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Entrenchment and the Academic “Consensus”

The December 12 letter claims “the overwhelming consensus of the academic community [is] that no pre-existing internal procedural rule can limit the authority of each new Senate to determine by majority vote its own rules of procedure.” Although this statement is closer to being true than the letter’s assertions about Senate continuity and precedent, it is still exaggerated and inaccurate in important respects.

First, while it is true that a number of scholars have expressed general agreement with the anti-entrenchment critique of the Senate rules, I think it is a bit of a stretch to call this an “overwhelming consensus.” It depends in part what one means by the “academic community.” Among those who have rejected the anti-entrenchment position are the current head of the Office of Legal Counsel, Virginia Seitz, former Senate Parliamentarian Robert Dove, and noted congressional legal scholar Michael Gerhardt. In addition, two legal scholars, Adrian Vermuele and Eric Posner, have argued against the anti-entrenchment position even as applied to statutes (they seem to assume that Senate rules are validly entrenched, although this is not the main focus of their argument).

Second, there are important differences among those who accept the anti-entrenchment critique. These differences may be critical to how the Senate should address attempts to change the rules with the support of a simple majority. As we have seen with respect to Professor Chereminsky, sometimes even a particular scholar does not seem to have reached an “overwhelming consensus” in his own mind as to how the Senate should proceed.

Third, the December 12 is flatly wrong in asserting that scholars have endorsed some special authority of a “new Senate” to change the rules. As far as I know, the only scholarship to support this position is the 1997 article by Professors Chereminsky and Fisk. As I will show in my next post, their contention in this regard appears to rest on a misunderstanding of their own argument.

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