Bush Parts

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This is a product assessment for Bush Parts. Many shoppers don"t straightaway think of eBay when it comes to Bush Parts, but in fact eBay is amongst the top three retailers in the nations marketplace. Be amazed with the items you will discover here at Farm Equipment Parts.

Bush Hog Gear Box Parts 71263 GEAR
bush hog gear box parts 71263 gear
Replacement Bottom Output Seal for Bush Hog Replaces Part Number 70242
replacement bottom output seal for bush hog replaces part number 70242
Kinze Notched Single Disc Fert Opener Bushing Part  GD29730 for 4900 Planter
kinze notched single disc fert opener bushing part gd29730 for 4900 planter
Bush Hog Disc Mower Hydraulic Cylinder Monarch DM 90 190 80 180 70 Parting Out
bush hog disc mower hydraulic cylinder monarch dm 90 190 80 180 70 parting out
Antique farm equipment parts M M Bushing pn A 730  Item 1862
antique farm equipment parts m m bushing pn a 730 item 1862
New Holland Knife Head Bushing Kit Part 87297020 for Haybine 472 477 478 479 488
new holland knife head bushing kit part 87297020 for haybine 472 477 478 479 488
Bobcat Bushing Part  6730997 for Loader S530 S550 S570 S590 S595 T550 T590 T595
bobcat bushing part 6730997 for loader s530 s550 s570 s590 s595 t550 t590 t595
Bobcat Bushing Part  6664085 for Loader S550 S570 S590 T550 T590 T630 T650 T740
bobcat bushing part 6664085 for loader s550 s570 s590 t550 t590 t630 t650 t740
Bobcat Bushing Part  6589665 for Loader 741 742 743 751 753 763 773 843 853 863
bobcat bushing part 6589665 for loader 741 742 743 751 753 763 773 843 853 863
Bobcat Bushing Part  6685060 for Loader T300 T320 T450 T550 T590 T595 T630 T650
bobcat bushing part 6685060 for loader t300 t320 t450 t550 t590 t595 t630 t650
New Holland Bushing Part  84075170 for Combines CR920 CR940 CR960 CR970 CR980
new holland bushing part 84075170 for combines cr920 cr940 cr960 cr970 cr980
New Holland Bushing Part  84058613 on Forage Harvester FX25 FX28 FX38 FX48 FX58
new holland bushing part 84058613 on forage harvester fx25 fx28 fx38 fx48 fx58
New Holland Isolator Bushing Part  82009429 for Tractors T4 T6 T7 TL TM TS TSA
new holland isolator bushing part 82009429 for tractors t4 t6 t7 tl tm ts tsa
Kinze 5 8 1047 x 688 x 03 Bushing Part  G10213 package of 25
kinze 5 8 1047 x 688 x 03 bushing part g10213 package of 25
bush hog rotary cutter hub part 12105bh 12268bh complete w bearing assembly
10  Parts Express Planter Coulter Arm Bushing Pack of 10 WN 817 051C NEW
10 parts express planter coulter arm bushing pack of 10 wn 817 051c new
Antique farm equipment parts M M Bushing pn A 730 R Item 1861
antique farm equipment parts m m bushing pn a 730 r item 1861
Kuhn Krause Hydraulic Cylinder Bushing Part  Q4003010
kuhn krause hydraulic cylinder bushing part q4003010
Replacement Bush Hog Rotary Cutter Blade Bolt Part No 1259
replacement bush hog rotary cutter blade bolt part no 1259
Bush Wacker Flex Wing Mower Center Axle Arm Bush Wacker Part  3660
bush wacker flex wing mower center axle arm bush wacker part 3660
Replacement Tailwheel Fork for Bush Hog Part  50069839 1 half  Post 3 4 Axle
replacement tailwheel fork for bush hog part 50069839 1 half post 3 4 axle
bush hog rts tiller part 81199 + chain repair link
New Holland Bushing Part  84334697 for Big Square Balers Combine CR680 CR690
new holland bushing part 84334697 for big square balers combine cr680 cr690
Set of 2 Replacement Bush Hog Rotary Cutter Blades Part Number 462
set of 2 replacement bush hog rotary cutter blades part number 462
New Holland Bushing Part  84581553 Drill P2080 P2085 Air Cart P3440 P4460 P4580
new holland bushing part 84581553 drill p2080 p2085 air cart p3440 p4460 p4580
New Holland Drive Bushing 286mm ID x 334mm OD x 27mm L Part 574171 FP230 FP240
new holland drive bushing 286mm id x 334mm od x 27mm l part 574171 fp230 fp240
John Deere 24T Baler Hay Pickup Bushing Holder Part BP1852E
john deere 24t baler hay pickup bushing holder part bp1852e
Bush Hog Bearing 30309 Part 50053364 See image for modelsplease
bush hog bearing 30309 part 50053364 see image for modelsplease
BUSH HOG DISC 775 DIA B Part  50036575
bush hog disc 775 dia b part 50036575
Badger Brass BUSHING for Barn Cleaners Part  906379
badger brass bushing for barn cleaners part 906379
Tail Wheel HUB ASSEMBLY for Bush Hog Cutters Part  12268
tail wheel hub assembly for bush hog cutters part 12268
bush hog qd pin kit part 68169 bush hog qd pin kit
bush hog h bushing part 97296 bush hog h bushing
bush hog sheave part 97295 bush hog sheave
bush hog complete push bu part 86723
Replacement Rotary Cutter Tailwheel Axle Bolt for Bush Hog Part Number 50067488
replacement rotary cutter tailwheel axle bolt for bush hog part number 50067488
Bush Hog Part 84690 Bushing
bush hog part 84690 bushing
new holland part 7707130 bushing drive
Bush Hog Bearing Repair Kit Part 50035756 NEW
bush hog bearing repair kit part 50035756 new
Bush Hog 3209 O Set of 4 Blades Part 7829
bush hog 3209 o set of 4 blades part 7829
Bush Hog OEM Part 86666 Shredder Attachment Double Edged Blade
bush hog oem part 86666 shredder attachment double edged blade
Bush Hog OEM Blades Part 60044 4
bush hog oem blades part 60044 4
Bush Hog Laminated Wheel Assembly Part  294
bush hog laminated wheel assembly part 294
Bush Hog OEM Lawn Mower Blades Part 82325 72  73 Decks
bush hog oem lawn mower blades part 82325 72 73 decks
Bush Hog OEM Mower Blades Part  7555  11150 for Models 2510  2010
bush hog oem mower blades part 7555 11150 for models 2510 2010
Bush Hog OEM Clutch Springs Part 64657
bush hog oem clutch springs part 64657
Bush Hog OEM Blades Part 6741 2
bush hog oem blades part 6741 2
Bush Hog Mower blades Parts 11150 uplift blade set of 2
bush hog mower blades parts 11150 uplift blade set of 2
bush hog lower housing part 6431 fits 406 405 307 220 and others
New Holland Bushing Part  87696373 for T8 Tractors T8275 T8300 T8320 T8330
new holland bushing part 87696373 for t8 tractors t8275 t8300 t8320 t8330
New Holland Bushing Part 86540342 on Haytools H7220 H7230 H7450 Discbine 313 316
new holland bushing part 86540342 on haytools h7220 h7230 h7450 discbine 313 316
New Holland Bushing Part 322461250 on 99C Corn Heads 99C06R 99C08F 99C08R 99C12R
new holland bushing part 322461250 on 99c corn heads 99c06r 99c08f 99c08r 99c12r
New Holland 93mm ID x 1588mm OD x 127mm L Drive Bushing Part  622346
new holland 93mm id x 1588mm od x 127mm l drive bushing part 622346
New Holland Bushing Part  134182
new holland bushing part 134182
New Holland Knife Head Bushing Part  127610
new holland knife head bushing part 127610
New Holland Knife Head Bushing Part  254132 for Haybine Mower Conditioners
new holland knife head bushing part 254132 for haybine mower conditioners
Replacement Bush Hog V Series Universal Joint Cross Kit Part Number 76420
replacement bush hog v series universal joint cross kit part number 76420
bush hog rotary cutter hub repair kit part 7977 complete w bearings
2 John Deere 1209 Haybine Reel Part Bushing  E 78675
2 john deere 1209 haybine reel part bushing e 78675
2 John Deere 1209 Haybine Reel Part Bushing  E 50730
2 john deere 1209 haybine reel part bushing e 50730
bush hog rotary cutter hub repair kit part 1311bh w bearings seals bolt
Bush Hog Stump Jumper Blade Pan Weldment Part 66501
bush hog stump jumper blade pan weldment part 66501
Bush Hog Stump Jumper Blade Pan Weldment Part 66506
bush hog stump jumper blade pan weldment part 66506
Bush Hog Wing Skid and Bolts Parts 50040379  3161212
bush hog wing skid and bolts parts 50040379 3161212
Bush Hog Clutch Springs Part 76080
bush hog clutch springs part 76080
Bush Hog Laminated Wheel Assy Parts 500
bush hog laminated wheel assy parts 500
Replacement Bush Hog Rotary Cutter Blade Bolt Part No 1259
replacement bush hog rotary cutter blade bolt part no 1259
John Deere Bushing H1495b Planter Part
john deere bushing h1495b planter part
Bush Hog gearbox housing Part No 29BH Models 10410530610501051
bush hog gearbox housing part no 29bh models 10410530610501051
New Holland Part 529913 bushing Used in models1068 1069 1075
new holland part 529913 bushing used in models1068 1069 1075
Bush Hog Parts 91561 Slip Clutch Disc Disk Lining
bush hog parts 91561 slip clutch disc disk lining
John Deere Part Number B117 FN Bushing
john deere part number b117 fn bushing
John Deere Part Number B223FM Bushing
john deere part number b223fm bushing
John Deere Part Number 1861P Bushing
john deere part number 1861p bushing
New Holland Bushing Part  85800093 for Tractor Loader Backhoes LB75B LB90B
new holland bushing part 85800093 for tractor loader backhoes lb75b lb90b
Hub Assembly Bush Hog Part 7977
hub assembly bush hog part 7977
Bush Hog Bearing Repair Kit Part 88921
bush hog bearing repair kit part 88921
Bush Hog Mower blades 2 Parts 7556 uplift blade 2615 306 326 286 297 327
bush hog mower blades 2 parts 7556 uplift blade 2615 306 326 286 297 327
Bush Hog OEM Bearing Repair Kit Part 50035756
bush hog oem bearing repair kit part 50035756
Banjo 3 x 2 Polypropylene Reducer Bushing Part  RB300 200
banjo 3 x 2 polypropylene reducer bushing part rb300 200
Banjo 15 x 125 Polypropylene Reducer Bushing Part  RB300 150 Heavy Duty
banjo 15 x 125 polypropylene reducer bushing part rb300 150 heavy duty
Banjo 2 x 1 Polypropylene Reducer Bushing Part  RB200 100 Heavy Duty
banjo 2 x 1 polypropylene reducer bushing part rb200 100 heavy duty
Banjo 2 x 3 4 Polypropylene Reducer Bushing Part  RB200 075 Heavy Duty
banjo 2 x 3 4 polypropylene reducer bushing part rb200 075 heavy duty
Banjo 15 x 125 Polypropylene Reducer Bushing Part  RB150 100 Heavy Duty
banjo 15 x 125 polypropylene reducer bushing part rb150 100 heavy duty
Banjo 15 x 1 Polypropylene Reducer Bushing Part  RB150 100 Heavy Duty
banjo 15 x 1 polypropylene reducer bushing part rb150 100 heavy duty
Bush Hog Mower blades 2 Parts 7555 uplift blade 2615 285 295 305 325 296
bush hog mower blades 2 parts 7555 uplift blade 2615 285 295 305 325 296
Bondioli Bush Hog Driveline Yoke Part  BP509060361 BH83925
bondioli bush hog driveline yoke part bp509060361 bh83925
Bush Hog Mower Clutch Jack Shaft Part  369 1 5 7 16 L X 1 3 8 6Spl New
bush hog mower clutch jack shaft part 369 1 5 7 16 l x 1 3 8 6spl new
John Deere 24T 14T Baler Hay Pickup Shaft Bushing Holder Part E15077E
john deere 24t 14t baler hay pickup shaft bushing holder part e15077e
John Deere combine primary countershaft drive bushing part  H148131
john deere combine primary countershaft drive bushing part h148131

jcb kingpost bush od 70 mm id 60 mm part no 808 00385
jcb kingpost bush 2 pcs od 70 mm id 60 mm part no 808 00385
BUSH HOG Part  86129 15 Teeth gear for DM7 DM8  DM9 Disc Mower NEW
bush hog part 86129 15 teeth gear for dm7 dm8 dm9 disc mower new
Transmission Parts Direct C X9375 13 BUSHING 1991 96 53 x 4 x 2 inches
transmission parts direct c x9375 13 bushing 1991 96 53 x 4 x 2 inches
Massey Ferguson Bushing Part  1608507M1
massey ferguson bushing part 1608507m1
CNH New Holland Bolts Nuts and Bushing Lot see part numbers in pictures
cnh new holland bolts nuts and bushing lot see part numbers in pictures
Kewanee Parts Manual for Bush Hog Discontinued Tillage Products
kewanee parts manual for bush hog discontinued tillage products
New Bush Hog Bearing Cone part 88862
new bush hog bearing cone part 88862
New Bush Hog Bearing Cone part 361008
new bush hog bearing cone part 361008
Lot of 3 PACCAR B13 1000 Genuine Parts Threaded Bushing
lot of 3 paccar b13 1000 genuine parts threaded bushing
Coil Pair for Webster M or MM Magneto New with Lead Wire Bushing Screws
coil pair for webster m or mm magneto new with lead wire bushing screws
New Holland Support Bushing Part 9825582
new holland support bushing part 9825582
4 Fordson Tractor Genuine OEM Spindle Bushings Part b7y 3110 a
4 fordson tractor genuine oem spindle bushings part b7y 3110 a
Genuine Fisher Quality Parts 25A6683X062 Retainer Bush Assembly
genuine fisher quality parts 25a6683x062 retainer bush assembly
Massey Tractor NOS Piston Rod Bushing Part 760076m1
massey tractor nos piston rod bushing part 760076m1
Minneapolis Moline Massey Tractor NOS Camshaft Bushing Part 10a3530
minneapolis moline massey tractor nos camshaft bushing part 10a3530
mazak qtn style cnc bushing 1 quarter id x 2 od part 42233 more listed lathe
mazak qtn style cnc bushing 1 3 4 id x 2 od part 4222 3 more listed lathe
CNC Router DIY Parts 20mm LM20UU Linear Ball Bearing Bushing 10 Units
cnc router diy parts 20mm lm20uu linear ball bearing bushing 10 units
ACORN Cable Gutter Cleaner SIDE MOUNT WHEEL w BUSHING Part  62068 9658
acorn cable gutter cleaner side mount wheel w bushing part 62068 9658
Badger BUSHING for a BN950 Forage Box Part  902805
badger bushing for a bn950 forage box part 902805
MacDon Header NOS Header Drive Split Bushing Part 115074
macdon header nos header drive split bushing part 115074
lot of parts for Herman Miller chair bracket  cylinder  springs  bushings
lot of parts for herman miller chair bracket cylinder springs bushings
Huge Hobart lot 12 MQ1 Kitchen Equipment Parts repair switch belt bushing plug
huge hobart lot 12 mq1 kitchen equipment parts repair switch belt bushing plug
jcb parts mini digger ram bush 2 pcs part no 903 20781
Massey Tractor NOS Transmission Bushing Part 3039734m1
massey tractor nos transmission bushing part 3039734m1
Steris BUSHING Part Number P117905141
steris bushing part number p117905141
jcb spring steel dipper cut bush qty 4 pcs part no 1208 0031

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Bush Parts

See More About:    Bush Hog Parts        
High Definition Photographs of Londons Shepards Bush and other parts of Hammersmith 2012.

Can the President appoint principal executive officers without a Senate confirmation vote?




     A. The Textual and Structural Argument that Senate Silence May
        Imply Consent
     B. Consideration of Other Interpretive Resources
        1. Other Constitutional Provisions
        2. Original Understanding
        3. Subsequent Practice




A widespread, seemingly unquestioned assumption regarding the
process for appointing federal officers is that the Constitution
requires the Senate to vote to confirm the President's nominee
before the appointee may take office on a permanent basis. This Essay
challenges that assumption by arguing that as a matter of constitutional
text, structure, and history, it is not at all clear that the Senate
must affirmatively vote in favor of a nominee in order to provide the
required advice and consent. Rather, the Constitution can and should be
read to construe Senate inaction on a nominee as implied consent to the
appointment, at least under some circumstances.

The motivation for exploring this seemingly radical proposition is
the widely shared belief that our system for appointing senior federal
officials is a mess, and seems to be getting worse. Although scholars
and the popular press have focused on judicial confirmation battles, the
politics of executive branch appointments is arguably becoming even more
dysfunctional. After all, even though judicial vacancies increase the
strain on overworked federal judges (particularly district court
judges), (1) the Article III judiciary continues to function reasonably
effectively. By contrast, executive branch vacancies--particularly at
the senior level--can make it difficult or impossible for important
departments and agencies to fulfill their statutorily and
constitutionally mandated functions. (2) Moreover, in many cases, the
Senate faction that prevents action on executive branch nominees seems
motivated less by an objection to the nominees themselves than by a
desire to impair the Executive's ability to function or to extract
substantive legislative concessions. (3)

By contrast, in the Senate, the faction opposing a judicial nominee
typically objects to the nominee's ideology or qualifications, but
does not seek to cripple the Article III judiciary as an institution. A
couple of contemporary examples illustrate the point. For close to a
year, a new federal agency--the Consumer Financial Protection Bureau
(CFPB)--was hamstrung by the refusal of a minority in the Senate to
allow a confirmation vote on President Obama's obviously qualified
nominee, Richard Cordray. (4) Likewise, vacancies on the multimember
National Labor Relations Board (NLRB) deprived that agency of the
necessary quorum to take any action whatsoever, again because the Senate
minority refused to allow a confirmation vote on the President's
proposed replacements. (5) Although these recent incidents involved
Democratic appointments stalled by Republicans in the Senate, the shoe
easily could be--and has been--on the other foot. (6) Moreover, while
historically the Senate has moved swiftly, and generally deferentially,
with respect to the President's top-level appointments (such as
cabinet secretaries), (7) if the CFPB and NLRB fights are harbingers of
things to come, there is no guarantee that this will remain the case.

Excessive Senate obstructionism is made possible because the
Senate's institutional rules give a minority of senators the
ability to block an appointment without a formal vote. Under the
Senate's current rules, sixty senators must vote in favor of
cloture to overcome a threatened filibuster of a nominee, creating a de
facto supermajority requirement. (8) Moreover, even a single senator can
delay consideration of a nomination by placing a "hold" on the
nomination, and can do so anonymously. (9) The Senate majority, or
factions thereof, can also refuse to schedule a vote on a nominee even
if the nominee would be confirmed if put to a vote. (10) Determined
minorities have been known to use other tactics as well, such as
refusing to attend committee hearings in order to deprive the committees
of the necessary quorum. (11) While informal Senate norms historically
constrained the abuse of these powers, such norms appear to have eroded
in recent years, as both scholars and many senators themselves have
observed. (12)

The response of the White House to Senate obstructionism on
appointments--both in the Obama Administration and in its
predecessors--has included both political and legal elements.
Politically, Presidents have attempted to shame the Senate into acting,
claiming that the Senate's (or Senate minority's) refusal to
allow a vote on contested nominees is irresponsible and partisan.
Legally, Presidents have tried to find ways to circumvent an
intransigent Senate, most notably by invoicing their constitutional
power to make "recess appointments" when the Senate is not in
session. (13) This was the Obama Administration's strategy with
respect to CFPB and NLRB appointments. That maneuver has in turn
provoked Senate countermeasures, most notably the use of pro forma
sessions to prevent the Senate from going into recess. (14) Virtually
all of the attention to the constitutional aspects of the appointments
controversy has focused on the recess appointment power, as scholars,
administration lawyers, and others have developed ever more intricate
arguments regarding the nature of senatorial "recess" and the
extent of the President's recess appointment power. (15)

In this Essay, I propose a simpler constitutional route around (or
through) the problem presented when an intransigent Senate minority
prevents a vote on important executive branch appointments. The proposal
is this: when the President nominates an individual to a principal
office in the executive branch, where filling that office is essential
for the President to fulfill his or her duty faithfully to execute the
laws, the Senate's failure to act on the nomination within a
reasonable period of time, despite good faith efforts of the
nominee's supporters to secure a floor vote, shall be construed as
providing the Senate's tacit or implied "Advice and
Consent" to the appointment within the meaning of the Appointments
Clause. (16) The argument, in other words, is that the appointment of
certain senior executive officers does not require a Senate confirmation
vote as a matter of constitutional law. Rather, although the Senate can
always withhold its constitutionally required consent by formally voting
against a nominee, the Senate cannot withhold its consent indefinitely
through the expedient of failing to vote on the nominee one way or the
other. Thus, according to this argument, instead of resorting to a
recess appointment, it would have been constitutional for President
Obama to declare (say, in late 2011 or early 2012) that Cordray, who was
nominated to head the CFPB in July 2011, had been appointed to that
position with the Senate's (tacit) consent--as a regular
appointment, not a recess appointment- given that the Senate had failed
formally to vote down his nomination within a reasonable period of time.

This Essay has two goals. The first is to offer some reasons why
the lawsuit that would inevitably follow such drastic presidential
action ought to be resolved in favor of the administration. The second
is to "normalize" the arguments in favor of that seemingly
radical legal conclusion, in the hope that the very existence of such
arguments, if taken seriously in mainstream constitutional discourse,
might alter the bargaining game between the President and the Senate in
ways that decrease Senate obstructionism and help restore norms of
Senate deference to senior executive branch appointments.

Put another way, this Essay is an exercise in constitutional
(re-)imagination in response to some important and detrimental changes
in constitutional practice (on the Senate side) that render old
assumptions about the meaning of "Advice and Consent" less
compelling as a functional matter. To that end, I suggest that a
question that had seemed settled by practice--that a Senate confirmation
vote is required--ought to be unsettled.

Part I of the Essay briefly sketches the pragmatic case for
allowing the President to appoint certain senior officials without a
Senate confirmation vote. Part II--the heart of the argument--seeks to
establish that such a scheme is consistent with constitutional text,
structure, precedent, and history. To be clear, I do not argue that the
rule I propose is constitutionally required. Rather, Part II seeks only
to establish that the Constitution is sufficiently ambiguous with regard
to the necessity of a Senate confirmation vote that pragmatic arguments
of the sort sketched in Part I can and should carry the day. Part III
discusses and defends limits on the scope of the proposed constitutional
rule. A brief Conclusion suggests that the simple recognition of the
potential plausibility of my constitutional argument might have positive
effects on the dysfunctional politics of appointment and confirmation,
even if that argument were never tested.


The pragmatic case for allowing the President to appoint senior
executive branch officials without a formal Senate confirmation vote is
a straightforward application of a set of familiar arguments for strong
presidential control over the administration--arguments that emphasize
the President's political accountability, comprehensive vision, and
capacity for energetic and decisive action. (17) The current
understanding of the Senate's role in confirming presidential
nominees both creates a de facto supermajority requirement and releases
senators opposed to an appointment from the disciplining effect of
having to cast a formal and public "no" vote. This gives the
Senate--or a minority of senators whose views would not prevail in a
formal up-or-down confirmation vote-too much power, significantly and
excessively weakening the President and impeding the functioning of the
executive branch.

To be clear, I do not argue for the outright elimination of those
features of the Senate's process that create de facto supermajority
requirements for legislation (or, for that matter, for the appointment
of judges and lower-level federal officials (18)). But supermajority
requirements seem particularly ill suited to senior executive branch
positions. For starters, one of the alleged virtues of supermajority
rules is that they create or intensify a bias in favor of the status
quo. (19) That may or may not be desirable when it comes to legislative
action, but it seems like a particularly hard position to defend in the
case of senior executive branch appointments, where the status quo is
often a vacant office (or an office staffed by a less effective acting
official (20)). Furthermore, the political accountability arguments
often invoked to justify strong presidential control seem particularly
salient in the context of presidential appointment of senior executive
officers. After all, the nation elects (or re-elects) the President
every four years with the expectation that the President will execute
the nation's laws, and the incumbent President (or his or her
copartisans and heir apparent) receives the credit or blame for how well
the executive branch (or the government as a whole) has performed. Given
this concentration of responsibility and accountability in the
President, it is sensible to empower the President to staff key

Moreover, minority obstructionism in the Senate is problematic
because it leads to a lack of transparency--and hence a lack of
accountability--to the electorate. This is a general problem, (21) but
it may be particularly acute with respect to executive branch
appointments, as the lack of transparency enables the President's
political opponents in the Senate to undermine the effectiveness of the
White House without the senators' ever having to take a formal and
public vote rejecting the President's nominee. True, sophisticated
political insiders know exactly what is going on, but forcing senators
to vote on a nominee may affect their political calculations, as
evidenced by cases in which nominees whose appointments had been bottled
up are eventually approved by overwhelming majorities. (22)

This is not necessarily to endorse the strongest forms of the
"unitary executive" argument, nor is it necessarily to say
that the Senate should play no role in senior executive appointments
(even if that were a constitutional option). It is simply to say that in
this particular context--appointment of the most senior officials in the
executive branch--the case for strong presidential authority is at its
apex. The Senate does play an important checking role, even in the
appointments context, and could continue to play this role by
affirmatively voting down unacceptable nominees within a reasonable time
(and taking the political heat for doing so). Yet it is plausible--and,
in my view, probable--that the ability of a minority of senators to
block senior executive branch appointments without the transparency
associated with a formal confirmation vote shifts too much power away
from the President.

Of course, this claim is virtually impossible to prove: it involves
both contestable normative propositions regarding the appropriate
balance of power between the President and the Senate and unproven (and
perhaps unprovable) empirical conjectures about the probable
consequences of different institutional arrangements. (23) I do not
attempt, in this Essay, to marshal all the evidence and arguments that
might be needed to convince a reader skeptical of my pragmatic case for
recognizing a greater power in the President to appoint senior officers
without a formal confirmation vote. Rather, this Essay is directed
principally at readers who are sympathetic to the pragmatic arguments
sketched above, but who believe that the Constitution requires an
affirmative Senate confirmation vote for senior appointments. My goal in
Part II is to convince such readers that this latter view is not


A. The Textual and Structural Argument that Senate Silence May
Imply Consent

Although scholars, judges, and laypeople speak casually of a
constitutional requirement of Senate "confirmation" of
presidential nominees, (24) the key constitutional text--Article II,
Section 2's Appointments Clause--does not speak of Senate
"confirmation," nor, for that matter, of a Senate
"vote" on appointments. (25) Rather, the Appointments Clause

   [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.... (26)

The critical phrase in this clause, for present purposes, is
"by and with the Advice and Consent of the Senate." The
question is whether this phrase necessarily implies an affirmative
confirmation vote--that is, a form of express consent--or whether it is
possible to read this phrase, in the context of the Appointments Clause,
as entailing the possibility of tacit, implied, or constructive consent
to a presidential nominee.

In preliminary support of the latter conclusion, consider that the
ordinary understanding of the term "consent," as defined in
both eighteenth-century and modern dictionaries, is broad enough to
include both express and implied consent, depending on the context. For
example, Samuel Johnson's 1755 Dictionary of the English Language
defined "consent" as, among other things, "[t]he act of
yielding or consenting." (27) Moreover, the term
"consent," as used in other areas of law, is not always
limited to express consent. Rather, consent can be understood either as
requiring some affirmative, express act or declaration, or as something
that can be given tacitly, through inaction or failure to object,
depending on the context. Examples of settings where consent may be
implied through a failure to object include criminal procedure, (28)
tort law, (29) contract law, (30) and evidence law, (31) among others.
(32) Indeed, a hoary English common law maxim, derived from Roman law,
asserts that qui tacet consentire videtur ("one who keeps silent is
understood to consent") (33)--a principle famously (and
successfully) invoked by Thomas More at his trial for treason. (34) The
notion that consent may be implied by failure to object in a timely
fashion is also present in certain aspects of legislative practice,
including in the U.S. Congress. (35)

Of course, the fact that consent can sometimes cover tacit or
implied consent does not necessarily mean that the term should be
understood that way in Article II, Section 2--particularly since there
are also many other legal contexts in which consent does require some
form of express, affirmative statement of agreement. (36) Nonetheless,
the above evidence on the ordinary meaning of the term, as well as its
usage in law and legislative practice, establishes that the text of
Article II, Section 2 does not provide any prima facie reason to
conclude that an affirmative Senate confirmation vote is always

Moreover--and here is where the interpretive argument intersects
most strongly with the pragmatic arguments developed in Part I--the case
for reading "Advice and Consent" in the Appointments Clause as
encompassing tacit consent to the appointment of senior executive branch
officials is bolstered by the Take Care Clause in Article II, Section 3,
which declares that the President "shall take care that the Laws be
faithfully executed." (37) The sheer breadth of the federal
government's many functions means that the President cannot perform
this constitutional task without assistance. As Chief Justice Taft put
it in Myers v. United States (in a somewhat different doctrinal
context): "The vesting of the executive power in the President was
essentially a grant of the power to execute the laws. But the President
alone and unaided could not execute the laws. He must execute them by
the assistance of subordinates." (38) Thus, the inability of the
President to staff the most senior offices of the executive branch makes
it extraordinarily difficult for the President to fulfill this
constitutional function. An 1846 Opinion of the Attorney General on the
Recess Appointments Clause makes a similar point, explicitly drawing out
the connection between the Appointments Clause and the Take Care Clause:

   The constitution ... requires that the President shall take care
   that the laws be faithfully executed. In the performance of public
   executive duties, it is important that officers filling the offices
   authorized by law shall be appointed. Offices without officers are
   useless to the public; and the constitution may fairly receive such
   a construction as will accomplish its ends without doing violence
   to its terms. (39)

To be clear, the argument here is not that the Take Care Clause
supersedes or overrides the Appointments Clause's
advice-and-consent requirement. Rather, the argument is that because the
Appointments Clause is susceptible of multiple readings, we should
prefer a reading that minimizes the tension between the role for the
Senate specified in the Appointments Clause and the President's
more general obligations under the Take Care Clause. As the above
Attorney General opinion put it, we should strive to give the
Constitution "such a construction as will accomplish its ends
without doing violence to its terms."

Moreover, reading the Appointments Clause in light of the Take Care
Clause suggests some important limitations on the idea that the
Senate's silence may be construed as consent. In particular, Senate
consent should be implied only when prolonged failure to staff a
particular office would substantially impede the President's
ability to take care that the laws are faithfully executed within the
meaning of Article II. This means that the implied consent theory may be
limited to a narrow class of senior executive officers (for example,
cabinet secretaries, agency heads and commissioners, and senior deputies
with significant policy responsibilities), and that for other
officials--including judges, inferior officers, and some nominally
principal officers who perform less central functions--an affirmative
Senate confirmation vote should still be required. (40) Using the Take
Care Clause as both an inspiration for, and a limitation on, the tacit
consent theory of appointments may also imply that this theory has no
purchase when Congress has provided some alternative mechanism to ensure
that an executive department can continue to perform its functions even
when the department's senior positions remain formally vacant. (41)
These possibilities will be taken up in Part III. For now, the key
argument is that although the Take Care Clause cannot be read as
authority for presidential disregard of the Appointments Clause's
requirement of Senate "Advice and Consent," the Take Care
Clause can influence how one should construe the Appointments Clause,
and in particular how one should resolve any ambiguity in the
latter's text.

A possible objection to the argument that the Senate's silence
can be construed as consent is that the Senate itself, pursuant to its
constitutional power under Article I, Section 5 to establish its own
rules of procedure, (42) has specified that it gives its advice and
consent to a nomination only after a formal confirmation vote. The
objection, in other words, would be that the Senate has the power to
define what counts as consent for constitutional purposes, and the
Senate has formally adopted rules pursuant to which only active, express
consent (in the form of a vote) counts. This interpretation of consent,
as I acknowledge above, is consistent with one possible meaning of the
constitutional text. (43) Thus, the argument continues, although perhaps
the Senate itself could implement my proposal in the form of a rules
change, (44) the President and the courts could not treat senatorial
silence as consent absent such a rules change.

There are two main responses to this objection, one more specific,
and the other more general. The more specific response is that the
Senate rules, as they currently stand, do not clearly state that Senate
inaction may not be construed as consent (though concededly this seems
to be what the senators themselves have assumed). The relevant Senate
rule is Rule XXXI, which states that when the President makes a
nomination, the final question referred shall be, "Will the Senate
advise and consent to this nomination?" and also provides for
various procedural rules regarding committee referrals, reconsideration,
and final vote. (45) The only reference in Rule XXXI to Senate inaction
is a passage that states that "[n]ominations neither confirmed nor
rejected during the session at which they are made shall not be acted
upon at any succeeding session without being again made to the Senate by
the President." (46) This provision does not state explicitly that
such inaction may not be construed as consent (though, again, this is
likely the prevailing assumption). So, even if it might hypothetically
be possible for the Senate to adopt a rule stating explicitly that
inaction may not be construed as consent, the Senate has not yet adopted
any such rule.

The more general response is that although Article I, Section 5
gives the Senate the power to determine its own internal rules of
procedure, the Constitution does not give the Senate the power to define
the constitutional term "Consent." (47) The Senate can (and
has) created a de facto supermajority requirement by requiring sixty
votes to invoke cloture and bring up a measure for a floor vote. (48)
But this is quite different from allowing the Senate unilaterally to
resolve the meaning of the ambiguous term "Consent" by rule,
particularly given that this term implicates not only the Senate's
internal practices, but also the relationship between the Senate and the
President. Thus, if the courts were to construe "Advice and
Consent" of the Senate as "absence of express Senate
objection," the Senate could not invoke its power under the Rules
of Proceedings Clause to declare that "Advice and Consent"
means "express Senate approval." Admittedly, there is little
authoritative judicial doctrine and much scholarly disagreement about
the scope of each chamber's powers under the Rules of Proceedings
Clause. (49) But it is certainly possible, and, as I argue, desirable,
to limit such power so as not to enable the Senate to withhold consent
via inaction.

B. Consideration of Other Interpretive Resources

The affirmative case that the Constitution allows the President to
appoint senior executive branch officials without a formal Senate vote
relies on the conjunction of two claims: (1) that the key constitutional
phrase "Advice and Consent" is ambiguous with respect to
whether express consent is required or whether the failure to object may
be construed as implied consent; and (2) that the latter interpretation,
at least in the case of certain senior executive officers, would achieve
greater harmony with the Take Care Clause and better advance the
pragmatic objectives developed in Part I of this Essay. However, the
surface ambiguity of the text, even if established, might not
necessarily establish that the Appointments Clause is actually ambiguous
on this point. Depending on one's theory of constitutional
interpretation, apparent textual ambiguity might be resolved by a number
of additional interpretive tools, including the usage of the relevant
term in other parts of the constitutional text, extrinsic evidence of
the original understanding of the term, and authoritative resolution of
the seemingly ambiguous provisions by subsequent judicial decisions or
historical practice. There are plausible-though in my view ultimately
unconvincing-arguments that each of these interpretive tools indicates
that the meaning of "Advice and Consent" in the Appointments
Clause is limited to active, express consent (that is, a formal
confirmation vote). Let us consider them in turn.

1. Other Constitutional Provisions

Although a surface reading of the term "Advice and
Consent" in the Appointments Clause does not seem to restrict the
term's meaning to active as opposed to passive consent, perhaps it
is a mistake to consider the Appointments Clause in isolation. After
all, in both constitutional and statutory interpretation, courts often
draw inferences about the meaning of particular words or phrases by
looking to how those terms are used elsewhere in the document. (50) And
indeed, most of the other places where the Constitution refers to
legislative consent seem to imply (or have been assumed to require) some
form of more active consent, rather than mere failure to object.
Ultimately, though, the inferences that one can draw from these other
parts of the constitutional text seem too weak to defeat the proposition
that the Appointments Clause is ambiguous on this score.

The natural place to begin is the only other place in the
Constitution where the phrase "Advice and Consent" appears:
the Treaty Clause, also in Article II, Section 2. According to that
Clause, "[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." (51) One could argue that because the
phrase "Advice and Consent" in the Treaty Clause seems more
clearly to contemplate a Senate vote (one that prevails by a two-thirds
majority), the same "Advice and Consent" phrase in the
adjacent Appointments Clause must also entail an affirmative Senate
vote. But this does not follow. First of all, one could just as easily
emphasize the contrast between the Treaty Clause, which specifically
includes a requirement that two-thirds of the "Senators present
concur," and the Appointments Clause, which includes no such
additional requirement. In other words, one could take the position that
the phrase "Advice and Consent," when used by itself, could
mean either affirmative, express consent or tacit, implied consent. The
Treaty Clause contains additional language that narrows "Advice and
Consent" as used in that Clause to the former meaning, but the
Appointments Clause contains no such additional restrictive language,
and so in that Clause the phrase remains ambiguous. (52) Moreover, the
notion that the same word or phrase necessarily (or even presumptively)
has the same meaning in different legal provisions is both normatively
questionable and inconsistently applied, and for these reasons has
attracted sustained criticism. (53) As Chief Justice Marshall observed,
"[T]he same words have not necessarily the same meaning attached to
them when found in different parts of the [Constitution]: their meaning
is controlled by the context." (54) And, as Michael Gerhardt has
pointed out specifically with respect to Article II, Section 2,
"the record [of the Constitution's drafting] is silent on the
question of whether the phrase 'advice and consent of the
Senate' was meant to have the same meaning in the contexts of
treaty ratifications and ... appointments." (55)

The phrase "Advice and Consent" appears nowhere else in
the Constitution, but the Constitution does discuss the consent of
Congress (or of one or the other chamber of Congress, or a state
legislature) in a few other places. The Adjournment Clause in Article I,
Section 5 prohibits either chamber of Congress from adjourning for more
than three days without the "Consent" of the other chamber
(56)--a provision that has figured into the recent tangling between the
House, Senate, and President over recess appointments. (57) The Enclave
Clause in Article I, Section 8 enables Congress to exercise legislative
authority over land used for military facilities and other "needful
Buildings" when purchased with the "Consent" of the state
legislature. (58) The Emoluments Clause in Article I, Section 9
prohibits any U.S. officer from accepting any gift, office, or title
from a foreign state or ruler without Congress's
"Consent." (59)

Article I, Section 10 prohibits states from imposing certain
tariffs, maintaining armed forces in peacetime, initiating hostilities
with a foreign power, or entering into interstate compacts or
international agreements without the "Consent" of Congress.
(60) Article IV, Section 3 provides that the admission into the union of
any state formed within the jurisdiction of another state, or formed by
a combination of some or all of two or more existing states, requires
the "Consent" of Congress as well as the states concerned.
(61) Article V states that no state shall be deprived of equal suffrage
in the Senate without that state's "Consent." (62) There
is also one other constitutional reference to consent that involves the
consent of individuals rather than a legislative body: the Third
Amendment states that soldiers may not be quartered in a private home
during peacetime without the owner's "consenc" (63)

These provisions, which have generated relatively little case law
or scholarly commentary, seem to involve sufficiently different contexts
that they have little relevance to the meaning of "Consent" in
the Appointments Clause. That said, it is worth noting that the consent
required in a few of these other provisions has been interpreted or
understood as affirmative consent, rather than mere failure to object.
For instance, the Adjournment Clause has generally been interpreted to
require the active consent of the other chamber to an adjournment,
rather than to permit implicit consent through inaction. (64) And in the
limited case law on the Emoluments Clause, courts have apparently
assumed (though they have not clearly held) that congressional consent
must be express. (65) Likewise, some cases interpreting the Enclave
Clause seem to require express rather than tacit or implied consent,
though the decisions are not altogether clear on this point. (66) By
contrast, several cases interpreting the Compact Clause in Article I,
Section 10 have held that congressional consent to an interstate compact
need not take the form of a formal vote, but may instead be implied, at
least in certain circumstances. (67) However, it is not at all clear
whether the meaning of consent in these contexts has much relevance to
the meaning of consent in the appointments context. (68) Overall, the
usage of the term elsewhere in the Constitution may cut against the
proposal I advance here, but the contexts seem sufficiently different,
and the case law and practice is sufficiently sparse, that the
Constitution's other provisions shed relatively little light on the
meaning of "Advice and Consent" in the Appointments
Clause--certainly not enough to foreclose a reading that would allow
silence to imply consent.

The only other constitutional provision that might bear on the
question is Section 2 of the Twenty-Fifth Amendment--the one clause in
the Constitution that refers explicitly to a legislative confirmation
vote on an appointment. The Twenty-Fifth Amendment states that
"[w]henever 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." (69)
One could conceivably argue that the Twenty-Fifth Amendment indicates a
background assumption that vacant offices are filled via presidential
nomination and a subsequent confirmation vote, which might imply that
this is how the Appointments Clause should be understood. But, as with
the Treaty Clause, one could just as easily turn this argument on its
head by asserting that the specification in the Twenty-Fifth Amendment
of the need for a confirmation vote, rather than use of the familiar
"Advice and Consent" language, indicates that the phrase
"Advice and Consent," by itself, does not require a
confirmation vote. (70) Moreover, the Twenty-Fifth Amendment was adopted
almost two hundred years after the original Constitution, and clearly
differs from the Appointments Clause in other ways (particularly in
requiring the participation of the House of Representatives), so its
relevance would seem minimal.

2. Original Understanding

Even if the text of the Appointments Clause appears ambiguous
enough to read "Consent" as including tacit consent implied by
silence, it is possible that the men who wrote and ratified the
Constitution would have understood that term more narrowly--as limited
to active, express consent. Indeed, a thoughtful article by Adam White
argues that the evidence from the Philadelphia Convention debates
indicates that the phrase "Advice and Consent" does not
preclude the Senate from stopping an appointment simply by failing to
act on the nomination. (71) White adduces two pieces of evidence for the
claim that the original understanding of "Advice and Consent"
required an affirmative Senate vote.

First, White points out that the phrase "Advice and
Consent" was introduced at the Philadelphia Convention by one of
the Massachusetts delegates, Nathaniel Gorham, who took the phrase from
a provision in the Massachusetts state constitution that required the
governor to seek the "advice and consent" of an Executive
Council before making appointments. (72) White's research into
Massachusetts state practice found that on those rare occasions that a
Massachusetts gubernatorial nominee failed, there was no recorded vote
entered into the official Council records despite another state
constitutional requirement that all Council "advice" be so
recorded. (73) From this, White infers that the Council must have
rejected gubernatorial nominees without a formal vote, which in turn
indicates that the Massachusetts Constitution's requirement that
the Council give its "advice and consent" to the
governor's appointment did not prevent the Council from rejecting
an appointment via refusal to vote one way or another. (74) However,
nothing in White's evidence actually demonstrates that the
Massachusetts Council could block a nominee through inaction, as opposed
to a negative vote. Indeed, White's own argument is that the term
"advice," as used in the Massachusetts Constitution (and
consistent with historical English practice), meant
"approval," which is why rejections were not recorded. (75)
But if that is so, then it is not clear that the handful of unsuccessful
nominations were rejected without an affirmative vote of disapproval.
Thus the records White examines cannot tell us (and could not have told
the Framers or ratifiers) what would have happened if the Massachusetts
Executive Council simply failed to act on an appointee. (76)
Furthermore, my argument is that the President may construe senatorial
inaction as implied consent, not that the President must do so; the
President is always free to withdraw a nomination or leave it in limbo
if the Senate fails to act, as indeed Presidents have traditionally
done. If Massachusetts governors in the late eighteenth century followed
that practice as well, then the evidence White uncovers would not
resolve the (untested) legal issue of whether the governor could have
treated mere inaction by the Council as implied consent. Finally, and
perhaps most importantly, it is not at all clear that anyone at the
Philadelphia Convention (including Gorham himself), or at the state
ratification conventions, had any inkling that Massachusetts practice
allowed the Executive Council to block the governor's nominees
through inaction, if this was in fact the case (which, again, is not
clear from the records). Indeed, it is likely that they never thought
about the matter, or simply assumed that the Senate would of course vote
on all presidential nominees. (77)

White's second argument presents a more compelling originalist
objection to my proposal. He observes that at the Philadelphia
Convention, James Madison proposed an alternative version of the
Appointments Clause that would have given the Senate a discretionary
veto over the President's nominees. In other words, Madison
proposed a system quite close to what this Essay advocates: the
President would make nominations, and the default outcome in the case of
Senate inaction would be appointment. However, Madison's proposal
failed, while Gorham's "Advice and Consent" language was
eventually adopted (though it too was defeated when first proposed).

Although this is stronger evidence that the original understanding
of "Advice and Consent" included only express consent rather
than implied consent through failure to object, there are problems here,
too. First, as modern originalists emphasize, what matters is not
original intent but original meaning or understanding; (79) moreover,
the understanding of the Framers at the Philadelphia Convention matters
considerably less than the understanding of the voters who ratified the
document. (80) Furthermore, the Philadelphia Convention debates and
proceedings were supposed to be (and were, at the time of ratification)
secret--so, notwithstanding the cottage industry of law review articles
that carefully trace the intricacies of the internal drafting process,
there is a powerful argument that all this should be irrelevant, except
insofar as it sheds light on how a representative (informed) participant
in the ratification process would have understood the document. (81)
When one keeps those qualifications in mind, the inferences one can draw
from the fact that the Appointments Clause included Gorham's
proposed language rather than Madison's become much weaker, not
least because much of the public discussion preceding and immediately
following ratification seems to have presumed that the Senate would
always (and perhaps would be obligated to) vote up or down on all
presidential nominees. As White's admirably even-handed discussion
acknowledges, Alexander Hamilton's influential defense of the
Article II appointments process in the Federalist papers assumed that
the Senate had either to ratify or to reject the President's
nominee; the possibility of Senate inaction, and its consequences for
the appointment in question, seems not to have entered his mind. (82)
Other influential members of the Founding generation, including James
Wilson, James Iredell, and John Adams, also made remarks suggesting that
they assumed the Senate would take up all the President's nominees.
(83) As White points out, the remarks of Hamilton, Wilson, Iredell,
Adams, and others are ambiguous with respect to whether the Senate would
necessarily vote on all nominations. (84) More relevant here, these and
other public statements reveal little about the constitutional
implications of the Senate's failure to act one way or the other.
As White acknowledges,

   [I]n the course of the rare discussions actually conducted on the
   issue of appointments [in the post-Convention state ratification
   debates], speakers did not illuminate the Ratifiers' nuanced
   impressions of the specific roles of President and Senate so much
   as criticize the mix, variously favoring vesting absolute
   appointment power in either the President or the legislature. (85)

Thus, even if one were to accept the claim that the participants in
the Philadelphia Convention clearly understood Gorham's
"Advice and Consent" as an alternative to Madison's
proposal of a discretionary Senate veto--an alternative that would allow
the Senate to defeat nominations through inaction--there is no evidence
that this understanding of the otherwise ambiguous "Advice and
Consent" language was more widely shared outside the Convention.

Moreover, while one interpretation of the adoption of Gorham's
language over Madison's is that the Framers preferred to require
affirmative Senate consent rather than to allow a discretionary Senate
veto, an equally plausible interpretation is that the Framers chose to
finesse the issue by using ambiguous language so that both sides could
claim victory (or simply avoid further discussion of the issue). (86)
After all, the delegates debated and rejected many different appointment
schemes-including those involving the whole legislature, the President
alone, the Senate alone, Madison's proposed Senate veto, and
Gotham's "Advice and Consent" proposal. Close to the end
of the Convention, they unanimously (and without much debate) accepted
the Committee on Compromise's language, which used the previously
rejected "Advice and Consent" formulation and became (with
only slight modification) the final version of the Appointments Clause.
(87) Thus, the evidence of original understanding is at best murky and
inconclusive--which, again, is all I seek to establish here.

3. Subsequent Practice

The strongest argument against my proposal, in my view, is that
even if the "Advice and Consent" language was originally
ambiguous as to what could or should happen in case of Senate inaction,
this ambiguity has since been resolved. After all, on several theories
of constitutional interpretation, the meaning of textually ambiguous
provisions may be clarified by subsequent judicial construction or
historical practice. (88) In this case, subsequent judicial construction
is not really an issue, as there is almost no case law directly on
point. (89) However, there is a much more compelling argument that
longstanding historical practice has resolved any ambiguity that one
might find in the text of the Appointments Clause. After all, since the
early days of the Republic, it has apparently been presumed that the
Senate must affirmatively act to confirm presidential nominees, and that
therefore the Senate can block nominations simply by failing to act on
them. (90) For many skeptical readers, this may be dispositive evidence
against my proposal--either because longstanding practice can settle the
meaning of initially ambiguous constitutional provisions, (91) or
because the fact that we have gone for so long without anyone
interpreting the text in the way I have suggested is prima facie
evidence that this interpretation is simply implausible, notwithstanding
the arguments I have advanced above. I share these misgivings to some
degree. Let me nonetheless offer three reasons why reading the
Appointments Clause to construe Senate inaction as passive consent may
be acceptable, even though longstanding historical practice is to the

First, as a matter of constitutional doctrine, the fact that a
practice by the executive and legislative branches is longstanding does
not necessarily entrench that practice as a constitutional norm, as
opposed to a nonconstitutional convention; this is particularly true
when the Supreme Court has never weighed in on the matter. Indeed, many
longstanding practices and understandings do not "harden" into
constitutional rules. For example, there is a longstanding practice that
Presidents will consult the senators (of the President's party)
from a potential judicial nominee's home state and yield in the
face of objections from those senators. (92) But it is doubtful that
many observers would view this consultation as a constitutional
obligation, as opposed to a politically prudent practice. Likewise, many
executive agencies have adopted the practice of consulting with the
relevant congressional appropriations committees when they wish to
transfer funds from one purpose to another, within a single statutory
appropriations category. (93) Yet this practice, though longstanding, is
not considered a legally enforceable constitutional requirement as
opposed to a politically enforced custom. (94) Other conventions,
including a number of perceived constraints on the President, may be
considered entrenched as (quasi-)constitutional norms, but turn out to
yield once they are challenged or violated. (95) In short, sometimes
longstanding practice fixes the meaning of constitutional ambiguities,
but sometimes it does not, and no one (to the best of my knowledge) has
propounded a comprehensive and convincing theory that distinguishes
these cases. (96)

Second, in this case the historical practice (as opposed to
apparent traditional understandings or assumptions) does not, in fact,
directly contradict my proposed constitutional interpretation. After
all, I do not argue that if the Senate fails to take action on a
nominee, that nominee is automatically appointed. Rather, I argue that
if the Senate fails to take action, the President may declare that he or
she construes the Senate's silence as tacit consent to the
nomination. No President has ever done so. While I acknowledge that one
reason may be that no President ever thought he could do so as a matter
of constitutional law, it is nonetheless fair to say that this
constitutional limit has never actually been tested. Put another way,
one need not conclude that failure to exercise (or even to recognize)
that a power exists necessarily leads to its atrophy, (97) even if one
does accept the proposition that the regular exercise of a power (with
the acquiescence of other constitutional actors) can establish its
legitimacy. (98)

Third, and perhaps most importantly, changing circumstances have
undermined the relevance of historical practice to the contemporary
question of whether the President may sometimes deem the Senate to have
consented to an appointment without a formal confirmation vote. There
are two (nonexclusive) versions of this argument--one more general, the
other more specific.

The more general argument is somewhat similar to Lawrence Lessig
and Cass Sunstein's influential argument that the Constitution
gives the President broad powers to direct and control the
administration, even though--on Lessig and Sunstein's reading of
the historical materials--the Constitution was not originally understood
as granting the President such powers. (99) Lessig and Sunstein make a
"living Constitution" argument: they emphasize that under
modern conditions, particularly in light of the massive expansion of the
federal administrative state, the core virtues that the Framers
associated with the President--energy, accountability, and speed-require
a stronger and more centralized executive than the Framers envisioned.
(100) So too, one could argue, the expansion of the federal
administrative state requires giving the President more power to staff
key executive branch positions than was required in an earlier period.
Again, the argument here is not that changing circumstances allow the
President to disregard the clear meaning of the Constitution. Indeed, as
I have tried to establish, nothing in my proposal contradicts anything
explicit in the text or original understanding; my argument is less bold
than Lessig and Sunstein's in that respect. Rather, the claim is
that past historical practice and understanding do not necessarily
settle constitutional meaning when the surrounding
circumstances--particularly the role and responsibility of the federal
executive branch--have changed so drastically.

The second, more specific, and probably more important
"changed circumstances" argument focuses on the deterioration
of Senate norms regarding confirmation votes on key executive branch
officials. (101) Although it is true that historically the President has
never attempted to appoint a senior official without a Senate
confirmation vote, it is also the case that historically the Senate
operated pursuant to norms that required confirmation votes, perhaps not
on all nominees, but certainly on cabinet officials and other senior
officers of the executive branch. (102) So, it is reasonable to suppose
that one historical norm--that the President would never appoint an
official without express Senate consent in the form of a confirmation
vote--was dependent on (and presumed the existence of) another
norm--that a Senate minority would not delay indefinitely votes on the
most critical executive branch appointments. The latter norm may not be
constitutional (though some have suggested that it might be (103)), but
its historical existence and recent decay ought to influence the
interpretive weight we attach to historical adherence to the former
norm. We especially ought to question whether the former norm ought to
be deemed to have constitutional status even if the constitutional text
and other indicia of meaning are ambiguous.

For these reasons, although it is true that longstanding historical
practice would seem to imply that "Advice and Consent" in the
Appointments Clause entails an affirmative confirmation vote, this
practice does not foreclose the possibility that this language could now
be interpreted to allow tacit consent to be inferred through prolonged
Senate inaction on the most senior executive branch appointments. If the
pragmatic arguments sketched in Part I are strong enough for breaking
with the traditional understanding, then the tradition itself should not
pose an insurmountable barrier.


Even if one were to accept the pragmatic and interpretive arguments
that I have advanced in Parts I and II, a number of open questions
remain regarding the appropriate doctrinal response. Under what
circumstances should Senate silence be construed as tacit consent for
Appointments Clause purposes, and when should express Senate consent be
required? Here I consider five questions regarding the scope of the
proposal that silence can indicate consent: (1) whether this principle
should also apply to judicial appointments; (2) to which executive
branch offices the principle should apply; (3) whether the principle
applies when statutory law provides for the appointment of acting or
interim officers to fill the position; (4) whether silence should be
read as consent only when a nominee's supporters make a good faith
effort to secure a floor vote; and (5) how much time must pass before
the Senate's silence can be read as tacit consent. Below I offer my
provisional answers to these questions, but anyone who accepts the core
argument in Parts I and II might reasonably disagree with my resolution
on each of these questions. This Part is included for the sake of
rounding out the contours of the doctrinal proposal, but nothing here is
essential to the basic points I wish to make.

First, I would not extend this proposal to judges; for judicial
appointments, it would make more sense to read "Advice and
Consent" as requiring an affirmative confirmation vote. The reason
for this limitation is principally pragmatic. Federal judges, once
appointed, cannot be removed (except in extreme circumstances), while
executive branch appointments change with the election of a new
President (and often before then). (104) For that reason, there is a
strong pragmatic case for preserving a supermajority requirement for
judicial appointments. Furthermore, as noted in the Introduction, Senate
holdups of judicial nominations are typically due to objections to the
ideology or qualifications of those particular nominees, rather than an
interest in preventing the Article III judiciary from performing its
functions. Indeed, even those senators opposed to the President's
political agenda and judicial philosophy have an interest in the
continued functioning of the Article III courts, and this creates
incentives to negotiate and compromise on judicial appointments--as has
happened several times in recent years. (105) Thus, despite the
frequency with which the Senate refuses to act on certain judicial
nominations, this obstructionism seems not to have impeded the overall
functioning of the federal courts (though it has certainly increased
caseload strain, especially at the trial court level). (106) This is not
always the case with executive agencies, where the opposition may be
perfectly happy to cripple the agency by refusing to confirm senior
leaders. (107) As discussed in Part II, these pragmatic arguments may be
cast in constitutional terms by emphasizing that "Advice and
Consent" in the Appointments Clause should be read to produce as
much harmony as possible with the Take Care Clause. It is the
responsibility of the President, not Congress, to "take Care that
the Laws be faithfully executed," (108) and this justifies an
unusual (but textually permissible) reading of "Consent" in
the context of appointing the most senior executive branch officials,
who act as the President's surrogates. Article III judges, though
appointed by the President, perform a different constitutional function,
and the Take Care Clause has little bearing on how one should interpret
the process for judicial appointments. (109)

Second, I would limit the proposal to senior executive
officers-cabinet secretaries, agency heads, commissioners, senior
deputies, and ambassadors (110)--who are indispensible to carrying out
the core programs and missions of the executive branch. The argument
here is again partly pragmatic and partly derived from reading the
Appointments Clause in conjunction with the Take Care Clause. There are
a great many executive branch positions that require Senate advice and
consent (either under the Appointments Clause or by statute). Other
pressing business may prevent the Senate from taking up all of these
nominations in a timely fashion, and there might be concern about a
President strategically inundating the Senate with more nominations than
it can process if silence were construed as consent in all cases.
Furthermore, for nominations to certain offices--the ones that are more
like patronage positions--the objection of a small number of senators
may be a more legitimate reason to hold up the nomination. Vacancies in
these less important positions, while surely an inconvenience, are
unlikely to deprive the White House, or any particular agency or
department, of the capacity to fulfill its core functions. (111) As was
the case with judicial appointments, then, the Take Care Clause is
unlikely to be implicated with respect to these more junior
appointments, and there is not as strong a case for deviating from
historical practice by reading "Consent" to include tacit as
well as express consent. (112)

The above discussion naturally implicates a third question: When
filling an office is essential to carrying out an agency's--and the
President's--core functions, but the President has the ability to
appoint an "acting" officer to fill that position when Senate
confirmation is pending, may the President still constitutionally
construe Senate inaction as tacit consent to the appointment? After all,
when the President may designate an acting secretary, commissioner, or
agency head who can exercise the powers of the office on a temporary
basis, it is harder to make the case that the President must be able to
make a permanent appointment to that office in order to "take Care
that the Laws be faithfully executed." (113) That said, under the
existing statutory framework (the Vacancies Act, amended in 1998 by the
Federal Vacancies Reform Act (114)), there are a number of important
limits on the President's ability to appoint acting officials.
First, the wording of the Vacancies Act only permits the appointment of
an acting officer if the previous officeholder dies, resigns, or is sick
or absent. (115) This has been understood to mean that for new agencies,
like the CFPB, the President has no power to appoint an acting agency
head because there was no predecessor. (116) Second, the Vacancies Act
does not apply to the commissioners of multimember independent agencies
like the NLRB. (117) Third, the amount of time that an official can
serve in an acting capacity is limited. (118) Fourth, as Anne
O'Connell and others have determined, on average agencies may be
much less effective when they are headed by acting or interim leaders,
for a variety of interrelated political, institutional, and
psychological reasons. (119) For these reasons, my tentative view is
that even if the Vacancies Act (or some similar statutory provision)
provides for the appointment of an acting official to carry out the
functions of a vacant office on an interim basis, the President should
still be able to treat the Senate's failure to act on the
President's nominee for that office within a reasonable period of
time as implicit consent. But it might also be possible, under some
circumstances, to conclude that statutory provisions for acting
officials are sufficient such that such an interpretation of the
Appointments Clause is not essential to preserve the President's
ability to take care that the laws are faithfully executed. My proposal
is on its surest footing in those cases where there is no statutory
provision whatsoever for the appointment of an acting official to assume
the duties of the office.

Fifth, my proposal includes the caveat that Senate inaction may be
construed as consent to an appointment only if the supporters of the
nominee in the Senate make good faith efforts to secure an up-or-down
vote on that nominee (or, more modestly, that there not be evidence that
the nominee's supporters were the ones preventing opponents from
forcing an up-or-down vote). This qualification is designed to avoid a
situation in which the President's Senate allies game the system in
order to secure the appointment of a nominee who would be voted down if
the full Senate had the opportunity to vote. In other words, we want to
avoid a situation in which the President nominates someone who is
unacceptable to a majority of senators, but the President's allies
in the Senate prevent a vote, allowing the President to claim that the
Senate's inaction constitutes consent to the nomination. Such
gaming would be hypothetically possible under an unqualified rule that
allowed inaction to be construed as consent. But it would not be all
that hard to police and eliminate if courts refused to credit such
claims when it is plain that the President's Senate allies were the
ones preventing a vote from taking place.

Sixth, a difficulty with my proposal is that it requires some
judgment as to how long the President must wait before construing Senate
inaction as consent. For those who prefer clear rules, the best approach
would be to pick a number, like 90 days or 120 days or 210 days. I would
advocate something relatively short, like ninety days, but reasonable
people could disagree. For those who prefer standards, one could simply
frame the relevant principle as the notion that silence can be
interpreted as consent after a "reasonable time," where it
would be up to the courts to determine what counts as
"reasonable" on a case-by-case basis, and it would be up to
the President and senators to make educated guesses (and to take
calculated risks) when deciding what to do in the case of an impasse. My
instinct is that the interest in certainty and predictability with
respect to the powers of executive officers militates in favor of a
rule--something like ninety days--despite the fact that such a rule is
inevitably somewhat arbitrary and cannot be derived in any direct way
from the constitutional text. That said, because the primary aim of this
Essay is to make the case that Senate inaction can in some circumstances
be construed as tacit consent, rather than to make another contribution
to the ongoing and probably irresolvable rules/standards debate, I will
not discuss this issue further. If one finds the constitutional claim I
advance in this Essay persuasive, one could implement that understanding
via a rule or a standard, or some combination.


This Essay has argued that under some circumstances, the President
should be able to appoint senior executive branch officers without a
Senate confirmation vote. The pragmatic justification for this proposal
derives from the concern that Senate obstruction of executive branch
appointments seems to be getting out of hand. Admittedly, there are
other ways one might address this concern, such as sanctioning more
aggressive presidential use of the recess appointment power, (120)
reviving the so-called "nuclear option" (that is, the
elimination of the Senate filibuster through a rule change that would
arguably require only a simple majority of senators to approve (121))
for senior executive appointments, or malting other changes to Senate
rules. But these proposals have their own difficulties (both political
and legal), and it seems worth considering whether there might be a
cleaner, more direct response to the problem: the simple idea that
Senate silence can in some cases be construed as consent for
constitutional purposes.

I am under no illusions that the President is likely to pursue this
route any time soon, both because its confrontational nature makes it
politically risky, and also because, notwithstanding the arguments I
have tried to develop in this Essay, as a predictive matter, the Supreme
Court might well reject such a move as unconstitutional. Nonetheless, it
might still be beneficial if the argument suggested above came to be
seen as at least a plausible and legitimate constitutional position--one
that the Supreme Court might accept--even if (perhaps especially if) the
President never actually forced the issue. In the ongoing bargaining
between the White House and the Senate over nominations, the idea that
there is an extreme--but legally plausible--option that the President
might invoke if Senate obstruction becomes intolerable may induce the
Senate to become somewhat more willing to compromise. This is all the
more true if, as seems likely, the probability that the Court would
seriously entertain the sort of constitutional argument advanced here
rises as the Senate's obstructionism appears more extreme and
unreasonable. The aspiration of this Essay is to normalize and
legitimize a seemingly radical constitutional argument in favor of what
seems like a dramatic expansion of presidential power, precisely because
the mere possibility that the President might successfully invoke this
power could stem the erosion of traditional norms of Senate deference to
senior executive branch appointments, and restore a more sensible and
balanced politics of appointment.

THE FEDERAL JUDICIARY 7-12 (Dec. 31, 2010),
http://www.supremecourt.gov/publicinfo/year-end/2010year -endreport.pdf;
Gordon Bermant, Jeffrey A. Hennemuth & A. Fletcher Mangum, Judicial
Vacancies: An Examination of the Problem and Possible Solutions, 14
MISS. C. L. REV. 319, 327-28 (1994).

(2.) See, e.g., Anne Joseph O'Connell, Vacant Offices: Delays
in Staffing Top Agency Positions, 82 S. CAL. L. REV. 913, 935-46 (2009)
(discussing how agency vacancies can impede agency functioning) ;
Alexander I. Platt, Note, Preserving the Appointments Safety Valve, 30
YALE L. & POL'Y REV. 255, 284-86 (2011); Press Release, Tom
Harkin, Senator, Senate Comm. on Health, Educ., Labor & Pensions,
Harkin Statement on President Obama's Appointments to the NLRB and
CFPB (Jan. 26, 2012), http://www.help.senate.gov
/newsroom/press/release/?id=cf2288b9-4906-448a-9lff-bba7424e9bos&groups=Chair [hereinafter Harkin Statement].

(3.) See Jim Puzzanghera, GOP Stalls Confirmation of Consumer
Agency Nominee, L.A. TIMES, Sept. 7, 2011,


-burean-cordray-20110907; Press Release, Richard Shelby, Senator, 44
U.S. Senators to Obama: No Accountability, No Confirmation (May 5,
2011), http://shelby.senate.gov
/public/index.cfm/2011/5/44-u-s-sens-to-obama-no-accountability-no-confirmation; Laura Meckler & Melanie Trottman, Obama's NLRB
Appointments: Why the Rush?, WALL ST. J.: WASH. WIRE (Jan. 6, 2012,
12:34 PM), http://blogs.wsj.com/washwire/2012/0l/06/obamas

(4.) See Josh Chafetz, Congress's Constitution, 160 U. PA. L.
REV. 715, 765-66 (2012); Ezra Klein, What's Behind President
Obama's Recess Appointments, WASH. POST, Jan. 5, 2012,
http://www.washingtonpost.com/business/economy/whats-behind-president-obamas-recess -appointments/2012/01/05/gIQAyJgidP_story.html; Puzzanghera,
supra note 3; Harkin Statement, supra note 2. President Obama used a
controversial and legally contested recess appointment to appoint
Cordray to this post in January 2012. See Helene Cooper & Jennifer
Steinhauer, Bucking Senate, Obama Appoints Consumer Chief, N.Y. TIMES,
Jan. 4, 2012, http://www.nytimes.com/2012/01/05/us/politics/richard-cordray-named-consumer-chief-in -recess-appointment.html; Klein, supra. In
the case of the Consumer Financial Protection Bureau (CFPB), the absence
of a director not only has the usual detrimental effects on agency
performance, see O'Connell, supra note 2, at 935-46, but the CFPB
is also legally disabled, by the terms of the Dodd-Frank financial
reform legislation, from moving ahead with new regulations of various
financial entities, see Puzzanghera, supra note 3.

(5.) See New Process Steel, L.P.v. NLRB, 130 S. Ct. 2635 (2010);
Platt, supra note 2, at 290-91; Klein, supra note 4; Harkin Statement,
supra note 2. As with the CFPB, President Obama recently sought to
circumvent the Senate by making three recess appointments to the NLRB,
though the Senate continued to hold pro forma sessions, leading the
President's opponents to declare these alleged recess appointments
unlawful. See Uncharted Territory: What Are the Consequences of
President Obama's Unprecedented "Recess" Appointments?:
Hearing Before the H. Comm. on Oversight & Gov't Reform, 112th
Cong. 23-24 (2012) (statement of Sen. Michael S. Lee),


/2012/06/02-01-12-Full-Committee-Hearing-Transcript.pdf; Cooper &
Steinhauer, supra note 4; Klein, supra note 4.

(6.) For example, in 2003, Senate Democrats blocked a scheduled
vote on President George W. Bush's nomination of Governor Mike
Leavitt to head the Environmental Protection Agency by failing to attend
the committee hearing, thereby depriving the committee of a quorum under
Senate rules. See J.R. Pegg, Democrats Boycott Vote on Bush EPA
Nonlinee, ENV'T NEWS SERVICE, Oct. 1, 2003,
http://www.ens-newswire.com/ens/oct2003/2003-10-01-11.html. The
Democrats themselves acknowledged that "the boycott of the meeting
ha[d] little to do with Leavitt's qualifications and everything to
do with the Bush administration refusal to release information about
some of its environmental policies." Id.; see also Katharine Q.
Seelye, Contentious Hearing for EPA Nominee/Democrats Pledge To Block
Leavitt's Confirmation, S.F. CHRON., Sept. 24, 2003,


-nominee-Democrats-2572746.php (discussing this incident). This is but
one particularly vivid example. Indeed, in a 2008 speech, President Bush
complained about the large number of executive branch offices that
remained vacant due to the Senate's failure to vote on his nominees
and about the adverse impact this had on the executive branch's
ability to fulfill its functions. See President George W. Bush, Address
at the White House (Feb. 7, 2008) (transcript available at


/20080207-8.html); see also Press Release, The White House, Office of
the Press Secretary, Fact Sheet: Senate Must Act on Nominations to
Federal Courts and Agencies (Feb. 7, 2008),
http://georgewbush-whitehouse.archives.gov/news/releases/2008/02/20080207-9.html (accusing the Senate of failing to act on President Bush's
pending nominations, and asserting that Senate inaction is impeding the
ability of the executive branch to carry out key functions).

(7.) See O'Connell, supra note 2, at 966-67.

(8.) See Aaron-Andrew P. Bruhl, The Senate: Out of Order?, 43 CONN.
L. REV. 1041, 1044-45 (2011); E. Stewart Moritz, "Statistical
Judo": The Rhetoric of Senate Inaction in the Judicial Appointment
Process, 22 J.L. & POL. 341, 357 (2006).

(9.) See Bruhl, supra note 8, at 1045; Alexandra Arney, Recent
Development, The Secret Holds Elimination Act, 48 HARM. J. ON LEGIS.
271, 271-72 (2011).

(10.) See Aaron-Andrew P. Bruhl, If the Judicial Confirmation
Process Is Broken, Can a Statute Fix It?, 85 NEB. L. REV. 960, 971
(2007) ; Moritz, supra note 8, at 357.

(11.) See supra note 6.

(12.) See Examining the Filibuster: Hearings Before the S. Comm. on
Rules & Admin., 111th Cong. 145-47 (2010) (statement of lion. Waiter
AND HOW TO GET IT BACK ON TRACK 162-69 (2006) ; Joel D. Aberbach &
Bert A. Rockman, The Appointments Process and the Administrative
Presidency, 39 PRESIDENTIAL STUD. Q. 38, 44-45, 55 (2009); Brannon P.
Denning, Reforming the New Confirmation Process: Replacing "Despise
and Resent" with "Advice and Consent," 53 ADMIN. L. REV.
J, 4, 12-13, 15-17 (2001); Catherine Fisk 8: Erwin Chemerinsky, The
Filibuster, 49 STAN. L. REV. 181, 184, 220 (1997); Tom Udall, The
Constitutional Option: Reforming the Rules of the Senate To Restore
Accountability and Reduce Gridlock, 5 HARV. L. & POL'Y REV.
115, 115, 118, 122 (2011); Tim Devaney, Consumer Nominee Richard Cordray
Facing Filibuster, WASH. TIMES, Dec. 7, 2011,


-cordray-facing-filibuster. But see Aaron J. Saiger, Obama's
"Czars" for Domestic Policy and the Law of the White House
Staff, 79 FORDHAM L. REV. 2577, 2590 n.70 (2011) (arguing that the
confirmation process has long been "arduous and slow," and
that this is not a recent development).

(13.) U.S. CONST. art. II, [section] 2, cl. 3 ("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."); see infra note 15.

(14.) See Cooper & Steinhauer, supra note 4. When the positions
were reversed, Senate Democrats also used the device of pro forma
sessions to stop President George W. Bush from making recess
appointments of several controversial nominees, most notably by blocking
Steven Bradbury's appointment to head the Department of
Justice's Office of Legal Counsel. See Associated Press, Senate
Meets Briefly To Block Bush Appointment, USA TODAY, Dec. 26, 2007,


see also Carl Hulse, Democrats Move To Block Bush Appointments, N.Y.
TIMES, Nov. 21, 2007,
http://www.nytimes.com/2007/11/21/washington/21recess.html (discussing
Senate Democrats' use of pro forma sessions to prevent President
Bush from making recess appointments). President Obama, however, took a
step that President Bush declined to take by declaring that the pro
forma sessions did not count as a legitimate recess for purposes of the
Recess Appointments Clause. See Jonathan Weisman, Appointments Challenge
Senate Role, Experts Say, N.Y. TIMES, Jan. 7, 2012,



(15.) See, e.g., Lawfulness of Recess Appointments During a Recess
of the Senate Notwithstanding Periodic Pro Forma Sessions, 36 Op. O.L.C.
APPOINTMENTS: A LEGAL OVERVIEW (2011); Blake Denton, While the Senate
Sleeps: Do Contemporary Events Warrant a New Interpretation of the
Recess Appointments Clause?, 58 CATH. U. L. REV. 751 (2009); T.J.
Halstead, Recess Appointments: A Legal Overview, in RECESS APPOINTMENTS:
AN END-AROUND PRACTICE (Chambers Y. Nells ed., 2006); Edward A.
Hartnett, Recess Appointments of Article III Judges: Three
Constitutional Questions, 26 CARDOZO L. REV. 377 (2005); Michael Hem
Abandoning Recess Appointments?: A Comment on Hartnett (and Others), 26
CARDOZO L. REV. 443 (2005) ; Steven M. Pyser, Recess Appointments to the
Federal Judiciary: An Unconstitutional Transformation of Senate Advice
and Consent, 8 U. PA. J. CONST. L. 61 (2006) ; Michael B. Rappaport, The
Original Meaning of the Recess Appointments Clause, 52 UCLA L. REV. 1487
(2005) ; Platt, supra note 2.

(16.) U.S. CONST. art. II, [section] 2, cl. 2.

(17.) See, e.g., Steven G. Calabresi, Some Normative Arguments for
the Unitary Executive, 48 ARK. L. REV. 23, 48-70, 81-86 (1995);
Christopher C. DeMuth & Douglas H. Ginsburg, White House Review of
Agency Rulemaking, 99 HARV. L. REV. 1075, 1081-82 (1986); Philip J.
Harter, Executive Oversight of Rulemaking: The President Is No Stranger,
36 AM. U. L. REV. 557, 568 (1987); Elena Kagan, Presidential
Administration, 114 HARV. L. REV. 2245, 2331-46 (2001); Lawrence Lessig
& Cass R. Sunstein, The President and the Administration, 94 COLUM.
L. REV. 1, 85-106 (1994).

(18.) See infra text accompanying notes 104-112; infra Part III.

(19.) See John O. McGinnis & Michael B. Rappaport, Majority and
Supermajority Rules: Three Views of the Capitol, 85 TEX. L. REV. 1115,
1120, 1155-58 (2007) (discussing how the combination of supermajority
rules and an attractive status quo can improve welfare); Matthew C.
Stephenson, Information Acquisition and Institutional Design, 124 HARV.
L. REV. 1422, 1468-69 & n.117 (2011).

(20.) See infra Part III.

(21.) For a discussion of this problem in the context of judicial
appointments, see Brannon P. Denning, The "Blue Slip":
Enforcing the Norms of the Judicial Confirmation Process, 10 WM. &
MARY BILL RTS. J. 75, 89-90 (2001) ; Denning, supra note 12, at 28;
Christopher L. Eisgruber, Politics and Personalities in the Federal
Appointments Process, 10 WM. & MARY BILL RTS. J. 177, 183-84 (2001);
Moritz, supra note 8, at 394; E. Martin Enriquez, Comment, Tyranny of
the Minority: The Unconstitutional Filibuster and the Superimposed
Supermajority on the Advice and Consent Clause of the Constitution, 21
T.M. COOLEY L. REV. 215, 235-36 (2004); and Lee Renzin, Note, Advice,
Consent, and Senate Inaction--Is Judicial Resolution Possible?, 73
N.Y.U. L. REV. 1739, 1741-51 (1998).

(22.) See Josh Chafetz & Michael J. Gerhardt, Debate, Is the
Filibuster Constitutional?, 158 U. PA. L. REV. PENNUMBRA A 245, 256
(2010), http://www.pennumbra.com/debates/pdfs /Filibuster.pdf (Gerhardt)
; Tom Harkin, Fixing the Filibuster: Restoring Real Democracy in the
Senate, 95 IOWA L. REV. BULL. 67, 74 (2010); Arney, supra note 9, at

(23.) For example, changing the default rules related to
appointment might affect the bargaining game between the President, the
House, and the Senate at the earlier legislation stage, thus changing
the substance of any legislation that is enacted. Cf Nolan McCarty, The
Appointments Dilemma, 48 AM. J. POL. SCI. 413, 420-24 (2004) (deploying
a formal game-theoretic model to explore how different appointment and
removal rules can affect the strategic interaction between an executive
and a legislature).

(24.) See, e.g., David M. Driesen, Toward a Duty-Based Theory of
Executive Power, 78 FORDHAM L. REV. 71, 117 (2009); Jeffrey S. Sutton,
What Does--and Does Not-Ail State Constitutional Law, 59 U. KAN. L. KEV.
687, 702 (2011); Arthur Ago, Case Note, Presidential Appointments and
the Doctrine of Constitutional Estoppel, 65 GEO. WASH. L. REV. 584, 584

(25.) The only provision of the Constitution that refers directly
to a confirmation vote is Section 2 of the Twenty-Fifth Amendment, which
states: "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." U.S. CONST. amend. XXV, [section] 2; see infra Section

(26.) U.S. CONST. art. II, [section] 2, cl. 2.

(1755) (emphasis added). Likewise, Frederick Barlow's 1772-73
dictionary defined the verb form of "consent" as "to
agree in opinion," "[t]o comply with a request," and
DICTIONARY 284 (1772-73). The current version of Black's Law
Dictionary defines "consent" as "[a]greement, approval,
or permission as to some act or purpose, esp. given voluntarily by a
competent person; legally effective assent," BLACK'S LAW
DICTIONARY 346 (9th ed. 2009), and further defines, as types of consent,
both "express consent" ("[c]onsent that is clearly and
unmistakably stated") and "implied consent"
("[c]onsent inferred from one's conduct rather than from
one's direct expression"), id.

(28.) For example, failure to object may indicate legal consent to
a police search that goes beyond the scope of the initial search. See
United States v. Jones, 356 F.3d 529, 534 (4th Cir. 2004) ("Thus, a
suspect's failure to object (or withdraw his consent) when an
officer exceeds limits allegedly set by the suspect is a strong
indicator that the search was within the proper bounds of the consent
search."); United States v. Espinosa, 782 F.2d 888, 892 (10th Cir.
1986) (similar); Audrey Benison, Matthew J. Gardner & Amy S.
Manning, Annual Review, Warrantless Searches and Seizures, 87 GEO. L.J.
1124, 1165 (1999) ("In addition to express consent, consent may be
implied by the circumstances surrounding the search, by the
person's prior actions or agreements, or by the person's
failure to object to the search." (emphasis added) (footnotes
omitted)). However, while consent to an initial search can also be
implied rather than express, courts have held that such implied consent
requires some affirmative action (including body language), rather than
mere failure to object. See Lopez-Rodriguez v. Mukasey, 536 F.3d 1012,
1017 (9th Cir. 2008) (suggesting that implied consent to a search
requires some affirmative action by the occupant suggesting assent);
United States v. Shaibu, 920 F.2d 1423, 1428 (9th Cir. 1990) ("[I]n
the absence of a specific request by police for permission to enter a
home, a defendant's failure to object to such entry is not
sufficient to establish free and voluntary consent.").

(29.) For example, in most jurisdictions, consent is a complete
defense to a battery claim. See Giron v. Corr. Corp. of Am., 191 F.3d
1281, 1288 (l0th Cir. 1999); Nelson v. City of Irvine, 143 F.3d 1196,
1207 (9th Cir. 1998); RESTATEMENT (SECOND) OF TORTS [section] 892A(1)
(1979). Many courts have held that such consent can be inferred by the
plaintiffs silence or failure to object to the defendant's alleged
battery. See Barnes v. Am. Tobacco Co., 161 F.3d 127, 148 (3d Cir. 1998)
("[I]mplied consent may be manifested when a person takes no
action, indicating an apparent willingness for the conduct to
occur."); Young v. Oakland Gen. Hosp., 437 N.W.2d 321, 324 (Mich.
Ct. App. 1989); RESTATEMENT (SECOND) OF TORTS [section] 892 cmt. b
(1979) (stating that consent "may be equally manifested by silence
or inaction"). Likewise, a negligence claim can be defeated by a
showing that the plaintiff assumed the risk via her implied or tacit
consent, which can be shown by silence or failure to object despite
knowledge of the risk. See Farmers Coop. Elevator Ass'n Non-Stock
v. Strand, 382 F.2d 224, 230 (8th Cir. 1967) (citing Schwab v. Allou
Corp., 128 N.W.2d 835, 841 (Neb. 1964), for the proposition that
"[a]ssumption of risk is predicated upon an implied consent to be
treated negligently"); Anderson v. Hedstrom Corp., 76 F. Supp. 2d
422, 432 (S.D.N.Y. 1999) (citing Turcotte v. Fell, 508 N.E.2d 964, 968
(N.Y. 1986), for the proposition that the assumption of risk doctrine is
that "participants properly may be held to have consented, by their
participation, to those injury-causing events which are known, apparent
or reasonably foreseeable consequences of the participation").

(30.) For example, some courts have held that one party's
failure to object to the other party's material modification of a
contract can, in some circumstances, manifest consent to the
modification (though in this context courts more often use the term
"ratification" or "assent" rather than
"consent"). See Union Oil Co. of Cal. v. Mercantile Ref. Co.,
97 P. 919, 921 (Cal. Ct. App. 1908) ("[W]here a document has been
altered, and notice of such alteration is brought to the attention of
the parties affected, it is their duty to disavow it ... or they are
bound by the document as altered.") ; 30 WILLISTON ON CONTRACTS
[section] 75:11 n.79 (4th ed. 2012); see also Randy E. Barnett, The
Sound of Silence: Default Rules and Contractual Consent, 78 VA. L. REV.
821 (1992) (arguing that according to a consent theory of contract,
silence can be meaningful, and that its meaning should sometimes
influence policymakers' choice of default rules).

(31.) For example, it is generally the case that the failure of a
litigant (or litigant's counsel) to object to the introduction of
particular evidence or testimony constitutes consent to the introduction
of that evidence, thus waiving any future objection that the evidence
was inadmissible. See, e.g., Israel v. McMorris, 455 U.S. 967, 969
(1982) (Rehnquist, C.J., dissenting from denial of certiorari) ("In
our adversarial system of criminal procedure, testimony from witnesses
and documentary exhibits are generally admitted into evidence unless the
opposing party objects. In a sense, any such objection by the
prosecution is a 'refusal' to consent or to stipulate to the
admissibility of the evidence."). Additionally, a client's
failure to object to disclosures otherwise in violation of the
attorney-client privilege may be construed as having waived the
privilege, at least in some contexts. See CHRISTOPHER B. MUELLER &
LAIRD C. KIRKPATRICK, 2. FEDERAL EVIDENCE [section] 5:33, at 666 (3d ed.
2007) ("A client who fails to object to disclosure impliedly
consents to disclosure.").

(32.) A couple of additional miscellaneous examples should suffice.
In United States v. Midwest Oil Co., 236 U.S. 459, 481 (1915), the
Supreme Court found that Congress had implicitly consented to
presidential deviation from a statute regulating oil on public lands.
And in United States v. Butler, 426 F.2d 1275 (1st Cir. 1970), the First
Circuit rejected a claimed violation of the Sixth Amendment speedy trial
right, reasoning that "where a defendant is aware of his rights and
implicitly consents to a delay by remaining silent," he cannot
subsequently raise a speedy trial objection. Id. at 1278 (emphasis

(33.) See Frank R. Herrmann & Brownlow M. Speer, Standing Mute
at Arrest as Evidence of Guilt: The "Right to Silence" Under
Attack, 35 AM. J. CRIM. L. 1, 6 & nn.32-33 (2007); see also United
States v. Irvine, 511 U.S. 224, 242 (1994) (Scalia, J., concurring)
(providing a rare modern judicial citation of the qui racer maxim by its
Latin name).

(34.) See Peter Marshall, The Last Years, in THE CAMBRIDGE
COMPANION TO THOMAS MORE 116, 130 (George M. Logan ed., 2011). Of
course, despite More's successful invocation of the qui tater
canon, the trial ended badly for him.

(35.) For example, the Senate, and to a lesser extent the House of
Representatives, regularly uses the procedural device of "unanimous
consent agreements" to limit debate and amendment for a specific
bill (as well as for other matters). When a senator seeks unanimous
consent for some alteration or waiver of the usual procedural rules,
there does not need to be a formal vote granting such consent; rather,
the failure of any senator to make a timely objection is construed as
unanimous consent. See FLOYD M. RIDDICK & ALAN S. FRUMIN,
10l-28, at 1355-56 (1992) ("When a unanimous consent request is
submitted and the Chair inquires if there is objection, and hearing
none, announces that the request is agreed to, it is too late for
another Senator to object."); Senate Legislative Process, U.S.
SENATE, http://www.senate.gov/legislative/common/briefing/Senate_legislative-process.htm (last visited Oct. 2, 2012); see also WM. HOLMES BROWN,
HOUSE 861-69 (1996) (describing procedures for unanimous consent
agreements in the House of Representatives). Indeed, the use of
unanimous consent agreements--and that particular terminology--has a
long history. See Senate Legislative Process, supra ("Even several
of the Senate's early rules incorporated unanimous consent
provisions to speed the Senate's routine business.").

(36.) This is true in many areas. One of the most obvious is
sovereign immunity. The Supreme Court has consistently held that waivers
of sovereign immunity--that is, consent by the sovereign to be sued-must
be express and may not be implied. See United States v. White Mountain
Apache Tribe, 537 U.S. 465,472 (2003).

(37.) U.S. CONST. art. II, [section] 3. There is a longstanding
academic and jurisprudential debate over whether the Take Care Clause is
an affirmative grant of power to the President, or whether it is better
seen as the imposition of a duty on the President. Compare Mary M. Cheh,
When Congress Commands a Thing To Be Done: An Essay on Marbury v.
Madison, Executive Inaction, and the Duty of the Courts To Enforce the
Law, 72 GEO. WASH. L. REV. 253, 275 (2003) (arguing that the Take Care
Clause imposes a duty on the President but does not confer any powers),
and Peter M. Shane, Independent Policymaking and Presidential Power: A
Constitutional Analysis, 57 GEO. WASH. L. REV. 596, 613 (1989) (same),
with John F. Manning, Separation of Powers as Ordinary Interpretation,
124 HARV. L. REV. 1939, 2036-37 (2011) (suggesting that the imposition
of duties on the President under the Take Care Clause could imply the
grant of sufficient powers to ensure those duties are fulfilled). For
the purposes of my argument, one need not resolve this question.

(38.) 272 U.S. 52, 117 (1926). Chief Justice Taft cited several
earlier Court opinions in support of this proposition. See Russell Motor
Car Co. v. United States, 261 U.S. 514, 523 (1923) ("Executive
power, in the main, must of necessity be exercised by the President
through the various departments.") ; In re Neagle, 135 U.S. 1,
63-64 (1890) ("The Constitution, section 3, Article 2, declares
that the President 'shall take care that the laws be faithfully
executed,' and he is provided with the means of fulfilling this
obligation by his authority to commission all the officers of the United
States, and, by and with the advice and consent of the Senate, to
appoint the most important of them and to fill vacancies.... [The heads
of the executive departments] aid him in the performance of the great
duties of his office, and represent him in a thousand acts to which it
can hardly be supposed his personal attention is called, and thus he is
enabled to fulfil the duty of his great department, expressed in the
phrase that 'he shall take care that that the laws be faithfully
executed.'"); Williams v. United States, 42 U.S. (1 How.) 290,
297 (1843) ("The President's duty in general requires his
superintendence of the administration; yet this duty cannot require of
him to become the administrative officer of every department and bureau,
or to perform in person the numerous details incident to services which,
nevertheless, he is, in a correct sense, by the Constitution and laws
required and expected to perform."); United States v. Eliason, 41
U.S. (16 Pet.) 291, 302 (1842) ("The Secretary of War is the
regular constitutional organ of the President for the administration of
the military establishment of the nation; and rules and orders publicly
promulgated through him must be received as the acts of the executive,
and as such, be binding upon all within the sphere of his legal and
constitutional authority."); Wilcox v. Jackson, 38 U.S. (13 Pet.)
498, 513 (1839) ("The President speaks and acts through the heads
of the several departments in relation to subjects which appertain to
their respective duties.").

(39.) Power of the President To Appoint to Office During Recess of
Senate, 40p. Att'y Gen. 523, 525-2-6 (1846).

(40.) See infra text accompanying notes 104-119.

(41.) See infra text accompanying notes 113-119.

(42.) U.S. CONST. art. I, [section] 5, cl. 2 ("Each House may
determine the Rules of its Proceedings.... ").

(43.) See, e.g., Laura T. Gorjanc, Comment, The Solution to the
Filibuster Problem: Putting the Advice Back in Advice and Consent, 54
CASE W. RES. L. REV. 1435, 1455 (2004) ("The Rules of Proceedings
Clause grants the Senate the authority to decide how to express its
consent to a nominee.").

(44.) This idea has recently been floated, though not yet developed
or defended in the scholarly literature. See Gordon Bermant, Jeffrey A.
Hennemuth & A. Fletcher Mangum, Judicial Vacancies: An Examination
of the Problem and Possible Solutions, 14 MISS. C. L. REV. 319, 344 n.78
(1994); Adam D. Chandler, Letter to the Editor, N.Y. TIMES, Mar. 3,
2012, http://www.nytimes.com/2012/03/04/opinion/sunday/sunday-dialogue
-getting-judges-confirmed.html?pagewanted=2; Tom Davis, 90-Day
Up-or-Down Vote on Presidential Nominations, THE HILL'S CONGRESS
BLOG (Feb. 13, 2012, 4:47 PM),
http://thehill.com/blogs/congress-blog/politics/210375-90-day-up-or-down-vote-on-presidential -nominations.

(45.) Rule XXXI: Executive Session-Proceedings on Nominations, U.S.
http://www.rules.senate.gov/public/index.cfm?p=RuleXXXI (last visited
Oct. 2, 2012).

(46.) Id. This section of the Rule also states that if the Senate
adjourns or takes a recess of greater than thirty days, all pending
nominations "shall be returned ... to the President." Id.

(47.) Cf. Tuan Samahon, The Judicial Vesting Option: Opting Out of
Nomination and Advice and Consent, 67 OHIO ST. L.J. 783, 801-03 (2006)
(arguing that the Senate filibuster is constitutionally suspect because
although Article I, Section 5 gives the Senate the power to make its own
procedural rules, this power cannot be construed to impose a
supermajority requirement for confirmation rather than the simple
majority requirement implicit in the Appointments Clause, because
"no rule promulgated pursuant to the Rules of Proceedings Clause
may conflict with another provision of the Constitution or else the
Rules of Proceedings Clause would defeat the Framers' carefully
enumerated safeguards by permitting the rest of the Constitution to be
swallowed by the exercise of power under the Clause"). This
assertion implicates a related debate about whether the Rules of
Proceedings Clause authorizes the House and Senate to adopt
supermajority rules for passing legislation. See Bruce Ackerman et al.,
Comment, An Open Letter to Congressman Gingrich, 104 YALE L.J. 1539
(1995); Neals-Erik William Delker, The House Three-Fifths Tax Rule:
Majority Rule, the Framers' Intent, and the Judiciary's Role,
100 DICK. L. REV. 341, 344-56 (1996); John O. McGinnis & Michael B.
Rappaport, The Constitutionality of Legislative Supermajority
Requirements: A Defense, 105 YALE L.J. 483, 485-500 (1995); John O.
McGinnis & Michael B. Rappaport, The Rights of Legislators and the
Wrongs of Interpretation: A Further Defense of the Constitutionality of
Legislative Supermajority Rules, 47 DUKE L.J. 327 (1997); Max Minzner,
Entrenching Interests: State Supermajority Requirements To Raise Taxes,
14 AKRON TAX J. 43 (1999); Jed Rubenfeld, Rights of Passage: Majority
Rule in Congress, 46 DUKE L.J. 73 (1996).

(48.) Even this has been challenged as unconstitutional, precisely
because the effect of this nominally "procedural" rule is to
alter the constitutional rules for passing legislation or appointing
officials, which the Rules of Proceedings Clause does not permit. See
Josh Chafetz, The Unconstitutionality of the Filibuster, 43 CONN. L.
REV. 1003, 1011-17 (2011); Samahon, supra note 47, at 801-03; Enriquez,
supra note 21, at 252-54. My argument is less ambitious in that it does
not require attention to de facto effects of nominal procedural rules.
Rather, I argue that the Senate should not be able unilaterally to
define, by rule, the constitutional term "Consent."

(49.) See INS v. Chadha, 462 U.S. 919, 955-56 n.21 (1983); United
States v. Ballin, 144 U.S. 1, 5 (1892) ("The Constitution empowers
each house to determine its rules of proceedings [but i]t may not by its
rules ignore constitutional restraints...."); see also supra notes
47-48 (summarizing the debate).

(50.) See generally Akhil Reed Amar, Intratextualism, 112. HARV. L.
REV. 747 (1999) (discussing this methodology for use in the
constitutional context).

(51.) U.S. CONST. art. II, [section] 2, cl. 2.

(52.) One could conceivably make an even more aggressive form of
expressio unius argument, in that the specific reference to the
concurrence of two-thirds of the Senate in the Treaty Clause, combined
with the absence of any such language in the Appointments Clause,
indicates that a Senate vote is not required in the latter context. I do
not think such a strong inference can be drawn, however; it is more
plausible to conclude that the meaning of "Advice and Consent"
is ambiguous in both Clauses, and that the additional language in the
Treaty Clause does not resolve the ambiguity in the Appointments Clause
one way or the other.

It is also worth noting that the meaning of "Advice and
Consent" in the Treaty Clause is perhaps less clear-cut than has
traditionally been assumed. Jean Galbraith, for example, has argued
persuasively that the Constitution does not require the Senate to ratify
a treaty after it has been negotiated, but rather that the Treaty Clause
permits the President to get the Senate's prospective advice and
consent to negotiate and sign a treaty. See Jean Galbraith, Prospective
Advice and Consent, 37 YALE J. INT'L L. 247 (2012). Although
Professor Galbraith's argument is necessarily different from mine,
she presumes, as do I, that an affirmative vote is still required in the
Treaty Clause context, and argues that this vote can take place before
the President negotiates and signs a treaty. Her argument is also
similar in spirit and motivation to mine, in that it also seeks to
unsettle assumptions about the meaning of "Advice and
Consent," and to show that the longstanding conventional practices
are both pragmatically undesirable and not, in fact, constitutionally

(53.) See Adrian Vermeule & Ernest A. Young, Commentary,
Hercules, Herbert, and Amar: The Trouble with Intratextualism, H3 HARV.
L. REV. 730 (2000); cf. Walter Wheeler Cook, "Substance" and
"Procedure" in the Conflict of Laws, 42 YALE L.J. 333, 337
(1933) ("The tendency to assume that a word which appears in two or
more legal rules, and so in connection with more than one purpose, has
and should have precisely the same scope in all of them, runs all
through legal discussions. It has all the tenacity of original sin and
must constantly be guarded against.").

(54.) Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1, 19 (1831).

(55.) GERHARDT, supra note 12, at 16.

(56.) U.S. CONST. art. I, [section] 5, cl. 4 ("Neither House,
during the Session of Congress, shall, without the Consent of the other,
adjourn for more than three days, nor to any other Place than that in
which the two Houses shall be sitting.").

(57.) See Lawfulness of Recess Appointments During a Recess of the
Senate Notwithstanding Periodic Pro Forma Sessions, 36 Op. O.L.C. 1
(2012); Gary L. Goldberg, Dodd-Frank Act at One Year: An Overview, 65
CONSUMER FIN. L. Q. REP. 229, 234-35 (2011); Dan Friedman, Why Pro Forma
Has Become a Way of Life, NAT'L J. DAILY (D.C.), Dec. 11, 2011,
http://www.nationaljournal.com/member/daily/why-pro-forma-has-hecome-a-way-of-life -201112.11.

(58.) U.S. CONST. art. I, [section] 8, cl. 27.

(59.) Id. art. I, [section] 9, cl. 8 ("[N]o Person holding any
Office of Profit or Trust under [the United States] shall, without the
Consent of the Congress, accept any present, Emolument, Office, or
Title, of any kind whatever, from any King, Prince, or foreign

(60.) Id. art. I, [section] 10, cls. 2-3 ("No State shall,
without the Consent of the Congress, lay any Imposts or Duties on
Imports or Exports, except what may be absolutely necessary for
executing its inspection Laws.... No State shall, without the Consent of
Congress, lay any duty of Tonnage, keep Troops, or Ships of War in time
of Peace, enter into any Agreement or Compact with another State, or
with a foreign Power, or engage in War, unless actually invaded, or in
such imminent Danger as will not admit of delay.").

(61.) Id. art. IV, [section] 3, cl. 1 ("New States may be
admitted by the Congress into this Union; but no new States shall be
formed or erected within the Jurisdiction of any other State; nor any
State be formed by the Junction of two or more States, or Parts of
States, without the Consent of the Legislatures of the States concerned
as well as of the Congress.").

(62.) Id. art. V.

(63.) Id. amend. III.

(64.) See, e.g., Wright v. United States, 302 U.S. 583, 590 (1938);
Lawfulness of Recess Appointments During a Recess of the Senate
Notwithstanding Periodic Pro Forma Sessions, 36 Op. O.L.C. 1 (2012).

(65.) See Ward v. United States, 1 Cl. Ct. 46, 48-49 (1982).

(66.) See Fort Leavenworth R.R. Co. v. Lowe, 114 U.S. 525, 538-39
(1885); Hayes v. United States, 367 F.2d 216, 219 (10th Cir. 1966).

(67.) See Virginia v. Tennessee, 148 U.S. 503, 519-21 (1893). That
said, implied consent in this context is thought to require some form of
legislative act implicitly endorsing or acquiescing to the compact,
rather than mere inaction. See id.

(68.) See supra text accompanying notes 56-63.

(69.) U.S. CONST. amend. XXV, [section] 2.

(70.) Indeed, one might go further and suggest a structural reason
why it makes sense to require a confirmation vote in the Twenty-Fifth
Amendment context but not in the context of other executive branch
appointments: the selection of a Vice President (ordinarily an elected
position) should require more input from the House and the Senate (as
representatives of the people).

(71.) Adam J. White, Toward the Framers' Understanding of
"Advice and Consent": A Historical and Textual Inquiry, 29
HARV. J.L. & PUB. POL'Y 103 (2005). White frames his article as
a response to a different claim from the one I advance in this Essay: he
takes on the claim that the Senate is constitutionally obligated, by the
Appointments Clause, to vote on all presidential nominees. Nonetheless,
his originalist arguments would cut against my proposal as well.

(72.) MASS. CONST. art. IX ("All judicial officers ... shall
be nominated and appointed by the governor, by and with the advice and
consent of the council...."); see White, supra note 71, at 114
(citing 1 THE RECORDS OF THE FEDERAL CONVENTION 1787, at 41 (Max Farrand
ed., rev. ed. 1937)).

(73.) See White, supra note 71, at 135-37.

(74.) See id. at 137-39.

(75.) See id. at 138-40.

(76.) To be clear, and as noted above, see supra note 71,
White's main concern is with the claim, advanced by other scholars,
that the phrase "advice and consent" requires the Senate to
vote on all nominees, or else the Senate would be withholding its
constitutionally obligatory "advice," see infra note 103.
Therefore, the point that White emphasizes, and persuasively
establishes, is that under the Massachusetts Constitution, the term
"advice and consent" was equivalent to the term
"advice," and that both meant "assent" (as opposed
to "formal opinion one way or the other"). Insofar as White
establishes that claim, it would indeed undermine at least some of the
arguments to the effect that a Senate vote is constitutionally required.
It would not, however, refute the claim that Senate consent could be
implied even in the absence of such a vote-which is the claim I advance

(77.) In fact, White's own evidence indicates that the Council
expeditiously confirmed the overwhelming majority of appointees,
suggesting an almost pro forma function. See White, supra note 71, at

(78.) See id. at 141-43.

(79.) See Antonin Scalia, Common-Law Courts in a Civil-Law System:
The Role of United States Federal Courts in Interpreting the
AND THE LAW 3, 35-38 (Amy Gutmann ed., 1997).

(80.) See Jack M. Balkin, Original Meaning and Constitutional
Redemption, 24 CONST. COMMENT. 427, 444-45 (2007); Charles A. Lofgren,
The Original Understanding of Original Intent?, 5 CONST. COMMENT. 77, 79
(1988); Henry P. Monaghan, Our Perfect Constitution, 56 N.Y.U. L. REV.
353, 375 n.130 (1981).

(81.) See Steven G. Calabresi & Saikrishna B. Prakash, The
President's Power To Execute the Laws, 104 YALE L.J. 541, 576
(1994); Stephen L. Carter, Constitutional Improprieties: Reflections on
Mistretta, Morrison, and Administrative Government, 57 U. CHI. L. REV.
357, 372 n.48 (1990); Martin S. Flaherty, The Most Dangerous Branch, 105
YALE L.J. 1725, 1801-02 (1996); H. Jefferson powell, The Original
Understanding of Original Intent, 98 HARV. L. REV. 885 (1985). But see
Vasan Kesavan & Michael Stokes Paulsen, The Interpretive Force of
the Constitution's Secret Drafting History, 91 GEO. L.J. 1113, 1118
(2003) (asserting that, contrary to the "conventional wisdom,"
the secret drafting history can shed light on the original meaning of
the Constitution, but also cautioning that this material should not be
used to try to discern the Framers' or ratifiers' subjective

(82.) See THE FEDERALIST NO. 66, at 405 (Alexander Hamilton)
(Clinton Rossiter ed., 1961) ("[The Senators] may defeat one choice
of the Executive, and oblige him to make another; but they cannot
themselves choose--they can only ratify or reject the choice, [the
President] may have made.... Thus it could hardly happen that the
majority of the Senate would feel any other complacency towards the
object of an appointment than such as the appearances of merit might
inspire and the proofs of the want of it destroy."); THE FEDERALIST
NO. 76, supra, at 457 (Hamilton) ("[The President's]
nomination may be overruled ..., yet it can only be to make place for
another nomination by himself."); THE FEDERALIST NO. 77, supra, at
461 (Hamilton) ("The censure of rejecting a good [nomination] would
lie entirely at the door of the Senate, aggravated by the consideration
of their having counteracted the good intentions of the

(83.) See John Adams, Three Letters to Roger Sherman, on the
Constitution of the United States, in 6 THE WORKS OF JOHN ADAMS, SECOND
PRESIDENT OF THE UNITED STATES 427, 436 (Charles Francis Adams ed.,
Boston, Charles B. Little & James Brown 1851); Debates in the
Convention of the State of North Carolina on the Adoption of the Federal
CONVENTION AT PHILADELPHIA, IN 1787, at 1, 134 (Jonathan Elliot ed., 2d
ed., Philadelphia, J.B. Lippincott Co. 1891) (quoting the speech of
James Iredell); James Wilson in the Pennsylvania Convention, in
McMaster & Frederick D. Stone eds., 1888), reprinted in 3 THE
RECORDS OF THE FEDERAL CONVENTION OF 1787, at 162 (Max Farrand ed.,

(84.) See White, supra note 71, at 129-31.

(85.) See id. at 129.

(86.) See William G. Ross, The Senate's Constitutional Role in
Confirming Cabinet Nominees and Other Executive Officers, 48 SYRACUSE L.
REV. 1123, 1131 (1998) ("The fact that so many delegates who had
favored appointment by the Senate alone were willing to assent to [the
advice and consent language] suggests that those delegates did not
contemplate that the Senate would passively exercise its power of
'advice and consent.' On the other hand, the consent of those
delegates who favored sole appointment by the President indicates that
many delegates did not foresee a particularly active role for the
Senate."); cf. Joseph A. Grundfest & A.C. Pritchard, Statutes
with Multiple Personality Disorders: The Value of Ambiguity in Statutory
Design and Interpretation, 54 STAN. L. REV. 627 (2002) (discussing this
phenomenon in the statutory context); Ernest A. Young, Making Federalism
Doctrine: Fidelity, Institutional Competence, and Compensating
Adjustments, 46 WM. & MARY L. REV. 1733, 1749 (2005) (arguing that
"constitutional ambiguity on federalism ... represents a deliberate
strategy on the part of the Framers to allow the mechanics of federalism
to be worked out and adapted through practice over time").

(87.) See White, supra note 71, at 120-21.

(88.) See Curtis A. Bradley & Trevor W. Morrison, Historical
Gloss and the Separation of Powers, 126 HARV, V. L. REV. 411 (2012),
http://ssrn.com/abstract=1999516; Michael J. Gerhardt, Non-Judicial
Precedent, 61 VAND. L. REV. 713, 714-18 (2008); Michael J. Glennon, The
Use of Custom in Resolving Separation of Powers Disputes, 64 B.U. L.
REV. 109 (1984); Caleb Nelson, Originalism and Interpretive Conventions,
70 U. CHI. L. REV. 519 (2003); Peter J. Smith, The Marshall Court and
the Originalist's Dilemma, 90 MINN. L. REV. 612, 623-40 (2006);
David A. Strauss, Common Law Constitutional Interpretation, 63 U. CHI.
L. REV. 877, 916-24 (1996).

(89.) There are a handful of district court cases that touch on
issues related to presidential appointment of executive branch officials
without Senate consent; these cases reject the idea that the President
has inherent constitutional power to make appointments outside the
Appointments Clause or duly enacted statutory requirements, but none of
these cases is really germane. In both Olympic Federal Savings &
Loan Ass'n v. Director, Office of Thrift Supervision, 732 F. Supp.
1183 (D.D.C. 1990), and Williams v. Phillips, 360 F. Supp. 1363 (D.D.C.
1973), federal district courts held that the President does not have the
inherent constitutional power to appoint officers temporarily, absent a
Senate recess, emergency situation, or legislation allowing the
President to make temporary appointments. See Olympic, 732 F. Supp. at
1199-1200; Williams, 360 F. Supp. at 1368-69, 1371. In George v.
Ishimaru, 849 F. Supp. 68 (D.D.C. 1994), a district court rejected a
presidential attempt to appoint an agency staff director--not an
"officer" in the constitutional sense--without following a
statutorily mandated procedure, concluding that Article II gave the
President no such power. Id. at 71-72.

The only court of appeals opinion even somewhat on point is the
D.C. Circuit's denial of the government's request for a stay
in the Williams case, in which the court stated that

   [i]t could be argued that the intersection of the President's
   constitutional obligation to "take care that the laws be faithfully
   executed" and his obligation to appoint the director of [the agency
   in question] "with the Advice and Consent of the Senate" provides
   the President an implied power, in the absence of limiting
   legislation, upon the resignation of an incumbent [agency]
   director, to appoint an acting director for a reasonable period of
   time before submitting the nomination of a new director to the
   Senate. Even if the court should sustain such a view, in its
   disposition on the merits, that would not establish that the
   President was entitled, for a period of four and a half months from
   the date the President obtained the resignation of the incumbent
   director, to continue the designation of Phillips as acting
   director without any nomination submitted for Senate consideration.

Williams v. Phillips, 482 F.2d 669, 670-71 (D.C. Cir. 1973).

(90.) See generally Ross, supra note 86, at 1133-43 (discussing the
history of Senate scrutiny of executive branch nominees, and giving
several examples of nominations that were effectively blocked by the
Senate, or by a minority of Senators, without a formal vote).

(91.) See, e.g., The Pocket Veto Case, 279 U.S. 655, 689 (1929)
(asserting that "[l]ong settled and established practice is a
consideration of great weight in a proper interpretation of
constitutional provisions [relating to separation of powers]");
Nelson, supra note 88.

(92.) See GERHARDT, supra note 12, at 143-44; Denning, supra note
21, at 76.

(93.) See Harold H. Bruff, The Incompatibility Principle, 59 ADMIN.
L. REV. 225, 249 (2007).

(94.) Indeed, after the invalidation of the legislative veto in INS
v. Chadha, 462 U.S. 919 (1983), a legal requirement that the
appropriations committees must play this role would be unconstitutional.

(95.) For example, there was a longstanding practice, beginning
with Thomas Jefferson, that the President would only deliver his State
of the Union message to Congress in writing; this was no mere
convenience, but came to be seen as a reflection of constitutional
values. But President Woodrow Wilson broke with this practice, and the
ultimate acquiescence by other political actors and the general public
in President Wilson's action demonstrated (after the fact) that
what many had assumed was an entrenched constitutional rule was in fact
not. See Adrian Vermeule, Conventions of Agency Independence, 113 COLUM.
L. REV. (forthcoming 2012) (manuscript at 20-21),
http://ssrn.com/abstract=2103338 (citing HERBERT W. HORWILL, THE USAGES

(96.) Recent work by Curtis Bradley and Trevor Morrison, building
on earlier work by Michael Glennon and others, has made some progress on
developing a more general theory, or set of mid-level principles, that
could help distinguish those patterns of interbranch interaction that
generate new constitutional understandings from those that do not. See
Bradley & Morrison, supra note 88; Glennon, supra note 88. Some of
Bradley and Morrison's suggestions might cut against the proposal
advanced here, in that they suggest historical practice is more likely
to resolve (constitutional) separation of powers questions when the
executive acquiesces in a congressional assertion of power (rather than
the other way around), and when the practice has attracted the support
of both parties. Without fully engaging Bradley and Morrison's
substantive arguments here, it suffices to say that even if their claims
are correct (and they are certainly plausible), they are clearly not
absolute, as the examples in the main text illustrate-and Bradley and
Morrison never claim otherwise. The other recent work on this general
question is by Adrian Vermeule, who in related papers has explored both
the emergence of constitutional "conventions," see Vermeule,
supra note 95, and the phenomenon of the "atrophy" of
constitutional powers (whereby a power, if not used, becomes unusable,
not only politically but legally), see Adrian Vermeule, The Atrophy of
Constitutional Powers, 32 O.J.L.S. 421 (2012). Vermeule provides a lucid
exploration of the mechanisms by which conventions can emerge and
atrophy can occur, but his analysis does not directly answer the
question of whether a court (or other relevant actor) should decide that
a given actor, in this case the President, cannot exercise a particular
power because he or she has not exercised it, particularly when such an
exercise seems not to have been seriously considered.

(97.) But see Vermeule, supra note 95 (manuscript at 19-21 &
n.93) (noting that, as an empirical matter, this does sometimes occur).

(98.) See Seth Barrett Tillman, Noncontemporaneous Lawmaking: Can
the 110th Senate Enact a Bill Passed by the 109th House?, 16 CORNELL
J.L. & PUB. POL'Y 331, 342 (2007) ("[H]istory only
ratifies one of a number of ambiguous meanings of a constitutional
provision, if the asserted meaning was actually contested and the
non-prevailing institution acquiesced or otherwise adopted the
practice."). But see Aaron-Andrew P. Bruhl, Against Mix-and-Match
Lawmaking, 16 COKNELL J.L. & PUB. POL'Y 349, 361-62 (2007)
(arguing that the failure of political actors ever to attempt something
that might seem expedient is valid evidence of a widespread
understanding that such action would be constitutionally impermissible).

(99.) See Lessig & Sunstein, supra note 17, at 12-42. Other
scholars have challenged Lessig and Sunstein's interpretation of
the original understanding, see, e.g., Calabresi & Prakash, supra
note 81, at 599-635, but that disagreement is not relevant here.

(100.) See Lessig & Sunstein, supra note 17.

(101.) See supra note 12 and accompanying text.

(102.) See Ross, supra note 86, at 1133-43 (providing a history of
the appointments process); supra note 12 and accompanying text.

(103.) See, e.g., John Cornyn, Our Broken Judicial Confirmation
Process and the Need for Filibuster Reform, 27 HARV. J.L. & PUB.
POL'Y 181, 197-99 (2003); Douglas W. Kmiec & Elliot Mincberg,
The Role of the Senate in Judicial Confirmations, 7 TEX. REV. L. &
POL. 235, 252, 262 (2003); Renzin, supra note 21, at 1751-52. Note in
this regard that this argument, like mine, proceeds from the premise
that there are two norms that ought to go together: the norm that the
President only appoint officials whom the Senate confirms in an
up-or-down vote, and the norm that the Senate actually hold such votes
for all (important) presidential nominees. The sources cited above
presume that the first norm is constitutionally required, and argue that
the second norm--which has eroded--should therefore also be
constitutionally required. My approach is the mirror image: because the
second norm has eroded, the first norm should as well, and should not be
construed as constitutionally required. Nor should historical practice
be deemed dispositive with respect to the constitutional question, in
light of the fact that the historical practice emerged primarily when
the latter norm, though nonconstitutional, was firmly in place.

(104.) That general statement is not entirely accurate for
independent agencies headed by directors or commissioners who serve
fixed terms, but in practice each President has ample opportunity to
replace such officials, and there is regular turnover.

(105.) See, e.g., Charles Babington & Shailagh Murray, A
Last-Minute Deal on Judicial Nominees, WASH. POST, May 24, 2005,



(106.) See supra note a and accompanying text.

(107.) See supra text accompanying notes 2-5.

(108.) U.S. CONST. art. II, [section] 3.

(109.) One could imagine an extreme case in which this might not be
true. For example, suppose that as a result of Senate intransigence,
there were so many judicial vacancies that the courts could not
function, and the President could not execute the laws because there
were too few courts to handle the enforcement activities initiated by
the executive. In that case, one could perhaps construct a scenario in
which the President's obligations to take care that the laws are
faithfully executed might conceivably justify a reading of the
Appointments Clause that would enable the President to circumvent a
recalcitrant Senate minority. I do not, however, take up that
possibility here.

(110.) In the case of ambassadors, the case for inferring Senate
consent from silence is buttressed not only by implications from the
Take Care Clause, but also by the President's long-acknowledged
authority as the voice of the nation in foreign affairs.

(111.) As with the judiciary, one can imagine situations in which
widespread vacancies even in more junior executive officer positions do
significantly impede the President's ability to carry out the
functions of the executive branch, even if the most senior positions are
filled. See supra note 109. (For evidence that widespread vacancies,
even at more junior levels, can undermine the performance of the
executive branch, see O'Connell, supra note 2.) If so, this might
justify a more expansive version of my proposal. In this Essay, however,
I defend only the more limited version of my proposal, restricted to
senior positions.

A related difficulty here is identifying the senior executive
positions to which my proposal should apply. As is true with many legal
rules that try to draw categorical distinctions of this sort, although
there are some positions that should clearly be covered and others that
clearly should not, there is a potentially large gray zone in between.
But that is a generic problem, and one to which I have little new to
contribute. My instinctive preference, in this context, is to use a
relatively simple categorical rule based on hierarchy within the
relevant department or agency, rather than trying to make finer
distinctions based on how important the agency is to the overall
functioning of the executive branch (for instance, by trying to decide
which ambassadorships are critical to U.S. foreign policy and which are
more like ceremonial positions given to loyal supporters of the

(112.) My tentative suggestion to allow silence to imply consent
only in the case of senior executive appointments, but not in the case
of judicial or more junior executive appointments, concededly creates an
interpretive anomaly, in that the term "Consent" as used in
the Appointments Clause means two different things depending on the
officer being appointed. This is admittedly awkward, but it is not
unheard of for the same term (in the same clause) to mean somewhat
different things. For example, the Fifth Amendment states that
"[no] person [shall] be subject for the same offense to be twice
put in jeopardy of life or limb; nor shall be compelled in any criminal
case to be a witness against himself." U.S. CONST. amend. V. (The
former provision is the Double Jeopardy Clause; the latter is the
Self-Incrimination Clause.) Courts have construed the same
word--"person"--to include corporations for purposes of the
Double Jeopardy Clause but not for purposes of the Self-Incrimination
Clause, despite the fact that both Clauses take the same (single) use of
the word "person" as their subject. See Thomas W. Merrill, The
Landscape of Constitutional Property, 86 "CA. L. REV. 885, 956
(2000) (citing E. Enters. v. Apfel, 524 U.S. 498, 557 (1998) (Breyer,
J., dissenting)). While this sort of differentiation is unusual and
generally disfavored, it may sometimes be justified. Indeed, Akhil Reed
Amar--one of the leading expositors of an "intratextualist"
methodology that strives to give words or phrases consistent meaning
throughout the Constitution, see Amar, supra note 50--has argued
specifically (though in relation to a somewhat different question) that
the phrase "Advice and Consent" in the Appointments Clause may
mean different things depending on the official being appointed:

   The Constitution gives the Senate the power of Advice and Consent,
   as to both Cabinet officials and Supreme Court Justices. But these
   words sensibly mean different things in these two contexts.
   Constitutionally, Cabinet officers are members of the President's
   team; Justices are not. Thus, the Senate historically gives more
   deference to the President's nominees when Cabinet officers (who
   will leave when the President leaves) are at stake, than when
   Justices (who will be in place for life) are involved. The same
   words--"advise [sic] and consent"--must be understood in different
   ways when they interact with different clauses with different
   structural implications.

Akhil Reed Amar, On Prosecuting Presidents, 27 HOFSTRA L. REV. 671,
673-74 (1999) (footnotes omitted). But see Jonathan Turley, "From
Pillar to Post": The Prosecution of American Presidents, 37 AM.
CRIM. L. REV. 1049, 1058-61 (2000) (disputing the plausibility of
Professor Amar's interpretive claim).

The limitation of my proposal to senior executive officers, as
noted in the text, is based primarily on pragmatic arguments and
structural implications from the Take Care Clause, which in my view
probably outweigh the interpretive anomaly created by allowing Senate
silence to imply consent for some but not all appointees covered by the
Appointments Clause. That said, as noted at the beginning of Part III,
this limitation is not critical to my central argument, and it would
certainly be plausible to allow Senate silence to imply consent in all

(113.) U.S. CONST. art. II, [section] 3.

(114.) See 5 U.S.C. [section][section] 3345-3349d (2006).

(115.) See id. [section] 3345(c)(2).

(116.) See Spencer Bachus, Op-Ed., Obama Should Not Appoint
Consumer Financial Protection Bureau Head in Recess, POLITICO (D.C.),
May 27, 2011, http://www.politico.com /news/stories/0511/55771.html.

(117.) See 5 U.S.C. [section] 3349c(1)(a); Catherine L. Fisk, The
Role of the Judiciary When the Agency Confirmation Process Stalls:
Thoughts on the Two-Member NLRB and the Questions the Supreme Court
Should Have, but Didn't, Address in New Process Steel, L.P. v.
NLRB, 5 FLA. INT'L U. L. REV. 593, 610 (2010); O'Connell,
supra note 2, at 933 n.103.

(118.) See 5 U.S.C. [section] 3346. That said, according to this
statutory provision, a duly appointed acting official can continue to
serve in that capacity indefinitely while the (first or second)
nomination for the office is pending in the Senate, so the time
limitation on acting officials under the Vacancies Act is a less
important concern than the other limitations discussed in this

(119.) See O'Connell, supra note 2, at 937-46. But see id. at
946-50 (discussing some potential benefits of acting officials).

(120.) See supra note 15 and accompanying text.

(121.) See, e.g., BETSY PALMER, CONG. RESEARCH SERV., RE 32684,
"NUCLEAR" OPTION (2005); Michael J. Gerhardt, The
Constitutionality of the Filibuster, 21 CONST. COMMENT. 445, 474 n.8a
(2004); Martin B. Gold

& Dimple Gupta, The Constitutional Option To Change Senate
Rules and Procedures: A Majoritarian Means To Overcome the Filibuster,
28 HARV. J.L. & PUB. POL'Y 205 (2005); John C. Roberts,
Majority Voting in Congress: Further Notes on the Constitutionality of
the Senate Cloture Rule, 20 J.L. & POL. 505 (2004).

AUTHOR. Professor of Law, Harvard Law School. I am grateful to
Glenn Cohen, lake Gersen, Jack Goldsmith, Jim Greiner, Adriaan Lanni,
Daryl Levinson, John Manning, Anne Joseph O'Connell, Ben Roin, Ben
Sachs, Jed Shugerman, Holger Spamann, David Strauss, and Adrian
Vermeule, as well as participants at the Columbia Law School Roundtable
on Administrative Law, for helpful comments and conversations, and to
Carly Anderson, Jessica Goldberg, and Anthony Mariano for superb
research assistance.

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