SCHROEDER at law.duke.edu
Tue Dec 22 07:20:36 PST 2009
The practice of both chambers suggests that each treats these point of order provisions as having legal force. The distinction between single-house rulemaking and statutory rulemaking seems misplaced, save in the case of the Senate's filibuster rule, because each chamber will have passed the statute by procedures no less protective of opposing views than are the procedures by which rules are changed within a single chamber. In other words, the procedures for enacting the statute require it to go through the same hoops in each chamber as changes in that chamber's rules must go through -- and then they additionally go through extra procedures in the other chamber. Take the case of the Senate: in order to change the Senate rules, the change must be enacted by majority vote after it has successfully overcome a filibuster if one is mounted. The statute must go through the same procedure. The filibuster rule is the exception -- it requires a 2/3's vote to amend -- but the point of order provision does not try to change the Senate's filibuster rule.
In the House, rulings on all points of order with which I am familiar are subject to simple majority vote -- and this includes those in the Reid bill that I have reviewed. Therefore, they are also no more entrenched than any rule change the House would enact on its own. The one difference between a House-adopted rule and a statute with a point of order may be that the House does not ratify the statute-embedded points of order each time it enacts its rules. I say "may be" because I just don't know whether it does or not. However, I should think that if it no longer wished to honor a point of order that was embedded in a statute, it could pass a rule stating that henceforth points of order pursuant to the statute shall be deemed waived.
As to whether a statute trumps a prior rule, I should think that both chambers would say the answer to that question is "yes." That is to say, when either chamber participates in enacting a statute that is inconsistent with one of its existing rules, the statute prevails. The effect is the same as if the chamber had enacted a rule that was inconsistent with a prior rule -- the more recent rule would normally prevail to the extent of the inconsistency.
However, once enacted, can a statute subsequently be changed by simple rule, without enacting another statute? Two paragraphs ago I suggested a way that this could be done with points of order. This doesn't appear to run into any "supreme law of the land" problems because the statute remains on the books and in effect -- the rule does not attempt to repeal the statute, which of course it could not do -- but its effect has been nullified by an internal congressional rule governing its own internal procedures.
>>> seth tillman <sbarretttillman at yahoo.com> 12/22/2009 9:35 AM >>>
I appreciate Mark and Chris's post. But their answers, if I understand them, seem to go to choreography (venue and jurisdiction) and have the flavor of legal positivism. Their answers go to the procedures, provided for by the contested statute, that will be used to decide a point of order.
My question was intended as more substantive or normative. Let me make a second effort at posing my question(s).
Should a presiding officer consider his chamber and his decision on a point order in some sense bound or determined by a statute that purports to govern intracameral proceedings, which are usually the subject of single-house intracameral rule-making, not statutes?
Can a statute effectively amend the Senate rules -- which are purportedly subject to an internal Senate supermajority rule? Can a statute amend the Senate rules even if passed by less than the relevant Senate supermajority?
Can a statute bind a future House -- which customarily repasses its rules anew at the start of each new session?
Chris and Mark seem to be suggesting (I am not 100% sure) that the statute has force, although it can be effectively overturned by a majority when reviewing a decision of the chair. But it would seem to me you only reach that question if you think the statute is presumptively legal or valid or operative or constitutional and should be enforced by the chair in the first instance. Is that the consensus? And if so, why? If a statute can function as a rule, wouldn't such a statute trump any rule (passed before or, even, after the statute) -- Supreme Law of the Land and all that? And if that result is counter-intuitive, might not that mean that a statute cannot function as a rule?
Seth Barrett Tillman
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