Chief Justice Cheney?

April 27, 2005
By Edward B. Grebenstein, Jr.

As 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 nominations.

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.