Just one man’s theory for now, but today’s random hot take is tomorrow’s White House conventional wisdom, my friends. Never forget that Barack Obama long insisted that his hands were tied legally on amnesty and that any action on immigration would therefore need to come from Congress. That made his base unhappy, and an unhappy base is a base that’s unlikely to turn out for congressional midterms. So Obama began dropping hints in 2014 that he’d had a change of heart and was now willing and able to amnestize millions of illegals via executive action. What had changed legally? He was never clear about that, but the working theory from lefties was that if Congress drags their feet on something Obama really, reallllly wants to do, then eventually he gets to say “time’s up” and can do it himself because they’re obstructionist jerks as Republicans are wont to be. That’s one of the most striking things about Obama’s most aggressive power grabs — he really doesn’t even attempt to justify them constitutionally.
So why should the appointment of Merrick Garland be different? He wants Garland on the Court, the Senate refuses to take any action — it’s a pretty clear-cut case for Obama to invoke the Doin’ Good For The People Clause that exists in his head, no? Lawyer Gregory Diskant:
Start with the appointments clause of the Constitution. It provides that the president “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint . . . Judges of the supreme Court, and all other Officers of the United States.” Note that the president has two powers: the power to “nominate” and the separate power to “appoint.” In between the nomination and the appointment, the president must seek the “Advice and Consent of the Senate.” What does that mean, and what happens when the Senate does nothing?…
It is in full accord with traditional notions of waiver to say that the Senate, having been given a reasonable opportunity to provide advice and consent to the president with respect to the nomination of Garland, and having failed to do so, can fairly be deemed to have waived its right.
Here’s how that would work. The president has nominated Garland and submitted his nomination to the Senate. The president should advise the Senate that he will deem its failure to act by a specified reasonable date in the future to constitute a deliberate waiver of its right to give advice and consent. What date? The historical average between nomination and confirmation is 25 days; the longest wait has been 125 days. That suggests that 90 days is a perfectly reasonable amount of time for the Senate to consider Garland’s nomination. If the Senate fails to act by the assigned date, Obama could conclude that it has waived its right to participate in the process, and he could exercise his appointment power by naming Garland to the Supreme Court.
Ilya Somin of the Volokh Conspiracy wrote a piece responding to this at length. The short version: it’s obviously wrong, starting with the fact that there’s no earthly reason why the executive should be able to tell an equal and coordinate branch how, and when, it should conduct its business. But here’s a more basic objection: Why should the Senate’s adamant refusal to consider a nominee be construed as a constructive waiver of its “advise and consent” power rather than as a constructive rejection of the nomination? It’s a pocket veto. There’s no ambiguity in the GOP’s position. They don’t want any nominee confirmed until a new president has taken office and they almost certainly have the numbers to mount a filibuster to any cloture vote on Garland if it came to that. You can accuse them of political cowardice in preferring to table the nomination rather than voting it down, but voters can punish them for that. There’s no reason, unless you’re in the tank for Obama, to convert an obvious expression of rejection into confirmation of the nominee. Besides, wouldn’t a filibuster also amount to tabling the nomination? There’d be a vote, but it’d be a vote on cloture, not on the nomination itself — just like Democrats did seven times when Miguel Estrada was up for a seat on the D.C. Circuit. As Somin notes, Bush didn’t dream of giving Senate Dems a deadline for an up-or-down vote on Estrada. Why should Garland get one? Is the idea here that filibusters on SCOTUS nominees should be barred legally somehow? Not even Harry Reid’s gone that far.
Even if the Supreme Court upheld this dubious idea of the president getting to put the Senate on the clock in offering its advise and consent, it’s potentially easily evaded. What if McConnell, facing a 90-day “deadline” to respond to the nomination, sent Obama a note in his capacity as the duly elected majority leader expressing his opinion that Garland is unfit and that the nomination shouldn’t be brought to the floor? Would that satisfy the “advise” clause since his caucus commands a majority of the Senate? Would a filibuster satisfy it? Only an up-or-down vote? Why isn’t this a really obvious example of a political question, which courts decline to settle because they expect voters to settle it in the voting booth? If the electorate doesn’t like McConnell exercising a pocket veto on Garland, they’ll blow up the GOP’s Senate candidates in November. If they do, they’ll reward them. Pretty straightforward.