Notes on the Nuclear Option -- Part II

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.

Comments

[Mimikatz]

Did the GOP flog the terri Schaivo case to set up the nuclear option? Did they know well that their bill was unconstitutional, that there was every likelihood that the first judge would not order the feeding tube reinserted, and that the 11th Circuit wiould probably uuphold that ruling? Is the idea that they can then raise a clamor about how we need more pro-life judges who will do the right thing so we have to end the filibuster?

If so, the Dems best line is to stress how procedural checks are all that stand in the way of a runaway minority steamrolling the rest of the Senate. That the GOP are bent on changing every rule to their favor so they can meddle in whatever area of life they want. With 70% of the people thinking they have already gone too far on Schaivo, the need for brakes to ensure reasonable consideration of issues becomes more obvious.

Loved the Nixon ruling. His achievements always turn out to have been accidental.

[Kagro X]

Good question. I have my doubts about whether or not the GOP tied these two issues together consciously, but it looks like they may end up being linked together after all.

With such overwhelming numbers of Americans regarding the Schiavo intervention as overreaching, it's going to be that much more difficult to get away with still more overreaching when it comes time to trigger the nuclear option.

That is, it would be, if anyone had any idea just how much of an overreach the nuclear option is.

We certainly should, however, be on the lookout for this play. I can't see any reason why the GOP base wouldn't want to try to capitalize on their perceived (and treasured) victimhood here.

[lovable liberal]

When the Bushist Republicans go nuclear, what would be the negative consequences for Democrats if they simply refuse to accept the order of the chair? Why should they sit down and shut up? Why not continue to filibuster while the Republicans make their charade "legal"? It would be easy to bring in a portable PA. "The minority no longer recognizes the authority of the chair."

The objective here would be to provoke the Republicans to their natural thuggery, captured on video (and don't rely on C-SPAN; bring your own cameras). The Republicans long ago began their revolution against Constitutional government. It's time we joined the battle in its defense. For best effect, it means that we will have to bleed. I'm willing, but I don't have access to the Senate floor.