OMG I hope Madam Vice President does this! There is so much sitting on that desk waiting to be voted on. This sounds do-able, thank you, Lisa, and Thank you, Greg!
I learned about an important principle and role for the VP in this article...and I've been given so much hope in reading it. The photo of McConnell chosen for this article is pitch perfect...and if you look closely at his left hand, it seems to be on its way to turning purple...
This needs to go viral. Granting this power to McConnell has to end. Even the threat of using it could change things. It seems it's become an unquestioned norm to leave this immense power in the hands of the majority leader. It makes sense that the creators of our constitution didn't intend the president of the senate to simply be a figure head. It comes with real power.
This is an amazing discovery and analysis by Ms. Kerr. A concise crystal clear argument that must be acted upon. Bravo! Ms. Kerr
Hi, folks! I've been handling most of the attacks via Twitter, because it's challenging to manage two forums at once. But a point that's worth addressing here is "how would/should VP respond if GOP retained its majority, then voted to suspend/amend a Senate Rule depriving the presiding officer of power." Paragraph 6 of the article wasn't as strong as it could have been, on that point.
The Senate's official history on its dot.gov site recounts the Constitutional fact that the majority leader's presiding powers are derivative of the presiding power informally delegated by the VP. A power delegated can be taken back, so the Senate history accurately describes the majority leader as "an emperor without clothes."
The question arises: if the VP took presiding power and used it to give priority to a senator, for purposes of moving a House-passed bill to the floor, and the House purported to override that action by 1) self-recognizing the ML to do something different, and then 2) sustaining a point of order limiting the VP's presiding power, what would be the legal basis and remedy for that action? Several principles intersect here that arise from agency rulemaking. But first, we have to recognize the Supremacy Clause - the Constitution is a superior law to any other law, rule or precedent. The Senate Rules describe the powers of the Presiding Officer, and can be suspended or amended by the majority, but that action would not be valid if it deprived the VP of her constitutional presiding power. The Constitution is supreme over the rule, not the other way around.
Then, you need to look at Senate Rules restricting the presiding power like other rulemaking - it must be within the scope of its statutory authorization (or, here, constitutional authorization). The Constitution endows the Senate with power to "chuse its other officers" but not that of the presiding officer, the VP. So to the extent Senate Rules were applied to the contrary, it would violate Art. 1 Sec. 3.
And then, return to the central idea that the majority leader's presiding power is derivative from and delegated by the VP - or, a glass cannot be smaller than the water poured from it. If the Senate limited the presiding officer's powers, those limitations would have to apply to the majority leader and the VP equally, or conversely would be an unconstitutional limitation of the VP's presiding power. We have ample precedent in the executive agency context, analyzing whether a rulemaking exceeds its statutory authorization. The Constitution being the supreme statute under its own Supremacy Clause, a rulemaking that made the deriviative ML power larger than the originating VP power would violate those precedents.
How would that play out? If VP recognized a Senator to move a bill, and Moscow Mitch tried to stop her? A floor fight on this topic COULD generate a Supreme Court petition, and in this hypothetical, VP would have standing to petition for it, and I believe the court would hear it and resolve in her favor. Would that take more than a minute? Sure? Is it worth teeing up and doing? Good God, there are hundreds of blocked House-passed bills that would save and improve American lives. Many have wide popular support and would peel off enough GOP votes to pass the Senate, or cause the rejecting Senators to lose their seats if their votes were on record. Sure, it's worth doing.
Another point was raised - didn't the early Senate successfully rebel against the VP's presiding powers? Any occurrence prior to Marbury v. Madison isn't relevant to the constitutional framework here, because at that time, SCOTUS did not assert jurisdiction to review laws or rulemaking.
OMG I hope Madam Vice President does this! There is so much sitting on that desk waiting to be voted on. This sounds do-able, thank you, Lisa, and Thank you, Greg!
I wonder why Biden didn’t do this when he was VP—with his long senate history one might think it has been considered before.
I learned about an important principle and role for the VP in this article...and I've been given so much hope in reading it. The photo of McConnell chosen for this article is pitch perfect...and if you look closely at his left hand, it seems to be on its way to turning purple...
This lesson in political science was refreshing to wake up to.
From your lips to Cthulhu's auditory membranes!
👏👏👏
This needs to go viral. Granting this power to McConnell has to end. Even the threat of using it could change things. It seems it's become an unquestioned norm to leave this immense power in the hands of the majority leader. It makes sense that the creators of our constitution didn't intend the president of the senate to simply be a figure head. It comes with real power.
This is an amazing discovery and analysis by Ms. Kerr. A concise crystal clear argument that must be acted upon. Bravo! Ms. Kerr
Hi, folks! I've been handling most of the attacks via Twitter, because it's challenging to manage two forums at once. But a point that's worth addressing here is "how would/should VP respond if GOP retained its majority, then voted to suspend/amend a Senate Rule depriving the presiding officer of power." Paragraph 6 of the article wasn't as strong as it could have been, on that point.
The problem with that attack is encapsulated in the Senate's official history (cited graf 7) - https://www.senate.gov/artandhistory/history/minute/Priority_Recognition_of_Floor_Leaders.htm
The Senate's official history on its dot.gov site recounts the Constitutional fact that the majority leader's presiding powers are derivative of the presiding power informally delegated by the VP. A power delegated can be taken back, so the Senate history accurately describes the majority leader as "an emperor without clothes."
The question arises: if the VP took presiding power and used it to give priority to a senator, for purposes of moving a House-passed bill to the floor, and the House purported to override that action by 1) self-recognizing the ML to do something different, and then 2) sustaining a point of order limiting the VP's presiding power, what would be the legal basis and remedy for that action? Several principles intersect here that arise from agency rulemaking. But first, we have to recognize the Supremacy Clause - the Constitution is a superior law to any other law, rule or precedent. The Senate Rules describe the powers of the Presiding Officer, and can be suspended or amended by the majority, but that action would not be valid if it deprived the VP of her constitutional presiding power. The Constitution is supreme over the rule, not the other way around.
Then, you need to look at Senate Rules restricting the presiding power like other rulemaking - it must be within the scope of its statutory authorization (or, here, constitutional authorization). The Constitution endows the Senate with power to "chuse its other officers" but not that of the presiding officer, the VP. So to the extent Senate Rules were applied to the contrary, it would violate Art. 1 Sec. 3.
And then, return to the central idea that the majority leader's presiding power is derivative from and delegated by the VP - or, a glass cannot be smaller than the water poured from it. If the Senate limited the presiding officer's powers, those limitations would have to apply to the majority leader and the VP equally, or conversely would be an unconstitutional limitation of the VP's presiding power. We have ample precedent in the executive agency context, analyzing whether a rulemaking exceeds its statutory authorization. The Constitution being the supreme statute under its own Supremacy Clause, a rulemaking that made the deriviative ML power larger than the originating VP power would violate those precedents.
How would that play out? If VP recognized a Senator to move a bill, and Moscow Mitch tried to stop her? A floor fight on this topic COULD generate a Supreme Court petition, and in this hypothetical, VP would have standing to petition for it, and I believe the court would hear it and resolve in her favor. Would that take more than a minute? Sure? Is it worth teeing up and doing? Good God, there are hundreds of blocked House-passed bills that would save and improve American lives. Many have wide popular support and would peel off enough GOP votes to pass the Senate, or cause the rejecting Senators to lose their seats if their votes were on record. Sure, it's worth doing.
Another point was raised - didn't the early Senate successfully rebel against the VP's presiding powers? Any occurrence prior to Marbury v. Madison isn't relevant to the constitutional framework here, because at that time, SCOTUS did not assert jurisdiction to review laws or rulemaking.