Law professors: the filibuster is unconstitutional, and Kamala Harris can issue a ruling.

[pnwmom]

https://www.yahoo.com/entertainment/op-ed-filibuster-unconstitutional-heres-101532325.html

There is a clear next step in changing the Senate filibuster: Vice President Kamala Harris, as presiding officer of the Senate, can — and should — declare the current Senate filibuster rule unconstitutional. This would open the door for discussions on a new rule that would respect the minority without giving it an unconstitutional veto.

In 1957, Vice President Richard Nixon, sitting as presiding officer of the Senate, issued two advisory opinions holding that a crucial provision of the Senate’s filibuster rule — requiring two-thirds vote to amend it — was unconstitutional. Nixon’s constitutional determination was reaffirmed by subsequent vice presidents Hubert Humphrey and Nelson Rockefeller. In fact, it was this ruling that allowed both the Democratic-controlled Senate in 2013 and the Republican-controlled Senate in 2017 by a simple majority vote to eliminate filibusters for all executive and judicial nominees.

Harris possesses the same power to rule that the current version of the Senate filibuster, which essentially establishes a 60-vote supermajority rule to enact legislation in the Senate, is unconstitutional because it denies states “equal Suffrage in the Senate” in violation of Article V of the Constitution.

[Nevilledog]

1. Interesting

[awesomerwb1]

2. Good luck with that

[PortTack]

3. Oh I think they will go for it! Otherwise, there will be nothing done. Turtle has already made

That abundantly clear

[SergeStorms]

16. Have you forgotten about..

Manchin and Sinema? Democrats have their own little filibuster right within their ranks.

[quakerboy]

21. You make the assumption that the majority isnt comfortable with getting nothing done

and playing the blame game or just hoping it all is forgotten by the next time they have to personally get re-elected.

[bluestarone]

4. Interesting thought here

BUT i'm sure the Senate voted on this and approved it?

[2naSalit]

5. Interesting.

[PoliticAverse]

6. The filibusters for nominees was eliminated by the nuclear option...

Last edited Mon Mar 22, 2021, 09:43 PM - Edit history (1)

( https://en.wikipedia.org/wiki/Nuclear_option )This procedure uses Rule XX to allow the Senate to decide any issue by simple majority vote

Mr. REID. I raise a point of order that the vote on cloture under rule XXII for all nominations other than for the Supreme Court of the United States is by majority vote.
The PRESIDENT pro tempore. Under the rules, the point of order is not sustained.
Mr. REID. I appeal the ruling of the Chair and ask for the yeas and nays.
(48–52 vote on upholding ruling of the chair)
The PRESIDENT pro tempore. The decision of the Chair is not sustained.
The PRESIDENT pro tempore. *** Under the precedent set by the Senate today, November 21, 2013, the threshold for cloture on nominations, not including those to the Supreme Court of the United States, is now a majority. That is the ruling of the Chair.

[roamer65]

7. The Senate has to be neutered for the sake of the republic.

As the population shifts to urban areas and certain states, it is undemocratic to allow continued over representation by small states.

The filibuster must GO.

[ancianita]

11. Neutered for the sake of dark money donors.

That trumpcult is racist and power hungry only works to donors' advantage.

[hunter]

27. Just as the House of Lords was neutered in the United Kingdom.

The Senate is an anachronism.

[roamer65]

29. Exactly.

[FBaggins]

8. Not this nonsense again

No... the VP/presiding officer possesses no such power - and no, that wasn’t really what happened with the “nuclear option”.

Not without 51 votes behind her.


This is embarrassingly similar to Trump expecting Pence to reject some states’ EVs

[pnwmom]

9. These law professors provided their reasoning for what you call "nonsense."

What in particular, in your legal opinion, was wrong?

Erwin Chemerinsky is dean of the UC Berkeley School of Law.
Burt Neuborne is the Norman Dorsen Professor of Civil Liberties at New York University School of Law.

They're not a couple first year law students.

[Hortensis]

24. World of difference between theoretical and real-world actions.

It is an interesting idea to learn about. But, it's not going to happen.

If these professors were the ones who had to MAKE it happen after insisting it was doable -- and had to deal themselves with all the consequences over the next few years, they wouldn't have been so insistent. I'm sure they're neither stupid nor unaware of the many legal and extra-legal factors they didn't discuss.

Or the potential dread consequences of being unable to stop the renegade Republican if they get control of congress next year.

[Hortensis]

25. World of difference between theoretical and real-world actions.

It is an interesting idea to learn about. But, it's not going to happen.

If these professors were the ones who had to MAKE it happen after insisting it was doable -- and had to deal themselves with all the consequences over the next few years, they wouldn't have been so insistent. I'm sure they're neither stupid nor unaware of the many legal and extra-legal factors they didn't discuss.

Or the potential dread consequences of being unable to stop the renegade Republican if they get control of congress next year.

[FBaggins]

28. "Appeal to authority" works better when there isn't overwhelming authority on the other side

It's fallacious thinking either way... but at least it works better.

This isn't some unconsidered topic that we can just call in a couple of experts to weigh in on. The filibuster has existed for well over a century without any serious challenge to its constitutionality. There are hundreds of law schools and thousands of law professors. It isn't a surprise that we can find a couple of them willing to opine outside of orthodox analysis. But you can't pretend that they aren't well outside the norm on this issue. It's as though you found two climate scientists who didn't agree with the overwhelming consensus on climate change (they do exist). Pointing to their credentials doesn't make the argument any sounder.

As for "legal reasoning"... theirs is thin gruel. A few concerns:

As appears to have been pointed out multiple times on this thread - the VP really doesn't have the power they claim. The power is held by the Senate majority and only exercised by the presiding officer with their consent (which moves the needle not at all).

Their "equal suffrage" argument appears to interpret the term exactly backward. They progress immediately to whining about the anti-democratic nature of the Senate... except that's what the equal sufferage clause creates in the first place.

They argue against something that doesn't exist. The filibuster doesn't actually change the vote threshold for bills to pass. It can have that effect, but that isn't the same thing. If HR1 comes to a vote in the Senate... it only takes a majority to pass it. What rules the senate puts into place for how a bill comes to a vote in the first place are entirely within their constitutional purview. Their claim is effectively that 51 senators should be able to do anything at any time they want and that anything else is outside the constitutional scheme... but that simply isn't the case. The constitution explicitly gives them the power to make their own rules.

Note that they then move on to talk about alternative ways of protecting the minority by changing the filibuster rules... while ignoring the fact that all such proposals would suffer from the same supposed constitutional weakness as the original.

[ancianita]

10. She can make a ruling and it only needs a 51 Senate vote? Is that what this is about?

[bucolic_frolic]

12. While they're at it

Schumer should replicate McConnell's Garland SCOTUS strategy ... just ignore what everyone considers a Constitutional responsiblity. Then they should establish precedent - rules - and overrule Schumer. Because the next Turtle will try the same shit and Dems need to womp him with precedent.

[tritsofme]

30. I have no idea what you are proposing Schumer actually do?

[tinrobot]

13. Nixon, of all people.

[Fiendish Thingy]

14. Interesting, but ultimately futile as long as Manchin and Sinema block 50 votes on any bill

They may not block every bill, but I could see Manchin obstructing out of spite.

Interesting theory nevertheless.

[Celerity]

26. Manchin is refusing to commit to a yes vote on HR 1, but hopefully he comes around

[monkeyman1]

15. looked it up & is right . suggest other people look up & read .

[Loki Liesmith]

17. Lol ok

[bottomofthehill]

18. It's only right if she has the votes to defend the position.

The VP can make any ruling she wants, but with out the votes to back it up, it’s not worth the paper, then we would most likely be back to Majoeity Leader McConnell and nothing at all would get done, the Senate grave yard for democratic legislation would be reconstituted.

[Pepsidog]

19. Good article. Better argument is that Republicans will do it the second they get a Senate majority.

[Joinfortmill]

20. Gonna be interesting.

[Progressive dog]

22. They still need a majority

of Senators (or at least a tie) to end the filibuster. Right now they don't have one.

[tritsofme]

23. They are not breaking any new ground here, this is basically the "nuclear option" that was rejected

by Sinema and Manchin. Any ruling by VP would have to be upheld by a majority, which is the same problem we’ve had all year.