The Filibuster in Federal Court

Posted by AzBlueMeanie:

This might prove interesting — or not. While the plaintiffs' arguments are correct, I suspect the Court will grant the motion to dismiss, taking the easy way out by citing separation of powers doctrine and comity between the branches of government to say that this is a political question for which the Court lacks the power to compel the Senate to do anything. Senate filibuster faces federal court challenge:

Even as Democrats are pushing to change the rules of the Senate, a federal court plans to consider a legal challenge to the chamber’s rules Monday.

Four House Democrats and the nonpartisan political reform group Common Cause are suing to end the use of the filibuster, calling it “an accident of history,” and unconstitutional “because they are inconsistent with the principle of majority rule.”

The Democratic lawmakers, Reps. Keith Ellison (Minn.), Hank Johnson (Ga.), John Lewis (Ga.) and Mike Michaud (Minn.), are joined by three other challengers, Erika Andiola, Celso Mireles and Caesar Vargas, who Common Cause says are being “denied a path to American citizenship” because of repeated filibusters of legislation that would grant young people brought to the United States illegally an opportunity to apply for citizenship. 

In court papers, the group argues that the filibuster “replaces majority rule with rule by the minority” by requiring at least 60 senators to vote to end debate on a bill.

Between 1840 and 1900, there were 16 filibusters. Between 2009 and 2010, there were more than 130, according to Senate records. Currently Senate Democrats need to meet a 60-vote threshold on virtually every piece of legislation, making it difficult — most Democrats would say impossible — to advance legislation sought in recent years by President Obama.

Federal courts have tossed out legal challenges to Senate rules in the past and Monday’s court hearing in Washington is meant to consider a motion by Senate lawyers to dismiss the case.

In court papers, Senate lawyers argue that to take up the case would be to “do what no court has ever done — inject the judicial branch into the Senate’s internal deliberations and usurp the Senate’s power to determine its own rules and procedures.”

The Constitution’s speech or debate clause — that “any Speech or Debate in either House, they [lawmakers] shall not be questioned in any other Place” — also bars lawsuits challenging legislative activity, Senate lawyers said.

The case set for consideration Monday at U.S. District Court in Washington is captioned Common Cause et.al v Biden et.al.

UPDATE: Federal court hears arguments in Senate filibuster challenge – The Washington Post:

The judge gave Senate attorneys until Thursday to respond to the questions of whether there is a constitutional right to have bills passed by majority vote, and whether the filibuster process violates that right.

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