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Entrenchment Reconsidered (Part I)

The anti-entrenchment critique of Senate rules rests on two pillars. The first, which I will consider here, is an analogy to a line of cases holding that a later statute trumps an earlier one, even if the earlier statute purported to be entrenched against repeal. Thus, for example, a statute which establishes a particular location as a “permanent capital” would not prevent the legislature from later moving the capital. See Ohio Life Ins. & Trust Co. v. Debolt, 57 U.S. 416 (1853). As the Supreme Court explained (in language quoted by the December 12 letter): “[N]o one legislature can, by its own act, disarm their successors of any of the powers or rights of sovereignty confided by the people to the legislative body.” Id. at 421. The argument is that a legislative rule which prevents a simple majority from acting similarly disarms the legislative body of “the powers or rights of sovereignty.”

At the outset it should be noted that the line of cases in question is entirely related to statutes; there is no case suggesting, even in dicta, this principle applies to legislative rules. To the extent that the courts have spoken about entrenchment of legislative rules, it is to affirm that the matter is one for legislative, not judicial, cognizance. Thus, in dismissing the Common Cause lawsuit (which challenged both the filibuster and its entrenchment), Judge Sullivan noted the absence of “any [constitutional] language that expressly limits the Senate’s power to determine its rules, including when and how debate is brought to a close. . . . Plaintiffs have not demonstrated that the Presentment Clause, the Quorum Clause, or any other constitutional provision explicitly requires that a simple majority is all that is required to close debate and enact legislation.”

Technically, of course, Judge Sullivan’s ruling was on justiciability, but the court’s reasoning, and its holding that “no judicially manageable standards exist against which to review the Senate’s rules governing debate,” also demonstrate that the anti-entrenchment principle cannot be applied to legislative rules, at least not in the simplistic way suggested by the analogy to caselaw dealing with statutory entrenchment. The whole point of legislative rules is to regulate the legislative process; if it were unconstitutional to limit a legislature’s freedom of action at any given time, all legislative rules would be unconstitutional. If there is a limiting principle on entrenchment of legislative rules, it is not one that can be easily or objectively applied.

Take, for example, a statute establishing “Springfield” as the permanent state capital. The legislature cannot make the statute unrepealable, but either house could adopt rules governing proposed legislation to move the capital. These rules might require that the legislation be reported favorably by a particular committee before it can be considered by the full body. They might require the approval of multiple committees and specify the order in which the committees must give their consideration. They might limit when the legislation could be introduced or considered, specify hearings or other procedures to be followed in considering the legislation, or require supermajorities to advance the legislation during various stages of the process. The two houses might even adopt joint rules (as some state legislatures do) placing further obstacles in the path of any potential legislation to move the capital.

There are those in the anti-entrenchment camp who would contend that some of these rules violate the anti-entrenchment principle, but no one would contend that all of them do. After all, supermajority cloture rules are only one type of legislative rule that prevents a majority from working its will. See V. Seitz and J. Guerra, A Constitutional Defense of ‘Entrenched’ Senate Rules Governing Debate, XX J. Law & Politics 1, 25 (2004) (“[A]lthough [Senate cloture rules] can be used to block legislative action that a majority of senators want, this is also true of a host of Senate rules and traditions, such as the prerogatives of the Majority Leader, committee chairs and even individual senators. All of these practices have long historical pedigrees and none has ever been deemed unconstitutional as barriers to fulfillment of the majority’s will.”). If the anti-entrenchment principle requires that a simple majority be able to move the capital at any time, all of these rules would be unconstitutional.

Recognizing this problem, many (perhaps most) of those in the anti-entrenchment camp do not contend that the entrenching rules themselves are unconstitutional; rather, they maintain that it is the entrenching of those rules that give rise to the constitutional violation. Thus (it is claimed), the filibuster rule does not violate the Constitution; however, the fact that a proposed change to the filibuster rule can itself be filibustered does.

However, this distinction makes no sense in terms of the rule against statutory entrenchment. To see why, consider H.L.A. Hart’s discussion of the difference between substantive and procedural entrenchment:

It is conceded under the present rule that Parliament cannot by statute irrevocably withdraw any topic from the scope of future legislation by Parliament; but a distinction may be drawn between an enactment simply purporting to do that and one which, while leaving it still open to Parliament to legislate on any topic, purports to alter the “manner and form” of legislation. The latter may, for example, require that on certain issues no legislation shall be effective unless it is passed by a majority of the two Houses sitting together, or unless it is confirmed by a plebiscite. It may “entrench” such a provision by the stipulation that the provision itself can be repealed only by the same special process. Such a partial alteration in the legislative process may well be consistent with the present rule that Parliament cannot irrevocably bind its successors; for what it does is not so much to bind successors, as to eliminate them quoad certain issues and transfer their legislative powers over these issues to the new special body.

The Concept of Law 150 (emphasis in original).

The point here is not whether Hart is correct regarding how the British legal system would treat a procedurally entrenching statute. Rather it is that under the theory just discussed with respect to the filibuster, a distinction is drawn between the validity of the procedurally entrenching provision and the validity of entrenching the provision itself.

But this distinction is meaningless. If the procedurally entrenching provision can be repealed through ordinary legislation, then it would be ineffective to protect the substantive statute. It is hard to see why it would even be necessary to repeal the procedurally entrenching provision first; a single piece of legislation should be able to repeal both. If, on the other hand, the procedurally entrenching provision is effective, then it must be able to prevent its own repeal through ordinary legislation. There is no coherent middle ground.

This in turn leads us to the final fallback position of the anti-entrenchment camp. Under this theory, a legislative rule can in fact be entrenched, but only for the duration of a particular Congress. Once a “new Senate” is seated, it is free to change the rule by majority vote.

The support for this theory is the Blackstonian maxim that “acts of parliaments derogatory from the power of subsequent parliaments bind not,” which is often said to underlie the rule against statutory entrenchment. In their 1997 article, Professors Fisk and Chereminsky take this maxim literally to mean that one parliament can bind itself, though not its successors. But the maxim is a metaphor; Blackstone was not suggesting that one parliament could enact a law that would be unrepealable for the duration of that parliament (which would be for an indefinite period).

Certainly this is not the case in the United States. Although Blackstone’s maxim is often cited as the rationale underlying the rule against statutory entrenchment, the actual rule is that a later in time statute takes priority over an earlier statute. This is true regardless of whether the two statutes were enacted in the same Congress. Thus, “’a general law . . . may be repealed, amended or disregarded by the legislature which enacted it’ and ‘is not binding upon any subsequent legislature.’” United States v. Winstar Corp., 518 U.S. 839, 873 (1996) (quoting Manigault v. Springs, 199 U.S. 473, 487 (1905)).

This fact was pointed out by Professors John McGinnis and Michael Rappaport in one of the first articles discussing entrenchment of legislative rules:

When Blackstone refers to a subsequent Parliament, we understand him simply to mean the Parliament as a later point in time. We are not aware of any evidence that British or American law has permitted one legislature to bind itself. More importantly, Blackstone’s argument that each legislature is equal does not merely mean that the 103d Congress is the equal of the 104th Congress, but also that the 103d Congress on one day is equal to the 103d Congress on a subsequent day.

J. McGinnis & M. Rappaport, The Constitutionality of Legislative Supermajority Requirements: A Defense, 105 Yale L. J. 483, 506 n.109 (1995). Although McGinnis and Rappaport do not believe that legislative rules can be constitutionally entrenched, their analysis indicates that this has nothing to do with whether or not there is a “new Senate,” a point that Professor Rappaport confirmed at The Originalism Blog a few days ago.

Professors Fisk and Chereminsky seem to base their position on a literal interpretation of Blackstone’s maxim, but I have seen no evidence that they are aware of, much less have responded to, the far more plausible interpretation put forth by McGinnis and Rappaport. Perhaps Fisk and Chereminsky believe that the 113th Congress could pass a law that would be unrepealable until the 114th Congress is seated, but they have not provided any argument or authority for that proposition, which would seem to be contrary to the language of Winstar previously quoted. Absent further explanation from Fisk and Chereminsky, it seems most likely that they have not really thought about this issue.

The fallback position therefore fails, and it should therefore be apparent that the rule against statutory entrenchment cannot support an attack on the entrenchment of legislative rules. One must therefore agree with Virginia Seitz, who as the head of the Office of Legal Counsel serves as the Obama administration’s chief constitutional lawyer, when she concludes that “neither the practical nor the theoretical justifications for the prohibition on legislative entrenchment apply to the Senate’s promulgation of rules requiring a supermajority vote to terminate debate on the amendment of internal rules.” XX J. Law & Politics at 31.

In my next post I will consider the second pillar of the anti-entrenchment argument.

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