The Senate Does Not Serve the President
(Editor’s note: This piece first appeared in Law and Liberty on 22 February 2022.)
Americans may govern themselves. But a surprising number of them don’t know much about their government. According to last year’s Civic Knowledge Survey conducted by the University of Pennsylvania’s Annenberg Public Policy Center, only 56 percent of adults could name all three parts of the federal government—the legislative, executive, and judicial branches—and 20 percent failed to name even one. And it isn’t just ordinary Americans who get basic facts about the federal government wrong. High-ranking officials in that very government routinely make inaccurate statements about how it works.
For example, the chairman of the Senate’s Banking, Housing, and Urban Affairs Committee, Sherrod Brown, D-Ohio, recently gave his colleagues—and the American people—a civics lesson on the Constitution’s confirmation process. Brown criticized Republican members of the Banking Committee for boycotting a vote to send one of President Joe Biden’s Federal Reserve nominees—Sarah Bloom Raskin—to the full Senate for further consideration.
In his civics lesson, Brown called on his colleagues to “show up and vote” because “it’s your job.” He suggested that the confirmation process is straightforward. “It’s a pretty simple equation,” Brown lectured, “the President nominates…we have hearings, we ask them questions, we send them follow-up questions, the nominees answer these questions. That’s how [the confirmation process] works.” Brown lectured on. “Then we call a vote in Committee and we vote yes or no. The job is vote yes, or vote no, and hope your side prevails.”
Yet Brown’s civics lesson is incorrect. It is not supported by the Constitution’s text, delegates’ deliberations at the 1787 Federal Convention that drafted the Constitution, or any state ratifying convention that subsequently approved the Constitution. The federal government’s early practice after the Constitution took effect also contradicts Brown’s depiction of the confirmation process (as does its practice up to the GOP boycott). In short, there is no explicit mandate for senatorial deference to the president in the Constitution.
The Constitution stipulates, “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.” In other words, President Biden has the power to nominate Raskin for a seat on the Federal Reserve. But the Constitution gives the Senate—and only the Senate—the power to confirm Raskin’s nomination. Biden and the Senate must both act to appoint Raskin to the Federal Reserve.
The Constitution also empowers senators to decide how the confirmation process works inside the Senate. It stipulates, “Each House may determine the Rules of its Proceedings.” Senators used that power to establish Senate Rule XXVI, which Republicans invoked to prevent the Banking Committee from voting on Raskin’s nomination last week. Their boycott worked because the rule bars the banking panel from approving Raskin’s nomination if “a majority of the committee” are not “physically present.” Democrats do not have a majority of the seats on the Banking Committee. Like the Senate, the panel is evenly divided between Democrats and Republicans. Consequently, the Banking Committee cannot vote on Raskin’s nomination unless at least one of its Republican members is present.
The Constitution does not empower the president to fill the most important positions in the federal government unilaterally—or expect the Senate to defer to the president’s nominees—because delegates to the Federal Convention wanted to prevent the concentration of power in any one set of hands, “whether of one, a few, or many.” The way they did so was the separation of powers. The Constitution established three branches of government and gave each one “as little agency as possible in the appointment of the members of the others.” Still, the delegates feared giving the president free rein to install whomever he wants in important positions in the executive branch. Roger Sherman of Connecticut argued that the unilateral power to appoint officers of the federal government would give the president a power identical to the one the King of Great Britain used to influence members of Parliament and colonial officials to do his bidding. According to Sherman, “herein lay the corruption in G. Britain. If the president could appoint without check,” he could use that power to “set up an absolute Government.”
The Anti-Federal pamphleteer, “Federal Farmer,” observed during the ratification debates, “The president can appoint no officer, civil or military, who shall not be agreeable to the Senate; and the presumption is that the will of so important a body will not be very easily controuled, and that it will exercise its powers with great address.” And Alexander Hamilton noted in Federalist 67 that under the Constitution, “if the Senate should be divided, no appointment could be made.” Given that the Constitution empowers the Vice President to break tie votes in the Senate—a fact that Democrats in the evenly divided chamber should appreciate—Hamilton’s reference appears to cover pre-floor stages of the confirmation process—like the one in which Republicans on the evenly divided Banking Committee boycotted a vote on Raskin’s nomination.
President James Madison best described how the Constitution’s confirmation process is supposed to work in an 1813 letter to the Senate. In that letter, Madison noted “that the Executive and Senate, in the case of appointments to office… are to be considered independent and co-ordinate with each other.” He compared the relationship between the president and Senate in the confirmation process to that between the House and Senate in the legislative process. “The relation between the Senate and House of Representatives, in whom the Legislative Power is concurrently vested, is sufficiently analogous to illustrate that between the Executive and Senate in making appointments.” In other words, just as the Senate has no obligation to vote on every bill that passes the House, it has no obligation to vote on every nomination that the president sends it.
The Constitution does not give President Biden the power to appoint Raskin to serve a full term on the Federal Reserve without the Senate’s consent. And it allows senators to decide the rules that regulate the process by which they consider her nomination.
Contrary to Brown’s flawed civics lesson, the confirmation process protects Americans against the negative—and positive—consequences of concentrated power that would result from allowing any president to fill important federal offices, like seats on the Federal Reserve, unilaterally. Senators undermine their own power to check the president if they defer to his choice of who should occupy positions of power in the federal government. Senators also weaken their own power when they hold their colleagues in contempt for daring to disagree on how the Senate should operate.
As a senator, Brown should know that only senators get to decide how they do their job. And if their constituents don’t like it, they can get new senators. The Constitution makes American self-government possible. But it can’t work without Americans—and senators—who understand it and take it seriously.