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Another institutional crisis in the making?

By Jack M. Balkin

President-elect Obama should presumably still the complaints of some of his critics who have wanted him to be more active in trying to lead, given his radio address vowing what the New York Times calls "swift action" on a very ambitious stimulus package. But the story concludes as follows:

While Mr. Bush would be out of office, Congressional Republicans could still block a big stimulus package in the Senate, as Mr. Obama seemed to recognize. ?I know that passing this plan won?t be easy,? Mr. Obama said. ?I will need and seek support from Republicans and Democrats, and I?ll be welcome to ideas and suggestions from both sides of the aisle.?

?But what is not negotiable,? Mr. Obama said, ?is the need for immediate action.?

So put this in the context of another story just posted on the Times web site concerning the focus on the senatorial recount in Minnesota and the run-off election in Georgia:

Pushed into a deep 58-42 Senate hole by this week?s defeat of Senator Ted Stevens, Republicans are approaching the remaining two races with a new sense of urgency given that they are on the brink of losing their ability to use Senate procedure to thwart Democrats.... As any C-Span watcher knows, it takes 60 votes to break filibusters in the Senate.

So assume that the House passes an Obama bill by a hefty margin, and it gains the support of 59 senators (including Sen. Arlen Specter, who might well be concerned about keeping his seat in 2010 unless he distances himself from his reactionary colleagues). But, by stipulation, there are 41 Republicans who are willing to filibuster in order "to thwart Democrats." And, let us stipulate, the Obama bill has the support of, say, 62% of the public, which is desperate for a government that appears to be willing and able to respond to the worst economic crisis since the Depression.

The question is simple: Would the American people tolerate the use of the filibuster in such a situation, or would they rightly argue that this additionally anti-democratic feature of our system, which by no conceivable argument is required by the Constitution, should be eliminated?

Full post as published by Balkinization on November 22, 2008 (boomark / email).