The Senate health care bill contains provisions that purport to prevent a future Congress from revising portions of the legislation my majority vote. Specifically, at pages 1019–1021, the bill requires a three-fifths vote in order to alter or repeal recommendations made by the Independent Medicare Advisory Board. The relevant language is below. As noted here, some Senators are upset by this provision. My questions are 1) Is there much precedent for this sort of thing, specifically altering Senate rules in substantive legislation? and 2) Can the current Senate bind future Senates in this way?
(3) LIMITATION ON CHANGES TO THE BOARD RECOMMENDATIONS.—
(A) IN GENERAL.—It shall not be in order in the Senate or the House of Representatives to consider any bill, resolution, or amendment, pursuant to this subsection or conference report thereon, that fails to satisfy the requirements of subparagraphs (A)(i) and (C) of subsection (c)(2).
(B) LIMITATION ON CHANGES TO THE BOARD RECOMMENDATIONS IN OTHER LEGISLATION.—It shall not be in order in the Senate or the House of Representatives to consider any bill, resolution, amendment, or conference report (other than pursuant to this section) that would repeal or otherwise change the recommendations of the Board if that change would fail to satisfy the requirements of subparagraphs (A)(i) and (C) of subsection (c)(2).
(C) LIMITATION ON CHANGES TO THIS SUBSECTION.—It shall not be in order in the Senate or the House of Representatives to consider any bill, resolution, amendment, or conference report that would repeal or otherwise change this subsection.
(D) WAIVER.—This paragraph may be waived or suspended in the Senate only by the affirmative vote of three-fifths of the Members, duly chosen and sworn.
(E) APPEALS.—An affirmative vote of three-fifths of the Members of the Senate, duly chosen and sworn, shall be required in the Senate to sustain an appeal of the ruling of the Chair on a point of order raised under this paragraph.
Elliot says:
Couldn’t that provision be eliminated with a 51% vote? It wouldn’t be a vote on a Board recommendation, but on the provision delineating how Board recommendadtions are handled.
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December 22, 2009, 11:09 amDuffy Pratt says:
This Senate cannot bind future Senates about this sort of rule. It probably can’t even bind itself.
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December 22, 2009, 11:12 amlarry says:
This attempt to impose a supermajority vote requirement for future Congresses is troubling. I wonder whether this sort of thing has even been tried before. This is just another reason that once this bill is enacted, it will be with us forever.
I’ll just sit back and read the comments from the libs about how 1) this is just fine, and 2) even if it isn’t, some Republican-majority Congress did something just as bad. To anticipate replies to the second point, it would be equally bad if this were done by a Republican majority.
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December 22, 2009, 11:13 amSteve says:
The first thing that comes to mind is the so-called “Byrd Rule” and related provisions of the Congressional Budget Act of 1974. Technically, if a future Senate disregarded any of this, it’s hard to see how a court would ever step in. But for the most part the Senate seems to have no problem going along with this sort of stuff as the years go by.
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December 22, 2009, 11:15 amHume says:
Are these types of provisions constitutional?
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December 22, 2009, 11:16 amAnon321 says:
Like Elliot, I’ve always assumed that a future Senate could just vote by a simple majority to strike or alter this limitation, thus solving the problem.
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December 22, 2009, 11:16 amBrennan says:
There appears to be no sanction if a future Congress disregards this rule. If there was a sanction, wouldn’t that violate the speech or debate clause?
And isn’t there a standard statutory interpretation canon that says that if two statutes directly conflict, the later-enacted statute trumps the earlier?
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December 22, 2009, 11:17 ambobc says:
Am I reading this wrong?
What is a recommendation?
My first read-through, I thought it meant that congress could not alter the statements in the board legislation. Example: congress voting to change the wording of a CBO or GAO report.
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December 22, 2009, 11:20 amPubliusFL says:
My recollection of my legislation class is a bit spotty, but I’m pretty sure this sort of thing has been rejected before. Like Brennan says, the newer statute trumps the older, and the Constitution defines what makes the new statute valid (majority in both houses plus signature of the President or veto override).
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December 22, 2009, 11:22 amDavid Nieporent says:
You’re ignoring (3)(C):
IOW, they anticipated this strategy of yours.
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December 22, 2009, 11:22 amDr. Weevil says:
Wouldn’t an unamendable law have to have some specific penalty for those trying to amend it? I’m surprised no one’s mentioned it, but it sounds rather like the Honduran constitution’s term limit on the presidency, which comes with an order that anyone who tries to alter it immediately loses his citizenship. (This is from memory, but it hasn’t been all that long.) So, could the U.S. congress pass a law saying that any senator who proposes (or votes?) to change such-and-such a provision of such-and-such a law immediately ceases to be a senator and forfeits his pay and pension? Or goes to jail for however many months or years? I am not a lawyer, but that doesn’t seem constitutional to me. (I should mention that I am not criticizing the Honduran provision, which is, after all, in the country’s constitution.)
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December 22, 2009, 11:30 amAllan Walstad says:
How ironic–these pols who have no respect for the limitations placed on their actions by the Constitution nevertheless expect future Congresses to respect their injunctions against them. [Contemptuous expletive deleted]
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December 22, 2009, 11:30 amMike says:
It seems that if a majority wanted to change the procedure, they could. If the Senate was to consider a bill changing this subsection, a point of order could be raised by the minority. The parliamentarian may (or may not) determine that the bill is not in order. The chair (a member of the majority) could ignore the parliamentarian and decide the bill is in order. The decision could be appealed to the Senate, but I believe the chair’s decision can be affirmed on a majority vote.
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December 22, 2009, 11:40 amSteve says:
My intuitive thought would be that there’s a delegation problem in creating a new body and providing that Congress can only overrule its recommendations by supermajority vote. But I don’t really know how the precedents have shaken out in this area. How is that base-closing thing structured?
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December 22, 2009, 11:42 amMike McDougal says:
Oooooh! Strong words.
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December 22, 2009, 11:48 amLocking Down ObamaCare says:
[...] out to be as harmful as critics argue. Jonathan Adler at the Volokh Conspiracy examines how the current bill would tie our hands in the future if the American people elect a Congress that wants to amend or repeal ObamaCare. The [...]
The Watcher says:
The Watcher asks....
“Except upon a 100% vote of the congress and the entire population of the United States, no person who is not approved by the Democratic Committe Chair shall be seated as president or a member of congress.”
Legal?
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December 22, 2009, 11:50 amJames H says:
When I first heard about this last night, my instinct was that it was a proposal to impose supermajority requirements on the bill during the current go-round. Looks like I might have been wrong.
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December 22, 2009, 11:53 ampireader says:
The Constitution authorizes each house of Congress to “determine the Rules of its Proceedings”. Congress has done so by way of legislation at various times since 1948 (or maybe earlier). This is just another example.
Nor is there anything distinctive about the content. Congress has many rules providing special processes, voting requirements, etc. Examples include the PAYGO rules, the Senate’s 60-vote cloture requirement, the budget reconciliation process’s exception to the cloture requirement, etc.
In any case, a majority of either house can change the rule for that house at the beginning of a new Congress.
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December 22, 2009, 11:53 amDaniel Schuman says:
This law review article answers the question.
In short:
(1) Yes, it is common for the House to use legislation to establish rules for that body.
(2) No, it is no more binding than any any other House rule. It can be amended through the normal process by which House rules are changed. At a minimum, every two years, the House re-enacts its own rules, a process whereby it could change this rule.
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December 22, 2009, 11:58 amConstantin says:
As several observers have noted, this is a plain admission by Reid that the rationing mechanism is a keystone of his scheme, and that he doesn’t expect his majority to be as permanent as was being claimed this time last year.
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December 22, 2009, 12:02 pmCan One Congress Bind Another? | The Open House Project says:
[...] a discussion now on RedState and Volokh Conspiracy about whether the Senate healthcare bill contains an unconstitutional [...]
Chris Travers says:
Sure it’s Constitutional. Its obvious purpose is to provide a rhetorical device for opponents of future amendments to use to shame legislators.
As far as whether it is binding, I don’t think any argument can be made that it is binding.
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December 22, 2009, 12:13 pmSkyler says:
I doubt anyone expects this to be legally binding. It does make for some political haymaking for anyone wanting to change it. We have ceased in large part being a nation of laws and reason and are now almost exclusively a nation of emotion.
Legally this seems similar in the way the court ruled it unconstitutional to make a law giving only one house of congress the power to change administrative laws. (I’m on the road to Grandma’s or I’d look up the case. )
I think the court would find this to be unconstitutional as far as it binds subsequent legislatures, but that would take years to determine and that delay alone would be a victory.
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December 22, 2009, 12:14 pmRichard Riley says:
Prof. Adler, a pretty close analogue is section 205 of the Amtrak Reform and Accountability Act of 1997, Pub. L. 105–134, which enacted into law the specific Senate procedures to be followed in order to disapprove certain recommendations made by the Amtrak Reform Council created by the legislation. The law specifies exactly how the motion to disapprove certain Council recommendations will be calendared in the Senate, the time allowed for debate, just which procedural motions on the Senate floor will be deemed in order in consideration of the motion, etc. etc. I don’t recall, however, whether the Amtrak Reform Council ever made any recommendation that would have brought these provisions into play. Here is the URL for the page on the Thomas Congressional website where the provision appears: http://www.thomas.gov/cgi-bin/query/F?c105:1:./temp/~c105hqi7Qf:e36276:
I remember this because I found this statutory specification of detailed legislative procedures pretty unusual at the time — and I guess Congress has decided it may like this sort of thing. Note that the Amtrak legislation was in a Republican-controlled Congress, so apparently efforts to control the procedures of future Congresses can appeal to both parties when they’re trying to cobble together a deal.
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December 22, 2009, 12:15 pmArthurKirkland says:
I doubt this is the first time this has been tried, but it seems sketchy. With some subjects, however . . . Amtrak reform, apparently, maybe base closings . . . the weird seems to get weirder.
Seems like an interesting issue to gnaw on, particularly if someone in the discussion knows the terrain.
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December 22, 2009, 12:29 pmJaimeInTexas (Jam) says:
“It shall not be in order in the Senate or the House of Representatives ... ”
The Senate establishing the rules for proceedings in the House?
Do rules of proceeedings include rules specific to a bill?
Has this been done in the past?
***edit*** Richard Riley answered. Wow.
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December 22, 2009, 12:31 pmKen Braithwaite says:
Article 1, sec 5:
The key here is Each. That seems to mean the senate cannot make rules for the house and vice-versa. But this bill being a law assented to by both houses does precisely that. The ‘Each’, applied to each legislative session, seems to means that a future senate can make its own rules, thus the current one cannot make rules for it. As far as I know each chamber explicitly adopts the standing rules each session, meaning the precedents support this view.
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December 22, 2009, 12:40 pmPaul Allen says:
Uh. This is basic. A past congress cannot bind a future congress. The rules of order are voted on at the start of the first session. Without this vote, there are no special rules. Period. Congress hews to tradition and always begins with the prior rules as the basis of the new rules.
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December 22, 2009, 12:43 pmConnecticut Lawyer says:
Assuming (as seems likely) that this supermajorit-required-to-repeal provision is struck down, what does that mean for the bill as a whole? Is there a clause somewhere in the 2,000 pages saying that if any provision is struck down, the whole thing gets tossed? One can only hope....
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December 22, 2009, 12:45 pmRichard Riley says:
ArthurKirkland is probably right — the several rounds of Base Realignment and Closure (BRAC) Commission actions that Congress authorized over the last 15–20 years were explicit efforts to take military base closings out of Congress’s and the President’s grubby political hands. So I bet some of those laws got pretty deep in the weeds of Congressional procedures that would have to be followed to second-guess BRAC Commission recommendations. Don’t know the details, however.
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December 22, 2009, 12:49 pmrichard says:
Isn’t this somewhat similar to the base closing law which says that the base closing commission comes up with a list of base closings and then Congress has to accept the list without changes or reject it in toto? By prohibiting Congress from making changes to the list, doesn’t it bind future Congresses in much the same way that this bill does. I don’t think there has been any challenge to that law. Has there been any commentary suggesting it is notconsitutional?
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December 22, 2009, 12:50 pmfwb says:
This is what you get from the “Annointed” be they judges, legislators, affirmative action presidents or what have you.
Tiocfaidh ar la!
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December 22, 2009, 12:54 pmAnthony says:
Presumably, Congress retains the right to repeal the entire bill with a 51% vote, so I don’t see a problem. In any case, the Constitution doesn’t require a 51% vote anyway, it doesn’t address what sort of vote is required to pass most legislation.
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December 22, 2009, 12:54 pmKen Braithwaite says:
Richard’s point about base closings is interesting, but doesn’t address the constitutionality issue I and others raised.
Arguing that that bill, since it has not been challenged means the principle is settled, is just a logic error.
I cited a clause; anyone have a rebuttal or reason to think my construal amiss?
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December 22, 2009, 12:57 pmLarryA says:
If the Democrats can do it now, the Republicans can do it later, whereupon the Democrats will scream that it’s not fair.
When will they learn?
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December 22, 2009, 1:00 pmEli Rabett says:
Since you need 60 votes to get anything to the floor in the Senate, this whole thing is moot. In any case, it is only binding on the Senate, so it is a Senate rule, and they can change those anytime they want.
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December 22, 2009, 1:07 pmBrett says:
If the Senate can’t bind itself in this way, can the Senate bind itself to a supermajority requirement for a rules change?
Is there any real difference between these situations?
The interesting consequence of this provision is that attempts by the Republicans (as future majority) to repeal it should stoke an argument about the legitimacy of a simple majority rule for rules changes.
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December 22, 2009, 1:08 pmLarryA says:
Not really. As I remember the BRAC rules bound the current session, since if a bill doesn’t pass and become law by adjournment it has to be reintroduced and start over. Plus, there was no provision prohibiting a future congress from reopening a base if it was needed.
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December 22, 2009, 1:08 pmrichard says:
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December 22, 2009, 1:22 pmPerseus says:
It is not uncommon for Congress to do this sort of thing–entrenchment–particularly with respect to budget matters (e.g., “One of these budget process rules requires the approval of a “super-majority,” or 60 members, to pass legislation authorizing any new expenditures, whether caused by cutting taxes or adding new mandatory spending legislation not provided for in the previous budget resolution. Another budget enforcement rule is the Senate’s “pay-as-you-go” (or “pay-go”) rule that requires 60 votes to pass tax cuts or mandatory spending legislation that would require use of the “off-budget” Social Security surplus”). Such rules may not be binding on future Congresses; otherwise, a simple majority of the Congress could have passed the Bill of Rights as normal laws and required unanimous consent to repeal them in order to make them more immune to future majorities than constitutional amendments.
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December 22, 2009, 1:26 pmBrian K says:
you’re not the sharpest knife in the drawer are you? someone already has pointed out above the republicans have already done this.
i love it when people make a fool of themselves!
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December 22, 2009, 1:30 pmBrett says:
The more I think about this provision, the more I think it could assist in the elimination of the filibuster. Here are the (admittedly speculative) steps that could lead there:
(1) bill passes with the provision
(2) Republicans regain control of the Senate with between 50 and 59 votes
(3) Senate Republicans vote to repeal the legislation
(4) Democrats retake the Senate with between 50 and 59 votes
(5) Democrats use the exact same arguments made in support of (3) as a reason to pull the trigger on the nuclear / constitutional option and eliminate the filibuster, assuming that the Republicans haven’t done so between steps (3) and (4)
One problem: if the legislation doesn’t pass with the 2/3 vote requirement as stated in Senate rules to effect a rule change, Republicans in (3) could argue that it didn’t meet the threshold for a rules change. But then they end up strengthening the 2/3 requirement and make it harder to pull the trigger on the nuclear / constitutional option themselves.
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December 22, 2009, 1:31 pmArthurKirkland says:
I do not know much about this, but I know how to operate a telephone. Someone in a Senate office just told me that debt ceilings, rather than base closings, were probably the template.
That doesn’t make it more or less sketchy or lawful. But it tends to remove “unprecedented” from the mix.
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December 22, 2009, 1:36 pmSoronel Haetir says:
People keep acting like this is going to be challenged in court. I just don’t see it. And even if a senator or two did challenge in court I imagine the result would be dismissal as a political question. The senate gets to set its own rules, so long as the senate chooses to adopt this rule I don’t see any group of senators not comprising a majority of the body having a legitimate complaint. Those complaining senators simply lost the political battle to have different rules.
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December 22, 2009, 1:39 pmBrett says:
Jim DeMint (cited in the Weekly Standard post you link to) urged a rule change with respect to filibusters of judicial nominees by majority vote in 2005, in the form of the nuclear / constitutional option.
There are a lot of peripheral arguments regarding these different situations. But if you’re attracted to the argument that the Senate can’t bind future Senates to a supermajority requirement, you really don’t have a direct answer to the argument that the nuclear / constitutional option is always available, in principle, to override the senate-internal 2/3 requirement for rules changes.
And if you want to insist on the 2/3 requirement now, it’s not clear to me that you can insist on disregarding it with respect to the nuclear /constitutional option. The ultimate validity of the 2/3 requirement is incompatible with the nuclear / constitutional option.
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December 22, 2009, 1:49 pmSoronel Haetir says:
Brett,
A current legislature can bind a future legislature to the degree the future legislature chooses to remain bound. Given how long both the House and Senate have been around it does not surprise me that the rules aren’t revised wholesale every term, the rules have been shown to work for the purposes to which they were enacted.
If a caucus existed for changing this rule or flat repealing the legislation in toto that could get past cloture I don’t think there would be complaints about use of illegitimate tactics. There would just be the usual political charges, death of the nation and so on. Nothing new under the sun. And I certainly don’t see the court stepping either way to enforce this rule or to muck about with its repeal if that were done.
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December 22, 2009, 2:00 pmThe Volokh Conspiracy » Blog Archive » Entrenchment Provisions in the Health Care Bill says:
[...] Archives « Future Amendments Are Out of Order [...]
Brett says:
True enough, but how do you know when a legislature has “chosen” to be bound? The fundamental question is what is the status of the 2/3 requirement for rules changes. Perhaps, as you seem to imply, it’s just there until a majority of senators decides to vote otherwise or act to the contrary (a la the nuclear / constitutional option). That certainly puts the cloture requirement in a different light.
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December 22, 2009, 2:08 pmAndrew says:
The real issue here is not whether a future Congress can change the rules all it wants. Of course it can. It can even blow up all the rules by a simple majority vote.
The real issue here is therefore not a constitutional issue, but rather an issue under the Senate rules. The Senate rules say that sixty-six (66) Senators are needed for cloture on a rule change (to shut off debate and proceed to a vote on the merits), but only sixty (60) Senators are needed for cloture on a statute.
So, the question is: if a statute purports to change the rules, does cloture require 60 votes or 66 votes? That’s the real issue here.
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December 22, 2009, 2:28 pmSoronel Haetir says:
Brett,
And current Senate majorities are bound by the desire to have the procedure available when they are no longer in control. Seems like a typical case of immediate gratification vs. long term consequences. So far those consequences have kept the cloture rule in place.
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December 22, 2009, 2:57 pmSoronel Haetir says:
As for your question of determining when a legislature is bound, that would seem obvious. A legislature is bound when it chooses not to act contrary to the previous rule. It becomes unbound when it repeals or flouts the old rule.
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December 22, 2009, 2:59 pmTwirip says:
This is true. But it would require the Senate to abolish the filibuster, and we know how attached Senators are to the filibuster. So it does not set the bar at 67 votes, but still probably at more than 51.
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December 22, 2009, 3:03 pmTwirip says:
Keep in mind that the rule is question is being made a part of the US law.
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December 22, 2009, 3:05 pmFuture Amendments Are Out of Order | Liberal Whoppers says:
[...] the rest here: Future Amendments Are Out of Order Share this [...]
John says:
For sake of argument, replace “3/5ths” with “unanimous”. Either it is nonbinding or it is unconstitutional.
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December 22, 2009, 3:10 pmRobL says:
A Senate which includes such a blatantly unconstitutional provision in legislation deserves neither deference nor respect. Truly a dark day.
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December 22, 2009, 3:23 pmJim from Albany says:
The heart of this issue is the Senate’s contention that it is a “continuous body.” Some commenters are making the false statement that the Senate (1) readopts its rules by at the beginning of each Congress, and (2) does so by majority vote.
Not true on either count.
Unlike the House, the Senate has long contended that it does not have to readopt its rules. As only 1/3 of the Senate turns over each Congress, the rules remain in effect.
The second half of the above proposition is far more important. Senate rules state that a 2/3 vote is required for cloture on any bill, resolution, or amendment that seeks to change the Senate rules. So a bare majority CANNOT alter the Senate rules, even at the beginning of a Congress. This is why Rule 22 (the cloture rule) has been so hard to change.
This idea — that the 2/3 rule to change the rules is Constitutional — has been attacked, most notably in 1957 and 1969. At the beginning of each of those Congresses, attempts were made to have a Constitutional ruling that a bare majority could change the Senate rules at the beginning of a Congress. The technique was as follows: a friendly vice-president (Nixon in ’57, Humphrey in ’69 [just before leaving office]) would rule on a point of order that the 2/3 rule was unconstitutional (as opposed to submitting the question to the Senate, which would be standard practice). Then, when the proponents of the rule appealed the point, the reformers would table the appeal by majority vote. The key is that tabling the appeal is not debatable, so it itself could not be filibustered. [The other way, submitting the question to the Senate, would never work, since points of order themselves are debatable at that point, and thus could be filibustered]. Unfortunately, both times they got friendly rulings, the reformers did not have the votes to get a bare majority, and the tabling failed, ultimately allowing the VP ruling to be overruled.
None of this matters in the current example. Although DeMint is arguing that the health care bill changes the Senate rules and thus requires 2/3 vote, he is not correct. The bill technically only provides procedures which amount to “standing orders” of the Senate. Only explicit changes to the Senate rules require 2/3 vote.
Of course, once you realize that a bare majority cannot change the Senate rules, virtually any rule made by the Senate — either standing orders made by statute or resolution, or actually changes to the rules made by 2/3 supermajority — become binding on future bare majorities.
It is very common Senate practice.
Jim
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December 22, 2009, 3:23 pmAlex S. says:
While not binding since the underlying rule can be changed, doesn’t it at least raise the bar?
If you’re an individual senator opposed to a specific recommendation from the board, but generally consider the 75% rule to be a good one, changing the rule would put all the times you think it is good at risk in pursuit of the one time you think it is bad.
An example I’m thinking is that 55% might want to overturn a recommendation on breast cancer screening but might not want to enable simple majority because it would put other abortion related recommendations at risk.
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December 22, 2009, 3:26 pmADF Alliance Alert » Entrenchment Provisions in the Health Care Bill are Probably Unconstitutional says:
[...] Blackstone cited in the paper linked below. Eric Posner writes at the Volokh Conspiracy: “Jonathan notes that the health care bill includes certain ‘entrenchment’ provisions . . . Can Congress [...]
As usual, Hayek calls it the way it is « Belligerati says:
[...] Source Volokh’s post Future Amendments Are Out of Order [...]
Bruce Hayden says:
I think that what is most worrisome is that well under 2/3 of the Senate are going to make sure that 2/3 of a successor Senate are needed to change it. My guess is that there are a lot of Democrats who voted for cloture who are not going to vote for the resulting bill. And, there will likely be no Republican defectors. So, I wouldn’t be surprised if the margin in the Senate were maybe 55 or so in favor. Maybe as low as 52 or so, depending on how many Democratic Senators are scared right now for their political lives (Harry Reid excluded — even voting against his bill isn’t going to save him, rather his $3+ million war chest is his only hope).
So, we are likely to have 55 or so Democrats in the Senate forcing this 2/3 or so majority on future Congresses. Not surprising, but then again, not fair either.
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December 22, 2009, 3:45 pmDjDiverDan says:
Future Amendments are out of order????
Where is Al Pacino when we need him — “NO! YOU’RE OUT OF ORDER! YOU’RE OUT OF ORDER!”
From “And Justice for All.”
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December 22, 2009, 3:50 pmBC says:
It seems to me that all you really need to get around this is a Republican majority leader willing to ignore the parliamentarian.
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December 22, 2009, 3:58 pmRelic says:
If the rules of the Senate cannot be changed except by a 2/3 majority, and this constitutes a change to the Senate rules, then the provision violates the Senate rules, because the change was enacted without a 2/3 majority. Count me among the folks saying it’s nonbinding.
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December 22, 2009, 4:19 pmShane says:
Does this rule actually change much? I mean, I assume that any future amendments to this legislation would have to survive a filibuster anyway, which requires 3/5 of sworn senators.
We should get rid of the filibuster and the courts should rule unconstitutional all instances of language like this in the U.S. Code. The human brain suffers from status quo bias as it is, anyway. Between that and the many veto points actually built into the constitution, we don’t need this.
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December 22, 2009, 4:25 pmJim from Albany says:
This does not change the Senate rules. The 2/3 rule applies to explicit changes to the rules. Changes to the standing orders or procedural changes such as this can be done via statutory rulemaking with majority votes (and 60 threshold cloture votes). They are binding.
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December 22, 2009, 4:30 pmSkyler says:
The Athenians would make it a capital offense to even suggest that certain laws be revoked.
Of course even with that draconian penalty they still spared the city of Miletus (? Someone will tell me the correct city I’m sure) from being destroyed.
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December 22, 2009, 4:45 pmTwirip says:
Can you provide a list of some of the other tmes this “very common practice” has been employed?
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December 22, 2009, 5:14 pmStormy Dragon says:
Even if it is customary to allow this, from what I understand US v. Ballin establishes that as a matter of law, any procedural rule can be changed at any time by simple majority vote (indeed, threatening to do this is the whole basis of the ‘nuclear option’).
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December 22, 2009, 5:54 pmArthurKirkland says:
Better question: Where is
Al PacinoArthur Kirkland when we need him — “NO! YOU’RE OUT OF ORDER! YOU’RE OUT OF ORDER!”By the way . . The whole trial is out of order!!!
Hold it!! Hold it!! I just completed my opening statement.
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December 22, 2009, 6:08 pmAlanDownunder says:
Yes, the filibuster can be abolished.
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December 22, 2009, 7:28 pmBrett says:
I’m not sure I understand the term “binding” here. If you mean: a legislator at time t+1 could obey the rule out of a sense of legal obligation, I think you might be right. But the question is whether that same legislator must do so, or, alternately, whether that same legislator may, consistent with legal and constitutional obligations, disregard the rule. Probably the legislator who disregarded the rule would do so because he thinks that where the Constitution grants legislative powers, current legislative majorities rule, not past majorities, as a basic constitutional matter. I’m finding it hard to believe that this argument is simply not available.
A rule that a legislator may decide not to treat as binding is, for that reason, not really binding, even though it may be a strategic roadblock. (In his post above, Eric appears to disregard any difference between these two kinds of bindingness. If you do that, then the question is a little easier, I think.)
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December 22, 2009, 8:00 pmDavid Sanger says:
IMHO such clauses as these are odious since they in effect disenfranchise future voters by presuming to know more than they.
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December 22, 2009, 8:04 pmBrett says:
adding. . .I’m actually talking about three types of bindingness: “binding” (you could follow it), binding (it’s legally required to follow it) and a strategic roadblock (Eric’s mishmash of everything that “ties the hands” of future congresses).
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December 22, 2009, 8:08 pmTweets that mention The Volokh Conspiracy » Blog Archive » Future Amendments Are Out of Order -- Topsy.com says:
[...] This post was mentioned on Twitter by PostRank – Law, Eugene Volokh. Eugene Volokh said: Future Amendments Are Out of Order: The Senate health care bill contains provisions that purport to prevent a f.. http://bit.ly/4w5QSc [...]
Jim from Albany says:
All of the 60-vote budget process hurdles, the inability to filibuster reconciliation language, fast-track authority under various trade agreements, etc., etc.
“Binding” in these situations means “the presiding officer, backed by the parliamentarian, will enforce the rule when a point of order is made, and the existing Senate will back it. Since the existing Senate could technically NOT back it, that’s an out for those who claim you can’t bind future congresses. But the existing Senate cannot escape the filibuster that could prevent them from voting to overturn the ruling of the chair, nor can than alter the rules of the Senate except by 2/3 majority to end a filibuster of a rules change (as I outlined above). So, like it or not, it’s binding.
None of this can end until it is affirmatively decided by an existing Senate that a bare majority can alter the Senate rules. As long as the 2/3 cloture rule remains for rules changes, the only way out is to empower the VP to make a constitutional ruling (as I outlined above) and uphold it by tabling the appeal.
Of course, once you do that, the whole house of cards falls, as majoritizing rules changes will, in effect, kill all non-majority rules provisions.
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December 22, 2009, 9:11 pmBC says:
In other words, it’s as I said: all you need is a presiding officer willing to ignore the parliamentarian.
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December 22, 2009, 9:18 pmMark Field says:
It was the Island of Melos.
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December 22, 2009, 9:45 pmMark Field says:
Or maybe you meant Mytilene.
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December 22, 2009, 9:48 pmA T Garvin says:
They can’t even consider it? Perhaps they could get around that by talking in pig latin.
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December 22, 2009, 10:09 pmDesiderius says:
David Sanger,
“IMHO such clauses as these are odious since they in effect disenfranchise future voters by presuming to know more than they.”
“Living Constitutionalism” is already predicated on knowing more than past generations — why shouldn’t they know more than future ones as well? Is their brilliance not as self-evident to you as it is to themselves?
It is ironic that those who have chafed so much at the yoke imposed by the written Constitution (you know, the one Barnett is ever on about) that they have all but thrown off its strictures have wasted so little time crafting new strictures of their own for those future generations with the temerity to follow their example.
Is the Living Constitution interred with their uniquely glorious bones?
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December 22, 2009, 11:29 pmBob Smith says:
Since this is a change to Senate rules, doesn’t Senate Rule 22, requiring a 2/3 vote for cloture, apply here?
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December 23, 2009, 11:36 amDesiderius says:
Bob Smith,
Wouldn’t a “rule” apply to the Senate in general, and not just to it’s procedures for the (re)consideration of a specific bill?
In other words, a change to the Senate Rules would say “All future amendments to bills require a 3/5ths vote”, rather than this (procedural?) change, which only applies to the part of the statute in question.
Is this a legally relevant distinction?
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December 23, 2009, 1:44 pmCan the Senate bind itself? « Under Aged Thinking says:
[...] Jonathan Alder asks if the Senate is allowed to bind future Senates in this way and Eric Posner says no. I’m no expert parliamentarian, but I would like to know one thing: if this Senate cannot constitutionally bind future Senates with a 3/5 requirement to amend a bill sent from the advisory committee, how is it that previous Senates are allowed to bind the current Senate with a 3/5 requirement for cloture? [...]