Bruhl, Aaron
Fri, 22 Jan 2010 05:22:17 -0800
I've long found this "continuing body" notion mysterious. It seems to boil down to the fact that only a third of the senators stand for election every two years (versus the House, where all members stand for election every cycle). But it seems to require a few more argumentative steps to get from that fact to the pretty powerful conclusion that the Senate could violate what are widely regarded as fundamental anti-entrenchment principles. A lengthy discussion of this continuing body argument is available here: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1427456 Aaron-Andrew P. Bruhl Assistant Professor University of Houston Law Center
________________________________ From: conlawprof-boun...@lists.ucla.edu on behalf of Howard Wasserman Sent: Thu 1/21/2010 5:58 PM To: Josh Chafetz; 'Richard Kay'; conlawprof@lists.ucla.edu; conlawprof-boun...@lists.ucla.edu Subject: RE: fillibuster Formally, Parliament is not binding its successors because the Senate is a continuing body, at least for purposes of its rules. Thus, I believe another way to eliminate the fillibuster could come at the start of the next Congress (January 2011). As I understand it, there would be need to be a ruling from the Parliamentarian that the Senate is not, in fact, a continuing body, and it must adopt the body's rules anew (rather than simply being bound by the rules of the prior Congress), which could be done by a simple majority and would not be fillibusterable. And those new rules could exclude any fillbuster or other super-majoritarian rules. This also has the benefit of not being an attempt to change the rules mid-game, as the nuclear option might be perceived. Howard M. Wasserman Associate Professor of Law FIU College of Law University Park, RDB 2065 Miami, Florida 33199 (305) 348-7482 (786) 417-2433 howard.wasser...@fiu.edu Faculty Page:http://law.fiu.edu/faculty/faculty_wasserman.htm http://ssrn.com/author_id=283130 ________________________________________ From: conlawprof-boun...@lists.ucla.edu [conlawprof-boun...@lists.ucla.edu] On Behalf Of Josh Chafetz [josh-chaf...@lawschool.cornell.edu] Sent: Thursday, January 21, 2010 4:18 PM To: 'Richard Kay'; conlawprof@lists.ucla.edu; conlawprof-boun...@lists.ucla.edu Subject: RE: fillibuster That, in fact, is the argument for the nuclear option. In simplest form, the argument is this: the Constitution creates a baseline of majority rule in each house. True, the Rules of Proceedings Clause allows each house to create certain supermajority rules, but those rules cannot impose a supermajority requirement all the way down - that is, at the end of the day, the majority must be able to amend the Rules. Thus (the argument goes), Rule 22(2)'s three-fifths requirement to pass legislation may not, itself, be unconstitutional, but the requirement of a supermajority (and an even higher one, at that) to amend the Rules is unconstitutional. The premise is, of course, highly contentious. A lot depends on whether the Constitution does, in fact, create a baseline of majority rule in each house. Yours, Josh ________________________________ From: conlawprof-boun...@lists.ucla.edu [mailto:conlawprof-boun...@lists.ucla.edu] On Behalf Of Richard Kay Sent: Thursday, January 21, 2010 4:13 PM To: conlawprof@lists.ucla.edu; conlawprof-boun...@lists.ucla.edu Subject: RE: fillibuster To ask the obvious question, can a majority repeal Rule 22? Or has the Senate disabled itself forever from altering the rules by less than a 2/3 vote? Has it done what it is (or used to be) said the Parliament couldn't do- bind it successors. That is- is the only way a majority can act in this regard by revolution? More prosaically, it does look like such a result would at least raise a serious constitutional question under Art. I, section 5. Rick Richard S.Kay Wallace Stevens Professor of Law University of Connecticut School of Law 65 Elizabeth St Hartford, CT 06105 USA Tel (860) 570-5262 Fax (860) 570-5242 From: Josh Chafetz <josh-chaf...@lawschool.cornell.edu> To: "'Curtis, Michael K.'" <curti...@wfu.edu>, "lso...@gmail.com" <lso...@gmail.com>, David Cruz <dc...@law.usc.edu> Cc: "conlawprof@lists.ucla.edu" <conlawprof@lists.ucla.edu> Date: 01/21/2010 03:52 PM Subject: RE: fillibuster Sent by: conlawprof-boun...@lists.ucla.edu ________________________________ Technically, Senate Rule 22(2) requires the consent of two-thirds of the Senators present and voting for cloture on a motion to amend the Rules. The so-called "nuclear option" is the possibility of the President of the Senate issuing a ruling that this requirement is unconstitutional, thus allowing a majority to amend the Rules, thus allowing a majority to do away with the three-fifths requirement for cloture on all other matters (a.k.a. the filibuster). I know of no court cases directly on point. Generally speaking, the courts are loathe to inquire into the rules of the houses of Congress. I discuss this issue a bit at pp. 57-59 of my book, Democracy's Privileged Few (Yale 2007). Cheers, Josh ---------------------------- Josh Chafetz Assistant Professor of Law Cornell Law School 208 Myron Taylor Hall Ithaca, NY 14853 607-255-1698 josh-chaf...@lawschool.cornell.edu > -----Original Message----- > From: conlawprof-boun...@lists.ucla.edu [mailto:conlawprof- > boun...@lists.ucla.edu] On Behalf Of Curtis, Michael K. > Sent: Thursday, January 21, 2010 3:25 PM > To: lso...@gmail.com; David Cruz > Cc: conlawprof@lists.ucla.edu > Subject: RE: fillibuster > > There seems to be a senate rule that requires 67 votes to change the > rules. Could a majority change this rule. Is there an old Court case on > the issue. Off lists replies are fine if this has already been covered. > > Michael Curtis >
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