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Abolish the Filibuster? Maybe We Should

Abolish the Filibuster? Maybe We Should

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Should freedom advocates support the U.S. Senate’s “filibuster” rule? The traditional answer has been “yes.” But we might want to take another look.

The Senate’s filibuster system allows individual Senators to block legislative action by making long speeches (i.e., “filibuster”) on the floor. When several Senators take turns speaking, they can block legislative action indefinitely.

The Senate adopted the filibuster system in 1806. The system derives from optional Senate rule, not from the Constitution. In 1917 the Senate adopted Rule 22, which allowed a two-thirds majority to force an end to a filibuster (“cloture”). In 1975, the Senate reduced the required cloture margin to 60 percent.

Advocates of limited government tend to favor super-majority requirements because—in theory anyway—(1) they stall government action and (2) they assure that when government does act, its measures benefit a very broad segment of the public.

In recent years, however, some researchers have questioned the benefits of super-majorities in legislative chambers with significantly more than 50 members. Apparently a rule that works well in a smaller chamber may prove counterproductive in a larger one.

Whether or not this generalization is correct, experience does show that the filibuster has not restrained the growth of the federal government. Instead it has helped create a one-way ratchet whereby the federal government sometimes expands, sometimes remains constant, but never shrinks.

One reason appears to be a large, highly organized and permanent pro-government element in national politics. This element includes the media, the education establishment, the bureaucracy, and certain powerful lobbying groups such as the AARP. These groups amplify the effect of liberal electoral victories while diluting the effect of conservative victories. (Think of how they have molded public perceptions of so-called “government shutdowns”). As a result, in the U.S. Senate liberal majorities sometimes become super-majorities, while conservative majorities almost never do.

Another reason the filibuster has acted as a one-way ratchet may be the different levels of respect for rules displayed by liberals and conservatives. When conservatives are in majority, they usually respect the prerogative of the liberal minority to filibuster against proposals to reduce the size of government. Liberals tend to grant less respect to conservative filibusters.

As a result, “filibuster politics” usually ends well for the Left. Here are some historical examples:

* In 1917, the Democratic Senate adopted Rule 22 at the request of President Woodrow Wilson to allow cloture for the first time—by a two thirds majority.

* In 1965, Senate Democrats enjoyed a 67-32 majority, which enabled them to override any filibuster possibility and enact Medicare and Medicaid—thereby rendering the federal government the dominant player in American health care.

* In 1975 a liberal Senate reduced the cloture margin to 60. Note that when Senate conservatives recovered their majority, they did not reverse this action.

* In 2007, a liberal Senate used a technique called “reconciliation” to override a filibuster threat and pass the College Affordability and Accountability Act. That measure assured greater federal control of higher education.

* In 2010, a liberal Senate did the same to adopt Obamacare.

* In Nov. 2013 a liberal Senate adopted the so-called “nuclear option” to abolish filibusters on judicial nominees. But they carefully excepted the Supreme Court from the change, so liberals still could filibuster against appointment of more originalist justices such as Clarence Thomas and Antonin Scalia. This change was not reversed when the Republicans took control of the Senate in 2015.

Note how the filibuster rule was swept aside when it stood athwart a liberal majority’s wish to expand government. I was able to find no instances in which a Senate majority lifted the filibuster to reduce the size of government.

In some countries, the size of government has been reduced significantly in recent years. Illustrations include Margaret Thatcher’s Britain and Roger Douglas’ New Zealand. However, the parliamentary majorities accomplishing this were never super-majorities. Had the filibuster rule been in effect in those countries, both would still be languishing in socialist stagnation.

The Most Radical Decision Ever?

The Most Radical Decision Ever?

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This article first appeared in The American Thinker.

A complete commentary on the same sex marriage case would take far more than a single short article. Accordingly, I offer only some discrete thoughts:

* A big expansion of federal power. Many libertarians believe the courts should use the Fourteenth Amendment to protect rights unenumerated in the Constitution, and some urged the Court to declare that civil marriage was among those rights. They need to be careful what they ask for. What they have just “won” is a major expansion of federal power.

The case removes limitations on Substantive Due Process, the principal way judges create “rights” unmentioned by the Constitution. Removal of those limits augments the authority of the federal courts. But it also widens the power of Congress. Whenever the courts create a new right under the Fourteenth Amendment, Section 5 of that amendment operates to give Congress “power to enforce [it], by appropriate legislation.” As a result of this case, Congress now enjoys substantial authority over civil marriage, a realm previously considered to be almost wholly reserved to the states.

* The Court’s principal flaw in logic. This is my summary of the essence of the holding:

We recognize marriage as a fundamental constitutional right because it is so important to personal fulfillment, so long-honored, and creates such good social results. Hence, we now require states to loosen the prerequisites for marriage.

The flaw in this assertion is assuming that the “marriage” that has been such as successful institution is the same thing as “marriage” under the Court’s re-definition. An institution whose essence is a relationship between people of the opposite sex is not the same thing as an institution without that characteristic. We do not know what the long-term results of the latter might be.

* The radical result. I could be persuaded to the contrary, but the case has me thinking it may be the most radical in Supreme Court history. An obvious reason is the result: The Court constitutionalized a pop-definition that didn’t exist 20 years ago. Speaking jurisprudentially (although not morally), this was a much greater departure than such widely-criticized Substantive Due Process cases as Dred Scott, Lochner v. New York, or Roe v. Wade.

* The radical methodology. (1) The Court did not, as is customary, rest its holding on the most narrow grounds supporting the result, but on the widest possible grounds—i.e., Substantive Due Process rather than Equal Protection or Full Faith and Credit. (2) The Court announced explicitly that even the prior flaccid limits on Substantive Due Process no longer applied. (3) The Court’s own precedents required that after a judge finds a right “legitimate” or “important” or (as here) “fundamental,” the judge next must consider the weight of the government’s justification for limiting the right. But the Court didn’t even purport to do the latter. In other words, the Court granted same sex marriage a status above enumerated fundamental rights (such as free speech) and other unenumerated rights (such as privacy or abortion).

* Yet, constitutionally speaking, civil marriage is not a “right” at all, much less a fundamental one. As Justice Thomas pointed out in dissent, civil marriage is what the Founders called a “privilege”—a government-created entitlement. Same sex couples have the right to cohabit without being molested by the state, to contract with each other, and to take religious vows. Neither they nor anyone else has the “right” to the government-created entitlement called civil marriage.

Civil marriage does not create the right to cohabit. It is principally a vehicle for distribution of certain special benefits. The first-named plaintiff could have married his long-term partner any time after Massachusetts recognized same-sex marriage in 2003, but he did so only after his partner was critically ill and inheritance became an issue. The Court’s description of the facts strongly suggests that as to that plaintiff at least, the case was as much about entitlement as about love.

* Are you religious? Be afraid. The Court’s opinion shows the justices know their holding has grave implications for the free exercise of religion, but the paragraph in the opinion that purports to reassure does not. Pointedly, it mentions only the freedom to dissent and debate on matters of religion and morality, not the freedom to act on one views. In the wake of this decision, family businesses, non-profits and perhaps even religious congregations will be sued under state and federal civil rights laws. This opinion implies the Court will do nothing to relieve them.

* Hypocrisy. Some of same voices that urged “restraint” in considering Obamacare because it was (just barely) adopted pursuant to the democratic process, urged the Court to sweep away scores of democratically-adopted laws that reflect long popular understanding. Consider the disparate approaches by editors of Time Magazine, for example—for restraint in the Obamacare case, but against restraint in this one.

* Constitutional corruption. As Justice Alito pointed out in dissent, this holding exemplifies how corrupted constitutional interpretation has become. Justice Alito did not mention, but probably would agree, that the nation’s law schools are largely to blame. Lawmakers and alumni: Take note next time universities with law schools ask for money.

* “Same ole same ole” won’t cure the problem. Justice Alito also noted the futility of past efforts to address this corruption. That’s one reason we need a convention to propose amendments under Article V of the Constitution. Those who have been arguing that traditional methods of response are sufficient have been thumpingly proven wrong.

New Origination Clause Article Now Published

New Origination Clause Article Now Published

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The Harvard Journal of Law and Public Policy has now published my article on the Origination Clause. That’s the article documenting the research that found—contrary to all expectations—that the taxes in Obamacare were validly adopted.

But it also found that the regulations and appropriations in Obamacare were invalidly adopted.

You can read a summary of my findings here, and new evidence to support them (which just barely made it into the article) here.

You can find the article itself here.

Obamacare's Constitutionality and the Origination Clause: New Evidence

Obamacare's Constitutionality and the Origination Clause: New Evidence

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Rob at James Madison's home in Virginia
Rob at James Madison's home in Virginia

This article originally appeared at the American Thinker.

One of the constitutional disputes triggered by the Affordable Care Act, Obamacare, is whether by substituting new material for the original House-passed bill (H.R. 3590), the Senate exceeded its constitutional power to amend the original measure. This, in turn, has provoked a debate over whether the Founders considered complete substitutes to be valid amendments.

A recently-republished piece of evidence suggests that they did.

The Constitution’s Origination Clause requires that “All Bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur with Amendments as on other Bills.” Because the final version of Obamacare imposed a variety of taxes, it unquestionably was a “Bill for raising Revenue.”

Obamacare’s taxes, appropriations, and health-care regulations did not exist in the House-passed version of H.R. 3590. That incarnation of the bill was only a few pages long and was limited to making minor adjustments to the Internal Revenue Code irrelevant to health care. Under the guise of amendment, the Senate gutted the original language and substituted over 2000 pages of Obamacare.

Some writers argue that complete substitutions were not considered valid amendments during the Founding Era, while others contend that they were. Last year, I undertook a wide-ranging investigation into the subject that will be published within the next few weeks by the Harvard Journal of Law and Public Policy. The article is summarized at length here.

I found that complete substitutions may have been unknown in the British Parliament, one source of the Constitution’s House-origination rule. I also found, however, that they were occasionally used in several states between Independence and the time the Constitution was ratified, and that they were considered valid amendments in those states.

This year, the Wisconsin Historical Society issued two new volumes of the magisterial Documentary History of the Ratification of the Constitution. Those volumes cover the debate over the Constitution waged in Maryland from 1787 through the end of 1788.

The first of the volumes reprints a pamphlet written in favor of the Constitution by “Aristides,” the pen name of jurist Alexander Contee Hanson. Hanson was a respected figure in Maryland, and his pamphlet was read widely both in that state and in Virginia. At one point he addressed the question of whether the Constitutional Convention exceeded its authority on the (substantially false) assumption that the delegates’ commissions had been limited to proposing amendments to the Articles of Confederation. Hanson argued that proposing a substitute was a recognized form of “amendment:”

Amendment, in parliamentary language, means either addition, or diminution, or striking out the whole, and substituting something in its room.

Hanson’s assertion is particularly relevant to the Constitution’s original meaning because his own state legislature is not among those offering contemporaneous evidence of complete substitutions. Hanson was reflecting, in other words, an understanding that extended beyond his own state’s boundaries.

Unfortunately for advocates of Obamacare, the validity of complete substitutions as “Amendments” does not resolve the issue of constitutionality. During the Founding Era, even complete substitutes had to be connected to the subject matter of the original bill—or, in modern language, “germane” to the original. Otherwise, they were new bills, not valid amendments.

For reasons documented in my article, H.R. 3590 as passed by the House qualified constitutionally as a “bill for raising Revenue” (even though it was revenue-neutral) because it amended the tax code. Under Founding-Era rules all the Senate’s revenue changes were germane to the original, and therefore valid. However, the Senate-added appropriations and regulations were not germane to the subject of revenue. By including them, the Senate exceeded its authority to amend a “bill for raising Revenue. This means that by the Founders understanding of the Origination Clause, those additions were unconstitutional and void.

King v. Burwell: The Latest Obamacare Mess at the Supreme Court

King v. Burwell: The Latest Obamacare Mess at the Supreme Court

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A true environmentalist

When I first heard about King v. Burwell, the latest Obamacare controversy before the U.S. Supreme Court, I assumed it was the kind of case in which the legislative intent was clear, but for one reason or another the wording of the statute did not match the legislative intent.

That would have been an interesting case, because it would have given the Court a chance to struggle with age-old “intent vs. text” questions.

It turns out, though, that the legislative intent is unclear—if there was any unified intent at all. And the statute is at least as messy as the evidence of intent.

First as the intent: Whether Congress intended for tax credits to go to citizens of states that had not adopted state insurance exchanges depends on whom you ask. The government now says “yes,” but Obamacare architect Jonathan Gruber was captured in two separate YouTube videos saying “no.” In those videos, he claims that tax credits were to be limited to states that set up their own exchanges as a way of inducing states to cooperate (no exchange, no tax credits). Some in the media assert that a decision for the plaintiffs (limiting credits to insurance purchased on state-created exchanges) would create “chaos”—but if Gruber is right, then that was exactly what Congress wanted.

Now for the text: Reading the record in this case give you some idea of how poorly drafted the Obamacare law is. Section 1311(b)(1) of the statute requires the states to establish exchanges. A provision just a few sections later (1321(b)) tells states they may elect to establish exchanges, and another (1321(c)) provides for federally-created substitutes.

Still another section says that tax credits are available for insurance purchased on “exchanges.” In at least two provisions, the statute inserts cross references that make it crystal clear it means state-created exchanges—not the federally-created substitutes.

But still other provisions seem to assume that state-created exchanges, and therefore the tax credits, will exist in all states. But for this to be so, then the statute’s drafters had to assume that the first section (mentioned above) ordering the states to set up such exchanges was valid. Problem is, that section is clearly unconstitutional: The Supreme Court has ruled several times that the federal government may not simply order a state to adopt a law or perform a task. Whoever wrote that section had never studied elementary constitutional law, or perhaps didn’t care.

There’s another wrinkle: The way the case got to the Supreme Court is that the plaintiffs challenged an IRS interpretation of the statute. Specifically, the IRS read the law as requiring tax credits in all states. Now, as a rule of thumb (under the Court’s Chevron holding), the Court defers to any reasonable executive-branch interpretation of an ambiguous statute. But the traditional legislative grace canon holds that the Chevron rule doesn’t apply in tax-credit cases, because taxation is so central to the legislative (as opposed to the executive) power.

One argument for tax credits in all states, possibly originated by Justice Kennedy, acknowledges that the law’s mandate on states to create exchanges is unconstitutional. It also assumes that interpreting the statute to provide for credits only in states that establish their own exchanges would be unconstitutional as excessive federal “coercion.” This argument therefore concludes that the statute must be construed to provide for tax credits in all states.

There are two problems with this argument. First, if severe financial consequences for state non-cooperation constitute “coercion,” then certain other federal welfare programs, particularly Medicaid, are unconstitutional. It is unlikely that anyone who would advance this argument would really support that result. Second, by universalizing the tax credits, this argument rewards an overreaching federal government by authorizing it to spend even more money and thereby control even more lives than otherwise. It is an elementary legal principle that no one should be rewarded for his own wrong.

When faced with incurable problems in a statute, judges’ time-honored solution is to kick the issue back to the political branches for a solution. (The courts often follow a similar approach in the common law—that is, ruling in a way that forces the parties to negotiate their way out of the problem.)

Deciding the case for the plaintiffs (denying tax credits in states that do not adopt exchanges) will create either (1) a mess intended by Congress or (2) a mess not intended by Congress. Either way, the public anger generated by loss of tax credits will force Congress and the President to work together to clear matters up.

That’s exactly what the Supreme Court should do.