THE SENATE VS. THE LAW: CHALLENGING QUALIFICATION STATUTES THROUGH SENATE CONFIRMATION.

• Author: Nachmany, Eli

INTRODUCTION

Although the Constitution vests in the President the power to nominate executive branch officials, (1) Congress has time and again imposed qualifications on whom the President is able to ultimately appoint and, therefore, nominate in the first place. Throughout American history, the constitutionality of these qualifications has been called into question, given the Appointments Clause's insistence that the President nominate and the Senate confirm, with no role for the House, whose participation is necessarily required to make a qualification into law. This Note takes the position that those arguing against constitutionality, like Hanah Volokh, have it right: As pertains to positions subject to Senate confirmation, qualification statutes are inconsistent with the Appointments Clause and are an exercise of authority past the office-creation power vested in the Congress as a whole. Proceeding from that premise, the qualifications represent only a nonbinding expression of an earlier Senate's sentiment about an ideal officeholder. As such, if the President was to nominate and the Senate were to confirm an individual in contravention of a qualification statute, (2) this Note argues that the confirmation should stand.

Further, if a post-confirmation lawsuit challenges the individual's status as an officeholder, courts should decline to review the officeholder's legitimacy. This Note also cautions the executive branch and the Senate against contravening, just to make a point, the qualifications statutes currently on the books. Some qualifications have the effect of protecting constitutional norms, and although norms are not incontrovertible, they can serve an important purpose of "[constitutional maintenance." (3) That being said, as a matter of prudence, in some instances it continues to make sense for the President and the Senate to abide by a qualification statute, despite its unconstitutionality. In addition, the relevant actors should consider other factors--such as the ambiguity or specificity of the qualification, and the extent to which the qualification excludes competent people willing to serve--when considering whether to disregard a statute. If recent history is any guide, the President and the Senate should work together to confirm capable nominees, even if not formally "qualified," sooner rather than later, lest some of these laws continue to bar competent individuals from important public service roles.

A particularly egregious example of a qualification statute excluding such an individual occurred recently. In August of 2018, Interior Department official Greg Sheehan left the Trump Administration. (4) His fourteen-month tenure as Principal Deputy Director of the U.S. Fish and Wildlife Service (FWS) is perhaps most famous for the agency's proposals to modify the government's interpretation of the Endangered Species Act. (5) Another aspect of Sheehan's time in Washington, D.C., however, is more important for the purposes of this Note. The executive branch believed, despite Sheehan's impressive resume and deep understanding of the issues with which the FWS deals, that he was unable to be appointed as FWS Director. The reason? His undergraduate major. When Congress established the FWS in 1974, it mandated, "No individual may be appointed as the Director unless he is, by reason of scientific education and experience, knowledgeable in the principles of fisheries and wildlife management." (6) By use of the word "and," Congress created a two-part test for appointment to the office: the prospective Director must be knowledgeable in the principles of fisheries and wildlife management by reason of both (1) scientific education, and (2) experience. Sheehan, who did not have a formal college education in biology, wildlife management, or a related topic, did not meet the first condition. (7) As a result, he was found ineligible to be FWS Director. (8) No matter that Sheehan was Director of the Utah Division of Wildlife Resources for five years, or that he boasted "more than 25 years of experience with the State of Utah working in wildlife and natural resource management." (9) As picks for FWS Director went, arguably few were more qualified than was Sheehan, but his lack of a formal scientific education barred him from the role.

This Note examines the nature and legal effect of qualification statutes, arguing that the President and Senate can disregard them, and should do so in certain circumstances. Part I of this Note discusses whether it is constitutional for Congress to impose prequalifications on executive appointments, considering the history of the practice and various views on the back-andforth between Congress and the President as it relates to the Appointments Clause. Part II explores some of the ways in which qualification statutes have affected the Trump Administration, highlighting the more recent implications of these restrictions in practice with a special focus on the education requirement for the FWS Director. It also illustrates some of the ways in which Congress could abuse, and has abused, qualification statutes, and considers the question of judicial review. Part III turns to future nominations and recommends a framework for executive and congressional review of qualification statutes, through which relevant parties can decide how to proceed in the nomination process and which laws to directly challenge, as opposed to seeking a formal waiver with the cooperation of the House of Representatives.

1. EXAMINING THE POWER TO APPOINT

   The constitutionality of qualification statutes is a hotly debated question of law. Article II of the U.S. Constitution provides that the President "shall nominate, and by and with the Advice and Consent of the Senate, shall appoint ... all other officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law." (10) The text sets out a well-defined sequence of events for principal officers of the United States, beginning with nomination. First, the President--and the President alone--"shall nominate" a candidate. After this action comes the requirement for the "Advice and Consent of the Senate," which the President must receive before he can make the appointment. In Article II, therefore, the Framers set forth a three-step process for the President: (1) nominate the officer; (2) receive the advice and consent of the Senate; and (3) appoint the officer. Although the education and experience requirements for the FWS Director, for example, purport to apply to whether or not an individual "may be appointed," (11) the statute operates in practice as a diversion from the established sequence. If someone may not be appointed, a White House personnel official would reasonably conclude that there would be no point in recommending nomination to the President in the first place. Congress is therefore effectively prescreening candidates for nomination, when nomination is a responsibility vested in the President alone under the Appointments Clause. Such prescreening is unconstitutional. As Justice Kennedy wrote in Public Citizen v. Department of Justice: (12)

   By its terms, the [Appointments] Clause divides the appointment power into two separate spheres: the President's power to "nominate," and the Senate's power to give or withhold its "Advice and Consent." No role whatsoever is given either to the Senate or to Congress as a whole in the process of choosing the person who will be nominated for appointment. (13) As this Part will show, Justice Kennedy's view reflects that of generations of Presidents, executive branch lawyers, and some members of the academic community. To be sure, early congressional practice offers a worthy counterweight to the argument that qualification statutes are necessarily impermissible. But in the end, the question boils down to the clear text of the Appointments Clause. And based on that text, Congress setting qualifications on executive branch appointments of principal officers is unconstitutional. As the following shows, the debate about congressional qualifications dates back to the Founding.

   1. Hamilton, Madison, and Jackson Argued for Executive Power

      The meaning of the Appointments Clause has been in question since our country's earliest days. In Federalist No. 77, Alexander Hamilton posited: "In [the plan for the appointment of the officers of the proposed government] the power of nomination is unequivocally vested in the executive." (14) He went on to define that sequence:

      And as there would be a necessity for submitting each nomination to the judgment of an entire branch of the legislature .... [t]he blame of a bad nomination would fall upon the President singly and absolutely. The censure of rejecting a good one would lie entirely at the door of the Senate.... (15) Drawing from Hamilton's writing, the expectation was that the judgment of the Senate could, in general, not occur until the submission of the nomination. The rejection of Hamilton's hypothetical "good one" is certainly not the same as the prerejection of an entire class of prospective officials who do not possess a specific resume line or two. In Federalist No. 76, Hamilton answered a key question about the advice-and-consent function when the President sends a name to the Senate:

      But his nomination may be overruled: this it certainly may, yet it can only be to make place for another nomination by himself. The person ultimately appointed must be the object of his preference, though perhaps not in the first degree. It is also not very probable that his nomination would often be overruled. The Senate could not be tempted by the preference they might feel to another to reject the one proposed; because they could not assure themselves that the person they might wish would be brought forward by a second or by any subsequent nomination. They could not even be certain that a future nomination would...