Judge Merrick Garland’s thwarted Supreme Court nomination has divided legal scholars over the meaning of the Appointments Clause. While some believe that the Senate and the President share the power to appoint principal officers, others contend that the President alone has the power to nominate and appoint them. To the former scholars, Article II, Section 2, enables the President to nominate whomever he or she wishes, but it also empowers the Senate to confirm or reject whomever it wishes. Accordingly, the appointment power is divided between the two, meaning it is only exercised when both branches utilize their respective and discretionary powers. To the latter scholars, the same text gives the President the sole power to nominate and to appoint, with appointment subject to the Senate’s mandatory duty to advise and decide on whether to consent. Therefore, advice and consent is a check by which the Senate prevents the President from abusing his or her appointment power, triggered by the President’s decision to nominate. This Note argues that the latter scholars are correct because the Founders’ intent, the Constitution’s text, the doctrines of separation of powers and checks and balances, and long-standing Senate practice indicate that the appointment power is solely a presidential power. For Judge Garland, this conclusion means the Senate violated its duty to hold hearings and to provide an opportunity for a vote on his nomination. More importantly for the nation, it means that the Appointments Clause requires the Senate to apply to every nominee the process that it has designed for securing its consent. Thus, the precedent established by the 114th Senate of blocking all Supreme Court nominations during presidential election years, which will likely be followed and perhaps extended to mid-term election years, contravenes the nation’s fundamental constitutional structure. By failing to perform its duty, moreover, the 114th Senate also deprived the nation of the benefits that the advice and consent process provides, such as greater accountability for the Senate’s confirmation or rejection of nominations and a more functional government. In doing so, the Senate has placed political expediency ahead of the public interest.
Issue 4
Entrenchment, Incrementalism, and Constitutional Collapse
Entrenchment is fundamental to law. Grand documents like the U.S. Constitution, and mundane ones like city and corporate charters, entrench themselves against change through supermajority rules and other mechanisms. Entrenchment frustrates responsiveness, but it promotes stability, a rule of law virtue extolled for centuries. It does so through a straightforward channel: Entrenched law is difficult to change. Scholars have long understood this idea, which can be called the first status quo bias of entrenchment. This Article shows that a second bias lurks: Entrenchment makes changes that do take place incremental. As entrenchment deepens, the scope of potential change to law collapses on the status quo. To restate the idea, when we entrench law, we prevent change, at least for a time, and we confine any changes that do take place to small steps. This has implications for constitutional law, especially the debate about Article V and the separation of powers, both of which shield the Constitution from change more than scholars realize. It also illuminates several questions, especially in comparative constitutional law, such as why constitutions remain unpopular after amendment. Finally, it generates a theory of constitutional failure. When voters’ preferences evolve consistently in one direction, entrenched law eventually becomes as unstable as ordinary law, only less popular. Thus, entrenchment buys neither stability nor responsiveness. Because entrenchment confines legal change to incremental steps, amendment cannot correct the problem. This recasts questions of legal design in new light, and it may explain why some constitutions endure while others collapse.
The Untenable Case for Perpetual Dual-Class Stock
The desirability of a dual-class structure, which enables founders of public companies to retain a lock on control while holding a minority of the company’s equity capital, has long been the subject of a heated debate. This debate has focused on whether dual-class stock is an efficient capital structure that should be permitted at the time of initial public offering (“IPO”). By contrast, we focus on how the passage of time since the IPO can be expected to affect the efficiency of such a structure.
Our analysis demonstrates that the potential advantages of dual-class structures (such as those resulting from founders’ superior leadership skills) tend to recede, and the potential costs tend to rise, as time passes from the IPO. Furthermore, we show that controllers have perverse incentives to retain dual-class structures even when those structures become inefficient over time. Accordingly, even those who believe that dual-class structures are in many cases efficient at the time of the IPO should recognize the substantial risk that their efficiency may decline and disappear over time. Going forward, the debate should focus on the permissibility of finite-term dual-class structures¾that is, structures that sunset after a fixed period of time (such as ten or fifteen years) unless their extension is approved by shareholders unaffiliated with the controller.
We provide a framework for designing dual-class sunsets and address potential objections to their use. We also discuss the significant implications of our analysis for public officials, institutional investors, and researchers.