The House, for example, has a lot of rules and procedures it follows for bringing bills to the floor for a vote, etc. The Speaker has a lot to do with which bills get to come up. Factions in the Speaker’s party can apparently do various things to hold up bills preventing them from coming before him. Etc etc. I don’t really know much about it.
But my question is, do all these types of rule have the force of law? Or are they just rules the members of the houses agree together to follow?
If one day the whole House just decided to vote on a bill, Speaker be damned, and it passed (and it passed in the Senate too) and got signed by the president, would it count as a law, or would this somehow be either invalid or illegal?
The Constitution gives each chamber the power to decide its own rules. Although the Speaker wields a lot of power under the rules procedurally, if a majority of the House really wants to do something, they’re going to do it. Even the Speaker only gets one vote when it comes down to it.
Each chamber has a staff parliamentarian to resolve disputes that arise under the rules. Each chamber can also change or suspend certain rules whenever they please.
As for whether the rules have the force of law, it’s not really a question that makes sense. It’s sort of like asking if the latest ruling of your Dungeon Master has the force of law. Well, maybe in the context of that D&D game, but to everyone else it’s irrelevant. What goes on in legislative sessions isn’t a legal procedure. The Constitution requires that a bill be passed by both chambers and signed by the President. But how they actually go about doing that is up to them.
Agreed. I mean, asking whether the rules have force of law presupposes that Article III judges could consider the question. But it’s likely that courts would simply not hear such a case because it’s a nonjusticiable political question.
The “force of law” question is weird, but the rules of each house are binding.
There are a few procedural issues that are specifically mentioned in the Constitution, of course. One relevant to procedure is the presentment clause: in order to make a law, the President has to be given a bill that was passed in both houses in identical form. Laws have been challenged in courts on this basis, but the specific outcomes escape me at the moment.
Also, as has been mentioned before, a legislature has the inherent faculty to suspend the rules in order to get something through that would otherwise be frozen in procedure. That requires a motion to that effect and is doable* if there is enough support*, which motion is usually privileged from being itself frozen out by the Chair. So no need to do something entirely outside the rulebook.
And yes that means even then it requires a set of steps to be followed. Simply having 50%+1 of those present flashmob the floor and shout “we pass HR257!” will just result in the Clerk NOT recording any such passage.
Yes it does, when you consider that there are bodies where the procedural rules do have the force of law. For examples, the rules of evidence in criminal court, if violated, can lead to the verdict being vacated and a mistrial being declared.
The question is whether the passage of a bill can be vacated, if it is passed in a manner contrary to the rules.
It’s not a silly question at all. Suppose all the House and Senate Democrats and a few Republicans showed up one day and “passed” a bill on their own (without a majority of either house actually voting in favor), then gave it to the POTUS. If the POTUS signs it, is that a law? Of course not. But the Constitution doesn’t say that; it never actually specifies how many votes are required to pass a bill in either house, only that a majority of members is a quorum. So it’s only the rules of the respective chambers that govern this legal question.
The line-item veto given to Clinton was struck down on the basis of the Presentment Clause, on the grounds that the resulting enactment would not be the bill that Congress passed.
There’s another case where Congress gave the House the power to review and overturn INS residency decisions, which was overturned on the same grounds (that is, the “overruling” would only be valid congressional action if it passed both houses and was signed by the POTUS).
The House can always propose a special rule suspending the rules of order. This will be sent to the rules committee where it can die. But a “discharge petition” signed by a majority of members of the House can extract it from the Rules committee after a delay of 7 “legislative days” (see: Discharge petition - Wikipedia). Then a majority can vote a special rule to consider the bill and pass it.
Incidentally, the Rules committee is just about the most powerful committee in the House. The reason is that essentially every bill that the House considers requires a special rule to take it up out of the legislative order.
The only court case I am familiar with is the Ballin Case which basically said that if members of the House were in the chamber, they counted towards a quorum even if they didn’t vote. Not sure if this qualifies as force of law.
More direct to the OP, the rule requiring members to attend the session (unless previously excused) definately has the force of law and violators can be compelled with a Call of the House and legislators that do not come into the chambers are actually arrested. That scene in House of Cards where the Pubs are brought into the Senate in handcuffs? That has actually happened.
… which does not require Senate to vote nor the President’s signature, thus it is not law. AFAIK, each legislative chamber is on their own to set up and execute their rules, neither the other chamber nor the president have any say, and the courts have been loath to intervene.
It is not an act of Congress. It is still law. Regulations promulgated by executive agencies are not directly passed by the House or Senate, but still have the force of law. There are more laws in heaven and earth, Horatio, than are dreamt of by your philosophy.
Read Ballin. In it SCOTUS continually refers to a majority of the quorum is the standard for passing motions so I would argue that although the Constitution does not address the number of votes needed to pass legislation, it is not entirely at Congress’ discretion and rule-making rights.
But that’s an apple to oranges comparison. The power to create Federal judicial procedural rules is technically held by Congress, and the judiciary promulgates the rules only under statutory authority given to it by Congress (under the Rules Enabling Act). This is why talking about “force of law” makes some sense when you’re dealing with FRCPs. But this is very different in nature from procedural rules that that governs how Congress deals with its day-to-day workflow, which are held entirely by Congress itself. The only way I can imagine a Plaintiff successffuly challenging a particular procedural rule is if the rule directly contradicts a provision in Article I of the Constitution – but for most cases, Congress has the power to create its own procedural rules, and Federal Courts are loathe to meddle with such issues due to the political question doctrine.
I think we’re confusing what has “the force of law” and what is actually law. If the law says we have to follow police orders, then a police order has the force of law, but itself is not law. Does that make sense?
I don’t understand what you guys mean when you say the question doesn’t make sense. You say it doesn’t make sense–then go on to plainly answer the question.
Your answer is, in so many words, “No, it doesn’t have force of law.” Do you not agree?
Then the Speaker of the House or President Pro Tempore doesn’t have to sign the enrolled copy of the bill that is transmitted to the President. And the Clerk gets fired, just as Parliamentarians have been fired for crossing the leader of the majority in a particular house.