Senator Tommy Tuberville appears to be a very honorable, able, and sincere representative of the good people of Alabama. Like many Americans, he is not a fan of abortions; and, since February, he has held up hundreds of senior Pentagon promotions by using “holds” to pressure the Biden administration to stop paying for travel by Pentagon employees who wish to go to other states to have abortions.
Senator Tuberville is a Hall-of-Fame college football coach, but he appears to have no formal legal training. Thus, we should not expect him to be knowledgeable about esoteric issues of constitutional law. But as a longtime law professor, I am profoundly troubled that he has inadvertently violated his oath of office to “bear true faith and allegiance” to the Constitution. (He is certainly not alone in abusing the Senate’s hold process.)
The situation has become more critical following the recent terrorist attacks on Israel, because Senator Tuberville has blocked the promotions of the Navy’s Fifth Fleet commander and other senior officers with Middle East responsibilities. Iran, China, Russia, and our nation’s other adversaries may well be looking for ways to exploit this crisis, and if the president is denied the fit advisers he has nominated, he and his supporters might well try to blame Senator Tuberville for any negative consequences.
The Senator contends that the Pentagon’s policy of funding out-of-state travel to facilitate abortions for DoD employees is unlawful. The Pentagon responds with a Justice Department legal opinion affirming the legality of its practice. If the Senator believes the Pentagon’s practice to be unlawful, he can introduce legislation to clarify or alter any law, encourage judicial resolution, or even run for president himself. But he must abide by his constitutional oath.
The appointment power is “executive” in character and thus vested in the president by Article II, section 2, of the Constitution—subject to the condition precedent of obtaining a majority confirmation vote in the Senate. Unlike enacting legislation, where the Senate has considerable discretion, the Senate’s negative over appointments and treaties is essentially a veto that was intended by the Framers to be narrowly construed. This distinction is illustrated by the fact that, when the Senate takes up nominations (and treaties), it goes into “executive session.”
A Senate Glossary of terms identifies a “hold” as an “informal practice.” It is largely founded in comity, mutual respect, and the understood reality that a single senator can hold up everything by a filibuster.
Holds are often a perfectly reasonable procedure, even when applied to nominations. They can allow senators time to investigate some aspect of a nominee’s character or qualifications. The Constitution wisely places no time limit on the Senate in this process, but nominations should be taken up within a “reasonable” period under the circumstances. The president should be entitled to an up-or-down vote of the full Senate, and neither an individual senator nor the Senate leadership should be able to prevent that vote without good cause.
When a senator attempts to use a hold to block nominations—much less as a form of blackmail to compel a president to make concessions unrelated to the nominees’ fitness for office—the result is a breach of the Constitution. It transforms the Senate’s narrow veto power over nominations—which the Constitution vests in one-half of a quorum (26 to 50 senators, depending upon how many vote) to a single senator. Congress may not amend the Constitution by statute, and it certainly may not do so by an “informal practice.”
Writing in 1788 in Federalist 76, Alexander Hamilton explained to the American people the reason for Senate involvement in the appointment process under the proposed new Constitution. He speculated that nominations would seldom be blocked, but the existence of the Senate’s negative “would have a powerful, though, in general, a silent operation,” and “would tend greatly to prevent the appointment of unfit characters from State prejudice, from family connection,” and the like.
Two years later, Secretary of State Thomas Jefferson noted in a memorandum to President Washington that the Constitution had declared that “the Executive power shall be vested in the President, submitting only special articles of it to a negative by the Senate.” Jefferson emphasized: “Exceptions are to be construed strictly.” He acknowledged that the Senate might theoretically abuse its power by repeatedly rejecting a nomination until the president agreed to exercise his independent powers as demanded by the Senate, but reasoned: “this would be a breach of trust, an abuse of the power confided to the senate, of which that body cannot be supposed capable.” The Senate’s sole function regarding appointments, Jefferson declared, was to ensure “that no unfit person be employed.”
Jefferson’s interpretation was affirmed three years later by his chief rival in Washington's cabinet, Treasury Secretary Alexander Hamilton, who in his first Pacificus essay explained that the Senate’s “advice and consent” power was an “exception” out of the general “executive power” vested in the President, and thus was “to be construed strictly, and ought to be extended no further than is essential to [its] execution.”
President Washington, Representative James Madison, and Chief Justice John Jay also endorsed Jefferson’s conclusions. And the Supreme Court has repeatedly (and recently) made it clear that not even the entire Congress by statute can usurp exclusive executive powers.
Abusing the hold power to block hundreds of nominations for more than half a year without the slightest suggestion that the nominees are unfit is all the more concerning. The president, too, has constitutional powers that could be abused. What if President Biden were to grant pardons to the most violent 2,000 inmates in federal prisons on the condition that they reside in Alabama for at least two years, and at the same time take advantage of an allegation of racial profiling to order every federal law enforcement officer serving in Alabama to attend a two-year training program on DEI at Quantico, Virginia?
A 2017 Congressional Research Service report on “Holds” in the Senate noted that “ultimately the decision to honor a hold request . . . rests with the majority leader.” Senators Schumer and McConnell can work together to bring a permanent end to such unconstitutional abuses.
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