On the eve of the Republican National Convention, President Obama published a piece in the Wall Street Journal lamenting “congressional inaction” on the nomination of Judge Merrick Garland to the Supreme Court. We have heard that term before, of course. Obama has often used congressional inaction on some issue (health care and immigration, most notably) to justify executive action: “We can’t wait for Congress to do its job,” he has said, “so where they won’t act, I will.”
But there is no “executive action” Obama can take to overcome “congressional inaction” on Garland’s nomination—the Senate’s refusal to take up the nomination and hold a hearing and have an up-or-down vote until after Election Day. The reason Obama has no such executive action available to him is the Constitution, which prescribes the appointment process for judges (and executive officers).
