ARTICLE II SECTION 2 SNOW JOB?

The President's defenders claim to smell a constitutional rat in the Senate Democrats' filibuster of judicial nominees, in particular because Article II, Section 2 says the following:

[The President] shall have power, by and with the advice and consent of the Senate, to make treaties, provided two thirds of the Senators present concur; and he shall nominate, and 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

A filibuster of judicial nominees, so the argument goes, adds a supermajority requirement to the second part of this clause.

When is the last time that Article II, Section 2 has been in the public spotlight? You guessed it: the discussion of trade promotion authority.

But the Presidential approaches to constitutional interpretation in these two cases are at odds with one another. At the USTR website, for example, you can read the following lines:

"The Constitution grants each chamber the authority to establish its own rules of procedure, and it makes sense for Congress to limit itself to straight up-and-down votes on certain resolutions, such as base closures and adjournment motions."

And on the President's websites on Trade Promotion Authority, there isn't a lot about Article II. In other words, even though there is a clear command that the Senate agree to treaties by a supermajority requirement, "it makes sense" for Congress to limit itself to a simple majority vote in certain cases, some of which arguably fall within the realm for which the framers would have intended to require a supermajority. When Article II, Section 2 helps your case, you push it hard, but when it hurts your case, you ignore it.

Very interesting indeed. I'm not sure how Republicans can argue that Senate Democrats are unconstitutionally changing Article II's simple majority requirement for approving judicial nominees, just a mere year after they pushed Trade Promotion Authority, which arguably alters the Constitution's requirement that Senate give advice and consent on treaties AND approve them by a supermajority.

The lesson here, as I see it, is twofold. First of all, President Bush -- indeed, any President -- can be expected to advance arguments that expand the realm of executive power. Bush is doing so in a variety of areas, including in his relationship with the Senate. To the extent that they roll over and allow the President to expand his power, Senators are entering into a devil's bargain: acquiescing in the diminution of Senatorial power for immediate partisan ends that may come back to haunt them when a different President inhabits the White House.

Secondly, constitutional arguments are no more or less strategically employed than other kinds of arguments. People use such things as "framer's intent" when it suits them, but terms of constitutional interpretation are part of a dense network of analysis that is employed in a complex and shifting fashion.

All in all, with respect to the President, I think we're seeing a relatively pure case of Federalist #51's words:

Ambition must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place.

Here, the interest of the President is to expand Presidential power. Senate Republicans are acquiescing for immediate partisan advantage, and perhaps because they agree with this particular President, perhaps because they are convinced by the particular arguments advanced in each case. But the end result is a double expansion of Executive power (expansions that ironically rely on two mutually incompatible approaches to interpreting Article II, Section 2).

MORE: more on this, above.