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Archive of posts filed under the Entrenchment category.

The Filibuster, the Nuclear Option and the Rule of Law

Erick Erickson argues here that Senate Republicans would be making a “foolish mistake” if they vote to scrap the filibuster “in its entirety.” He makes a distinction among three different filibusters: (1) the filibuster for executive appointments excluding Supreme Court justices; (2) the filibuster for Supreme Court justices; and (3) the filibuster for legislation. Erickson [...]

The Nuclear Option, the Law of the Senate and the Conscientious Senator

This is my final post (at least for this Congress, hopefully) on the filibuster and the entrenchment of Senate rules. For the first 9 entries in this series, see below: Legal Scholar Letter to the Senate on Procedures for Changing the Rules Professor Bruhl and Senate Continuity Professor Chemerinsky and Senate Precedent on Changing the [...]

Did the Senate Flub its Cinderella Moment?

On January 24, 2013, the Senate adopted certain rules changes that, according to published reports, will modestly restrict the use of the filibuster, but will not fundamentally alter the minority’s ability to block cloture on matters covered by Rule XXII. It accomplished these changes by adopting S. Res. 15, which provided a new standing order, [...]

Professor Chafetz and the “Constitutionally Conscientious Senator”

Before considering the Senate’s action last week in amending its rules, I want to summarize one additional anti-entrenchment school of thought. We have already discussed the theory of the December 12 letter, which holds that a simple majority must be able to obtain a rules change at the beginning of a new Congress. An alternative [...]

Entrenchment Reconsidered (Part II)

This brings us to the second pillar of the anti-entrenchment position, which might be called the “quasi-constitutive” argument. Professors McGinnis and Rappaport, who pioneered this argument, explain: If a legislature could pass a measure that would prevent a successor from taking action, then that measure would function as a constitutional restraint on the future legislature. [...]

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 [...]

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 [...]

Senate Rules from the Internal Point of View

As I mentioned in my last post, Professor Chemerinsky’s description of the 1975 Senate vote in sustain Majority Leader Mike Mansfield’s point of order changed slightly from his 1997 article to his 2005 article. In the former he said that the vote “establish[ed] that a majority of the Senate would abide by the supermajority requirements [...]

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 [...]