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View Diary: The future of the filibuster (117 comments)

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  •  So, would you say that if this Senate (0+ / 0-)

    would decide to require unanimity on every vote, that would be constitutional? That they could in effect decide to shut down all legislation forever?

    Or worse, make a rule banning the bringing up of any legislation ever -- a perpetual filibuster -- which could not be overturned under any conditions?

    That's the reductio ad absurdum you're going with once you start this kind of entrenchment.

    •  To your questions (0+ / 0-)
      1. In theory yes, but of course that would never occur as it would eliminate any Senators voice from ever counting so no Senate would ever pass such a rule
      1. or until they vote to change the rules
      1. They could do that with a bare majority vote if they could sustain said vote.
      1. See #1


      Mitch Gore

      January 20, 2009... the end of an error.

      by Lestatdelc on Thu Jan 28, 2010 at 04:39:57 PM PST

      [ Parent ]

      •  Seriously? (0+ / 0-)

        You think that by a majority vote, the Senate could functionally dissolve itself forever? Not just until another majority decided to change the rule, but that they could -- in principle -- eliminate the body without constitutional amendment?

        •  In theory yes (0+ / 0-)

          Just as in theory, the people can vote in new Senators and once that body has enough members to change the rules it can then do so.

          And it would not be eliminating the body without amendment, which, ironically is the ace in the hole if your absurd theoretical situation ever came to pass would resolve it. The people hold ultimate veto power of such a stunt by the Senate first at the ballot box, and if necessary through Constitutional amendment, which they can initiate form the states without Congress if need be.


          Mitch Gore

          January 20, 2009... the end of an error.

          by Lestatdelc on Thu Jan 28, 2010 at 04:51:39 PM PST

          [ Parent ]

          •  To make sure I'm clear on your position, (0+ / 0-)

            You are saying that a Senate could pass a resolution that no bill could ever come before the Senate again -- and after the following election, the next Senate could not override it?

            The question, to be clear, is not that a Senate can make rules on itself -- but whether the Senate rules can act as permanent law.

            Then the question would continue -- if so, who is the enforcer? Since no body can enforce the rules of the Senate, if the majority decides to disregard the rules, who's to stop them? SCOTUS can't decide whether the Senate is abiding by it's own rules -- that would be a clear violation of the explicit separation of powers.

            It seems that there's no way to get around it -- the Senate rules are merely a gentlemen's agreement with no enforceability beyond the constitutional majority rule. It rests on an at least nominal support by a mere majority.

            •  There is no "next Senate" (0+ / 0-)

              It is the SAME Senate as it is a continuing body with only 1/3rd being up for election prior to the next Congress (unlike the House which is a new body each Congress).

              But that said, in answer to your absurd hypothetical, yes it could. And the states can of course in turn override that through State initiated Constitutional amendment to amend and/or bar such action. But of course your hypothetical is taken to the absurd which would never occur, but even then there is a way out Constitutionally Constitutional amendment.


              Mitch Gore

              January 20, 2009... the end of an error.

              by Lestatdelc on Thu Jan 28, 2010 at 05:12:20 PM PST

              [ Parent ]

              •  Wow, you're insanely formalist. (0+ / 0-)

                A lawyer, perchance? That kind of formal ideologism is almost never found outside that field -- but is almost universal within it.

                But still -- you didn't answer the question of substance. How could such a rule be enforce? The only enforcement mechanism is the will of the Senate, as embodied by majority rule. Majority rule is the only constitutional issue decidable by SCOTUS -- if you are completely formalist. In which case, the rules are reduced to mere sufferance of the majority. If that's the case, "continuing body" is just a fantastic fiction, like the legitimacy of the Merovingians in France.

                •  Not at all insanely formalist (0+ / 0-)

                  Nor am I a lawyer.

                  How could such a rule be enforce?

                  What rule?

                  You can't force the Senate to take up any bill or take a mandatory vote on any legislation or force it to ever end debate outside of its own rules.


                  Mitch Gore

                  January 20, 2009... the end of an error.

                  by Lestatdelc on Thu Jan 28, 2010 at 05:49:48 PM PST

                  [ Parent ]

                  •  Very simple. (1+ / 0-)
                    Recommended by:

                    The President of the Senate declares the end of debate and declares a vote on a bill. The bill is signed and passed on to the house.

                    BUT, the filibuster rules was never abrogated via the 2/3 requirement in the rules. Is there any way to appeal the majority vote in violations of the continuing rules?

                    No, as long as in fact a majority voted for the bill and a quorum was reached per the constitution, it is irrelevant that the Senate ignored it's own rules -- only the Senate can enforce it's rules.

                    Ergo -- all those hypothetical situations were absurd in the way I presented them. The rules are merely the sufferance of the majority. They have no enforcement mechanism other than the Senate majority. In actual fact, no Senate can bind future votes to anything else than the constitutional rules.

                    It's just that simple. There is no continuing or non-continuing Senate -- it's an empty turn. What there is, is whatever agreement the majority of the Senate decides on. If they wish to treat themselves as a "continuing body" they can -- or not -- because it's purely an internal fiction. The external power of the Senate is only the constitutional requirements.

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