Can textualism kill the filibuster?

Common Cause, along with some members of the House of Representatives and three children of illegal immigrants, is suing the Senate.  Specifically, the suit challenges a 2010 vote on the Dream Act.  The Dream Act would have provided citizenship to children of illegal immigrants after they complete college or military service.  A filibuster in the Senate prevented promulgation.  The suit, filed in the District Court for D.C. alleges that the filibuster itself violates “principle of majority rule.” (Common Cause et al v. Joseph R. Biden, et al)

To support their claim, the plaintiffs use textualism and intent.  When more than a majority was necessary for legislative action, the constitution was specific (i.e. 2/3rd of the Senate to ratify a treat.)  In all other cases, the majority principle was understood to hold.  The filibuster, however, “gives a dissident minority in one house (i.e., the Senate), a veto power”; thus this rule “even more anti-democratic than the one house veto statute that was held unconstitutional in INS v. Chadha, 462 US 919 (1983).” (pp 6)[1]   The filibuster bars debate and vote.  Additionally, the filibuster is an obstacle to altering the filibuster rule.  Any attempt to adapt or reconsider the filibuster, the plaintiffs note, is subject to a filibuster.  As such, the filibuster is halting the democratic process.  The members of the House are claiming that the filibuster invalidates their votes and without noting

Perhaps the plaintiffs hope that by citing two instances when the Court waded in on issues of congressional procedure, they may overcome the very large hurdle of the political question doctrine.  However, it is more likely that Nixon v. US, 506 US 224 (1993) is a more appropriate precedent.  While it is clear to most observers that the filibuster is wielded quite often and undermining the legislative process, (i.e., long term judicial and executive vacancies or stalled legislation that has the support of a majority of both houses of Congress,) the internal operation and rules of the Senate are generally considered outside of the judiciary’s purview.  Recall, in Nixon an impeached federal judge challenged Senate procedures used for his trial.  The Senate chose to seat a committee for the trial rather than try the judge before entire body.  Reading the constitution literally, Judge Nixon claimed that the Senate as a body must try him.  The justices disagreed and noted that the Senate, and only the Senate, has power to determine the procedures used.

This reasoning, it seems, would travel very easily to the case before the District Court of DC and likely the suit will not get very far.  But, if by some strange happenstance the case comes before the justices, then Judge Nixon’s case will likely be bumped out of its place in textbooks and replaced with this more contemporary example of a political question.  If the case is dismissed the argument is still a useful example of taking a legal approach to its logical end.


[1] The plaintiffs also note that the filibuster is “more pernicious than the line-item veto statute…” (Clinton v. City of New York 524 US 417 (1998) (pp 7)

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1 Comment

Filed under The Judiciary, Understanding the U.S. Supreme Court

One response to “Can textualism kill the filibuster?

  1. I argue in my essay that if the U.S. Senate is to represent govenments, then there is a basis for needing a supermajority, for otherwise we would have federal encroachment on the states. But this has already happened, and the senators are elected rather than the state leaders themselves or their delegates, in which case as the Senate is presently situated the filibuster should be eliminated rather than merely made slightly more difficult. See http://www.thewordenreport.blogspot.com/2012/11/the-us-senates-filibuster-minoritys-bomb.html at the Worden Report.

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