Chief Justice Cheney?
April 27, 2005
By Edward B. Grebenstein, Jr.
described by the media, the so-called "Nuclear Option" - intended
to abolish judicial filibusters in the United States Senate - would
involve Vice President Dick Cheney, in his capacity as President
of the Senate, ruling that judicial filibusters are "unconstitutional."
The Senate would then vote on Mr. Cheney's proclamation; if approved
by fifty-one Senators (presumably along party lines), Mr. Cheney's
ruling would then effectively ban filibusters on all federal judicial
The popular media portray the Nuclear Option as a mere Senate
rule change, albeit a radical one. It is likely, however, that the
Senate's actions would have implications far beyond the Senate's
internal procedures. Indeed, the Nuclear Option could mark the beginning
of a long period of constitutional crisis.
Although some of its proponents may not realize it, the Nuclear
Option could undermine constitutional principles dating to the founding
of our Republic. In 1803, the Supreme Court codified the so-called
"separation of powers" legal doctrine, in which the Constitution
gave each of the three branches of the federal government equal
but distinctly separate and limited powers.
In Marbury v. Madison, Chief Justice John Marshall wrote
that "The Constitution vests the whole judicial power of the United
States in one Supreme Court" and the lower federal courts that Congress
shall establish. Marshall also wrote that "The powers of the Legislature
are defined and limited..."
The Marshall Court also established the principle of judicial review,
writing that, "It is emphatically the province and duty of the Judicial
Department to say what the law is."
In the twentieth century, the Supreme Court ruled, in Watkins
v. United States (1957), that "There is no general authority
to expose the private affairs of individuals without justification
in terms of the functions of Congress .... Nor is the Congress a
law enforcement or trial agency .... Investigations conducted solely
for the personal aggrandizement of the investigators or to 'punish'
the investigated are indefensible."
The Court further noted that "Abuses of the investigative process
may imperceptibly lead to the abridgment of protected freedoms."
By ruling that the actions of certain Senators violate the Constitution,
Mr. Cheney would, in essence, be trying to establish the Senate
as a kind of pseudo-Supreme Court and himself as a pseudo-Chief
Justice. The Senate could then proclaim almost anything unconstitutional,
and proceed to ignore any law or court decision that they find objectionable.
Technically, the federal courts would not be bound by these proclamations,
although some individual judges may choose to defer to them. However,
the Senate could conduct its everyday business as if these proclamations
were matters of settled law.
The results could wreak chaos upon the legislative and budgetary
processes if, for example, Mr. Cheney ruled that the Social Security
Act was "unconstitutional." The Senate might also feel empowered
to attack the precedents established by Watkins, and attempt to
investigate what it considers constitutional "violations." It could
then try to use the Senate's powers of subpoena and contempt to
harass and intimidate ordinary Americans.
If Mr. Cheney does rule that filibusters are unconstitutional,
opponents should literally run to the Supreme Court, preferably
with a brief that already exists. Otherwise, a single Senate vote
will nullify two centuries of sound constitutional law.