Over at Notice & Comment Nicholas Bagley has a characteristically timely and thoughtful piece on a recent D.C. Circuit decision in American Hospital Association v. Burwell (AHA). The precise issue (Medicare payments) is a bit in the weeds but it invites a much broader thought about AdLaw: somehow it never gives you a remedy that’s worth having. But that’s actually something courts could and probably should change.
We mourn, as we should, the loss of a truly great man. But we can’t do so in full measure—not now. While we can guess at the contours of a Nino-less Court, the horrors will become palpable only over the years. In any event Harry Reid (Frank Underwood without the charm) is leaving no time for decorum, let alone mourning.
On Monday Senator Harry Reid introduced an amendment, which would permit both Congress and state legislatures to prohibit the use of resources for political speech at election time. The Republicans did not vote to filibuster it but instead by a substantial majority agreed to open debate. Senator Reid then complained that Republicans were trying to “stall” the Senate from getting to other items on his agenda. Washington has reached a new high in legislative hypocrisy: criticizing the opposition for wanting to debate an amendment that you brought to the floor!
The debate is scheduled to last the week. And nothing is more important than having a debate that brings us back to the consideration of first principles. Political theorists since Machiavelli have been absorbed by the problem of preventing the decay and corruption of the republic as its founding principles gradually recede from public view. The most important safeguard against such decline is the creation of mechanisms that naturally ventilate deep disagreements and renew the citizens’ appreciation of their republic’s first principles. Floor time for divisive constitutional amendments is such a mechanism and this one illustrates three first principles on which our two major political parties disagree.
Senate Majority Leader Harry Reid is threatening to change the filibuster rule to allow a majority to end a filibuster of presidential nominees waiting for a vote on senatorial confirmation. Under the existing rules, such confirmation votes can be filibustered, with cloture of the filibuster requiring 60 votes. A change in the Senate rules (like the change in the filibuster rule) can also be filibustered, and cloture here actually requires 67 votes.
There is a strong argument, however, that a majority of the Senate can change its rules, notwithstanding the Senate filibuster rule requiring 67 votes. I have argued (with John McGinnis) that the Constitution requires a majority of the Senate to be able to change the rules:
The third and constitutionally correct view is that the Senate can choose to retain the filibuster rule, but that a majority must be able to change it. The Senate can thereby exercise its full constitutional authority to fashion rules of procedure but past majorities of the Senate cannot put current majorities in a procedural straitjacket. Thus, a change in the filibuster rule by a majority is not a “nuclear” option but instead the constitutional option – the route contemplated by our founding document.
Of course, the Senate majority’s undoubted power to change the filibuster rule does not mean that doing so would be good policy.