Do Senate rules violate the U.S. Constitutional provision which says the Senate may determine its own rules?

[Max_S]

Continuing the discussion from Please explain your Senate rules to me:

@Max_S

[…] I am of the opinion that Senate Rule V (2) as applied to Rule XXII is an unconstitutional violation of the Rules and Proceedings Clause.

@flurb

You think that the rules the Senate has adopted . . . violate the Constitutional provision . . . that the Senate may determine its own rules.

Hmm.

@Saint_Cad

[reply to Max] I’d be interested in your explanation of this.

@Max_S

I think the provision allowing each house to determine the rules of its proceedings precludes any rule which prevents either house from doing so, with a majority, at least once during its sessions. For example I could invent an egregiously hypothetical rule stating, “the Senate shall not consider legislation concerning X, nor shall it ever amend this rule without unanimous consent.” That would be fine, so long as each session consents to the rule - if there was an additional rule that reads “the aforementioned rule shall be binding upon future sessions of Congress”, I think the combination is unconstitutional.

~Max

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U.S. Const. art. I, § 5, cl. 2

Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behaviour, and, with the Concurrence of two thirds, expel a Member.

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Senate Rule V (2) (Click to expand/hide)

The rules of the Senate shall continue from one Congress to the next Congress unless they are changed as provided in these rules.

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Senate Rule XXII (2) (Click to expand/hide)

Notwithstanding the provisions of rule II or rule IV or any
other rule of the Senate, at any time a motion signed by sixteen
Senators, to bring to a close the debate upon any measure, motion,
other matter pending before the Senate, or the unfinished business,
is presented to the Senate, the Presiding Officer, or clerk at the di-
rection of the Presiding Officer, shall at once state the motion to
the Senate, and one hour after the Senate meets on the following
calendar day but one, he shall lay the motion before the Senate
and direct that the clerk call the roll, and upon the ascertainment
that a quorum is present, the Presiding Officer shall, without de-
bate, submit to the Senate by a yea-and-nay vote the question:

‘‘Is it the sense of the Senate that the debate shall be brought
to a close?’’ And if that question shall be decided in the affirmative
by three-fifths of the Senators duly chosen and sworn—except on
a measure or motion to amend the Senate rules, in which case the
necessary affirmative vote shall be two-thirds of the Senators
present and voting—then said measure, motion, or other matter
pending before the Senate, or the unfinished business, shall be the
unfinished business to the exclusion of all other business until dis-
posed of.

Thereafter no Senator shall be entitled to speak in all more than
one hour on the measure, motion, or other matter pending before
the Senate, or the unfinished business, the amendments thereto
and motions affecting the same, and it shall be the duty of the Pre-
siding Officer to keep the time of each Senator who speaks. Except
by unanimous consent, no amendment shall be proposed after the
vote to bring the debate to a close, unless it had been submitted
in writing to the Journal Clerk by 1 o’clock p.m. on the day fol-
lowing the filing of the cloture motion if an amendment in the first
degree, and unless it had been so submitted at least one hour prior
to the beginning of the cloture vote if an amendment in the second
degree. No dilatory motion, or dilatory amendment, or amendment
not germane shall be in order. Points of order, including questions
of relevancy, and appeals from the decision of the Presiding Officer,
shall be decided without debate.

After no more than thirty hours of consideration of the measure,
motion, or other matter on which cloture has been invoked, the
Senate shall proceed, without any further debate on any question,
to vote on the final disposition thereof to the exclusion of all
amendments not then actually pending before the Senate at that
time and to the exclusion of all motions, except a motion to table,
or to reconsider and one quorum call on demand to establish the
presence of a quorum (and motions required to establish a quorum)
immediately before the final vote begins. The thirty hours may be
increased by the adoption of a motion, decided without debate, by
a three-fifths affirmative vote of the Senators duly chosen and
sworn, and any such time thus agreed upon shall be equally di-
vided between and controlled by the Majority and Minority Leaders
or their designees. However, only one motion to extend time, speci-
fied above, may be made in any one calendar day.

If, for any reason, a measure or matter is reprinted after cloture
has been invoked, amendments which were in order prior to the re-
printing of the measure or matter will continue to be in order and
may be conformed and reprinted at the request of the amendment’s
sponsor. The conforming changes must be limited to lineation and
pagination.

No Senator shall call up more than two amendments until every
other Senator shall have had the opportunity to do likewise.

Notwithstanding other provisions of this rule, a Senator may
yield all or part of his one hour to the majority or minority floor
managers of the measure, motion, or matter or to the Majority or
Minority Leader, but each Senator specified shall not have more
than two hours so yielded to him and may in turn yield such time
to other Senators.

Notwithstanding any other provision of this rule, any Senator
who has not used or yielded at least ten minutes, is, if he seeks
recognition, guaranteed up to ten minutes, inclusive, to speak only.

After cloture is invoked, the reading of any amendment, includ-
ing House amendments, shall be dispensed with when the proposed
amendment has been identified and has been available in printed
form at the desk of the Members for not less than twenty-four
hours.

~Max

[Max_S]

@UltraVires

The Constitution itself contains provisions for supermajorities and unamendable amendments. Why couldn’t the Senate, with the same nearly absolute power of setting its own rules do the same?

The Senate is a creature of the Constitution; the Senate’s “nearly absolute power” is limited by the Constitution.

A hypothetical Senate rule prohibiting the appointment of a President pro tempore would necessarily be unconstitutional, because it violates the Constitution’s directive: “The Senate shall chuse […] a President pro tempore, in the Absence of the Vice President, or when he shall exercise the Office of President of the United States.” (Likewise, Congress’s power to direct the manner of appointing D.C.'s electors cannot be construed so as to prevent D.C. from appointing electors, which is required by the Constitution.)

A hypothetical Senate rule may not, without violating the Constitution, deny the right, provided for by the Constitution, for a minority of Members to compel the Attendance of absent Members. (This is despite the explicit allowance of each House to provide the Manner and Penalties for a minority to compel attendance of absent Members. Congress’s power to make Laws necessary and proper for carrying into execution Powers vested in a Department or Officer of the United States cannot be construed so as to deny, in practice or in full, the President’s constitutional right to require the written opinion of the his department heads).

A hypothetical Senate rule may not, without violating the Constitution, deny the President his constitutional right to, on extraordinary Occasions, convene both Houses, or either of them.

&etc.

~Max