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The Nuclear Option, the Law of the Senate and the Conscientious Senator

This is my final post (at least for this Congress, hopefully) on the filibuster and the entrenchment of Senate rules. For the first 9 entries in this series, see below:

Legal Scholar Letter to the Senate on Procedures for Changing the Rules

Professor Bruhl and Senate Continuity

Professor Chemerinsky and Senate Precedent on Changing the Rules

Senate Rules from the Internal Point of View

Entrenchment and the Academic “Consensus”

Entrenchment Reconsidered (Part I)

Entrenchment Reconsidered (Part II)

Professor Chafetz and the “Constitutionally Conscientious Senator”

Did the Senate Flub Its Cinderella Moment?

In this post, I will consider the so-called “nuclear option,” its legality or legitimacy under the law of the Senate, and how a “constitutionally conscientious Senator” should vote with respect to its exercise.

The “nuclear option” (also sometimes called the “constitutional option”) may be defined as the use of a parliamentary ruling to declare the Senate rules unconstitutional insofar as they require a supermajority to end debate on a proposed change to the rules. If such a ruling were upheld by a simple majority, it would no longer be possible for a minority of senators to block rules changes (depending on the scope of the ruling, either at the beginning of a Congress or at any time). This would effectively end the (allegedly) unconstitutional entrenchment of the Senate rules claimed by the signatories to the December 12 legal scholar letter.

As explained below, I believe that the “nuclear option” is most reasonably understood as illegal under the existing law of the Senate, in the sense that its use would require overruling a substantial body of Senate precedent. Furthermore, it is believed by most senators, including some that would be willing to invoke the nuclear option if need be, that its use would entail, at the very least, substantial institutional costs in terms of the stability and perceived legitimacy of the Senate’s legal system. At the most, the nuclear option would effectively destroy the Senate’s existing legal system and require the creation of a new system of rules and precedents more or less resembling the House’s majoritarian procedures.

The Senate has previously declined to exercise the nuclear option on a number of occasions, including in 2005 when the Republican majority considered using it to abolish the filibuster with respect to judicial nominations and, most recently, on January 24, 2013, when the Democratic majority considered using it to enact major reforms to the filibuster generally. The evidence from these episodes indicates that many senators, including the “swing senators” (majority senators who refused or were reluctant to support the use of the nuclear option), were concerned about both the legitimacy of the nuclear option under the law of the Senate and the practical effects that it would have on the Senate as an institution.

Rather than trying to convince senators that they misunderstand the Senate’s own traditions and precedents, or that they overstate the likely institutional consequences of the nuclear option, it seems to me that the scholars and academics who have opined on these issues would provide a more useful service to the Senate by proposing constitutional solutions that can reasonably be achieved under the Senate’s existing rules. At the conclusion of this post, I suggest one possible solution.

Continue reading “The Nuclear Option, the Law of the Senate and the Conscientious Senator”

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House Democrats Support BLAG’s Standing in DOMA Case

Probably the most important part of the Bipartisan Legal Advisory Group’s jurisdictional brief in U.S. v. Windsor (the Supreme Court case on the constitutionality of the Defense of Marriage Act) is the first footnote (page ii), which states:

The Bipartisan Legal Advisory Group articulates the institutional position of the House in all litigation matters in which it appears. The Group currently is comprised of the Honorable John A. Boehner, Speaker of the House, Eric Cantor, Majority Leader, the Honorable Kevin McCarthy, Majority Whip, the Honorable Nancy Pelosi, Democratic Leader, and the Honorable Steny H. Hoyer, Democratic Whip. While the Democratic Leader and Democratic Whip have declined to support the position taken by the Group on the merits of DOMA Section 3’s constitutionality in this and other cases, they support the Group’s Article III standing.

(emphasis added).

The fact that the House Democratic Leadership supports BLAG’s standing to defend the constitutionality of DOMA tells the Supreme Court, in no uncertain terms, how vital the House considers its right to defend the constitutionality of statutes where the executive branch refuses to do so.  If the Court is looking for an “easy out” from this case, this makes it harder. Although it is arguable that the House Democrats are only supporting BLAG’s “Article III standing,” as opposed to prudential standing requirements that the Court might decide to apply, it is even more noteworthy that they are supporting BLAG’s standing, not just the House’s. The House Democratic Leadership evidently agrees that BLAG was properly authorized to represent the House in this litigation, which is a key jurisdictional question.

Full disclosure: I am representing 10 Senators in this case on an amicus brief in support of DOMA’s constitutionality.

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Tillman’s Puzzles for Amar (or Who You Callin “Atextual”?)

In this article, Professor Seth Barrett Tillman has six puzzles for Professor Akhil Amar:

Puzzle 1. Does “Officer,” as used in the Succession Clause, Encompass Legislative Officers?

Puzzle 2. Does Impeachment Extend to Former “Officers”?

Puzzle 3. Who are the “Officers of the United States”?

Puzzle 4. Is the President an “Officer of the United States”?

Puzzle 5. Is the Presidency an “Office . . . under the United States”?

Puzzle 6. Is “Officer of the United States” Coextensive with “Office under the United States”?

Tillman explains the background as follows:

The Constitution of 1787 uses a variety of language in regard to “office” and “officer.”

It makes use of several variants on “office under the United States,” and it also uses “officer of the United States,” “office under the Authority of the United States,” and, sometimes, just “officer” without any modifying terminology. Why did the Framers make these stylistic choices (if a choice it was)?

(And what was the Constitution referring to in Article VI’s obscure “public trust under the United States” language?)

From time to time commentators have suggested answers. One such view was put forward in 1995 by Professors Akhil and Vikram Amar. They opined that each of these categories were indistinguishable: each category referred to Executive Branch and Judicial Branch officers, including the President (and, apparently, the Vice President).

I contest their atextual position.

If you are interested in the “officers” dispute, or if you just want to know where the bodies are buried … this paper is for you. “Six Puzzles for Professor Akhil Amar.” Sometimes the title says all you really need to know…

Over at the Originalism Blog, Professor Michael Ramsey says he may take stab at solving these puzzles. I hope he gets them right, or Gotham City is DOOMED!

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Noel Canning Timing

I hear through the grapevine that the Justice Department has decided not to seek en banc review of the Noel Canning decision, but instead will petition for cert on a non-expedited basis, meaning that the case would likely be heard by the Supreme Court next term.

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Recess Appointments Issue Could Reach SCOTUS Sooner than Expected

As explained by the Blog of the Legal Times, an emergency petition has been filed with Justice Ruth Bader Ginsburg raising the validity of the recess appointments to the NLRB. The petition was filed by Paul Clement on behalf of a company that is resisting an NLRB effort to require it to rehire striking nursing care workers in Connecticut. Clement argues that the recess appointments issue will inevitably reach the Supreme Court following the D.C. Circuit’s decision in the Noel Canning case so (I guess) the Court might as well go ahead and consider the issue now.

Justice Alito’s sister appears as counsel on the application which means, I assume, that he would have to recuse himself from the case.

Update: after Justice Ginsberg denied the application, Clement filed the application with Justice Scalia.

Update 2: That didn’t work either.

 

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Did the Senate Flub its Cinderella Moment?

On January 24, 2013, the Senate adopted certain rules changes that, according to published reports, will modestly restrict the use of the filibuster, but will not fundamentally alter the minority’s ability to block cloture on matters covered by Rule XXII. It accomplished these changes by adopting S. Res. 15, which provided a new standing order, and S. Res. 16, which amended the standing rules of the Senate. In addition, the Senate voted down S. Res. 5, offered by Senator Harkin, which would have made more extensive changes to the filibuster.

Professor Akhil Amar is very upset by these developments. According to Amar, “nothing has prevented the Democrats, legally speaking, from exercising their constitutional right (nicknamed the ‘nuclear option’) to insist, by a simple majority vote, that simple majorities should rule in the Senate.”

This strikes me as an oversimplification of Amar’s own position. As suggested in my last post, Amar’s position has not been that the Senate majority is entitled to insist on majority cloture as a pure act of will (or, as Professor Chafetz puts it, by the “application of brute force”). Rather he has argued that each senator has the “right and duty” to “adjudicate” whether “Rule 22 has in fact come to operate as an improper rule of decision rather than a proper rule of debate.”

The Senate may not have framed the legal issues in exactly the same way, but its debate over amending the rules certainly encompassed the questions of whether Rule XXII had been improperly used to block, rather than to facilitate, debate and whether the rules changes would better enable it to fulfill its intended purpose in the future. Professor Amar may not agree with how the Senate resolved these issues, but at least he should acknowledge that it grappled with them.

If Amar has a legitimate gripe, “legally speaking,” it is not with those who opposed the use of the “nuclear option.” Rather it is with the legal argument made by those who advocated the use of this option (which they prefer to call the “constitutional option”).

Senator Harkin, for example, asserted that “[e]ach new Congress—each time the Senate convenes after a new Congress forms—can by majority vote change its own rules.” (S254) This he contrasted with “attempting to change the rules in the middle of a Congress,” which he views as improper. See id. (“I mean, you can’t go changing rules every other week”); see also id. at S267 (Senator Udall) (“I don’t think that looking at our rules and amending them by a majority vote at the beginning of a Congress is dangerous”).

To bolster his legal position, Senator Harkin quoted from the December 12 letter (which, he took pains to note, was signed by “very prominent Republicans” Charles Fried and Michael McConnell). The December 12 letter endorses the distinction between changing the rules at the beginning of a new Congress and changing them at any other time, and Senator Harkin accurately quotes the letter in support of this proposition.

However, as we have seen, there is little constitutional merit in this proposition. Professor Amar agrees (though not for exactly the right reason). Two years ago he mocked the idea that “the Senate like Cinderella [has] the power to transform itself in only one limited moment, at the opening of a new Congress.” Amar found ridiculous the idea that there is something “magical” about “Day One” of a new Congress (a day which, he aptly noted, could be indefinitely extended by the Majority Leader in a “separate piece of magic”).

Continue reading “Did the Senate Flub its Cinderella Moment?”

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Professor Chafetz and the “Constitutionally Conscientious Senator”

Before considering the Senate’s action last week in amending its rules, I want to summarize one additional anti-entrenchment school of thought. We have already discussed the theory of the December 12 letter, which holds that a simple majority must be able to obtain a rules change at the beginning of a new Congress. An alternative theory advanced by Professors McGinnis and Rappaport is that a simple majority must be able to obtain a rules change at any time. As we have seen, there are significant problems with each of these alternatives, not the least of which is its inconsistency with Senate practice and precedent.

Professor Josh Chafetz, in an article entitled “The Unconstitutionality of the Filibuster,” suggests a third anti-entrenchment approach. Chafetz acknowledges that the Constitution does not require “immediate fulfillment of every wish of the legislative majority,” and he notes “all procedural rules delay the implementation of majority will to some extent, and all rulemaking has at least something of an entrenching effect.” However, he draws a distinction between “acceptable procedural rules” and “unacceptable permanent minority obstruction.”

Chafetz argues that the Senate’s “purported history” of unlimited debate cannot justify the current Senate rules because “the modern filibuster is not about debate.” Modern practice under Senate Rule XXII, he contends, is really a de facto requirement of 60 votes to pass any measure. In contrast, during the 19th century, although there were no formal limits on debate, it was rare for senators to use the privilege of unlimited debate as a means of blocking legislative measures and even in the 20th century, when the ability to filibuster became more formalized, it was generally used only for measures intensely opposed by the minority (particularly civil rights legislation) until the 1970s.

In Chafetz’s view, a “constitutionally conscientious Senator” would be justified in concluding that the current rules cross the line (which he acknowledges to be imprecise) between acceptable procedural rules and unacceptable minority obstruction. Professor Akhil Amar has expressed a similar view:

It is the right and duty of each senator to adjudicate for herself whether Rule 22 has in fact come to operate as an improper rule of decision rather than a proper rule of debate. And in adjudicating that question, the Senate, operating as a constitutional court of sorts, acts by majority rule, just as the Supreme Court itself does when adjudicating constitutional (and other) questions.

Akhil Amar, America’s Unwritten Constitution 368-69 (2012).

Chafetz likewise stresses that the Senate would be performing an adjudicatory function such as a court performs when it exercises the power of judicial review, as opposed to the “application of brute force” by the Senate majority to “displace legitimate rules.” As such, he argues that this function can be performed at any time and is not limited to the beginning of a new Congress.

Chafetz proposes the following constitutional principle to guide the Senate in determining the validity of a legislative rule: “a determined and focused legislative majority must be able to get its way in a reasonable amount of time.” This, he notes, is a “standard, not a rule.” Thus, “[a] constitutionally conscientious Senator would have to exercise her judgment in determining what the line should be between acceptable procedural rules and unacceptable permanent minority obstruction.”

I think Chafetz is quite right to focus on the judicial nature of the Senate’s function here and to approach the issue from the perspective of the “constitutionally conscientious Senator.” However, I believe that such as senator would be (rightfully) skeptical of the theory Chafetz advances.

Continue reading “Professor Chafetz and the “Constitutionally Conscientious Senator””

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How Might the Administration Respond to the Noel Canning Decision?

Professor Seth Barrett Tillman takes issue with point 5 (see update below)

Here are the options I can think of for the administration and/or Senate Democrats to respond to the D.C. Circuit’s invalidation of President Obama’s January 2012 recess appointments to the National Labor Relations Board. Three of the options involve seeking to reverse the decision and three involve strategies to get Senate confirmation so as to permanently fill the vacancies. Note that the latter doesn’t necessarily solve the problem of NLRB (and perhaps CFPB) actions being invalidated for the period during which the recess appointees served.

1. Seek rehearing en banc. This would seem like the most obvious first step, except for the fact that there are only 8 active judges on the D.C. Circuit, meaning that all five of the judges not on the panel would have to vote for taking it en banc (assuming that the three judges on the panel vote against it). This is not impossible, and it is also possible that Judge Griffith, who declined to join the majority opinion with respect to the issue of when vacancies “happen,” could vote for rehearing to narrow the scope of the opinion. But if rehearing were granted, the most likely outcome is that the administration would still lose, just on narrower grounds.

2. Seek Supreme Court review. I have to assume that the Department of Justice will eventually do this because it simply cannot permit the D.C. Circuit opinion to stand as written. It perhaps could have lived with a narrow decision that only found that the Senate was in session when it held pro forma sessions, but Judge Sentelle’s opinion would make virtually every recess appointment legally questionable. The only issue is whether DOJ feels that it has to seek Supreme Court review immediately, or whether it tries to get en banc rehearing first.

I think there is a very high likelihood that the Supreme Court will take up this case. Of course I have been wrong before.

3. Use the new Senate rules to get permanent appointees confirmed. The Senate made some changes to its filibuster rules this week that are supposed to streamline the confirmations process. At the end of the day, however, the rules still permit the minority to filibuster a nomination (to my understanding- I haven’t had a chance to study the new rules yet). So this seems like a long shot.

4. Use the nuclear option. The Senate Democratic majority could be so ticked off by the Noel Canning decision that it could decide to use the “nuclear option” to prevent filibusters on nominations. The currently fashionable theory is that the “nuclear option” can only be used at the beginning of a new Congress, and that window would seem to have closed with the Senate’s adoption of rules changes this week. But who is to say that the Senate won’t fall in love with a new theory?

5. Prorouge [Make that Prorogue] Congress. If the Senate wanted to go into “recess” (i.e., the kind of recess the D.C. Circuit would accept for purpose of making recess appointments), it could ask the House for an adjournment and, if it refused (which presumably it would), the President could exercise his power to “adjourn them to such Time as he shall think proper” under art. II, section 3, cl. 2. No president has ever exercised this power before and it is not clear whether the adjournment would actually end the session, but its still possible . . . .

6.  Pack the D.C. Circuit. There are three vacancies on the D.C. Circuit. Obama could make recess appointments to fill them and then the new judges could vote for rehearing en banc. That should set off a fine constitutional crisis.

 

Update -Professor Tillman emails the following comment

I have to disagree with point 5.

First, you misspelled prorogue!

Second, and more substantively, if the House refused to agree to an adjournment with a concomitant termination of the session and the start of a new session, in other words, if the House refused to create a recess, you suggest that the President could use his Article II power to “adjourn the[] [two Houses] to such Time as [the President] shall think proper.” But, I do not think this will work . . . . Presidential action here is just an adjournment order, not a proper recess. See Jefferson’s Manual Section 50. The President’s action will not terminate extant legislative business. So it does not create a recess per the Recess Appointments Clause. Moreover, even if it did create a recess, you are still stuck (in the case of NLRB and CFPB) with the fact that the vacancies will not have arisen during the newly manufactured recesses.

Still I think you are on to something vis-a-vis proroguing the Senate. There is some reason to believe that even if the Senate is in (legislative or executive) session, the President still has an independent power to convene the Senate. This is a different power from the Article II to which you referred. The Constitution states: The President “may, on extraordinary Occasions, convene both Houses, or either of them.” Jefferson took the position that a session convened by presidential proclamation terminates the old session and starts a new one. See Jefferson’s Manual Section 51. See generally Ashley v. Keith Oil Co., 7 F.R.D. 589, 591–92 (D. Mass. 1947) (Wyzanski, J.). And, of course, you could always read my papers on congressional continuity in different contexts: Seth Barrett Tillman, Noncontemporaneous Lawmaking: Can the 110th Senate Enact a Bill Passed by the 109th House?, 16 Cornell J.L. & Pub. Pol’y 331 (2007), http://papers.ssrn.com/sol3/papers.cfm?abstract_id=505822; Aaron-Andrew P. Bruhl, Response, Against Mix-and-Match Lawmaking, 16 Cornell J.L. & Pub. Pol’y 349 (2007), http://papers.ssrn.com/sol3/papers.cfm?abstract_id=932574; Seth Barrett Tillman, Defending the (Not So) Indefensible: A Reply to Professor Aaron-Andrew P. Bruhl, 16 Cornell J.L. & Pub. Pol’y 363 (2007), http://papers.ssrn.com/sol3/papers.cfm?abstract_id=956155.

Best,

Seth

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D.C. Circuit to Wirt and Daugherty: Drop Dead

Your humble blogger is pretty much speechless after the D.C. Circuit’s sweeping decision today in the Noel Canning recess appointments case. In light of the oral argument, it is not all that surprising that the panel held that the Recess Appointments Clause only permits inter-session recess appointments. But I am pretty stunned (although admittedly this was foreshadowed in the oral argument as well) that it also held that the Clause only permits recess appointments for vacancies that actually occur during a recess. Why it chose to reach the latter issue (when, as Judge Griffith points out in his partial concurrence, it did not need to) is a matter of speculation. Here’s mine: to guarantee that the Supreme Court will hear the case.

Further analysis of the decision will have to wait awhile. But for the moment let me point the following passage from Judge Sentelle’s opinion:

The Clause sets a time limit on recess appointments by providing that those commissions shall expire “at the End of their [the Senate’s] next Session.” Again, the Framers have created a dichotomy. The appointment may be made in “the Recess,” but it ends at the end of the next “Session.” The natural interpretation of the Clause is that the Constitution is noting a difference between “the Recess” and the “Session.” Either the Senate is in session, or it is in the recess.

 (emphasis added). For reasons I have previously stated at interminable length, this is clearly correct.

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Entrenchment Reconsidered (Part II)

This brings us to the second pillar of the anti-entrenchment position, which might be called the “quasi-constitutive” argument. Professors McGinnis and Rappaport, who pioneered this argument, explain:

If a legislature could pass a measure that would prevent a successor from taking action, then that measure would function as a constitutional restraint on the future legislature. For example, if the Senate passed a rule prohibiting tax increases, that would function exactly as if it were a constitutional prohibition on tax increases. . . . Because the Constitution permits amendments only under the procedures in Article V and not simply through legislative enactments, the legislature does not have the power to bind itself in the future.

J. McGinnis & M. Rappaport, The Constitutionality of Legislative Supermajority Requirements: A Defense, 105 Yale L. J. 483, 505-06 (1995).

The McGinnis/Rappaport argument can be somewhat hard to understand because, as the title of their article indicates, they defend the authority of a legislative body to adopt rules that prevent a simple majority from exercising legislative power that it would otherwise have under the Constitution. This is acceptable, they maintain, so long as the majority retains the ultimate power to amend or waive the rules.

So, if I understand their argument correctly, it actually would be permissible for the Senate to adopt a rule prohibiting any tax increases, notwithstanding the language quoted above. The constitutional infirmity would exist if the Senate prohibited repeal of this rule (or required a supermajority to repeal it). So long as the majority has the ability to waive or amend the rule, however, McGinnis and Rappaport see no constitutional violation.

Still, it is an open question what this actually means. For example, suppose a measure to raise taxes is introduced in the Senate and a point of order is raised that the measure violates the (hypothetical) Senate rule. According to McGinnis and Rappaport, the point of order could not be overcome by the argument that the rule is unconstitutional. But it seems that supporters of the measure could argue that (1) they are entitled to a vote on whether or not to waive the rule and (2) in the absence of such a vote, the rule is unconstitutionally entrenched. If this is true, it is not clear why McGinnis and Rappaport would so vigorously defend the constitutionality of supermajority rules because it would seem that such rules would be largely meaningless.

Fortunately, McGinnis and Rappaport appear to recognize this problem in their 1995 article. They explicitly distinguish rules that prohibit a majority from changing or waiving an existing rule, on the one hand, and rules that prevent the majority from obtaining a final vote on changing or waiving the rule, on the other. The Senate rule allowing filibusters of proposed rule changes, they make clear, falls into the latter category:

If the Senate voted on whether to change the cloture rule, only a simple majority would be needed to change it. It is true that an attempt to change the cloture rule might be filibustered, but that is another matter. The historical and structural argument presented above does not demonstrate that a majority must at all times be able to obtain a vote on all measures that it desires.

105 Yale L. J. at 507 (emphasis added).

Continue reading “Entrenchment Reconsidered (Part II)”