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Archive of entries posted on January 2010

Tillman on the Perils of Legislative History

The prolific Seth Tillman has posted a new draft article, entitled “Originalism, the Annals of Congress, and the Problem of Constitutional Memory.”  The article can be found here.  The main takeaway is the need to exercise caution in reading the Annals, which were compiled many years after the fact (something that I did not know).  [...]

The Filibuster and Its Discontents (Part II)

           In my last post I endeavored to show that the Constitution does not, and indeed cannot, prohibit congressional rules that allow minorities to block legislation.  The Constitution explicitly grants to each House the power to determine the rules of its proceeding, and the exercise of such power inevitably involves giving minorities the power to [...]

The Filibuster and Its Discontents (Part I)

           Now that the Massachusetts election is over, I would like to turn my attention to an opinion piece that appeared in the New York Times last week.  In that article, Thomas Geoghegan argues that the Senate filibuster violates the Constitution.  In brief, his argument is (1) as it currently operates, the filibuster requires a [...]

Can Senator-Elect Brown be Seated Immediately?

            It may be recalled that during the controversy over the appointment of then Senator-designate Burris, one of the points of contention was whether the Senate required a certificate of appointment signed by the Illinois Secretary of State in order to seat Burris.  Senators Reid and Durbin maintained that Senate rules required such a certificate [...]

Senator Kirk’s Term and the Senate’s Constitutional Responsibility

           From comments made on various blogs, as well as exchanges with the election experts cited in this Politico story, I have distilled the following questions/criticisms regarding my prior post on Senator Kirk’s term.              1.  What proposition do the precedents cited in my post stand for?   Both the 1939 case involving Senator Berry and [...]

Can Senator Kirk Vote after January 19?

           Paul Kirk, the interim Senator from Massachusetts, has told reporters that he would cast a vote for health care reform, even after the January 19 special election between Democrat Martha Coakley and Republican Scott Brown.  Due to the need to count military and absentee ballots, the Secretary of the Commonwealth may not certify a [...]

Andy Stern and the Unbearable Lightness of Being (a Lobbyist)

           Andrew Stern (no relation), president of the Service Employees International Union (SEIU), was a registered lobbyist for SEIU until February 20, 2007, when SEIU de-listed him and 15 others in a Lobbying Disclosure Report.  Prior to that time, SEIU had listed Stern as a lobbyist on several issues, including health care, immigration and labor [...]

The 9/11 Commission Recommendation Congress Forgot

As Congress conducts oversight of the executive branch in the wake of the Christmas day attack, it should also take a hard look at itself.  As a former member of the 9/11 Commission noted today, Congress has failed to implement one key recommendation of that Commission—relating to how Congress organizes its own homeland security and [...]

Congress’s Responsibilty for the Constitutionality of Healthcare Legislation

           When questions arise about the constitutionality of a proposed piece of legislation, such the healthcare legislation currently pending in Congress, Members of Congress frequently deflect them by saying that any constitutional issues will be dealt with by the courts at a later time.  Senator McCaskill, for example, responded to a question about the constitutionality [...]