Thursday, November 23, 2017

Can Republicans expand the federal judiciary through reconciliation?

David Super

     Steve Calabresi has proposed that congressional Republicans dramatically expand the federal judiciary to give President Trump enough appointments to establish conservative majorities on courts across the country.  Linda Greenhouse questions both his justifications for so many new judgeships and his assertion that his proposal is no more partisan than what Democrats have already done.  Professor Calabresi also has suggested including these provisions in reconciliation legislation to avoid filibusters from Democrats unwilling to give President Trump more vacancies to fill.  Whatever the merits of his substantive proposal, reconciliation is not a viable route to accomplish it.    

     Before getting into the specific rules that rule out this plan, some historical context will show that these rules are not accidents and that including legislation of this sort in a reconciliation bill would be profoundly destructive to the Senate’s role in our system.  Although reconciliation procedures were first established in the Congressional Budget Act of 1974, few realized their potential until Ronald Reagan took office in 1981.  With Democrats still in nominal control of the House and only a few votes down in the Senate, reconciliation procedures for limiting amendments and overcoming filibusters were the only way President Reagan could possibly have enacted his program of sharp reductions in domestic programs.

     Not expecting to get a second bight at the apple, the Administration and its congressional allies tossed as much of their wish-list as they had ready into the Omnibus Budget Reconciliation Act of 1981 as it steamrolled through Congress (becoming Public Law No. 97-35).  Not only did OBRA cut welfare, food stamps, and a host of other anti-poverty programs, it also restructured many programs in ways that did not save money but better-served the Reagan agenda or obscured the impacts of cuts. 

     Although the President’s popularity made OBRA unstoppable, Senate traditionalists on both sides of the aisle were alarmed that reconciliation had the potential to make the filibuster effectively meaningless.  Accordingly, they amended the Congressional Budget Act to strictly limit what provisions could appear in reconciliation bills.  Perhaps the imperative of deficit reduction required allowing inherently unpopular spending cuts and tax increases to pass with simple majorities, but other policy-making should have to go through the regular order, subject to amendment and filibuster.  This set of limits, found largely at 2 U.S.C. § 644, came to be known as the Byrd Rule.  Should a point of order be raised against a provision of a reconciliation bill under these and related restrictions, sixty votes – the same number required to invoke cloture against a filibuster – are required to waive that objection.  Thus, including extraneous material in a reconciliation bill generally offers proponents little advantage:  if they could overcome a point of order, they could have passed the legislation as a freestanding bill.

     Using reconciliation to expand the federal judiciary would be problematic for several reasons.  First, reconciliation protections are available only for legislation reported out of committees in response to “reconciliation instructions” included in a congressional budget resolution approved under 2 U.S.C. §§ 632(b)(2) and 641(a)(1).  The fiscal year 2018 budget resolution that is protecting the pending tax legislation contains reconciliation instructions for only two sets of committees:  the tax-writing committees (House Ways and Means and Senate Finance) and the committees with jurisdiction to allow drilling in the Arctic National Wildlife Refuge.  Legislation creating new federal judgeships would fall within the jurisdiction of the Judiciary Committees, which do not have reconciliation instructions and hence, under 2 U.S.C. § 641(b)(2), may not participate in this year’s reconciliation process.  Unless congressional Republicans wanted to put their tax legislation on hold while they passed a new version of the budget resolution, they could not include material within the judiciary committees’ jurisdiction in the pending legislation.  With their tax legislation getting more unpopular with each passing day, that seems unlikely. 

     Second, only changes in revenues and in “direct spending” count as fiscal changes permitted in reconciliation legislation under 2 U.S.C. § 641(b)(2).  Although judges (and clerks and courthouses) obviously cost money, authorizing more of them does not meet the narrow definition of direct spending in 2 U.S.C. § 900(c)(8).  Most federal spending programs are categorized as “discretionary” because they require two distinct steps:  the “authorization” or establishment of a program and the appropriation of funds for it.  Thus, legislation expanding or reducing the goals of a program does not necessarily increase or decrease federal spending because appropriators could choose not to increase funding.  Congressional budget process law controls discretionary spending not through reconciliation legislation but through annual caps on appropriations under 2 U.S.C. § 901(c).  As long as those caps remain in place, authorizing more judgeships might increase spending on the judiciary, but it would not increase total federal spending because appropriators would be required to offset that spending with cuts in other non-defense activities or trigger across-the-board cuts through a new sequestration.  Therefore, legislation expanding the federal judiciary would be deemed extraneous under the Byrd Rule, specifically 2 U.S.C. § 644(b)(1)(A)’s prohibition on provisions “not produc[ing] a change in outlays or revenues”.

      Finally, even if expanding the judiciary had a direct, cognizable effect on federal spending, the Byrd Rule also prohibits provisions that “produce[] changes in outlays or revenues which are merely incidental to the non-budgetary components of the provision”.  2 U.S.C. § 644(b)(1)(D).  As Professor Calabresi’s own writings demonstrate, the overwhelming purpose of this proposal is to establish conservative control of the federal judiciary, not to increase federal spending on courts.  Therefore, a merely incidental fiscal impact would not suffice to allow it to move on reconciliation legislation. 

     This sort of non-fiscal power grab is precisely what prompted the enactment of the Byrd Rule in the first place.  And with Senate seats closely divided – and with most current Republican senators having experienced the challenges of serving in the minority before 2014 – I suspect that even many senators sympathetic with Professor Calabresi’s proposal on the merits would be leery of creating a precedent that would so powerfully disempower them should they lose their majority in 2018 or 2020.  

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