If the U.S. Senate adopted rules allowing its female members to vote only on even-numbered days, or requiring male senators to stand on their heads when voting, constitutional law experts would rightfully race to the courthouse to file suits challenging it.
So why are some of those experts racing to their word processors now to write essays arguing that the Constitution gives the Senate authority to adopt any rules it chooses, and that those rules are immune from scrutiny in the courts?
Since Common Cause filed a lawsuit in federal court challenging the constitutionality of the Senate's filibuster rule, some commentators have labeled our litigation "dead on arrival." To justify their opinion, they cite Article I, Section 5 of the Constitution, which says that each house of Congress "may determine the Rules of its Proceedings." That language, they argue, gives senators license to adopt whatever rules they want, free from review by the courts.
We disagree of course. We're convinced that the Senate's power to adopt its own rules is limited to rules that do not conflict with the Constitution.
The Supreme Court ruled over 100 years ago, in United States v. Ballin, that the House and Senate lack authority to adopt rules that conflict with the Constitution. Specifically, the justices said that while "the Constitution empowers each house to determine its rules of proceedings, [i]t may not by its rules ignore constitutional restraints or violate fundamental rights."
In another case, as recently as 1983, the Court of Appeals for the District of Columbia stated that "if Congress should adopt internal procedures which 'ignore constitutional restraints or violate fundamental rights' it is clear we must provide remedial action."
We believe the filibuster rule does just that. Once rarely used to extend Senate debates, the filibuster now is routinely used to block debate. The Senate's current Republican minority has exposed the rule's fatal flaw: the filibuster tosses majority rule aside and imposes a supermajority requirement for Senate action. It gives control to just 41 of 100 senators, and when combined with another Senate rule it effectively blocks efforts to change the rules from one Congress to the next. It does that even though changes are expressly authorized by Article I, Section 5.
A moment's reflection will explain why the Senate cannot adopt a rule that violates other provisions of the Constitution. Suppose the Senate adopted a rule requiring 75 votes, 90 votes or even unanimity to pass a bill, defying the provisions in Art. 1 Section 7 that require only a simple majority vote to send legislation to the President. No one would say such a rule would be constitutional.
Other commentators claim that the Constitution's deference to the separation of powers puts any Senate rule out of the court's reach. They ignore the many cases in which the Constitution has granted a particular power to one or both houses of Congress and the Supreme Court has declared a particular exercise of the power unconstitutional.
The question of whether there are any limiting principles on the Senate's right to adopt a self-entrenched rule is a question of law. And, according to Marbury v. Madison, decided in 1803, it is "emphatically the province and duty of [the courts] to say what the law is."
Article I, Section 5 allows each House to judge the qualifications of its members, but it did not prevent the Supreme Court from overruling a 307-166 vote in the House and ordering that Rep. Adam Clayton Powell be seated as a member. The Court said it did not matter that a majority of his colleagues opposed seating Powell because they felt that his conduct brought disgrace on the House.
Sen. Tom Harkin, Chairman of the Senate HELP Committee, is a leader in restoring accountability to the Senate. Just last week, he told a national radio audience that the filibuster is "inherently unconstitutional." As opponents of filibuster reform have made clear, they disagree with Sen. Harkin. Ultimately however, it is the courts' responsibility to "say what the law is."
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The constitution continues in the next paragraph, "Each House may determine the Rules of its Proceedings." So if the "U.S. Senate adopted rules allowing its female members to vote only on even-numbered days, or requiring male senators to stand on their heads when voting" those rules would be constitutional. But I doubt those rules would be popular with constituents.
If you want to get rid of the filibuster stop wasting time with the Supreme Court and focus on the root of the problem, the Senate. Fifty-one senators can remove the filibuster.
http://reformourrepublic.org/2012/05/18/re-the-senate-filibuster-the-politics-of-obstruction/
Don't like it? Make a Constitutional Amendment. Good luck with that. Or *gasp* maybe the majority in the Senate should try compromise?
THE POWERS OF EACH BRANCH ARE LIMITED BY THE CONSTITUTION - IT IS CALLED CHECKS AND BALANCES
THE JUDICIAL BRANCH IS ONE OF THE CHECKS ON CONGRESSIONAL POWER MANDATED BY THE CONSTITUTION
READ MARBURY VS MADISON
DID YOU PLAY HOOKY THROUGH ALL OF YOUR HIGH SCHOOL GOVERNMENT CLASS??
i mean - OMG - how DENSE can a poerson BE????????????????/
The Judicial Branch cannot interfere with the business of the legislative branch unless it "ignores constitutional restraints or violate fundamental rights"
If the Judicial branch does interfere - then it is a breach of separation of powers - the Judicial branch would be violating the Constitution trying to interpret the Constitution -
Which is the limit of the Judicial branch's power.
And notice how their stance shifted after the disaster of the Bush nightmare.
The Republican Congress and administration were ANYTHING but gridlocked.
Conservatives are only for gridlock when the nation is considering liberal policies.
Conservatives when in power will legislate your womb, your bedroom, your hospital room, your doctors office, your schoolroom, your churches, your jobs and your votes.
The emperor has on no clothes.
Maybe the Conservatives AND the Liberals could compromise?
The fillibuster rule should return to what it used to be. You can fillibuster, but you have to stand on the floor and read the phone book (or Harry Potter, or War and Peace). No more "I declare a fillibuster" and then they all go home to dinner and NCIS on the idiot box.
"The Senate's current [...] minority has exposed the rule's fatal flaw: the filibuster tosses majority rule aside and imposes a supermajority requirement for Senate action." Said the Democrat when Republicans are in the minority, and said the Republican when the Democrats are in the minority. Of course, "fatal flaw" becomes "saving grace" when the positions are reversed. It reminds me of the question Bill Maher kept asking when the Democrats controlled the house and the Senate looked like it was going to block Obamacare: Do we even need a Senate? Strangely, I haven't heard him ask that question again lately.
Anyone who has ever been involved with any legislative body (school, church, civic, government, etc.) has probably operated under the ubiquitous Robert's Rules of Order. A motion to close off debate, or calling for the previous question, requires a two-thirds vote in the affirmative. Otherwise, debate will continue. Would the author similarly find all governmental bodies using Robert's Rules to be unconstitutional? 2/3rds is a much higher standard than the 6/10ths practiced in the US Senate.
The proper way to end the filibuster would be to change, by majority vote, the rule itself at the start of the session.