Does Senate “Advice and Consent” Always Require an Affirmative Vote?

For those of you following the controversy over President Obama's recess appointments to the NLRB and the CFPB, Matthew Stephenson has an interesting essay in the current issue of the Yale Law Journal. Here's the abstract:

It is generally assumed that the Constitution requires the Senate to vote to confirm the President’s nominees to principal federal offices. This Essay argues, to the contrary, that when the President nominates an individual to a principal executive branch position, the Senate’s failure to act on the nomination within a reasonable period of time can and should be construed as providing the Senate’s tacit or implied advice and consent to the appointment. On this understanding, although the Senate can always withhold its constitutionally required consent by voting against a nominee, the Senate cannot withhold its consent indefinitely through the expedient of failing to vote on the nominee one way or the other. Although this proposal seems radical, and certainly would upset longstanding assumptions, the Essay argues that this reading of the Appointments Clause would not contravene the constitutional text, structure, or history. The Essay further argues that, at least under some circumstances, reading the Constitution to construe Senate inaction as implied consent to an appointment would have desirable consequences in light of deteriorating norms of Senate collegiality and of prompt action on presidential nominations.

Imagine the president sending a list of executive-branch nominees to the Senate with a note saying they will assume office within 90 days unless the Senate rejects them first. If Noel Canning stands and the Senate can block all presidential nominees through inaction, will this idea come to seem less "radical?"

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