Commentary

How the U.S. Supreme Court is inviting the Senate to scrap the filibuster | Bruce Ledewitz

If you agree with the justices that the people must rule, then you should also support getting rid of the filibuster

February 2, 2022 6:30 am

The U.S. Capitol. (Drew Angerer/Getty Images/The Virginia Mercury).

On Jan. 13, in unsigned orders, different majorities of the U.S. Supreme Court struck down the Biden administration’s large-employer vaccine or test mandate, while upholding a much narrower vaccine mandate for medical facilities that receive Medicare or Medicaid funding. The cases were in a preliminary posture, but the short opinions were written as final decisions on the legality of these administrative orders.

Bruce Ledewitz (Capital-Star file)

A week later, U.S. Senate Democrats narrowly failed to overturn a Republican filibuster against a voting rights bill, thus dooming the measure. It takes 60 votes to end a filibuster, versus a simple majority vote of 51 votes to pass a measure without overcoming a filibuster.

These two events were closely related. In the mandate cases, the justices challenged the power of the president and other administrators to make laws, calling on America to return to the original vision of the framers of the Constitution that the people rule through their elected Representatives in Congress.

In the other, those very congressional representatives were stymied in their attempt to do exactly that — to pass legislation that the majority of the people support.

Simply put, if you agree with the justices that the people must rule, then you should also support getting rid of the filibuster, which prevents that vision from becoming a reality and undermines the effort of the Justices to revive Congressional authority. Regularly requiring 60 votes to pass legislation means the people cannot rule themselves.

The filibuster functions as a general impediment to the self-rule that was a major goal of the constitutional revolution.

On one level, the court’s vaccine mandate decisions were not path-breaking. The law has long been that for administrative rules to have the force of law, they must be supported by statutes. This is called the non-delegation doctrine.

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The court simply held that the large-employer mandate exceeded any statutory authorization, while the medical staff mandate did not. There have been judicial decisions like that before.

In two respects, however, court watchers viewed the mandate decisions as a dramatic change in the court’s approach to administrative rule-making. First, the majority applied what Justice Neil Gorsuch called in his concurrence, the “major questions doctrine.”

The court required Congress “to speak clearly when authorizing an agency to exercise powers of vast economic and political significance.” This doctrine is relatively new and will mean in the future that the more significant an administrative rule, the more it will have to reflect Congressional policy, rather than choices made by an agency.

U.S. Supreme Court blocks Biden workplace vaccine rule, allows health care workers mandate

The other aspect of the decisions that showed a fundamental change is that the more limited, and better statutorily grounded, medical staff mandate was only upheld 5-4. Most observers had anticipated a much easier path for that rule.

Taken together, the court signaled a sweeping reduction in the power of the Administrative State.

This change in approach could greatly benefit American constitutional democracy. For too long, presidents and bureaucrats have decided what the law ought to be rather than Congress deciding.

The justices were reinforcing what the framers intended—that policy should be set by the people’s Representatives. As Gorsuch wrote, the major questions doctrine, together with the non-delegation doctrine, prevent “government by bureaucracy supplanting government by the people.”

I was actually a little surprised, and relieved, by the emphasis placed by the court on the responsibility of Congress. I would have expected at least a couple of the more conservative justices to suggest that a vaccine mandate for a significant portion of the national economy might be beyond the authority of Congress.

There was not even a hint of such a view. As far as the Justices are concerned, if there is to be a vaccine mandate to help keep the economy open, Congress can, and must, make the decision.

But the filibuster, as it is currently practiced, prevents the representatives of the people from deciding on vaccine mandates, as well as most other things.

Democrats in the Senate might have been able to muster 51 votes for at a scaled-back version of a national vaccine mandate. But this effort, the very one called for by the justices, would be blocked by a Republican filibuster requiring 60 votes to end. This is not the constitutional model. When the framers wanted supermajority requirements, as in adopting a treaty, they so stated.

To be clear, I don’t mean that the filibuster is unconstitutional. I doubt the framers had any clear idea about internal Senate voting rules. And as long as the filibuster remained a rarely-invoked protection for minority interests against major changes in national policy, it undoubtedly played a legitimate role in national politics.

But those days are over. Today, the filibuster functions as a general impediment to the self-rule that was a major goal of the constitutional revolution.

As Justice Hugo Black wrote in 1970, “[T]he right of self-government that our Constitution preserves is just as important as any of the specific individual freedoms preserved in the Bill of Rights.”

It may be that governments are instituted to preserve our rights, but the Constitution was specifically adopted because the Articles of Confederation did not permit effective and active government. The filibuster today is the same kind of block to majority rule that the Constitution was designed to eliminate.

This abuse of the filibuster is the fault of both parties. It is true that in 2013, Republicans filibustered 79 judicial nominations by President Barack Obama, versus just 68 such filibusters in all of previous American history. This led Democrats to end the filibuster for lower-court federal judges.

But then the Democrats turned around in 2017 and used an entirely unjustified filibuster against the Gorsuch nomination to the Supreme Court. This led the Republicans to an equally justified further restriction on the filibuster.

The point is that both parties now invoke the filibuster to prevent ordinary legislation from being passed and ordinary actions from being taken.

That is an affront to the framers’ vision. And it is now also a threat to the Supreme Court’s effort to return America to healthy majority rule. Far from constituting a radical change, abolishing the filibuster is today the only way to maintain the promise of the Constitution.

Opinion contributor Bruce Ledewitz teaches constitutional law at Duquesne University Law School in Pittsburgh. His work appears biweekly on the Capital-Star’s Commentary Page. Listen to his podcast, “Bends Toward Justice” hereHis latest book, “The Universe Is On Our Side: Restoring Faith in American Public Life,” is out now. His opinions do not represent the position of Duquesne University Law School.

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