Much of the debate about President Donald Trump’s announcement to cancel the Deferred Action for Child Arrivals, or DACA, program in six months concerns both the fate of nearly 700,000 unauthorized residents and the constitutionality of President Barack Obama’s executive order establishing DACA in 2012. But there is another applicable facet of the Constitution: the filibuster in the Senate. With Constitution Day upon us, it is an appropriate time to consider fundamental problems with our founding document.
In December 2010, a majority of both the House and the Senate demonstrated their eagerness to pass a version of the Development, Relief and Education for Alien Minors (DREAM) Act, which would provide safe haven to unauthorized immigrants who had been brought to the United States as children and had no criminal record. The House passed the act 216-198, with eight Republicans voting for it. Under the system established by the Constitution in 1787, the bill then went to the Senate, where it also had majority support. President Barack Obama promised to sign it.
Nevertheless, the bill failed. What happened? The act ran into the chainsaw of the dreaded filibuster, by which members can debate endlessly unless 60 of them vote for cloture. Thus a 41-senator minority can prevent any bill from coming to a vote. So the crucial vote in the Senate wasn’t on the act itself, but on whether to act. Fifty-five senators from both political parties said yes; 45, including five Democrats, said no. In a parody of democracy, the no’s had it, and the DREAM Act died. Obama, who had originally stated he was powerless, then issued the executive order.
The Constitution establishes only three instances where a supermajority vote is required for congressional action. The ratification of treaties, the conviction of the president or other elected officials impeached by the House and the proposal of a constitutional amendment all require a two-thirds vote. (Interestingly, the decision by the House to impeach requires only a majority vote.)
Yet an obscure part of Article I, which sensibly allows each house of Congress to establish its own rules, was the basis for the 1917 adoption by the Senate of Rule XXII. It set out the difficult process for ending filibusters. For many years, filibusters were unusual, mounted most often to defeat civil rights legislation. But during the past 20 years, they have become more routine. Surely it never occurred to the Framers that a rule would allow “a small group of willful men,” as Woodrow Wilson called those who defeated the Versailles Treaty, to upend the will of the majority.
Attorney General Jeff Sessions justified repealing Obama’s order by saying it exhibited “disrespect for the legislative process.” But why should Americans respect a process that gives a minority of senators the ability to block legislation supported not only by majorities in both Houses, plus the president, but also the public at large?
Trump has sensibly asked why the filibuster should continue to operate as a potential sword hanging over all legislation. Some lawyers have argued that the filibuster is unconstitutional, given the specific exceptions in the Constitution. Most lawyers disagree, since it is a practice of long standing. But even if it is constitutional, one should ask whether it serves us well in the 21st century.
Polling data shows that an overwhelming majority of the country has what can only be described as contempt of Congress. One reason is Americans’ recognition that bills that might resolve the country’s crucial problems never stand a chance of becoming law because of the numerous check and veto points created by the Constitution.
There are many such fault lines in the Constitution, including the clause that seemingly allows filibusters. It is high time to have a serious national conversation on whether the filibuster any longer serves, rather than threatens, any remaining sense of national unity we might possess.
Sanford Levinson is the W. St. John Garwood and W. St. John Garwood Jr. Centennial Chair in Law at the University of Texas. His latest book, co-authored with Cynthia Levinson, is “Fault Lines in the Constitution.”