Legal Commentary

Future Amendments Are Out of Order

By Jonathan H. Adler

The Senate health care bill contains provisions that purport to prevent a future Congress from revising portions of the legislation my majority vote.  Specifically, at pages 1019?1021, the bill requires a three-fifths vote in order to alter or repeal recommendations made by the Independent Medicare Advisory Board.  The relevant language is below.  As noted here, some Senators are upset by this provision.  My questions are 1) Is there much precedent for this sort of thing, specifically altering Senate rules in substantive legislation? and 2) Can the current Senate bind future Senates in this way?

(3) LIMITATION ON CHANGES TO THE BOARD RECOMMENDATIONS.?

(A) IN GENERAL.?It shall not be in order in the Senate or the House of Representatives to consider any bill, resolution, or amendment, pursuant to this subsection or conference report thereon, that fails to satisfy the requirements of subparagraphs (A)(i) and (C) of subsection (c)(2).

(B) LIMITATION ON CHANGES TO THE BOARD RECOMMENDATIONS IN OTHER LEGISLATION.?It shall not be in order in the Senate or the House of Representatives to consider any bill, resolution, amendment, or conference report (other than pursuant to this section) that would repeal or otherwise change the recommendations of the Board if that change would fail to satisfy the requirements of subparagraphs (A)(i) and (C) of subsection (c)(2).

(C) LIMITATION ON CHANGES TO THIS SUBSECTION.?It shall not be in order in the Senate or the House of Representatives to consider any bill, resolution, amendment, or conference report that would repeal or otherwise change this subsection.

(D) WAIVER.?This paragraph may be waived or suspended in the Senate only by the affirmative vote of three-fifths of the Members, duly chosen and sworn.

(E) APPEALS.?An affirmative vote of three-fifths of the Members of the Senate, duly chosen and sworn, shall be required in the Senate to sustain an appeal of the ruling of the Chair on a point of order raised under this paragraph.

Full post as published by The Volokh Conspiracy on December 22, 2009 (boomark / email).