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This question and some of its answers got me thinking: What would it take for the Senate to make a rule so that its own (future) inaction on an appointment caused that appointment to be confirmed instead of rejected?

For example, something like this:

  • If the Senate adjourns with an "advice and consent" appointment still pending, then the Senate is deemed to have consented if the appropriate committee approved the candidate.
  • If there was no appropriate committee, or the committee didn't vote, then the Senate is deemed to have consented.

In other words, a candidate must be actively rejected, or they will be passively approved, instead of the reverse. (For the sake of this question, I'm ignoring the holes in the proposal above.)

  • Would this "auto-approve" be something that could be set out in the Senate's internal rules and procedures, and thus simply require a simple majority of the Senators to agree?
  • Would it require a new/changed law, and thus require both the House and President to agree (ignoring vetos)?
  • Or would this require an actual constitutional amendment, with its even higher requirements?
  • What would motivate the legislature and (in the case of constitutional amendment, which I am not sure of but seems likely), the populace to adopt such a regulation? – Dan Bron Jul 13 '18 at 12:20
  • Are you looking for language or just for the Constitutional Amendment process? – K Dog Jul 13 '18 at 12:46
  • @DanBron - After years of both sides stonewalling appointments, I could see a bi-partisan case being made for taking that power away from both sides. It's one thing to vote down a whole bunch of appointments, because then the Senators are on record as doing so - it's another to just prevent a vote from ever taking place, because it takes far fewer people to do that and it leaves the candidate (and the position) in limbo. I don't think it's likely, mind you, just that that could be the motivation. – Bobson Jul 13 '18 at 15:24
  • @KDog - No, it's not a question of "What is the Constitutional Amendment process?" - it's a question of "Does this need to be a Constitutional Amendment in the first place?" – Bobson Jul 13 '18 at 15:25
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    What you are describing actually has a name: the Discretionary Senate Veto model. – K Dog Jul 13 '18 at 15:56
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I provided the following commentary in the original question that Bobson linked to (links/attribution in the original):

But the best evidence of the Senate’s power not to vote on nominations is found in the Framers’ rejection of an alternative approach to appointments. As an alternative to the “advice and consent” model, James Madison proposed a discretionary Senate veto. Under that plan, a president’s nominees would automatically be appointed unless the Senate mustered a majority vote against that nomination within a fixed number of days.

In short, Madison would have put the burden on the Senate, to affirmatively act to block a nomination. But the Framers rejected his proposal, and chose instead the “advice and consent” model, placing the burden on the president (and his supporters) to convince the Senate to confirm his nominee.

If you want to change the advice and consent model, which is explicit in Article 1 of the Constitution as evidenced by the above, one needs to amend the Constitution for the discretionary Senate veto model. Senate rules, current US code or case law changes, or other measures short of a Constitutional amendment will not suffice.

  • i disagree that only an amendment would work, though it would likely end up being an interesting supreme court ruling. A rule/law granting consent if not explicitly rejected/confirmed after X time, as that would require the senate to have given approval to that law. – Ryathal Jul 13 '18 at 19:02
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Realistically it would require a constitutional amendment to achieve this, and it would likely have to be through a convention to propose amendments which has never been done. Any of the three options you propose would be an acceptable way for this to be implemented, but changing the senate rules or passing laws would require the Senate to actively limit their power which is extremely unlikely. A law or amendment would be a more ideal solution as well since they can't be changed as easily, the Senate could easily change their rules if they end up in a situation where they don't want to approve or reject a nomination.

Even with an amendment that gave the Senate 30 days could be worked around by creating a rule to consider all nominations rejected after 29 days. The power of the House and Senate to create their own rules has been held up consistently by the Supreme Court, this would have to be limited in some fashion to make any such rule effective.

  • If the Senate can create a rule that rejects nominations after 29 days, can't it also create a rule to approve them after 29 days? If so, why does it need to be an amendment? – Bobson Jul 13 '18 at 15:26
  • @Bobson They absolutely could just pass a rule. The problem with it being a rule is it can be changed any time it becomes inconvenient. Which is exactly what the nuclear option is/was essentially. By having an amendment you could get a court to limit their power to make rules that limit the affect of the constitution, and allow it to actually be effective. – Ryathal Jul 13 '18 at 18:52
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Background

While this is interesting, I'm not sure that it is answerable. Consider the line item veto. Congress passed a law giving the president a line item veto. Rudy Giuliani (among others) took the law to court and successfully argued that it was unconstitutional. Until the actual court case on this issue, I'm not sure that it is actually known. Of course, it is possible that there is an actual precedent on this issue that is obviously controlling. But I don't happen to know of one.

The actual text of the Constitution for the United States from Article II, Section 2:

[The President] 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.

Options

Clearly a law would work for anyone who can be described as an "inferior" officer, but that specifically exempts Supreme Court justices, ambassadors, and "public Ministers and Consuls". It doesn't define ministers and consuls, but I believe that they are normally considered to be the cabinet secretaries and other such heads of departments. It basically says that for other positions, Congress may write law and the law would be binding.

Clearly a constitutional amendment, properly written, could change this, even for officers who are not inferior (in the sense of reporting to a superior that is not the president). They might have to be careful with the wording to avoid the courts narrowing it adversely, as they did with the eleventh amendment. A constitutional amendment is also difficult to pass, requiring the agreement of two thirds of each chamber of Congress and the approval of three quarters of the states.

It is possible that a Senate rule would be sufficient for non-inferior officers. It's not guaranteed, but the courts often defer to the Senate on such things. If the Senate says that a rule is sufficient, then the Supreme Court might allow it. But we can't know for sure until it is tried. The courts could rule that Senate consent must be explicit.

A law would seem to actually have the weakest chance for non-inferior officers. It's not clear that the House has any role in the confirmation of superior officers and there is nothing that gives them one. If the House had that power, we'd expect to see it listed as it is explicitly listed for inferior officers. As such, I'm not convinced that such a law has a constitutional basis. That said, I doubt that there is a binding precedent on that exact question. So the Supreme Court would have considerable leeway in writing up a precedent.

It has been speculated that the Supreme Court could step in and require this. It could. But there is no evidence that it is going to do so. It is far more likely to say that if this is broken, then Congress should fix it. This would not be the first time that the Court found a constitutional requirement where none had previously existed, but neither is that a common occurrence.

What happens if a nominee doesn't show up for Congressional hearings? If the nominee has sufficient support to delay a vote, this reverses things. Now the nominee gets autoconfirmed after the deadline.

Another problem with the Supreme Court making a requirement is that it would only matter in rare situations. This only happens when different parties control the presidency and the Senate but the Senate is close. If the Senate were more solidly occupied, they could simply vote the nominee down. In fact, even with the barest majority, it is possible to vote the nominee down. So a forced vote might not actually improve things.

The best hope would then be that this might be an issue in the next election. But as partisan Democrat Paul Begala said, "No one ever got beat for opposing a Supreme Court nominee." If that's so, then there is no incentive for the Senate to vote for the nominee. Senators can talk about how the Supreme Court forced them to vote. "I might have given the nominee the benefit of the doubt, but the Supreme Court deadline means that I can't get more information. Right now, today, I have to vote no."

Given those problems, why would the Supreme Court intervene? The proposed change is as likely to make the problem worse as better. And there's still the same fix: electing better politicians.

How might it work?

I would expect that Congress would allow itself at least as much time as is typical. Looking at the average confirmation time for the last five presidents' nominees, the least is 44 days, the median (and mode) is 55 days, and the longest average is 87 days. This suggests to me that the requirement would be around two to three months or at least 45 days. I don't see a 30 day requirement as reasonable if appointments normally take 44 or 55 days.

A rule could simply say that all nominees who do not receive a confirmation vote within the time period are presumed confirmed. This is certainly the easiest method. But it is problematic in that it essentially forces a vote. Also, what happens if the nominee stonewalls the Senate? If the nominee can simply avoid a vote for however long, the nominee can take office without facing the Senate. To avoid that, the Senate might have to repeal the rule, which can also be done with a majority vote.

A constitutional amendment could change the system. For example, it might replace recess appointments as well. The president could make a nomination and the Senate would have some period to consider it. If the Senate says nothing, the nominee takes office. But the Senate might be able to come back and hold hearings after that. By a simple majority vote, the Senate could fire the president's nominee.

This handles both the Merrick Garland situation and the recess appointment situation. In both cases, the confirmation is presumed after a period of time if the Senate does not act. And it allows for the possibility of a president trying to abuse the system by preventing the Senate from voting within the deadline. The confirmation is not final until the vote.

More simply, a constitutional amendment could explicitly allow Congress to create a law controlling such matters. Congress could set the deadline and determine what happens if it is missed. The amendment could also repeal the existing text covering nominations. Perhaps it could cover the situation where a President-elect would like hearings to occur before taking office so that nominees could be confirmed on inauguration day.

Summary

Congress has wide leeway to allow the appointments of "inferior" officers (those who report to some superior who is not the president). As such, a simple law could definitely allow the president to appoint them without confirmation. And it seems a reasonable extension to allow the Senate to maintain an interest.

There is less leeway with ambassadors, Supreme Court justices, and cabinet secretaries and heads of departments. In my opinion, a law would be questionable. A rule might be allowed. An amendment would work but should be carefully written to avoid ambiguity. A Senate rule is easier to pass than a constitutional amendment. Unfortunately, any such rule could not be litigated until the actual event which would happen after either the presidency or control of the Senate changed.

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Technically it would require none of the above--the most likely way for it to happen would be a Supreme Court case. The question is a question explicitly of Constitutional interpretation. Neither the Senate's internal rules nor a law passed and signed by the President can alter that Constitutional interpretation. There are some law scholars that believe that the law already would allow this "inferred consent". This is a controversial reading, to say the least, so what would likely happen if this doctrine were ever applied would be an immediate lawsuit by the Senate. This suit would go to the Supreme Court, which would then rule. If the Supreme Court ruled that inferred consent was valid (unlikely), then it would be. If it didn't (likely), then an amendment would be required.

  • Why the downvote? – Eremi Jul 13 '18 at 12:56
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    I did not downvote, but I suspect that it may be because the US courts have generally steered clear of such cases. There are many grounds to do so: would the senate in fact have standing in such a case? Is the court competent to pass judgment on the matter? – phoog Jul 13 '18 at 14:49
  • I don't disagree--but I specifically note that it's unlikely the Court would agree. However it is a possible scenario, as the sources I cite note. – Eremi Jul 13 '18 at 16:09
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Maaaybe? They certainly couldn't do it through their internal rules, but it might be possible through the lawmaking process (which would of course involve the House).

Congress delegates its authority under the Constitution to the Executive branch all the time. Pretty much every federal executive agency (FCC, FDA, HUD, SEC, etc) has the power to make rules that have the same force and effect of law without requiring an act of Congress. Congress merely establishes a bill that creates the agency, and generally specifies the limits of the legal box they must operate within. Once this bill is passed and signed into law, the agency is off and running under the ultimate authority of the President.

The Senate could conceivably do this with their advice and consent power (although it's extremely unlikely they'd ever give that up). They could possibly set up a review board that vets the President's nominees according to whatever criteria the law provides, and approves them autonomously without getting the explicit consent from the Senate for each one.

Such a law would need some measure by which the Senate could reassert its authority any time it wanted in order to satisfy the Constitution's requirements. But in a purely hypothetical America where Congress gives away all its powers and basically does nothing (OK so maybe not entirely hypothetical), it isn't completely unreasonable to think they could do something like this.

Whether or not such a law would pass judicial scrutiny is anyone's guess.

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