Appointments Clause

Suggesting that the judicial filibuster is not only constitutional, but that its use today is thoroughly consistent with the Senate’s unique role as envisioned by the Framers and described in the Appointments Clause.

Arguing that federal courts must transcend the formalism–functionalism dichotomy to fully understand the federal appointments process.

Arguing that the text, structure, and history of the Appointments Clause supports the idea that Senate inaction on a presidential nomination can be construed as the Senate’s implied consent to an appointment.

Arguing that the Framers intended to instill a duty in executive officers to faithfully execute the law, which includes the duty to disobey illegal presidential directives.

Presenting two plausible interpretations of the original meaning of the Appointments Clause: the “purist” view, where no qualifications on presidential appointees are permissible, and the “office qualifications” view, where some qualifications on presidential appointees are permissible.

Arguing that the Constitution’s text supplies a robust four-part framework for foreign affairs powers and that this framework comports with foreign affairs powers practice before, during, and after the Constitution’s ratification.

Examining the early history of qui tam litigation in America and the original understanding of the separation of powers doctrine to conclude that the qui tam provisions of the False Claims Act do not violate Article II.

Examining the text and history of the Appointments Clause and concluding that the Supreme Court’s current approach to the Clause comports both with the Framers’ original understanding of the Clause and with the Constitution’s structural goal of preserving democratic self-government and public accountability.

Arguing that the Framers primarily designed the federal appointments process to avoid bad appointments rather than to guarantee or facilitate meritorious ones.

Proposing that the Framers incorporated the “Chief Administrator theory” into the Constitution, whereby the President alone is accountable for executing federal law and has robust authority over his administration.

Critiquing the originalist work of David Strauss and Cass Sunstein in their article The Senate, the Constitution, and the Confirmation Process and arguing that the text of the Constitution and historical sources show that the Framers did not intend the Appointments Clause to assign a pre-nomination role to the Senate.

Concluding that the text, history, and structure of the Constitution contemplate an independent role for the Senate in the appointment process and recommending the Senate place a lesser emphasis on its role of confirmation and a great emphasis on its pre-nomination “advice” function.

Arguing that the text of the Constitution grants Congress the power to limit the President’s attempts to influence informal rulemaking.