The Filibuster and Obamacare: My Comments on Seth Tillman’s Comments

Seth Barrett Tillman sends in the following thoughts (also posted on The Volokh Consipiracy)  on Obamacare and the Senate’s use of the “nuclear option” to limit the filibuster:

The Nuclear Option and Political Responsibility for Obamacare

 The Senate’s use of the nuclear option pins any defects in the Affordable Care Act (“ACA”) on the Democrats. Until the nuclear option was used, Democrats said that they had to pass an arguably defective bill because they could not get around a minority Republican-led filibuster in the Senate. In other words, although the Senate was able to invoke cloture and pass the ACA when it had Senator Ted Kennedy’s vote, once he died and was replaced by Senator Scott Brown, the Democratic majority in the Senate was unable to pass an alternative bill or substantively amend the ACA.

 But the use of the nuclear option undercuts that narrative. We now know that the Democratic majority always had the ability to change the rules and to end debate on any amendment or amendments to the ACA. The Senate Democratic majority always had the power to terminate debate—it is just that the Senate Democratic majority refused to exercise that power.

 If Obamacare is defective, it is not because the Republicans filibustered or threatened to filibuster any amendments, but because the Senate Democratic majority refused to terminate debate using a power which was always within their reach. It follows that political responsibility for any virtues or defects in the ACA rests entirely with the Democrats who passed it.

I don’t have any comment on the political aspect of this argument, but Tillman raises an interesting legal question. There is no doubt that the Senate majority “had the power” to use the nuclear option in 2010 if by this one means nothing more than it could have acted, as a factual matter, to override any filibuster. This calls to mind the “debate” President Obama had with a heckler the other day, in which the heckler yelled that Obama had the power to stop all deportations by executive order, and Obama replied “Actually I don’t.”

The heckler meant that Obama had the power, as a factual matter, to sign an order halting all deportations, which is certainly true. It is also (virtually) certain that such an order would have the effect, at least in the short term, of stopping deportations and quite likely true that it would prevent any further deportations for the remainder of Obama’s term.

What Obama meant is that although he has the factual power to take this step, he lacks the legal authority to do so. More precisely, Obama believes, or says he believes, that he lacks the legal authority to stop all deportations. On the other hand, Obama believes, or says he believes, that he has the authority to halt certain categories of deportations, and one can see how the heckler might not appreciate the difference.

Which brings us back to the Senate. One might infer from its action last week that a majority of the Senate believes it has the lawful authority to override a filibuster by a simple majority vote, although I cannot identify any coherent legal theory that would support the precise action it took (overriding the filibuster as to non-Supreme Court nominations only). There is a coherent legal theory, advanced by Republicans in 2005, to the effect that the filibuster is unconstitutional as to nominations only (not as to legislation), but it does not appear that the Senate is relying on that theory to support its action.

Leaving that aside, one can say with confidence that if the Senate acted lawfully last week, it could have lawfully overridden the filibuster against the Affordable Care Act in 2010. But it remains possible that a majority of the Senate did not believe in 2010 that it had this authority, and that a majority of the Senate does believe that (due to changes in seats or changes in attitude) today.

The Senate’s “Neutron Option”?

Roll Call reports this morning:

 The Senate voted, 52-48, to effectively change the rules by rejecting the opinion of the presiding officer that a supermajority is required to limit debate, or invoke cloture, on executive branch nominees and those for seats on federal courts short of the Supreme Court.

At least three Democrats — Carl Levin of Michigan, Joe Manchin III of West Virginia, and Mark Pryor of Arkansas — voted to keep the rules unchanged.

The move came after Majority Leader Harry Reid, D-Nev., raised a point of order that only a majority of senators were required to break filibusters of such nominees. Presiding over the Senate as president pro tem, Judiciary Chairman Patrick J. Leahy of Vermont issued a ruling in line with past precedent, saying that 60 votes were required. Leahy personally supported making the change.

Voting against Leahy’s ruling has the effect of changing the rules to require only a simple majority for most nominations.

There are two interesting aspects of this action. First, Senator Leahy apparently voted to reverse his own ruling, which is puzzling to say the least. Either his initial ruling was correct, or it was not. One would have to infer that he believes his ruling was correct under the existing rules of the Senate, but that the Senate could choose to change the rules by reversing it. But I am not aware of any legal theory that would justify that approach.

Second, the new rule evidently is intended to apply solely to executive branch nominations and to non-Supreme Court judicial nominations. So the filibuster apparently survives only as to one particular type of nomination. Call it the “neutron option.” (If you are too young to get this reference, google it).

Again, however, I am not aware of any legal or constitutional theory that would justify distinguishing between Supreme Court and other nominations. By this I don’t mean I am unaware of any good legal theory. As we have discussed before, there are a number of legal arguments that have been invoked to support the nuclear option, including some that I find quite implausible. However, I am not aware of any argument, plausible or implausible, that supports what the Senate apparently did today.



How the House Deals with Cocaine Possession

As reported by Roll Call and various other outlets, Representative Trey Radel is to appear in D.C. Superior Court tomorrow to face charges of misdemeanor possession of cocaine. No one seems very clear on how this matter will be treated in the House so I think it is worth pointing out that House rules require the Ethics Committee to take action here.

House Resolution 5, which adopted rules for the 113th Congress, provides in Section 4(e) that “[t]he text of House Resolution 451, One Hundred Tenth Congress, shall apply in the One Hundred Thirteenth Congress in the same manner as such provision applied in the One Hundred Tenth Congress.” House Resolution 451, in turn, requires that:

          [W]henever a Member of the House of Representatives . . . is indicted or otherwise formally charged with criminal conduct in a court of the United States or any State, the Committee on [Ethics] shall, not later than 30 days after the date of such indictment or charge-

 (1)        empanel an investigative subcommittee to review the allegations; or

(2)        if the Committee does not empanel an investigative subcommittee to review the allegations, submit a report to the House describing its reasons for not empaneling such an investigative subcommittee, together with the actions, if any, the Committee has taken in response to the allegations.

As noted in the House Ethics Manual, Resolution 451 thus requires some action by the Ethics Committee whenever a Member is charged with criminal conduct, and “does not distinguish between felony and misdemeanor criminal charges.”


More on Fast and Furious

As mentioned last month, a federal district court has denied Attorney General Holder’s motion to dismiss a lawsuit, brought by the House Committee on Oversight and Government Reform, in which the committee seeks to enforce a subpoena for Justice Department documents related to the “Fast and Furious” investigation. The motion to dismiss advanced a number of grounds for declining jurisdiction, but they all more or less came down to a claim that the court should not intervene in a political dispute between the executive and legislative branches.

Judge Amy Berman Jackson decisively rejected these arguments in her opinion (summarized in more detail below). The court not only found the Justice Department’s arguments to be contrary to longstanding precedent, but inconsistent with the executive branch’s own prior practice. As the court pointed out, the executive branch has “itself invoked the jurisdiction of the courts when it sought to enjoin compliance with a Congressional subpoena” (during the AT&T case in the 1970s) and when it sought “a declaration concerning the validity of a claim of executive privilege asserted in response to a House request” (during the Gorsuch case in the 1980s). Quoting Judge Bates in the Miers litigation, Judge Jackson commented that “[t]he Court does not understand why separation of powers principles are more offended when the Article I branch sues the Article II branch than when the Article II branch sues the Article I branch.”

Reading Jackson’s original decision, it is evident that she did not think this is a particularly close case or difficult legal question. That impression is confirmed by her order yesterday with respect to the Attorney General’s request to certify the decision for interlocutory appeal. Granting such a request requires finding a “substantial ground for difference of opinion” with respect to the question of law, and the court found that the Attorney General had failed to provide any authority or other ground for such a difference of opinion. Accordingly, it declined to certify the question for appeal.

For those who are interested, a summary of the earlier opinion follows.

Continue reading “More on Fast and Furious”

Senator Vitter, Congressional Health Care, and the Rule of Law

This weekend the Washington Post published an article entitled “A senator’s lonely quest to embarrass Congress,” which describes Senator Vitter’s continuing efforts with regard to the health insurance plans available to Members of Congress and congressional staff. You wouldn’t think that embarrassing Congress would be all that lonely of a quest; perhaps that’s why the online title is changed to “David Vitter’s political quest to embarrass Congress on health care.”

Of specific interest to this blog, Vitter objects to the fact that some committee and leadership office staffers have not been required to obtain insurance on the exchanges. In remarks made on November 13 in the Congressional Record, he states:

Part of [the OPM] rule, which I think is outrageous on its face, says: Well, we don’t know who official staff are. We cannot determine that, so we are going to leave it up to each individual Member of Congress to determine who their official staff are. As long as they deem certain staff nonofficial, then they don’t have to go to the exchanges at all. They don’t have to follow that clear mandate in the statute itself.

Well, again, when we are talking about folks who work on our staff, committee staff, and leadership staff, that is ridiculous. They are clearly official staff.

Continue reading “Senator Vitter, Congressional Health Care, and the Rule of Law”