by Kagro X
Yesterday's note went straight to the bottom line: the "nuclear option," as Frist intends to use it, is a virtually unstoppable power play that can succeed only because it operates on the basest, most partisan interpretation of the rules, intentionally ignores precedent, and sells out the institutional benefits of bicameralism for short-term political gain.
OK, OK. But what are the other problems?
Today's note puts a finer point on one of yesterday's key concepts: the ignoring of precedent which restrains a presiding officer from ruling directly on questions of constitutionality. As I mentioned yesterday, Nixon pronouncement of 1953 made it clear that questions of constitutionality raised in points of order are to be decided by a vote of the body itself, and not by the chair.
As back-up, today I offer you this May 26, 2000 missive from the Senate Republican Policy Committee. The context: the question of "which body, the Senate or the House of Representatives (or both), may constitutionally originate an appropriations bill?"
Literary types will enjoy the way the Policy Committee sets up its point, beginning their memo thus:
BASSANIO. And I beseech you, wrest once the law to your authority: to do a great right, do a little wrong.
PORTIA. It must not be; * * * 'Twill be recorded for a precedent, and many an error by the same example will rush into the state.
The Merchant of Venice, IV, i, 218-226
quoted on the title page of
CANNON'S PROCEDURE IN THE HOUSE OF REPRESENTATIVES (1959)
The portion of the release relevant to the nuclear option? Part III:
III. Ruling of the President Pro Tempore in 1935
In 1935, the following exchange occurred on the Senate floor:
"Mr. HARRISON. Mr. President, I make the point of order that the Senate cannot initiate an appropriation, and there is no authority in law."
"The PRESIDENT pro tempore. It is the opinion of the Chair that there is no constitutional limitation upon the Senate to initiate an appropriation. The point of order is overruled."(12)
That result remains a precedent of the Senate.
The ruling in 1935 may be somewhat unorthodox because "Under the uniform practices of the Senate, whenever a question of constitutionality is raised, the Chair submits the question to the Senate for decision. . . . [T]he Presiding Officer has no authority to pass upon a constitutional question, but must submit it to the Senate for its decision."(13) We do not know if the Senate had a different procedure 65 years ago, but we do note that all of the citations to precedents in Dr. Riddick's book postdate the 1935 ruling.
If a Senator wished to test the Democratic Leader's constitutional theory, he could, at the appropriate time, put a constitutional point of order to the Presiding Officer and have the question submitted to the Senate. We doubt that the Senate would surrender the position it has defended for decades.
The emphasis, of course, is my own. And while the context is different, there's no doubting the intent of the citation: Senate Republicans know that in modern practice, the Chair has no authority to pass upon a constitutional question, as Cheney is preparing to do at Frist's request in April.
This time, if a Senator wished to test the Republican Leader's constitutional theory, he wouldn't be able to, because the theory will be expounded in a ruling on a point of order by the Vice President, the appeal of which is subject to a motion to table. Meaning that the Republican majority intends to have the Vice President interpret the Constitution in their favor, all by his lonesome, with no debate permitted on his verdict.