Legal Commentary

I sort of hope so, just because it might persuade my students that I have not been wasting their time for the last three years: Since I joined the NYU faculty, I have included a couple of classes on the House and Senate procedural rules in my course on the Administrative & Regulatory State, including arcana like the "amendment tree," "Calendar Wednesdays," sequential referral to committees, etc. Moreover, if Alan Frumin, the Senate Parliamentarian, is forced to rule on whether Obama's health care reforms are sufficiently germane to deficit reduction to be passed through the reconciliation process (a process that requires only 51 votes), then we will have a good opportunity to see if the Congress will be able to resist compromising the Parliamentarian's famous political neutrality.

One could argue that the congressional Parliamentarians are the best counter-example to the Legal Realists' claim that law is always just politics: As David King has persuasively argued in Turf Wars: How Congressional Committees Claim Jurisdiction (at pp 28-29), the Parliamentarian's decisions on committee jurisdiction, using dry formalistic tests and party-neutral analysis of house precedents, has won the trust of both sides of the aisle in Congress. Political switches in Congress' leadership have not resulted in changes of the Parliamentarian: Newt Gingrich actually retained Charles Johnson, the Democrats' Parliamentarian in 1995. Could one imagine the Senate treating nominees to the Supreme Court with such non-ideological delicacy? Yet the stakes raised by the Parliamentarian's rulings are much higher than the stakes of SCOTUS decisions: Billions of dollars turn on the arcana of committee jurisdiction and legislative procedure.

So Congress watchers will be curious to see whether the Senate Democrats will respect head Senate Parliamentarian Alan Frumin's ruling on whether the Democrats can use the budget reconciliation process to pass health care reform with 51 votes. The issue turns on a mushy legal test that we would normally think would be politically manipulated for the benefit of the dominant party -- i.e., whether health care is sufficiently germane to deficit reduction. But we have also gradually come to trust that Congress will exercise bipartisan restraint by permitting the Parliamentarian to interpret these pliable rules in a non-partisan, boring, doctrinal manner. Lately partisan intemperance has flared, and even the Olympian neutrality of the Parliamentarian has not been sacrosanct: Senate Parliamentarian Robert Dove got the sack in 2001 from Trent Lott when he ruled against the Senate Republicans too frequently.

Will Frumin also fall victim to the rising tide of political passion if he rules against Obama and the Senate Democrats? Those of us who still believe in the rule of law, despite Realist derision, are watching with anxious anticipation.