Opinion: Power play leaves Senate without rules

November 30, 2013


— For all the gnashing of teeth over the lack of comity and civility in Washington, the real problem is not etiquette but the breakdown of constitutional norms.

Such as the one just spectacularly blown up in the Senate. To get three judges onto a coveted circuit court, frustrated Democrats abolished the filibuster for executive appointments and (non-Supreme Court) judicial nominations.

The problem is not the change itself. It’s fine that a president staffing his administration should need 51 votes rather than 60. Doing so for judicial appointments, which are for life, is a bit dicier. Nonetheless, for about 200 years the filibuster was nearly unknown in blocking judicial nominees. So we are really just returning to an earlier norm.

The violence to constitutional norms here consisted in how that change was executed. By brute force — a near party-line vote of 52-48. This was a disgraceful violation of more than two centuries of precedent. If a bare majority can change the fundamental rules that govern an institution, then there are no rules. Senate rules today are whatever the majority decides they are that morning.

What distinguishes an institution from a flash mob is that its rules endure. They can be changed, of course. But only by significant supermajorities. That’s why constitutional changes require two-thirds of both houses plus three-quarters of the states. If we could make constitutional changes by majority vote, there would be no Constitution.

As of today, the Senate effectively has no rules. Congratulations, Harry Reid. Finally, something you will be remembered for.

Barack Obama may be remembered for something similar. His violation of the proper limits of executive power has become breathtaking. It’s not just making recess appointments when the Senate is in session. It’s not just unilaterally imposing a law Congress had refused to pass — the DREAM Act — by brazenly suspending large sections of the immigration laws.

We’ve now reached a point where a flailing president, desperate to deflect the opprobrium heaped upon him for the false promise that you could keep your health plan if you wanted to, calls a hasty news conference urging both insurers and the states to reinstate millions of such plans.

Except that he is asking them to break the law. His own law. Under Obamacare, no insurer may issue a policy after 2013 that does not meet the law’s minimum coverage requirements. These plans were canceled because they do not.

The law remains unchanged. The regulations governing that law remain unchanged. Nothing is changed except for a president proposing to unilaterally change his own law from the White House press room.

That’s banana republic stuff, except that there the dictator proclaims from the presidential balcony.

Remember how, for months, Democrats denounced Republicans for daring to vote to defund or postpone Obamacare? Saboteurs! Terrorists! How dare you alter “the law of the land.”

This was nonsense from the beginning. Every law is subject to revision and abolition if the people think it turned out to be a bad idea. Even constitutional amendments can be repealed — and have been (see Prohibition).

After indignant denunciation of Republicans for trying to amend “the law of the land” constitutionally (i.e. in Congress assembled), Democrats turn utterly silent when the president lawlessly tries to do so by executive fiat.

Nor is this the first time. The president wakes up one day and decides to unilaterally suspend the employer mandate, a naked invasion of Congress’ exclusive legislative prerogative enshrined in Article I. Not a word from the Democrats. Nor now regarding the blatant usurpation of trying to restore canceled policies that violate explicit Obamacare coverage requirements.

And worse. When Congress tried to make Obama’s “fix” legal — i.e., through legislation — he opposed it. He even said he would veto it. Imagine: vetoing the very bill that would legally enact his own illegal fix.

At rallies, Obama routinely says he has important things to do and he’s not going to wait for Congress. Well, amending a statute after it’s been duly enacted is something a president may not do without Congress. It’s a gross violation of his Article II duty to take care that the laws be faithfully executed.

A Senate with no rules. A president without boundaries. One day, when a few bottled-up judicial nominees and a malfunctioning health care website are barely a memory, we will still be dealing with the toxic residue of this outbreak of authoritative lawlessness.

— Charles Krauthammer is a columnist for Washington Post Writers Group.


Paul R Getto 4 years, 4 months ago

There is nothing in the Constitution about the 60 vote rule. When the R's get the Senate back they can revert to the old rule. Think they will do it? Nah...It's only terrible now because their obstructionist ways caught up with them.

Richard Heckler 4 years, 4 months ago

One cannot believe much of what CK ever prints. Because he is a mouthpiece of the following.

Where Did The GOP go? It died at the hands of John Birch,Pete Peterson,Extreme Fundamentalists,Ze family money etc etc etc

What is the GOP? John Birch Society - ALEC - Anti American - The Tea Party = it's all four. http://www.sourcewatch.org/index.php/SourceWatch

John Birch Society Celebrates Koch Family For Their Role In Founding The Hate Group http://thinkprogress.org/politics/2011/06/10/242334/john-birch-society-celebrates-koch/

United States of ALEC http://www.democracynow.org/2012/9/27/the_united_states_of_alec_bill

I'd say a GIANT beware to any republican voter who believes the GOP is being brought back to life for repubs might be getting set up for an ALEC Right Wing dupe again.

Chris Golledge 4 years, 4 months ago

Well, let's see. The Republicans were using the filibuster to block appointing presidential nominees. They had no objections to the nominees; they just didn't want to allow Obama to appoint any. The Democrats told them repeatedly to quit, or they would change the rules. The Republicans called their bluff, and found out that they were not bluffing.

BTW, there in nothing in the constitution about rules in the senate other than the senate gets to make their own rules.

Bob Smith 4 years, 4 months ago

And won't it be jolly fun showing the Democrats that what's sauce for the goose is also sauce for the gander next time the Senate changes hands?

4 years, 4 months ago

"If a bare majority can change the fundamental rules that govern an institution, then there are no rules."

No, there are still rules: the rules that the majority say will apply. There is nothing magic about 60 votes, 67 votes, 100 votes. Some rules are better for the institution of the Senate vis-a-vis the House, others are better for individual senators but worse for the Senate as an institution. Some benefit the majority now, but will be - as others have mentioned - shoved down the Dems' throats in about 13 months. Witness the NYT's flips over the past 20 years - some can only see the 'wisdom' of the current rules when they would suffer from a change.

None of it matters. The rules are for show. If our legislature has no intention of dealing with the serious issues of the day - like our national debt and our spy-happy Executive branch - what does it matter if it takes 50 votes rather than 60 to put another obeisant federal judge on the bench?

It does not matter a bit.

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