The "nuclear option" was unlawful

[Edit 12/28/17---In the title and throughout, I have replaced "illegal" with "unlawful", in order to avoid the possible implication that the travesty below would be subject to criminal punishment, something I did not intend to imply.  Since I wrote this article, the Republicans have followed suit by nuking the filibuster for Supreme Court nominees as well.---AW.]

Last week, 52 Senate Democrats voted to get rid of the filibuster for Presidential nominations to certain positions—in particular for Lower and Appelate Court Nominees, but not for Supreme Court nominees.  This move was branded as the "nuclear option" back when Republicans threatened to do it (but did not) during the Bush presidency.  It was completely and unabashedly unlawful, and those Senators who voted for it (most of whom denounced it vigorously when Republicans proposed it) should be ashamed of themselves.  This post will explain why their decision was contrary to the law.

The most important law in the United States is the Constitution.  It takes precedence over all other laws, and describes under what conditions laws can be made.  It says among other things that

Each House [of Congress] may determine the Rules of its Proceedings, punish its Members for disorderly Behaviour, and, with the Concurrence of two thirds, expel a Member.  (Article I. Sec. 5)

In accordance with this proviso, each of the two houses of Congress has adopted a set of rules, which they use regulate debate, votes, and other matters (kind of like Robert's Rules of Order, but the details are different).  The Sentate Rules can be found here (Rule 22 being the most important for issues surrounding the filibuster). 

Since the Constitution authorizes the Senate to make Rules for itself, these Rules are just as much binding law as ordinary federal legislation is (but, obviously, they only bind the Senate itself, not the rest of us).  The only possible exception would be if a Rule contradicted the Constitution.  In that case, the Rule would be invalid.  For example, if the Senate passed a Rule saying that they could expel Senators with a majority vote, then this rule would be invalid, since the section of the Constitution which I quoted requires a 2/3 vote.  But on most procedural issues, the Constitution is silent so the Senate gets to decide.

The important Rules to know about are the following:

  • Technically, it only takes a majority of the Senate (if all are present 51, 50 with the VP) to pass Bills, to approve a Presidential Nominee, or to change the Rules, but this is only once debate on the Bill or Rule ends.

The hard way to end debate (which almost never happens) is to give two chances to each Senator to speak as long as they can on the topic (without taking breaks to go to the bathroom!).  This was used to pass the Civil Rights act of 1957, after Senator Strom Thurmand spoke for 24 hours and 18 minutes.  (This was a real filibuster, the kind where you read biscuit recipies, which almost never happens these days.)

The easy way is to invoke cloture, which limits the time left for debate:

  • It takes a 3/5 majority (60 votes) to end debate on most topics,
  • except on a motion to change the Senate Rules, which takes a 2/3 majority (67 votes).

So, practically speaking it takes 60 votes to do anything in the Senate.  This Rule forces the Majority Party to have to reach out at least a little bit to the Minority Party when they pass legislation.  Otherwise the Minority might refuse to vote for end debate (and this is what is usually called a "filibuster" in these boring times).

Some additional important Rules:

  • At any time, the Senate may agree to temporarily waive a Rule, but this requires a unanimous vote.
  • If there is a question about what a Rule means, the Presiding Officer gets to interpret the rule.  However, the matter can then be appealed (without debate) to the entire Senate, and by a majority vote they can sustain or reject the decision.

Now notice this.  It takes a 2/3 vote to change the Rules (really to end debate on a Rule change).  But it only takes a majority vote to interpret the Rules.  This makes sense: when the Senators vote to change a rule, they are exercising a legislative function, deciding what the rule ought to be.  When the Senators vote on interpeting the rules, they are excercising a quasi-judicial function.  Essentially, they are the "Supreme Court" which decides what the Rules mean.  When making this vote, surely they are morally bound to judge honestly, and decide, not what they think the rule ought to be, but what it actually is.  Otherwise, it wouldn't make any sense for there to be a higher threshold in order to actually change the rules.

But the power to interpret necessarily includes the power to misinterpret the Rules.  This can be used to abolish any Rule by majority vote—not by amending it, but simply by interpreting it not to apply, even when it clearly does apply.

This is the "nuclear option".  The way it plays out was as follows.  Majority Leader Reid raises a Question of Order asking whether the Rules permit him to end debate on a Judicial Nominee with only a majority vote.  Patrick Leahy, the Presiding Officer, rules that according to Senate Rules and precedents, the answer is No—the Rules clearly state that a 3/5 vote is required.  So Reid appeals the decision to the main body of the Senate.  The Senate voted 52-48 to overrule the decision of the Presiding Officer (among the 52 being Leahy himself!).  Bye bye filibuster for Judicial Nominees.  (3 Democrats had the integrity to vote against, and of course the Republicans also voted against.)

Note that no actual change to the text of the Rule occured.  It was only "reinterpreted", in a Humpty Dumpty-esque act of linguistic power:

'When I use a word,' Humpty Dumpty said in rather a scornful tone, 'it means just what I choose it to mean—neither more nor less.'

'The question is,' said Alice, 'whether you CAN make words mean so many different things.'

'The question is,' said Humpty Dumpty, 'which is to be master—that's all.'     (St. Lewis Carroll, Through the Looking Glass)

I have asserted that there can be no actual justification for the Senate's interpretation of Rule 22 .  There are only 2 possible ways the decision could be correct.  Either: A) Rule 22 has a special exception for certain Judicial Nominees or else B) Rule 22's 3/5 vote requirement is unconstitutional when used to filibuster Judical Nominees.  (But apparently  not Supreme Court and Executive Branch Nominees?!?)

Option (A) is clearly absurd.  Rule 22 gives the threshold to "bring to a close the debate upon any measure, motion, other matter pending before the Senate".  Clearly the approval of a Judicial Nominee is "a measure, motion, or other matter".

Option (B) is only slightly less absurd.  The Constitution says that the President:

shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law.  (Article II. Sec. 2)

The argument here is that "Advice and Consent" implicitly includes the idea of a majority vote.  This is a rather weak argument, since "majority vote" is nowhere included in the text.  Whereas the statement about the Senate making its own Rules is quite explicit.  So this interpretation of the Constitution seems quite dubious.

Even if the Constitution did require a majority vote for Nominees, there is absolutely no good reason why this should apply to some types of Nominees but not others.  Nor is it obvious why the filibuster would be constitutional for legislation, since the majority vote requirement could just as easily be read into the power of the Senate to pass Bills.  But if the filibuster is unconstitutional in general, this would be a rather surprising thing to find out now, after 170 years of precendent to the contrary.

The fact is that those who voted for the "nuclear option" knew perfectly well that it was of extremely dubious legality.  They didn't do it because they genuinely believed in it.  They did it for political reasons, as a naked act of political power.

Can any justification can be made for this act?  Let me make some points about what is and is not relevant:

  1. Whether or not the "nuclear option" was legal cannot possibly depend on how frequently the Republicans were filibustering Judicial nominees.  It is a question of legal interpretation, not a question of history.  The unfair tactics and hypocrisy of the other side is irrelevant.
  2. Besides, the Opposition Party in a democracy is allowed to use any legal tactic in order to delay or obstruct legislation.  If their obstruction is unwise, unprecedented, immoral, or hypocritical, voters may take note and respond.  But excessive use of a legal tactic on one side cannot justify use of an unlawful tactic on the other side.
  3. The liberty of a free people depends on the fact that government officials do not consider themselves above the law, but instead obey it.  Without this social norm, restrictions on the government (such as the Bill of Rights) would be meaningless.  This social norm is therefore far more important than nearly all of the minor partisan squabbles which could tempt one political party to abadon it.
  4. There may be extreme circumstances which may justify unlawful actions, but "There are hypocritical obstructionists in Congress" doesn't qualify.  That's way too common of an occurrence to justify anything!
  5. When I call the nuclear option unlawful (unruleful), I don't mean that the Senate doesn't have the power to interpret its own rules, or that this decision doesn't stand as a precedent from now on.  If the Supreme Court were to rule 5-4 that the First Amendment allows the government to ban books, this act would be legal in the sense that they are charged with interpreting the Constitution, yet still wrongly decided in the sense that it directly violates the text they are charged with interpeting.
    If we further suppose that the Supreme Court knew perfectly well that the decision was erroneous, but did it anyway in order to spite their political opponents, then that would be a pretty close analogue to what the Senate just did.
  6. Strictly speaking, it is the act of banning books which is unconstitutional, not the decision itself.  Similarly, the Senate decision is tantamount to an unlawful violation of the Senate rules, but since it is the highest court for interpreting its own Rules, there is another sense in which what it did is now de facto legal.
    This doesn't make much practical difference, though.  A completely lawless use of the power to interpret is exactly the same as if there were no law at all.
  7. My views are not based on which party is in charge.  I was vehemently opposed to the "nuclear option" when Republicans proposed it, and I am still opposed now.

All told, it is a dark day for the Republic.  The trouble is, these days both Parties hate each other so much that they spend all their time thinking about how the other side is hypocritical, without noticing that they also chang their position whenever it is convenient.  (See Kerr's Law).  Political expediency trumps truth.  I'll spare you all the juicy quotes from the Senators who flip flopped on this issue when the Party roles were reversed.

Instead I will remind us of the words of the Master whom most of those in Congress claim to serve:

How can you say to your brother, ‘Let me take the speck out of your eye,’ when all the time there is a plank in your own eye?  You hypocrite, first take the plank out of your own eye, and then you will see clearly to remove the speck from your brother’s eye.  (Matthew 7:4-5)

About Aron Wall

I am a Lecturer in Theoretical Physics at the University of Cambridge. Before that, I read Great Books at St. John's College (Santa Fe), got my physics Ph.D. from U Maryland, and did my postdocs at UC Santa Barbara, the Institute for Advanced Study in Princeton, and Stanford. The views expressed on this blog are my own, and should not be attributed to any of these fine institutions.
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