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View Diary: Common Cause, Members of Congress sue to end filibuster (74 comments)

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  •  Sure there's a justiciable question. (0+ / 0-)

    The U.S. Supreme Court held that Congress couldn't delegate its powers to the President when it struck down the line item veto.  Why should the Senate be able to require a super majority to pass legislation when the Constitution clearly states that it only takes a majority to pass legislation in the Senate.

    If the filibuster rule hadn't become a de facto super majority requirement and was instead merely used to extend debate (but ultimately allow an up or down vote), then I would tend to agree with you regarding its Constitutionality.  But now that it has clearly become a de facto super majority requirement fundamentally altering the balance of power set forth in the Constitution between the two chambers of Congress it is clearly unconstitutional.

    We have nothing to fear but fear itself

    by bhouston79 on Thu May 17, 2012 at 05:56:50 PM PDT

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    •  i don't think that's analogous. (0+ / 0-)

      the senate is delegating powers to itself.  One point of confusion is that while the senators mostly understand the cloture vote to be the real vote on the bill, but literally, only a majority is required to pass the bill once it comes to the vote.  The court wouldn't be called upon to resolve a contradiction between the housekeeping clause and the tie-breaking clause.  Anyway, your standard creates a huge line-drawing problem.  At what point does a de facto anything come into being?  A senate exercising its judgment to end or limit or preserve the filibuster can draw that line wherever it wants, but I think as far as the judiciary is concerned, it's either always constitutional or never constitutional.  When it was used, it always had that implied supermajority effect, it just used to be rarer.

      The study of law was certainly a strange discipline. -- Yukio Mishima

      by Loge on Thu May 17, 2012 at 06:03:43 PM PDT

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