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.”

Continue reading “Entrenchment Reconsidered (Part I)”

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.