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Tuesday, May 15, 2012

They Keep Using That Word...

Volokh:

Yesterday Common Cause and several members of Congress filed suit to challenge the constitutionality of the filibuster. According to various reports, the suit is largely based upon the theory outliend in this article by litigator Emmet Bondurant, which maintains that the filibuster is a historical accident and violates the constitutional principle of majority rule. Where the Framers wanted a super-majority requirement for legislative action, they wrote such requirements into the Constitution. Further, Bondurant argues, the filibuster is entrenched in the Senate rules and must therefore be challenged in court.

Adler's right that this dog won't hunt, for lots of reasons.  The legal process stuff and issues of standing I leave to him.  Me, I'm just annoyed by another glib assessment of what "constitutional" means.

The most obvious retort that plenty of commentators have made is that each legislative chamber may determine the rules of its proceedings, per Article I, Section 5.  I don't see any reasonable argument that this is not a plenary power.

Bondurant does make a clever, if uncompelling, textual reading to bolster his case:

This foundational principle is reflected in many of the document’s provisions. For example, the Quorum Clause in the Constitution requires only the presence of a simple majority of senators before the Senate can “do Business.” Under the Presentment Clauses, only a majority of a quorum of the House or Senate is required to “pass” a bill or resolution prior to its presentment to the President.

Exceptions to the general principle of majority rule are expressly statedin the text of the Constitution. The exceptions were designed to address alimited number of unusual situations deemed by the Framers to be of such gravity and importance that they should not be left to the vote of a simplemajority, such as impeachment of a President, or expulsion of a member ofCongress.

Right out of the gate, his argument appears to undermine itself by noting that a majority of each chamber is not required to pass legislation at all.  If a majority of a quorum voted to pass a bill, it clearly would not be a majority of the members (51 Senators present, 26 vote Yea = a mere 26% of the chamber).

Further, Bondurant seems to think that explicit mention of supermajority for particular types of votes shows that majority rule is the default.  Then it makes me wonder why, if majoritarian principles were the rule proved by those exceptions, the Framers felt a need to even establish a quorum threshold at all.  Perhaps that's because some things they felt must be beyond the House's and Senate's prerogatives, and anything not particularly laid out were left to their discretion.

I look to a couple SCOTUS rulings for some guidance.  First I return to the Legal Tender Cases:

The power to suspend the privilege of that writ is not expressly given, nor can it be deduced from any one of the particularized grants of power. Yet it is provided that the privileges of the writ shall not be suspended except in certain defined contingencies. This is no express grant of power. It is a restriction. But it shows irresistibly that somewhere in the Constitution power to suspend the privilege of the writ was granted, either by some one or more of the specifications of power, or by them all combined. 

The reasoning essentially is that because there is an explicit limit on a power, we can deduce the power must exist.  Similarly, I read the requirement of two-thirds supermajorities for particular exercises of power to mean that otherwise Congress has free rein to determine how to vote on matters, be it a simple majority or requiring 100% affirmative votes to pass something.

Going back a few more decades, McCulloch v Maryland is instructive:

If the end be legitimate, and within the scope of the Constitution, all the means which are appropriate, which are plainly adapted to that end, and which are not prohibited, may constitutionally be employed to carry it into effect.

...

If a certain means to carry into effect of any of the powers expressly given by the Constitution to the Government of the Union be an appropriate measure, not prohibited by the Constitution, the degree of its necessity is a question of legislative discretion, not of judicial cognizance.

Supermajorities are clearly not prohibited, and in fact mandated when issues of grave importance are to be decided.  If one considers that a republican form of government is quite deliberately not a pure democracy to protect against mob rule, and debate is the lifeblood of legislative bodies, then the Senate certainly seems to be choosing appropriate means adapted to the end of fostering as much discussion as possible to allow minority preferences be given their due weight.  That would be especially apt for a chamber that is inherently non-democratic by the virtue of its violating "one person, one vote" through equal state suffrage.

So again, while there's nothing in the Constitution that explicitly says, "the Senate may have filibusters that require supermajorities to end," it also doesn't say majority rules, or non-majoritarian mechanisms are prohibited.  It does, however, give Congress the power to make up its rules with few restrictions.  You might not like how the GOP is abusing filibusters, but this suit is not the way to fix our Senate's systemic issues.

ntodd

Show a little "yuhyoohappy" during the NTodd Ain't Ann Romney Fundraiser *

May 15, 2012 in Constitution, Schmonstitution | Permalink

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Comments

Well argued, BUT...

if it's a bunch of Democrat senators that is engaged it total-filibuster-war against a Republican president, then Roberts/Alito/Scalia/etc. may very well find a basis for tossing the filibuster.

Just for the present circumstances, not as a precident, void under Democratic administrations, all that jazz.

Posted by: Snarki, child of Loki | May 16, 2012 11:53:24 AM

Justice Scalia delivered the opinion of the court:

It is clear that the political question doctrine does not apply here as the filibuster is being used not to carry Congress' express powers into effect, but to inhibit said powers contrary to the Constitution's mandate that the Legislative department pass, amend and repeal laws, which exercise is currently prevented by a minority faction.

Posted by: NTodd Pritsky | May 16, 2012 1:58:01 PM

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