So my understanding of the Byrd rule is it basically prevents certain changes from being included in Budget Reconcilation.
Wikipedia says this:
So if the Parliamentarian says “this breaks the Byrd rule” and the presiding officer (who is from the majority party) says “Nah, it’s good” is their anything the minority party can do? Has the Byrd Rule or breaking thereof ever been a court issue?
A court issue? The Senate makes their own rules, the courts wouldn’t touch it. There’s been plenty of parliamentary jiggery-pokery over the centuries, some of them quite famous.
Yup. The pragmatic control on the presiding officer of the legislature simply ignoring standing orders whenever it would be convenient to the majority party to do so is that both parties have a vested interest in their being legislative standing orders which are generally observed.
Remember the Senate parliamentarian is a staff position. He/she has no power. They simply advise. Almost always the advice is heeded since it would be a mess if either side just ignored the parliamentarian’s judgement whenever it suited them. Afterall, the parliamentarian is merely applying the rules the senate itself laid out for itself.
That said there is nothing stopping the senators ignoring the parliamentarian. I believe the last time it was done was in 1987 so it is rare that it happens but it does happen. Not sure but I think it falls to the vice president to rule against the parliamentarian (Pence in this case).
Exactly right. I wonder how the OP didn’t know that?
The minority party can retaliate when it becomes the majority party. As a another example of this in previous years the Republicans drug out Obama’s appointments. This year the Democrats are retaliating by doing the same to Trump’s appointments.
Or, more accurately, it’s thought that they will do if Trump ever gets around to sending nominations to the Senate.
The President has sent several judicial nominations to the Senate for confirmation. Only four have been acted upon to date. See: List of federal judges appointed by Donald Trump - Wikipedia
Mmm. From the Wikipedia page, a majority of the pending nominations seem to have been made within the past fortnight. Doese the fact that they are still pending suggest they are being “drug out”? How quickly are such nominations usually dealt with?
(Genuine question. I don’t know the answer.)
More to the point, Past Tense’s comment wasn’t confined to judicial nominations. Newspaper reports suggest that there are hundreds of vacant posts for which the administration has yet to send a nomination to Congress, and that its performance in this regard is conspicuously worse that that of prior administrations (of both parties).
The minority party can object to the presiding officer’s decision and ask that the Senate decide the matter. That’s pretty much it.
As I understand it, tossing the Byrd rule would effectively abolish the legislative filibuster, which even McConnell doesn’t want to do.
The assertion was “if Trump ever gets around to sending nominations …”
My point was that President Trump HAS gotten around to sending nominations. Has he sent in nominations for every post he could? No. But that doesn’t mean he hasn’t sent in nominations. Past Tense suggested that nominations could be stalled by the Democrats in the Senate, in retaliation. UDS was suggesting that this tactic can’t have been used yet because there were no nominations to stall. That’s clearly not the case.
I knew that. But what’s the point of even making a rule if they don’t have to follow it?
They DO have to follow it.
You are assuming the majority leader will simply break a Senate rule and move on. While it certainly happens, it is very rare. Community pressure (in this case the 100 senators and 200 years of history) protect the rule. But the majority leader has to follow the rule to avoid consequences. Whether you or the minority party feels the consequences are severe enough is debatable, but there would be consequences.
One consequence would be to call into question all the rules of the Senate. Since the majority leader relies on those rules to operate the Senate, losing control of the institution would be a real problem for him.
The Constitution says that each chamber can make their own rules. What would be the basis of a lawsuit, and how likely would it be successful?
The Republicans are still in control in the Senate. How are the Democrats holding up the process?
IANAL but a legal case challenging this would not be challenging the rule itself but that the senate is not following the rule it made for itself.
Dunno if a court would touch that since this seems squarely a political question but I could see someone trying to make that case.
Even if a court did agree to take it republicans could then just change the rule and there is no case to be made.
AFAIK, what the Parliamentarian does with the Byrd rule is look at previous decisions by the Senate to make an educated guess as to what the Senate is likely to do again. But the Senate has every right to make a new decision that explicitly violates past precedent, let alone one that just might violate the Parliamentarian’s opinion as to what might have happened in the past.
Not really. Any member has a right to “appeal from the decision of the chair.” So, suppose that the GOP tries to repeal Social Security under the Byrd rule. The parliamentarian advises Pence that such a procedural trick is out of order and it violates the Byrd rule.
Pence disagrees and rules that it is kosher. Any Senator (Schumer, Warren, etc.) may “appeal from the decision of the chair” and vote on whether Pence was right or not.
If 51 (or 50+1) Senators side with Pence, then that becomes a “new” rule of the Senate. That seems to me a legitimate way to do business: a majority of Senators can set Senate rules.
The political question doctrine is not without limits. But the odds of success in this case would be very low.