The Unconstitutionality of Class-Based Statutory Limitations on Presidential Nominations: Can a Man Head the Women's Bureau at the Department of Labor?

Abstract

Can a man be the Director of the Women's Bureau at the Department of Labor? According to Congress, the answer is no. Congress has stated by statute that a woman must be the nominee to head the Women's Bureau at the Department of Labor. The key questions are: (1) even if it makes sense on policy grounds, is it constitutional? and (2) if we accept such a statutory limitation power what are the potential precedential consequences for other appointment matters? This Article's case study is particularly relevant today, examining just how far Congress can go to limit the discretion of Executive authority. This Article examines the statutory ability to, ex ante, limit the President's choice of nominees. It examines the role of the Senate and Congress in the pre-selection criteria for nominees of the President to fill Officer positions within the United States government. Can sex, race, sexual orientation, economic status, or whether a nominee is a member of a particular organization be statutorily mandated (or prohibited) to limit the discretion of Presidential nominations for any particular position for Officers of the United States?

Any such preferences can be taken into account as to whether the Senate will provide its advice and consent to any particular nomination, but it is unconstitutional to place such class-based preferences in statutory, pre-nomination mandates and restrictions. This Article argues that class preferences belong in the decision whether to provide advice and consent and not in pre-nomination statutory restrictions.

This Article uses one example, the pre-nomination, statutory limitation regarding the Women's Bureau at the Department of Labor, to demonstrate the illegitimacy of statutory limitations on the President's nomination power based on class preferences. The place for the invocation of preferences is in the post-nomination/advice and consent process - not in statutory mandates. This Article concludes that the Constitution precludes Congress from placing limitations on the presidential nomination power. Mandatory, statutory pre-nomination limitations are simply beyond the Senate's advice and consent power.

Keywords: Nominations, Constitutional Law, Labor Department, Federalist, Separation of Powers, AppointmentsClause, Congress, President

JEL Classification: H10, H11, H19