[I posted some thoughts at HuffPo last week. I’ve revised and polished those thoughts slightly, and reposted them here.]
There’s been a lot of back and forth over “constitutional duties” lately. Smart people on both sides are digging up historical sources (some better than others) to support their arguments. One side claims the Senate has a “constitutional duty” to consider Merrick Garland’s nomination to the Supreme Court, and the other side claims no such duty exists. And this got me thinking about “duty” and the Constitution.
Article II, section 2 of the Constitution says the president “shall nominate, and by and with the advice and consent of the Senate, shall appoint…judges of the Supreme Court.” That’s all the text we have to go on. And according to the no-duty crowd, the Senate has no constitutional duty to consider Garland’s nomination because, quite simply, this passage—the text of the Constitution—imposes no “duty.” Jonathan Adler (@jadler1969) says providing advice and consent might be politically prudent, but ultimately it is “discretionary.” Ed Whelan (@EdWhelanEPPC), in a Twitter exchange with me, described the Advice and Consent Clause as a “condition precedent” (a term from contract law)—and insists it imposes no “constitutional duty.” According to these very smart legal thinkers (and others like them), the Senate can refuse to consider Garland’s nomination for as long as it wants. Even forever. Because the Constitution creates no duty to act.
And maybe they’re right. I mean, if you just read it, it seems pretty clear the Constitution’s text does not impose a duty on the Senate—at least, not in the same way that it seems to impose a duty on the president. The text says the president “shall nominate” and “shall appoint” Supreme Court justices. That sounds like a duty, right? But Adler says even this is “discretionary.” And there’s no “shall” in the Advice and Consent Clause, so presumably it’s even less compulsory. Plus, the Advice and Consent Clause appears in Article II—the article devoted to constructing the Executive Branch and delineating the president’s duties and powers. Article II isn’t about the Senate—so why should it be interpreted as creating a senatorial duty?
So what does Article I say? Article I is devoted to constructing the Legislative Branch and delineating its duties and powers. Does Article I impose a duty on the Senate, when it comes to judicial appointments? Nope. Not a word about judicial appointments. So maybe the no-duty crowd is right and the Senate has no duty to consider Garland. They can stall as long as they want—forever, even—as long as the voters will let them get away with it. And while we’re at it, the president doesn’t have to nominate anybody, either. Ever.
That’s how the constitutional text should be understood, according to very smart legal thinkers. And, textually speaking, it seems like they’re right.
Except this is sort of ridiculous, if you think about it. I mean, let’s just think about it.
Article I, section 2 of the Constitution says: “The House of Representatives shall be composed of members chosen every second year by the people of the several states.” And section 3 (as altered by the Seventeenth Amendment) says: “The Senate of the United States shall be composed of two senators from each state, elected by the people thereof.” These provisions use “shall,” but nobody would say these provisions impose a “duty” on “the people” to vote and elect senators and representatives. Everybody knows voting is discretionary. Right?
But what would happen if nobody voted? Literally, I mean. Nobody. What if we the people simply refused to elect anyone to the Senate? Does the Constitution allow us to do that? Clearly, the text itself does not impose a duty on the people to elect a Senate. But—just as clearly—if we refuse to elect a Senate, then by definition we won’t have the sort of government that the Constitution constitutes. Refusing to elect a Senate would mean, in effect, rejecting the Constitution’s form of government—and thereby rejecting the Constitution itself.
And isn’t this also true for judicial appointments? Carried to its logical end, the proposition that the Senate can simply refuse to consider judicial nominees indefinitely means the Senate can—through inaction and attrition—literally do away with the Judicial Branch altogether. And the Executive could do the same, if successive presidents simply refused to nominate any judges. In other words, like the people refusing to elect a Senate, or the Executive refusing to nominate any judges, the Senate refusing to consider and confirm any judges would deprive us of the sort of government that the Constitution constitutes.
Nevertheless, according to the no-duty crowd, the constitutional text permits this sort of inaction because it imposes no duty to act. And I agree: it does appear the text creates no duty.
But seriously, are we really going to say that the Constitution permits its own demise? The whole point of the Constitution is to constitute—to put something together, to build something. How can it be “constitutional” to take action (or inaction) in ways that threaten to dismantle or even eliminate a branch of government constituted by the Constitution?
This seems absurd, right? But if we rely only on the text of the Constitution itself, we have to accept that the Constitution does permit its own demise—because the text imposes no explicit duty to prevent its demise. Textually, it does not violate the Constitution—i.e., it is constitutional—to act in ways that will destroy our Constitution’s form of government. Textually, the people can refuse to elect a Senate, or the Senate can refuse to confirm a federal judiciary, and neither is violating any duty created by the text of the Constitution.
But this is absurd because such actions would undo the Constitution. So maybe it’s useful to think about two different kinds of “duties.” On the one hand, there are what we’re calling “constitutional duties”—duties created by the text of the Constitution, such as the House’s duty to keep a journal of its proceedings (Art. I, sec. 5) or each state’s duty to give “full faith and credit” to the public acts of other states (Art. IV, sec. 1). Because they flow from the constitutional text (ex post), we might think of these as duties coming out of the Constitution.
And on the other hand, there are what we might think of as duties going into the Constitution. These are not duties created by the text of the Constitution itself. Rather, these duties are something like prerequisites—self-imposed commitments or obligations that preexist the constitutional text (ex ante). Put another way: if we are committed to having the system of government that the Constitution constitutes, then we commit or obligate ourselves to do certain things—like elect a body of senators, as described in Article I. And we are obligated to do these things in the sense that we assume a duty to do these things, or we have no real commitment to constituting the government that the Constitution sets out to constitute. Instead of “constitutional duties,” we might call these “duties to the Constitution.”
In sum, if you’re committed to the form of government that the Constitution constitutes—a government with three branches, etc.—then you assume certain duties to act in ways that will bring the Constitution’s form of government into existence (and will not bring about its demise). We can’t refuse to elect any senators, for example, without rejecting the Constitution itself—because the Constitution’s form of government includes elected senators. Thus, while there is no constitutional duty to elect senators, we nevertheless have a duty to the Constitution to elect senators.
Likewise, even if the constitutional text imposes no duty on senators to consider and confirm Supreme Court justices, our senators nevertheless have a duty to the Constitution to consider and confirm Supreme Court justices. They can’t categorically refuse to confirm any justices indefinitely without implicitly rejecting the Constitution itself—because our Constitution’s form of government includes senate-confirmed Supreme Court justices.
Bottom line: maybe Adler and Whelan and others are correct to say that the Constitution’s text creates no “constitutional duty” for our senators to act on President Obama’s judicial nominations. But this doesn’t end the “duty” discussion. If our senators are committed to bringing the Constitution’s form of government into existence (and to not bringing about its demise), then they should recognize they have a duty to the Constitution to do their job and confirm judges. And we the people should recognize that we, too, have a duty to the Constitution to vote—and to elect senators who recognize their duties.