McConnell’s Senate’s new rule should be, in essence: “ANY Senate Filibuster Aimed at Protecting ANY Imperial Presidency is unconstitutional.” This ends the current crisis, restricts presidential overreach, and keeps legislative filibusters alive for the sentimental.
McConnell has, now, a clear way to separate the filibuster of this legislation from all other sorts of legislation the Senate may take up in the future. As of February 16, 2015, a federal judge put a temporary injunction on the very executive actions the House and Senate bill addresses. McConnell can generate a very specific rule on very specific pieces of legislation that involve specific kinds of executive overreach.
On February 11th, Senate Majority leader Mitch McConnell said that because the House legislation to fund the Department of Homeland Security (DHS) was “stuck” in the Senate, the only alternative was for the House to amend the bill in ways that exclude language overruling President Obama’s illegal executive actions on immigration.
By ‘stuck’ McConnell meant that the Senate Democrats, despite the Department of Homeland Security’s need for the funding of its lawful activities, filibustered the bill. Don’t worry none of the 100 senators are suffering through endless diatribes led by Harry Reid or Barbara Boxer. (In fact it is unlikely that either ancient senator could muster much more than a fifteen minute speech.) This isn’t the Cruz style, Rand Paul style, common man’s talk-till-you-drop filibuster. No, this is the push-button filibuster that our gentrified political elite most love. Harry Reid puts his magic kabosh on a bill and, whamo! That’s it. It’s dead unless the GOP can muster 60 votes.
On February 12th, House Representatives Raúl Labrador (R-Idaho), Tim Huelskamp (R-Kan.) and Rep. Mick Mulvaney called on McConnell to rewrite the Senate’s rules and bypass the filibuster that is holding up the Senate legislation. That’s not as simple as it may sound. When Harry Reid ended the filibuster for judicial appointments, it passed because the Senate Democrats voted that such a filibuster was “unconstitutional.”
On February 13th, the Senate fired back. Sen. James Lankford said, “It’s one thing to change the filibuster on nominations, it’s another to change it on legislative action.” His point is that it once you declare the filibuster unconstitutional for one legislative action, the filibuster is ended for all legislative action.
Along these lines, Sen. Roger Wicker (R-Miss.), the chairman of the National Republican Senatorial Committee, responded with the worn out rhetorical question, “We should change 200 years of precedent?” In these circumstances, such a response is infuriating. The executive overreach by the President and his Department of Homeland Security is likewise unprecedented! Do something!
Besides, the Senate, despite all their elitist longings, is not the Supreme Court of the United States. They aren’t bound by precedent at all. They are to legislate. The filibuster has so weakened congress over the last half of the twentieth century that it is no wonder they are sitting ducks for both the executive and the legislative branches. However, that the organ of the people’s will has become so docile it begs the question of each senator’s allegiance to his or her constitutional responsibilities. DO SOMETHING!
Some believe that the push-button filibuster should be ended entirely, and that it does little but drive up the price of pork paid to individual senators when big corporations seek passage of crony legislation. Still, that doesn’t mean specific Department of Homeland Security bills would not be so much like other legislation that the push-button filibuster cannot be ended in this situation without being ended entirely.
The solution is plain. Declare any filibuster of any bill that contains language that overturns executive actions, orders, or regulations unconstitutional. Then let all other legislation proceed in it’s own ordinary byzantine and ludicrous manner through the twisted corridors of Senatorial power. Mr. Smith could still go to Washington, or at least the Senate could continue to pretend that the cloture procedure still has something to do with Jimmy Stewart’s immortal role.
A filibuster specifically aimed at legislation meant to thwart executive regulatory actions, actions not first envisioned or framed by a congressional law, should be declared unconstitutional. Such a filibuster strikes at the very core of a government of the people, by the people, for the people. Such a filibuster is shameless arrogance.
It’s been months. The funding for the Department of Homeland Security has passed. The case for halting the illegal executive actions has been so weakened that DHS has begun flying illegal border kids into the United States, literally right over the heads of the Texas National Guard surge, all on the taxpayer’s dollar. Once again the executive branch has picked the congressional purse in broad daylight. Congress must do something. They must kill the filibuster in whole or in part.