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Senator Shelby and the Emerging Constitutional Crisis of our Time

By Jack M. Balkin

Senator Richard Shelby a Republican Senator from Alabama, has secretly put a hold on all executive branch nominations by the Obama Administration. He wants earmarks for some pet projects in his home state. The hold is secret no more, since Shelby's identity has been leaked to the press, and Shelby himself has come forward with a statement defending his decision to place an unspecified number of holds on President Obama's nominees, and, in effect blaming President Obama for making him do it.

Apparently a blanket hold of this sort has never been attempted before, but in effect all Shelby has done is add together a series of individual holds.

This, together with Scott Brown's election in Massachusetts, should be a wake up call to President Obama that he faces a political and legal crisis of the first order. The Senate's rules, which are not required by the Constitution, need to be reformed immediately or else day-to-day governance threatens to become impossible.

This crisis is not yet technically a constitutional crisis, because the Senate's rules are not constitutionally required. But if the President does nothing, and argues that there is nothing he can do to persuade the Senate to change its mind because the Senate gets to determine its own rules under Article I, section 5, we face what Sandy Levinson and I have called a Type Two constitutional crisis-- in which acceptance of the political rules of the game sends the country over a cliff.

Article IV of the Constitution requires that the United States guarantee a republican form of government-- "republican" as in representative and subject to majority rule, not "republican" as in perpetually controlled by a ideologically cohesive minority in the Republican Party.

The evolution of filibuster and hold rules (and secret hold rules) has fatally undermined the federal government's ability to function as a republican form of government. The constitution is not, and never has been, a purely majoritarian form of government. It contains many valuable checks and balances. However, to the constitutionally required features of bicameralism and presentment, equal representation in the Senate, and judicial review have been added unnecessary non-constitutional Senate rules, customs, and practices that make the federal government dysfunctional. The toxic combination of these non-constitutional rules, customs and practices has only emerged in the past two decades. Today they are being used by Senate Republicans. If the Democrats lose the Senate, and the Republicans gain the White House, they will be used by Senate Democrats to hamstring a future Republican President. In either case, governance will be impossible. There is no reason to think that Democrats in the minority will not use the same practices that Republican Senators now employ.

It is the duty of the President, and the Vice-President, as President of the Senate, to push the Senate toward amending its rules if the members of the Senate will not do so on their own.

The President should make clear to the public that the situation in the Senate has reached crisis proportions, and point to Senator Shelby's latest escapade as a perfect example of the selfishness and insanity that now overwhelms the Senate. Senator Shelby needs to be called out and shamed repeatedly as an example of how a rational legislative process should not work.

Then the Vice-President, as President of the Senate, needs to use his authority as chair of the Senate to insist that the Senate rewrite its rules, or the President of the Senate will begin making rulings from the chair designed to change how the Senate operates in practice. Each of these rulings will be subject to challenge and to majority vote. The Senate may well reject many of the chair's rulings, because individual Senators have grown used to having the power to hold the government hostage to their parochial concerns, and rational change will not come easy to this institution.

Whether or not any of these rulings are upheld, however, they will focus attention on the fact that the greatest source of government's inability to deal with the country's current problems is the United States Senate. The country needs to be focused on the fact that our dysfunctional Senate is now the greatest roadblock to constitutional democracy in the United States.

Rahm Emmanuel is quoted as saying that one should never let a crisis go to waste. Senator Shelby's stupid and selfish action has revealed a crisis in governance that has been forming for two decades. President Obama should not waste this moment. He must make an example of the Senate's rules, and use all of the political authority of his office to push for change.

If President Obama wants hope, he will have create the conditions for hope. If he wants change, he will have to be the moving force for change.

Full post as published by Balkinization on February 05, 2010 (boomark / email).