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Judge Strikes Down Constitutional Challenge to the Filibuster

Senate Chamber

If there’s going to be reform to the Senate’s rules, it’s going to have to come from the Senate itself. That’s the implication of a ruling in federal court today throwing out a Constitutional challenge to the filibuster.

Judge Emmet Sullivan ruled that the plaintiffs in the case, who claimed that the Senate used an unconstitutional super-majority to block citizenship for undocumented immigrants brought to America as children by their families, had no standing to challenge the Senate’s internal procedures. Additionally, he said that the judicial branch has basically no right to dictate rules changes to the legislative branch:

Reaching the merits of this case would require an invasion into internal Senate processes at the heart of the Senate’s constitutional prerogatives as a House of Congress, and would thus express a lack of respect for the Senate as a coordinate branch of government.

It’s hard for me to really argue with this ruling, even if it didn’t arrive at my preferred ends. You can’t really have courts overturning the way that the Senate does its business. The angle of members of the House, also parties to the case, arguing that their rights of representation were violated by the filibuster just doesn’t really fly in this case.

So the Senate will have to fix the Senate. As for the status of that, Democrats appear to have the votes to make at least some changes to the filibuster rule, none of which eliminate it. But too many members of the majority are antsy at using the Constitutional option, which says that rules changes at the beginning of a session require a simple majority. They don’t want to be saddled with the precedent, which of course would be the biggest deterrent to obstruction on the part of the minority. In addition, the extension of the fiscal slope debate means that the Senate won’t have a lot of time to deliberate over the rules, because they may be expected to legislate immediately upon swearing-in. So the whipping really has to get done in the next several days.

I think something will get done in the Senate, but the chances of that being game0-changing are remote. Then again, looking at the bad Jerry Lewis film that is the House of Representatives at this point, the Senate looks positively functional.

Sullivan’s ruling is here.

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David Dayen

David Dayen