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Filibuster is creating a crisis

Senate Republicans are precipitating a constitutional crisis. 

Article II, Section 3 requires the president to “take care that the laws are faithfully executed.” As former Supreme Court Chief Justice William Howard Taft wrote, “the President alone and unaided could not execute the laws. He must execute them by the assistance of subordinates.” 

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In 1846, Attorney General John Y. Mason cited the constitutional requirement for the president to execute the laws, but noted that “in 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.”

By filibustering President Obama’s appointees to offices authorized by law, Senate Republicans are preventing the president from fulfilling his constitutional obligation.

Thanks to filibusters by Senate Republicans, many legally authorized offices are without officers, and Americans are suffering as a result. 

The National Labor Relations Board has been in the law for nearly 80 years, but the GOP has been blocking Obama’s appointments. Without board members, the NLRB is powerless to enforce the law. 

Nurses in a Massachusetts hospital were warned that discussing work-related issues can get them fired. They appealed to the NLRB for protection, but there is no one there to help them. Families aren’t being protected from predatory financial institutions because Republicans are filibustering the president’s nominee to head the Consumer Financial Protection Bureau. 

Republicans have ushered in an era of filibuster abuse. During the three Congresses in which New Deal legislation was passed, there were only two filibusters in total. By contrast, the last three Congresses averaged 92 filibusters each!

Some might argue this crisis arises from a clash of constitutional principles, as the document also requires the advice and consent of the Senate for the appointment of federal officers. But as Harvard Law professor Matthew Stephenson points out, the Framers nowhere mention “confirmation” or even a “vote” being required to signify that consent.

Lest you think that was understood or merely an oversight, in the treaty clause — the one other place in the Constitution where “advice and consent” is used — a vote requirement is specified: “[The President] shall have the power, by and with the advice and consent of the Senate, to make treaties, provided two-thirds of the Senators present concur.” When the Appointments Clause talks about advice and consent, it makes no mention of a vote, and certainly doesn’t give the Senate the right to let the minority decide. 

Stephenson makes a persuasive case that senatorial consent can be implied by silence. 

The Senate’s own unanimous consent procedures do not require a vote, merely a failure to object. 

Certainly the Framers never anticipated that a presidential nominee could be simply ignored. Writing in the Federalist Papers, Alexander Hamilton opined, “[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.” 

Ratify or reject. Not ignore, not fail to vote on, not filibuster.

Filibuster reform is hardly the place to search for ideological constituency. Years ago, I advocated a 60-vote threshold for Supreme Court justices and adduced data demonstrating the public backed me up. 

But there are principled distinctions. Presidents have a constitutional obligation to execute the laws, which requires executive branch employees. The judiciary can function minus a justice if the Senate is committed to denying them one. Second, presidential appointees come and go with an elected (or defeated) president; Supreme Court appointments are unelected and last a lifetime. 

Finally, administration appointees operate as part of the president’s branch and always at his or her pleasure. Supreme Court justices head a separate and equal branch. 

Republicans should allow the president to fulfill his constitutional obligations or they should be denied the power to obstruct constitutional government.

Mellman is president of The Mellman Group and has worked for Democratic candidates and causes since 1982. Current clients include the Majority Leader of the Senate and the Democratic Whip in the House.