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Down With the Hastert Rule

Down With the Hastert Rule

By Carl M. Cannon - November 30, 2014

President Obama’s rationale for making law unilaterally on U.S. immigration policy—after insisting for years that he had no such constitutional authority—hinged on a single argument: inaction by lawmakers on Capitol Hill. Specifically, House Republicans.

Speaking to the nation from the East Room a week before Thanksgiving, Obama put it bluntly: “To those members of Congress who question my authority to make our immigration system work better, or question the wisdom of me acting where Congress has failed, I have one answer: Pass a bill.”

The reaction among Obama’s critics ranged from dismissive to contemptuous. “The president,” said American Conservative Union leader Matt Schlapp, “is showing utter contempt for the American voter, the Constitution, the separation of powers, and all those who follow the law.”

Alabama Republican Sen. Jeff Sessions tweeted that “executive amnesty violates the laws Congress has passed in order to create and implement laws Congress refused to pass.”

What the president had done, said conservatives, was respond to a complicated constitutional question with a nakedly political answer. But it’s not that simple. Did Congress really “refuse to pass” immigration reform legislation? Or has the House of Representatives morphed into a legislative body that no longer does the public’s business—and which the Framers would no longer recognize? Put simply, does the so-called “Hastert Rule” give the president a legitimate rationale for circumventing Congress?

First, some background about the status of immigration reform—and the infamous Hastert Rule:

On June 27, 2013, the U.S. Senate passed the Border Security, Economic Opportunity, and Immigration Modernization Act. Despite the Orwellian title, the legislation reflected genuine compromise fashioned by a bipartisan “Gang of Eight.” It fortified immigration law enforcement, expanded temporary worker programs, required employment verification, and provided a path for unauthorized immigrants to remain in the U.S. and eventually apply for citizenship. 

Jeff Sessions didn’t vote for it, but 14 of his Republican colleagues did, along with every Senate Democrat. The final tally was 68-32. In the House, a similar coalition was waiting. Except that the House never voted on it.

The reason is that Speaker of the House John Boehner generally adheres to a dictum named after Illinois Republican J. Dennis Hastert, the former speaker whose reputation was cemented 10 years ago this week when he announced that bills would only reach the House floor when “a majority of the majority” supported them.

Democrats, led by then-Minority Leader Nancy Pelosi, howled in protest. But Denny Hastert, a former high school teacher and wrestling coach, wasn’t really breaking new ground: He was just revealing a practice that had been building for years.

“If you pass major bills without the majority of the majority,” Hastert aide John Feehery explained to The Washington Post, “then you tend not to be a long-term speaker.”

Hastert’s predecessor, Newt Gingrich, added that he had relied on the same principle, which he’d learned from his predecessors, all Democrats: Tom Foley, Jim Wright, and Tip O’Neill. “If you can’t get a majority of your members to vote yes, then a pretty prudent speaker doesn’t bring it up.”

But prudence, like beauty, exists in the eye of the beholder. If all Boehner cared about was his own political future, he might adhere to the Hastert Rule faithfully. The speaker is chosen by a simple vote of his party’s members, literally “a majority of the majority.” But what if that majority wants to lead itself over a cliff? That was the calculation Boehner made when he let the full House vote on reauthorizing the Violence Against Women Act. A majority of his members had quibbles with the bill, but the GOP leadership was more interested in neutralizing the Democrats’ “war on women” trope in an election year.

Boehner also dispensed with the Hastert Rule on other occasions: to raise the debt ceiling, keep the government running, and emergency disaster relief.

The speaker did not do so on immigration, however, and might have been deposed had he tried. If one believes that the Republicans’ more profound problem is with Hispanic voters rather than with women, perhaps Boehner should have risked it. The larger point is that the House was never intended to operate this way.

The Senate, with its filibusters, six-year terms, and arcane customs, was envisioned as a deliberative body that would rein in the passions of the day. The House of Representatives—the “people’s House”—was supposed to be a more streamlined and responsive legislative body. James Madison, one of the key framers of the Constitution, described the House as having “an immediate dependence on, and intimate sympathy with, the people.”

Nobody is seriously saying the Hastert Rule is unconstitutional. But it is ahistorical and, at this point in U.S. political history, often unrepresentative. Instead of being the “people’s House,” it’s a special-interest-group-controlled fiefdom run autocratically by whichever of the two polarized parties happens to hold the reins. And in the case of immigration reform, it’s natural for Obama to feel that Congress is thwarting elective democracy instead of promoting it.

“I worked with Congress on a comprehensive fix, and last year, 68 Democrats, Republicans, and independents came together to pass a bipartisan bill in the Senate,” he said in his East Room speech. “It wasn’t perfect. It was a compromise. But … had the House of Representatives allowed that kind of bill a simple yes-or-no vote, it would have passed with support from both parties, and today it would be the law. But for a year and a half now, Republican leaders in the House have refused to allow that simple vote.”

He’s right. Massachusetts Sen. Elizabeth Warren put it this way, “If House Republicans won’t do their jobs, it’s time for the president to do his.”

Carl M. Cannon is the Washington Bureau Chief for RealClearPolitics. Reach him on Twitter @CarlCannon.

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