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The Self-Evident Constitutionality of the Filibuster

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Jesse Taylor has some fun with Andrew McCarthy’s transparently failed attempt to argue that the Constitution prohibits the filibuster of presidential appointees. It must be said that, at least, McCarthy’s argument is a step up from most of the ad hoc attempts of conservative pundits; McCarthy concedes that the Senate has plenary power to establish “the Rules of its Proceedings” and nothing in the text of the Constitution prohibits the Senate from applying the filibuster to its “advise and consent” powers, which are also clearly enumerated. Rather, McCarthy tries to make a structuralist argument, arguing that such limits are implicit (although his claim that these limits are “objective” is obviously false.) There’s nothing wrong with this methodology, although the “strict constructionists” at the National Review tend not share my conviction that Griswold was correctly decided. Anyway, leaving aside the internal contradiction, is the argument plausible?

Of course not. McCarthy’s argument hinges on the claim that the Senate filibuster tramples the prerogatives of the executive. Jesse notes one problem: this cuts both ways, so the argument can’t work unless you believe that the executive’s powers are greater. But there’s an even more fundamental problem: all Senate filibusters affect the separation of powers. Just as filibusters of appointments inhibit the ability of the president to nominate, filibusters of legislation inhibit the ability of the House of Representatives to use its legislative powers. There’s nothing unique about the filibuster of appointments, and nothing that’s inconsistent with the checks and balances set out in the Constitution. All of the silly hypotheticals McCarthy uses to claim that there must be “objective” limits on the Senate’s powers could be applied to ordinary legislation; theoretically, the Senate could use the filibuster to refuse to fund the Secret Service or Air Force One. Informal norms will prevent these things from happening (just as informal norms mean that most judicial appointments get approved), but this is not a a constitutional limitation.

This brings us to an additional problem with other arguments that the filibuster is illegitimate; they virtually all rely on distinctions between judicial filibusters, which have been rare, and other anti-majoritarian procedural rules (such as blue slip rule) that have been gleefully used by Senate reactionaries for decades. But these are distinctions without a constitutional difference. If the Senate can set committee rules to allow minorities (in some cases a minority of one) to block judicial appointments, it can certainly use filibusters if it chooses.

As readers of this blog know, I’m against the filibuster rule as a policy matter (although I certainly don’t confine my opposition to judicial appointments.) But arguments that the filibuster is unconstitutional are exceptionally implausible, and arguments that the filibuster is unconstitutional for judicial appointees but otherwise fine are even worse. These arguments are simply unserious, ad hoc rationalizations that will be abandoned as soon as the short-term political calculus changes.

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