Law Commons^™

The Filibuster And The Framing: Why The Cloture Rule Is Unconstitutional And What To Do About It, Dan T. Coenen

Scholarly Works

The U.S. Senate’s handling of filibusters has changed dramatically in recent decades. As a result, the current sixty-vote requirement for invoking cloture of debate does not produce protracted speechmaking on the Senate floor, as did predecessors of this rule in earlier periods of our history. Rather, the upper chamber now functions under a “stealth filibuster” system that in practical effect requires action by a supermajority to pass proposed bills. This Article demonstrates why this system offends a constitutional mandate of legislative majoritarianism in light of well-established Framing-era understandings and governing substance-over-form principles of interpretation. Having established the presence of a …

The Originalist Case Against Congressional Supermajority Voting Rules, Dan T. Coenen

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Controversy over the Senate’s filibuster practice dominates modern discussion of American legislative government. With increasing frequency, commentators have urged that the upper chamber’s requirement of sixty votes to close debate on pending matters violates a majority-rulebased norm of constitutional law. Proponents of this view, however, tend to gloss over a more basic question: Does the Constitution’s Rules of Proceedings Clause permit the houses of Congress to adopt internal parliamentary requirements under which a bill is deemed “passed” only if it receives supermajority support? This question is important. Indeed, the House already has such a rule in place, and any challenge …

Irresponsible Legislating: Reeling In The Aftermath Of Kelo, Patricia E. Salkin

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No abstract provided.

Congress Misses Twice With The Community Character Act: Will Three Times Be A Charm?, Patricia E. Salkin

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No abstract provided.

Advising The President: Separation Of Powers And The Federal Advisory Committee Act, Jay S. Bybee

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This Article examines the tensions between Congress, the judiciary, and the President over presidential use of advisory committees. It argues that courts, in attempting to avoid difficult constitutional questions, have misread the Federal Advisory Committee Act (“FACA”). Properly construed, FACA violates separation of powers by limiting the terms on which the President can acquire information from nongovernmental advisory committees.

The author argues that the President does have the power to consult with outside advisers, and that FACA unconstitutionally infringes upon that power. FACA fails to draw a distinction between congressionally created advisory committees and presidentially created advisory committees, and assumes …