Thursday, April 21, 2016

Constitution Series Part 18: Article II, Section 2, Clauses 2 and 3

By far the most common accusation lobbed at any given President is that what they're doing is "unconstitutional." I've tried to offer a multi-faceted view of the Constitution so far, and given certain interpretations of the Constitution many such claims have some substance to their argument. It's often the very definition of debatable due to the interpretive nature of the document.

However, the powers listed in this section are theoretically not debatable. (Well, that's not strictly true, as well see, but anyway) These are the explicit powers of a President granted by the Constitution. There's still some room for interpretation here, but simply put, these powers are literally Constitutional.


Section 2
[The President] 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.
This clause focuses on two powers, both of which involve some Congressional oversight: making treaties and appointing people to various offices.

The implied powers of an executive give the President the power to conduct foreign relations as they see fit. However, formal agreements are subject to Senate approval via a two-thirds confirmation. This made it a combined effort between the President and the Senate, as treaties are both a diplomatic endeavor (the President's jurisdiction) and, in a sense, the establishment of law (Congress's jurisdiction). The House of Representatives were left out of the process for the sake of expedience and secrecy; the larger House was expected to be slower and less likely to keep the details under wraps if needed.

Requiring both Presidential approval and a Senate supermajority was expected to be difficult to arrange, but vital. After all, a regular law is comparatively easy to fix if it's bad: you just repeal it. A deal with another country, though, is not nearly as easy to rescind. You would basically need to either agree to a new treaty (if the other country is willing to do so) or terminate the treaty, which could damage our diplomatic standing with that country. So treaties, like most everything the President does, should not be taken lightly.

However, that begs the question: is every international agreement a treaty? Article I, Section 10, for instance, denied states the right to enter into any "treaties" with another country in Clause 1, and later prevents them entering into any "Agreements or Compacts" with another country in Clause 3, implying a difference between the two. So, what's the difference? This isn't really clear, so in practice the President generally only enters into very minor agreements with other countries without involving the Senate. The threshold between a "minor" agreement and otherwise is undefined, though, so I'd say, "when in doubt, ask the Senate."

However, though the President requires the Senate's approval to enter into a treaty, it's generally assumed that a President can terminate a treaty on their own. For instance, during the French Revolution (which got going during Washington's presidency) we had a treaty with France to aid them in times of need, as repayment for their assistance during the Revolutionary War. Alexander Hamilton and Thomas Jefferson's most heated argument was over whether we should hold up our end of the treaty, given the chaos of the French Revolution. As dramatized in the Hamilton track entitled "Cabinet Battle #2," Jefferson was in favor of getting involved in the French Revolution and Hamilton was not, and the only person they needed to convince was George Washington, not the Senate. This is because Jefferson, Hamilton, Washington, and the Senate all understood that American involvement in the French Revolution hinged on whether or not the President would terminate the treaty with France. And, in the end, he did.

Anyway, the process is and has generally always been that a President sits down with a foreign power to create a treaty, and the President signs that treaty with the understanding that it's a preliminary agreement that will then be reviewed and, potentially, edited by the Senate. The Senate is not generally a part of the creation of a treaty.

This clause also goes into the President's ability to appoint certain officers in the government, given senate approval. Most people are particularly familiar with the presidential power to appoint justices to the Supreme Court. At the moment, for instance, President Obama has been attempting to appoint Merrick Garland to replace the late Antonin Scalia, but the Republican-controlled Senate has declined to give Garland or any other Obama nominee a hearing, blatantly holding out in the hopes that a Republican will win the presidential election later this year.

Historically, the process of Senate review has been very simple: the President nominates someone for a given office (Supreme Court, Ambassador, and so on) and, unless there is a compelling reason to deny that appointment, the Senate confirms it. However, it's also been accepted that the Senate can deny confirmation for any reason, even political ones. The strange thing about Obama's Merrick Garland appointment, though, is that the Senate is refusing to even review the appointment, resulting in neither rejection nor confirmation. Because Garland is such an inoffensive appointment, it seems that the Senate has no justification for denying a hearing. They're doing it, not because they dislike Garland, but because they dislike Obama. In short, this situation is exceedingly strange, and I'm curious about how it will resolve and the precedent it will set.

Personally, I think the Senate Judiciary Committee is being petty, and that pettiness may lead to a dangerous precedent. Were the situation reversed, I imagine the Republicans would be livid at the Democrats for refusing to review the nomination, and by setting this precedent, exactly such a situation may arise later. The only solution I can think of is having a statute that grants tacit confirmation of Presidential nominations if the Senate refuses to hold a hearing within a given amount of time.

There are many smaller appointments a President can make without Senate confirmation, though the distinction between a regular officer and an "inferior officer" isn't really spelled out. However, in general the courts have ruled that an "inferior officer" is just an officer that is subordinate to another officer who was appointed to their position. If that officer can be fired by a confirmed officer and generally has their work overseen by that confirmed officer, then they're almost definitely an "inferior officer," and their appointment doesn't require Senate confirmation. Cabinet members, on the other hand, generally require Senate confirmation: Secretaries of State, Defense, Treasury, and so on.

It gets a bit muddy beyond that, though. The White House Chief of Staff, for instance, is basically a Cabinet-level position, but it does not require Senate confirmation. Again, the rule of thumb seems to be looking at precedent to see if each position requires Senate confirmation and, if in doubt, check with the Senate. Though I suppose most Presidents prefer the "ask forgiveness, not permission" route.
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.
The final, short clause of Section 2 allows the President to make appointments that would usually require Senate confirmation without that confirmation if the Senate is not in session at the time. This was particularly important early on, as originally Congress had fairly short sessions, taking up half the year or less. So, if the Senate was in recess, a President needed to be able to fill positions in order to make sure the government continued to run smoothly. This is less dire now, though, since the Senate is usually in session for nearly the entire year.

If, for example, a Supreme Court Justice dies during a recess, for the sake of keeping the government running the President could appoint a temporary replacement until the Senate returns to session and are available to confirm an appointee.

Officers appointed in this way remain in their office until the end of the next session of the Senate, at which point either they are confirmed for their position or they're replaced by a different appointee that has been confirmed.

As it is, if and when the Senate goes into recess between now and the presidential inauguration in January, President Obama could in theory nominate Merrick Garland or whoever he likes to the Supreme Court to take up Antonin Scalia's seat until the end of the next session of Congress. However, that would be a risk for any federal judge since they would naturally have to resign from their current position in order to take that temporary seat on the Supreme Court. If the Senate returns to session and refuses to confirm them, that justice will then have no job to return to.

Interestingly, Presidents have, on occasion, interpreted the "Recess" part of this clause to mean any recess of the Senate, including, say, a weekend recess. In that case, since technically the Senate is still in session, the appointee is then allowed to hold their temporary position until the end of the next session of the senate, which usually means the session in the following year. This is even more risky than a usual recess appointment, though, since these appointees have sometimes been denied the salaries that would usually come from that appointment.

Continue to Part 19: Article II, Sections 3 and 4

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