Darryl S. Weiman, M.D., J.D.
Since the re-election of President Trump, several federal district courts have issued national injunctions which have blocked several of his executive orders. The United States Supreme Court finally stepped in and ruled that the federal district courts could not issue national injunctions. Any district court injunction could only apply to the parties involved in that court’s jurisdiction. How did we get to the point that the courts felt they could wield such enormous power?
Article II, section 2 of the United States Constitution states the president “…shall nominate and by and with the Advice and Consent of the Senate, shall appoint…Judges of the supreme court.” Eventually, all Article III judges had to go through a confirmation process in the Senate. Not surprisingly, with the increasing politicization of the courts, the importance of placing judges whose judicial philosophy is consistent with the president’s has become paramount. Issues such as health care, abortion, freedom of religion, political speech, gun control, results of an election, and affirmative action have become so contentious that control of the Supreme Court and the lower federal courts as political tools has taken on critical importance.
It used to be that the legislative powers as defined in Article I of the Constitution were vested in the Congress and the executive power, under Article II, was outlined for the President. Judicial power was defined in Article III and was meant to keep the executive and legislative bodies from extending their designated powers and from taking freedoms designated to the states and the people in the Bill of Rights and subsequent amendments. This was the intent of separation of powers and the concept of federalism.
Over the last few decades, it has become clear that the courts are making more decisions relating to legislation and to executive powers. As such, the politics of judicial appointments have become increasingly contentious with the minority party resorting to the filibuster to block a presidential appointment that they felt would be detrimental for their legislative goals. With the filibuster, the minority party only needed to muster 41 votes to block a nomination instead of a majority of 51.
Since the filibuster is not part of the Constitution, how did this procedural rule come to take on such importance? Dating back to the 1830’s, a simple majority in the Senate was not enough to confirm a judicial appointee. This was due to a senate procedural rule which allowed for a “filibuster”—defined as a “dilatory tactic, esp. prolonged and often irrelevant speechmaking, employed in an attempt to obstruct legislative action” (Black’s Law Dictionary, seventh edition). The Constitution allows the House and Senate to set their own rules, and, in the Senate, a rule was made to allow for a debate to continue for an unlimited time. The only way to end the debate was for passage of a motion for “cloture” which required a three-fifths majority of the senators duly sworn. With the present senate, this meant that 60 senators are required to pass the motion for ending the debate.
In its original form, the filibuster allowed for a group of senators to speak for as long as they could on the senate floor to prevent a cloture vote from ever taking place. This tactic can still be done today; if the vote for cloture is very close, the minority can prevent any voting on an issue if the filibuster is on-going in hopes of garnering more votes for their position.
To keep the senate from becoming completely paralyzed from the one issue being filibustered, subsequent rules allowed for the issue to be tabled if it is obvious that there are not enough votes for cloture. This allowed for other business to be done while the issue generating the filibuster is effectively blocked.
The history of Senate confirmation of Article III judges is interesting and is worth reviewing.
The Constitution does not specify how many votes are needed to confirm a judicial nominee. Numbers for confirmation are enumerated in other areas of the Constitution such as ratifying a treaty (2/3 majority), voting to convict someone who has been impeached (2/3 majority), expelling one of its members (2/3 majority), and concurring on a proposed Constitutional Amendment (2/3 majority). Since no number is specified, the Advice and Consent role is, arguably, met with a simple majority vote.
Over the years, there were several threats to end the filibuster, especially as it related to judicial appointments. The move to end this procedural tool was called the “nuclear option” although many people preferred to call it the “constitutional option” as they claimed the Constitution only required a majority vote to meet the requirements of “advice and consent.”
The first opinion written in support of ending the filibuster was done in 1917 by Thomas Walsh, a Democratic senator from Montana. Walsh argued that each new Senate could write its own procedural rules and did not have to abide by the rules of previous terms. These rules could be put in place with only a majority vote.
In 1957, then Vice President Richard Nixon wrote an opinion stating that the Constitution allows for the presiding officer of the Senate—the Vice President—to override Senate rules with subsequent rules put in place with only a majority vote. No action was taken on this written opinion.
The first Senator to use the term “nuclear option” was Trent Lott, a Republican from Mississippi. Lott coined the term during President George W. Bush’s first term after the Democrats blocked several of the President’s judicial nominees. Lott used the term because he recognized that it was a last resort and would probably result in negative consequences for both sides.
Bill Frist, a former heart surgeon and then senate Majority leader, threatened to use this nuclear option later in 2005 in hopes of ending Democratic filibusters of judicial nominees of
President Bush. A group of seven Democratic and seven Republican Senators, later referred to as the “Gang of 14,” joined to oppose both the nuclear option and the filibusters of judicial nominees except in rare circumstances. The seven Democrats agreed to vote for confirmation of most of the pending nominees and, in turn, the seven Republicans agreed to vote against the nuclear option. The Republicans in the Gang of 14 recognized that the Democrats might someday become the majority party in which case the Republicans would need the filibuster for unacceptable nominees of a Democratic president. Senator Frist agreed to honor this compromise.
Despite the long history looking to end the filibuster, it remained as a procedural option to block a presidential judicial nominee unless at least 60 senators supported him. Things finally changed in November 2013 when Harry Reid let the Senate vote to change the cloture rule. Senator Reid pushed for the nuclear option because of frustration with the Republicans who had blocked three of President Obama’s nominations to the United States Court of Appeals for the District of Columbia. By a 52 to 48 vote, the filibuster cloture requirement was changed for all nominations, except for justices of the Supreme Court, to only require a majority. All Republicans, the minority at that time, and three Democrats voted against the change. The three Democrats recognized that the change could dilute their power when the Republicans became the majority and they were right.
When Antonin Scalia died, President Obama nominated Merrick Garland to replace him on the Supreme Court. The Republicans held off on hearings for the nomination in hopes of winning the 2016 presidential election and then getting their own nominee. The Democrats, believing they would win the election, did not push for the necessary hearings thinking they would get their appointment when Hillary Clinton became president.
With the surprising win of Donald Trump, the Republican strategy turned out to be correct. Neil Gorsuch was nominated for the position and, predictably, the constitutional option was passed so that the Republicans could assure confirmation of the appointment. It was foreseeable that the Republicans would extend the option to include nominations to the Supreme Court when it became obvious they would not get cloture on the threatened filibuster. At least for now, any nomination for a judgeship in an Article III court, even a Supreme Court justice, will only need a majority vote in the Senate for confirmation.
With the politicization of judicial appointments, it is not surprising that some federal judges felt they had the power to block some executive orders and new laws with the injunction power until such time that the cases were litigated and appealed. Since the litigation could take years, they were effectively blocking the laws until a more favorable President could be elected.
This change in confirming justices for the Supreme Court and other Article III judges will have significant importance for health care providers as the constitutional questions of parts of the Affordable Care Act, such as the Independent Payment Advisory Board, and other health care related issues make their way to the Court. All health care providers need to stay informed to be better able to advocate for their patients’ best interest.