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Archive of entries posted on December 2012

Professor Chemerinsky and Senate Precedent on Changing the Rules

Now let us turn to the other law review article cited by the December 12 letter, Catherine Fisk & Erwin Chemerinsky’s “The Filibuster,” 49 Stan. L. Rev. 181 (1997). Since only Professor Chemerinsky signed the December 12 letter, I will refer just to him, no slight to Professor Fisk intended. The 1997 article is cited [...]

Professor Bruhl and Senate Continuity

Following up on my prior post concerning the December 12 legal scholar letter to the Senate, let us take a closer look at Professor Bruhl’s 2010 article (“Burying the Continuing Body Theory of the Senate”), which makes a considerably more nuanced argument than might be suggested by the title. While the December 12 letter suggests [...]

Legal Scholar Letter to the Senate on Procedures for Changing the Rules

A group of prominent constitutional scholars has sent this letter to the Senate. The letter makes some strong claims about the Senate’s procedures for amending its rules. The introduction gives the flavor: The current debate over whether to alter the 113th Senate’s rules raises serious questions of policy and political judgment. We take no position [...]

The Origination Clause and the Fiscal Cliff (updated)

Since the discussion of the issue has been rather muted, it may be worth flagging the potential impact of the Origination Clause, art. I, sect. 7, cl. 1, on how the so-called “fiscal cliff” is resolved. The Origination Clause provides that “[a]ll Bills for raising Revenue shall originate in the House of Representatives; but the [...]

Does James Monroe’s Presence at the Virginia Ratifying Convention Shed Light on the Meaning of the Recess Appointments Clause?

More from the Noel Canning argument: No doubt much to her surprise, Beth Brinkmann was questioned intensively about the meaning of the phrase “which may happen” in the Recess Appointments Clause. Both Judge Sentelle and (to a lesser extent) Judge Griffith were unimpressed by the longstanding executive branch position, dating back to Attorney General Wirt [...]

(Almost) Live From the Noel Canning Argument!

There were many important issues raised in today’s D.C. Circuit argument in Noel Canning v. NLRB, the recess appointments case, but lets start with some unimportant ones. How do you pronounce Harry Daugherty’s name? The Justice Department lawyer representing NLRB, Beth Brinkmann, pronounced it “Dockerty,” and the panel went along with that. I have always [...]