admires Earl Warren as much as you do.]

  9. J.m.g. says

    Filibusters are constitutional or not the way bicycles are necessary to fish. In other words, the question contains a category error. The inner workings of an elected legislative body are only constitutional where there is a specific constitutional peg that would let you hang a definitive constitutional ruling — the majority needed for treaty ratification, for example.

    If you’re going to ask whether filibusters are constitutional (in a country where the Supreme hacks look right at the First Amendment and insist that it contains bounteous exceptions that let them put you in jail or debt, while then turning around and deciding that corporations, which are property, are entitled, by their fundamental first amendment rights, to purchase the election of corporate friendly minions) you must first ask whether political parties are constitutional, and whether there is any constitutional support for identifying individual candidates on ballots as members of these extra constitutional clubs we call parties. And you wind up in the same place — it’s not constitutional or unconstitutional, and therefore it’s not justiciable.

  10. James Wimberley says

    Plan B – actually Plan A – is for Harry Reid to grow a spine.

    Ebenezer’s horrid mixed metaphor of “the Southern-fried tradition of roll-your-own readers of the Constitution…” reminds me of the Glasgow delicacy of the deep-fried Mars Bar.

  11. Brett Bellmore says

    While I think the reasoning here is a joke, rather like the whole “14th amendment” argument that the President can arrogate to himself the power to borrow, the problem IS real. I would suggest that, instead of playing insincere pseudo-logic games with the Constitution, (Which the courts would rightly laugh off anyway.) that an actual “Constitutional amendment” be proposed.

    I’d propose a compromise: Utterly abolish the institution of ‘recess’ and “temporary” appointments, and in return establish that nominees are approved if not affirmatively voted down by the Senate within some reasonable fixed period of time.

    Something so that the Constitution genuinely means what we want, WITHOUT any sophistry.

    • MCD says

      So, to get around needing 60 Senators to approve a nominee, you’re suggesting we get 67 Senators to approve an amendment? Thanks, that’s very helpful.

      • Brett Bellmore says

        Yes, I’m proposing that we fix the problem, rather than engage in fake logic games to pretend we have a solution.

        And if you can’t get 67 Senators to agree it’s a problem that needs fixing, it doesn’t get fixed.

  12. Craig says

    “Obviously, it would be unconstitutional for a House to refuse to seat someone because of his race…”

    This is not obvious to me at all. It would be wrong and wicked, but “unconstitutional” does not mean “wrong and wicked.” An earlier commenter called the Constitution a sort of national Bible. I agree that this attitude is pervasive, but I’m not convinced it’s a good thing. Morality is morality, and law is law, and attempting to read the Consitution in such a way that it implicitly includes all of Natural Law is just an excuse for us to subordinate the written law to our personal notions of morality. Lots of fun when the wind is blowing our way! Less fun when someone else has the momentum.

    • CharleyCarp says

      Actually, I think after the Powell case mentioned above it is obvious. But it’s just as obvious that the House cannot refuse to seat someone because he/she has red hair, likes Nickelback, or was once married to Larry King.

  13. Altoid says

    The one uncontrovertible fact we start with is that the contemporary gop is the party of dis-government. That is its core mission– to unshackle money from all rules. Its members have used any number of stratagems toward this end, many of them very inventive, and many based on intimate knowledge of parliamentary rules (McConnell, I’m looking at you). It’s true that a big segment of it cares about restricting individuals, but that’s about tribal identification; that segment has no problem with liberating money.

    At base, this is a political goal and hence a political issue, and getting there has meant wielding the Constitution against itself in the ways you describe.

    It’s tempting– especially to people of liberal disposition (in the old sense) who think of rules as setting boundaries– to try to come up with ways the Constitution can be used to defeat this effort and restore stable functioning under known rules. But as things stand now, this supreme court, like its majority’s party, will seize any attempt to do that and turn it into a further milestone on the road of dis-government. I would not give them the chance.

  14. NickT says

    “…the Republicans might be opening themselves up to criticism for violating the Constitution”

    Which hasn’t bothered them too too much in the last 40 years. Why should they care now?

  15. Anonymous says

    Amendment XXV, Section 2 provides:

    “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.”

    Could the Senate filibuster a nomination made under this provision? Could a nomination be blocked by referral to a Committee that takes no action, or by the Speaker’s refusal to schedule a vote?

    Both the 25th Amendment and Art. II Sec. 2 state that the President “shall nominate” yet neither provision imperatively directs Congressional action.

    • John Heine says

      Correction — Art. II: President “shall appoint.” Amendment XXV: President “shall nominate.” I don’t know that the imperative mode — or its absence — is necessarily significant. The President presumably has the discretion to not exercise his powers of appointment or nomination.