A few years ago, when there was a great deal of consternation regarding filibusters of judicial nominees, Professor Aaron-Andrew Bruhl published a typically thoughtful article entitled “If the Judicial Confirmation Process is Broken, Can a Statute Fix It?” Bruhl considered a hypothetical statute that would regulate the confirmation process by, for example, requiring the Senate to conduct an up or down vote on a nominee within a particular period of time.
Bruhl concluded that while it would be constitutionally permissible to enact such a judicial confirmations statute, the statute would not be legally binding on the Senate. While the Senate might feel politically or morally obligated to follow the rules set forth in the law, it would “retain unilateral control over its confirmation procedures regardless of what any statute may say” because the principle of cameral autonomy, embodied in the Rules of Proceedings Clause among others, so demands.
Suppose, however, there were a statute which did not purport directly to regulate the Senate’s internal processes, but granted the President temporary appointment authority conditioned on certain occurrences within those processes? For example, the President might be authorized to make a temporary appointment if a nomination had been made, a certain period of time had elapsed and the Senate had taken no action with regard to the nomination. The authority granted would not be dependent on the existence of a recess, and so the statute would not be vulnerable to some of the constitutional objections discussed in the context of a hypothetical Senate rule.
There could, however, be other objections. For one thing, Professor Rappaport argues that Congress lacks the power to authorize the temporary appointment of superior officers, although it can authorize the occupants of existing offices to assume the duties of other offices when the latter become vacant (as in the Vacancies Act). It also might be argued that the hypothetical statute, while not directly regulating the Senate’s internal procedures, places unconstitutional burdens upon it, and therefore would remain subject to revision under the Rules of Proceedings Clause.
I am not sure that these objections are well taken, but I am also not sure it matters. The Pay Act, for example, would seem to be unconstitutional under the executive branch’s theory of the Recess Appointments Clause (as it has suggested from time to time), yet it has followed the requirements of that statute (well, where it can’t figure out a way to weasel out of them) for a century and a half.
After all, the point of a constitutional settlement is to settle constitutional differences, which means making accommodation for constitutional positions that are arguably wrong. The alternative is to have the dispute settled by an authoritative tribunal or having it remain unsettled. For reasons discussed in prior posts, it seems to me that a constitutional settlement, either through a Senate rule or a statute, is the better alternative.
So I now come to the end of my very long discursion on the RAC. Hopefully, these many posts have not completely bored my faithful readers, and perhaps they will even contribute in some way to the public good. At this point, however, I think I have exhausted this topic (any myself). I do intend to compile and post a list of sources on the RAC- I think that will be useful to future researchers.
I am also moderating a panel that will focus on current RAC litigation at the ABA Administrative Law Conference in DC at the end of October. More details to follow.