The Rules of Proceedings Clause

Each House may determine the Rules of its Proceedings . . .

—Paul Taylor

Introduction

The Constitution grants the House and Senate the power to determine the rules of their respective proceedings. This provision occasioned no debate during the Constitutional Convention, but it would prove essential for the operation of Congress. Justice Joseph Story wrote that without this power, “it would be utterly impracticable to transact the business of the nation at all, or at least, to transact it with decency, deliberation, and order.”¹ Story added, “Without rules, no public body can suitably perform its functions.” The U.S. Supreme Court has interpreted the Rules of Proceeding Clause to grant each house broad discretion in determining the rules of its own internal operations. The courts generally will not scrutinize the validity of those rules unless they “ignore constitutional restraints or violate fundamental rights.”²

History Before 1787

In 1629, King Charles I adjourned the House of Commons. Eleven years later, the Short Parliament in England criticized Charles for adjourning the House in violation of that body’s cameral authority over its own proceedings. At about the same time, English jurist Sir Edward Coke wrote that “judges ought not to give any opinion of a matter of parliament, because it is not to be decided by the common laws, but secundum legem et consuetudinem parliamenti,” meaning according to the law and usage of Parliament.³ In the eighteenth century, Sir William Blackstone wrote that “as every court of justice hath laws and customs for its direction . . . so the high court of parliament hath also its own peculiar law.”⁴ Parliament’s own peculiar law was called the “lex et consuetudo parliamenti,” which Blackstone explained was a law discerned “out of the rolls of parliament, and other records, and by precedents, and continual experience.”⁵

“As a general matter,” Josh Chafetz observed, “the colonial assemblies tended to model themselves after the House of Commons, especially on matters relating to their privileges and procedures.”⁶ Colonial legislatures in America also asserted their own privileges to govern themselves when faced with encroachments on their power by state executives. In the 1650s, the Virginia House of Burgesses claimed for itself the authority to elect legislative officials formerly appointed by the king.⁷ In 1705, the Massachusetts House of Representatives continued to work with its chosen Speaker over the objections of the governor, who refused to approve him.⁸ In 1758, North Carolina’s lower house refused to accede to the governor’s instructions regarding the necessary quorum for doing business, insisting that at least half its members must be present.⁹ In the early 1770s, a dispute between the Georgia House of Commons and the governor over who should be Speaker dragged on for two years with the House insisting that the selection of Speaker was integral to the House’s independent legislative power.¹⁰

The Articles of Confederation did not create an executive, but they still included provisions recognizing Congress’s authority to appoint its own presiding officer and any committees it might want to create.¹¹ Subsequently, six early state constitutions explicitly provided that their legislatures would determine the rules of their own proceedings.¹²

The Constitutional Convention

The Rules of Proceedings Clause first appeared in several drafts from the Committee of Detail. Draft IV stated: “The house shall have power to make rules for its own government.”¹³ Draft VI stated: “Each house shall have Authority to (settle) determine the Rules and Order of its Proceedings. . . .”¹⁴ Draft VII stated: “Each House shall . . . settle its own Rules of Proceedings. . . .”¹⁵ And Draft IX: “Each House (shall have Authority to) may determine the Rules of its Proceedings . . . .”¹⁶ On August 6, 1787, the version of the Constitution presented by the Committee of Detail read: “Each House may determine the rules of its proceedings. . . .”¹⁷

During debate on August 10, 1787, there was no discussion regarding the meaning or purpose of this clause. Rather, the debate focused on another provision in the same clause dealing with a house’s power to expel a Member. On September 12, 1787, the Committee of Style submitted another draft without any modifications to the Rules of Proceedings Clause. Such language was retained in the Constitution as ultimately ratified by the states. Throughout the process, there was no debate on this clause, perhaps because the background principle of parliamentary self-government was well accepted by that time.

Early Practice

In the first Congress, the standing rules of both the House and the Senate provided for the appointment of committees. The House made all committees and committee chairmen subject to appointment by the Speaker “unless otherwise specially directed by the House.”¹⁸ The Senate made all committees subject to appointment by ballot of the full Senate.¹⁹ By 1815, house committees had the authority to report out bills on their own without having to obtain permission from the full House.²⁰ The next year, the Senate created twelve standing committees of its own.²¹

Judicial Precedents

United States v. Ballin (1892) provided the Supreme Court’s formative discussion of the Rules of Proceedings Clause.²² The Court explained that Congress’s rules may not “ignore constitutional restraints or violate fundamental rights” and declared that “there should be a reasonable relation” between the rule of proceeding “and the result which is sought to be attained.” But “all matters of method are open to the determination of the house.” This “continuous power” is, when “within the limitations suggested, absolute and beyond the challenge of any other body or tribunal.” Despite the admonition in Ballin, however, there have been many attempts to challenge congressional rules over the years.

For two primary reasons, challenges to congressional rules are usually beyond the scope of judicial review. The first rationale is based on the doctrine of standing. Federal courts can only hear controversies where a party is injured.²³ Regular citizens cannot challenge a congressional rule because they are not directly injured by the rule. For example, litigants have tried to challenge the Senate filibuster rule many times, yet “[n]o court has reached the merits of the dispute.”²⁴ Moreover, members of Congress will have difficulty challenging congressional rules in court: The House or Senate would already have rejected such a challenge by virtue of adopting the rule. Also, there is no cognizable injury when a member is on the losing end of a congressional vote. The Supreme Court has recognized that a legislator might have standing if the challenged rule has “completely nullified” the votes of federal legislators,²⁵ but that standard has not yet been met.

There is a second reason why the courts usually cannot hear challenges to congressional rules. Under the so-called political question doctrine, federal courts will not hear a case if it presents sufficient separation of powers concerns. Baker v. Carr (1962) observed that the political question doctrine may apply when a particular issue is committed by constitutional text to a “coordinate political department.”²⁶ The Rules of Proceedings Clause would seem to be a “textually demonstrable constitutional commitment” of the rulemaking power to each house under the Constitution.

In rare cases, the courts have reviewed alleged violations of congressional rules. In Morgan v. United States (1986), the D.C. Circuit “found no absolute prohibition of judicial review in the [Rules of Proceedings] clause.”²⁷ For example, in United States v. Smith (1932), the Supreme Court reviewed the Senate’s decision to reconsider a presidential nominee who had already been confirmed. The Court found that because the case “affects persons other than members of the Senate, the question presented is of necessity a judicial one.”²⁸ And in Christoffel v. United States (1949), the Supreme Court permitted a challenge to a perjury conviction resulting from testimony before a House committee where the committee failed to maintain a quorum under its rules.²⁹ Review was proper, the Court held, because the violation of the rule resulted in denial of a fundamental right. However, in United States v. Rostenkowski (1995), the D.C. Circuit refused to hear a case about an ambiguous House or Senate Rule.³⁰ Such a difficult interpretation “would effectively be making the Rules—a power that the [Rules of Proceedings] Clause reserves to each House alone.”

Finally, the Court has made clear that the Rules of Proceedings Clause only grants Congress the power to make rules regarding its internal proceedings. INS v. Chadha (1983) ruled that this power “only empowers Congress to bind itself.”³¹

1. Joseph Story, A Familiar Exposition of the Constitution of the United States, § 137 (1840). ↩︎
2. United States v. Ballin, 144 U.S. 1, 5 (1892). ↩︎
3. Sir Edward Coke, The Fourth Part of the Institutes of the Laws of England: Concerning the Jurisdiction of Courts 15 (1797). ↩︎
4. 1 Blackstone 163. ↩︎
5. Id. ↩︎
6. Josh Chafetz, Leaving the House: The Constitutional Status of Resignation from the House of Representatives, 58 Duke L.J. 177, 196 (2008). ↩︎
7. Warren M. Billings, A Little Parliament: The Virginia General Assembly in the Seventeenth Century 35 (2004). ↩︎
8. Evarts Boutell Greene, The Provincial Governor in the English Colonies of North America 150 (1966). ↩︎
9. Jack P. Greene, The Quest for Power: The Lower Houses of Assembly in the Southern Royal Colonies, 1689–1776, at 217–19 (1963). ↩︎
10. Id. at 433–36. ↩︎
11. Articles of Confederation, art. IX, § 5. ↩︎
12. Del. Const. of 1776, art. V; Ga. Const. of 1777, art. VII; Md. Const. of 1776, art. XXIV; Mass. Const. of 1780, pt. 2, ch. 1, § 2, art. VII; id., § 3, art. X; N.H. Const. of 1784, pt. 2, Senate, para. 12; id., House of Reps., para. 12; Va. Const. of 1776, para. 4. ↩︎
13. 2 Farrand’s 140. ↩︎
14. Id. at 156. ↩︎
15. Id. at 158. ↩︎
16. Id. at 166. ↩︎
17. Id. at 180. ↩︎
18. H. Journal, 1st Cong., 1st Sess. 140 (Jan. 13, 1790). ↩︎
19. S. Journal, 1st Cong., 1st Sess. 13 (Apr. 16, 1789). ↩︎
20. Ralph Volney Harlow, The History of Legislative Methods in the Period Before 1825, at 222, 225–26 (1917). ↩︎
21. Gerald Gamm & Kenneth Shepsie, Emergence of Legislative Institutions: Standing Committees in the House and Senate, 1810–1825, 14 Legis. Stud. Q. 39, 53–57 (1989). ↩︎
22. 144 U.S. 1 (1892). ↩︎
23. Allen v. Wright, 468 U.S. 750 (1984). ↩︎
24. Common Cause v. Biden, 748 F.3d 1280, 1282 n.2 (D.C. Cir. 2014). ↩︎
25. Raines v. Byrd, 521 U.S. 811, 824 (1997). ↩︎
26. 369 U.S. 186, 217 (1962). ↩︎
27. 801 F.2d 445, 449 (D.C. Cir. 1986). ↩︎
28. 286 U.S. 6, 33 (1932). ↩︎
29. 338 U.S. 84, 92 (1949). ↩︎
30. 59 F.3d 1291, 1306–07 (D.C. Cir. 1995). ↩︎
31. 462 U.S. 919, 956 n.21 (1983). ↩︎