The influence of law professors like Tribe shows why it is so necessary to confirm justices who will read the Constitution according to its text.
Mad Dog Mattis, the 7 Year Delay Provision, and the Appointments Clause
President Elect Donald Trump has announced that he will be nominating James “Mad Dog” Mattis to be Secretary of Defense. However, a statute requires “retired military officers to be out of uniform for seven years before they can become the civilian head of the armed forces.” While it seems quite possible that Congress will be willing to pass a law exempting Mattis from the requirement, a question is whether the requirement is constitutional. The main issue is whether the Constitution (1) allows the Congress to establish qualifications for offices or (2) gives to the President and the Senate the full discretion to determine whether someone is fit for office.
The issue is governed by the Appointments Clause, which provides in relevant part that the President:
by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States, whose appointments are not herein otherwise provided for, and which shall be established by law.
The argument for concluding that the Congress cannot pass the qualification requirement is that this clause gives to the President and the Senate the decision whether a person is qualified for the office. The President, with the consent of the Senate, has the power to decide who to appoint for an officer and that includes deciding whether his qualifications are sufficient.
The counter to this argument is that the Clause does not govern qualifications, but only the selection of a person who has the requisite statutory qualifications. Congress has the power to set the qualifications for an office based on its authority to “establish . . . by law . . . “officers of the United States.” One might argue that establishing an office includes the power to establish qualifications for the office.
If establishing an office includes the power to establish qualifications for the office, then the President and the Senate have only the power to determine whether someone, who has the legally required qualifications, is an appropriate person to appoint to the office. If not, then the President and the Senate can choose who they like, notwithstanding any statutory qualifications.
It is not entirely clear what the answer is. Establishing qualifications might or might not fall under the power to establish an office. My intuition is that there is a bit stronger case for concluding that qualifications are part of the office. Under that view, then, Congress could establish the binding qualifications.
Ultimately, answering this question would turn on the history of these matters. One aspect of the history is that the King of England had the power both to establish the offices and to make the appointments. This Constitution then split the power between the President (and the Senate) and the Congress. The question is on what side the power to set qualifications was placed. Given the fact that the English practice is not that helpful, an examination of the practice in the states prior to the Constitution would be extremely important.
One interesting implication of this analysis is that the named offices in the Appointments Clause – ambassadors, other public ministers and consuls, judges of the Supreme Court – might be treated differently. If the Constitution establishes these offices rather than Congress (a possible but not necessary conclusion), then Congress might not be able to establish qualifications for them.
I probably shouldn’t leave this subject without mentioning another possibility. Perhaps Congress can add qualifications under the Necessary and Proper Clause. Under this view, one would engage in much the same analysis as above, except the focus would be on figuring out whether establishing qualifications falls under the power to appoint or the power to employ necessary and proper means to establishing offices. In my view, the Necessary and Proper Clause is less important in this context, because the Constitution seems to draw a line between appointing and establishing offices and therefore renders the Necessary and Proper Clause with little to do. But others may have a broader understanding of the Necessary and Proper Clause than I do.