March 9, 2011 – Article I, Section 05, Clause 2 of the United States Constitution – Guest Essayist: Paul S. Teller, Ph.D., Executive Director of the Republican Study Committee in the U.S. House of Representatives

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Article 1, Section 5, Clause 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.

Article 1, Section 5, Clause 2 of the U.S. Constitution states that, “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.”  This seems like a fairly straightforward clause, but it has ramifications that many folks often overlook. 

The heart of this clause is with its first phrase, regarding each house of Congress determining its own rules.  The most obvious implication (and purpose) of this clause is the prevention of one house from changing the culture of the other house.  For example, it is common knowledge in Washington that the House is the faster, more reactive legislative body, and the Senate is the slower, more deliberative body.  This difference was deliberately designed by the Founders and pervades even the pace of people’s strides in the halls of Congress today.  Walk from a House office building through the Capitol and into a Senate office building, and you’ll feel as if you’ve just stepped from air into water into jelly. 

Article 1, Section 5, Clause 2 prevents one house from making cultural changes to the other—from turning air into jelly or vice versa.  For example, the Senate cannot force the House to spend four legislative days on one bill.  Similarly, the House cannot force the Senate to abandon the filibuster.  Thus, this clause of the Constitution has contributed to the relative stability of the culture of the two chambers over the centuries.

But perhaps more notably still, Article I, Section 5, Clause 2 also prevents a current Congress (and a current President, for that matter) from binding the procedural actions of a future Congress.  This point is critical to understanding legislating in the American political system.  That is, no matter what any Congress and President enact into law, the fact that each house of Congress sets its own rules will ALWAYS trump any law (because a provision in the Constitution always trumps a statute). 

For example, say Congress passes and the President signs a law that says that all appropriations bills must be considered in Congress under an “open rule” that allows any germane amendment to be offered at any time without any pre-filing requirement.  But then the following year, the House brings an appropriations bill to the floor under a “closed rule” allowing absolutely no amendments at all.  Which rule wins?  The closed rule wins, under Article I, Section 5, Clause 2, since the House is constitutionally guaranteed the right to set the rules of its own proceedings, irrespective of what any law, regulation, or common practice would supposedly require or suggest.

One big downside to this clause, however, is that it also guarantees the right of each house of Congress to ignore its own rules.  For example, at the start of every Congress, the House enacts a revised rules package—a set of rules that will guide the consideration of legislation for the subsequent two years.  However, it is common practice for the House, when considering “major” legislation, to enact “special rules” that provide for the consideration of just that major bill.  Very often, a special rule states that some of the underlying House rules either do not apply or that a Member may not cite them on the floor to claim that a violation has occurred (“make a point of order”).  Furthermore, the House frequently considers non-controversial legislation under a procedure called “suspension of the rules”—literally a setting aside of the underlying House rules in exchange for limited debate, a prohibition on amendments, and a two-thirds vote threshold required for passage.

Can anyone do anything about such avoidance of the rules?  Not at all.  There is neither check nor balance against either house of Congress ignoring its own rules and setting up new ones any time it wants to—either temporarily or permanently.  Says who?  Says Article I, Section 5, Clause 2.

Paul Teller is the Executive Director of the Republican Study Committee (RSC) , where he sets and implements strategy for the RSC’s policy, communications, and coalitions efforts. The Washington Post recently described Paul as “one of the most influential conservative aides in Congress.”

10 replies
  1. Ron Meier
    Ron Meier says:

    Thanks Dr. Teller. Your explanation helped me understand some of the comments I’ve heard in the media recently about rules changes, etc as the new House session opened.

    Reply
  2. Ralph T. Howarth, Jr.
    Ralph T. Howarth, Jr. says:

    I hope a constitutional amemdment makes its way around so that a procedural rule be made permenant that all bills, amendments to bills, and measure on bills declare the enumerated powers granted the Congress in the Constitution AND that all the measures found on a bill be germane to the bill and the powers granted. That would cut out a lot of bill riding and making of improper bills. Currently the house has a procedural rule to require having the Art 1 Sec 8 clauses written on the bill; but does not explicitly block bill riding that stuffs completely unrelated bills into a bigger, omnibus bill. That just is not good, lawmaking business.

    Reply
  3. Janine Turner
    Janine Turner says:

    Dr. Teller,
    I thank you for your wonderful essay today! It was insightful, intricate, and revealing. I first learned about House rules, and the proposal of them at the start of every new election cycle, this year when it was proposed that the House was going to read the U.S. Constitution on the House floor and mandate that every bill that was put in the “popper” had to have proof that it was within the confines of the Constitution. When I first heard of this, I was very excited. It was then that I learned that it would have to be approved in the House Rules package. Thus, the Constitutional authority that the House makes it’s own rules seems prudent, yet, it also appears, afte reading your essay, that the stipulation can be manipulated at times in ways that it was not intended. But…What’s new?!

    Thanks again!
    Janine Turner

    Reply
  4. Ralph Howarth
    Ralph Howarth says:

    Janine, former Congressman Shadagg of AZ retired had submitted for the last six congresses an Enumerated Powers Bill so that such a procedural rule in the house would become law in both houses. But the real, authoritative way to make that stick is to do an amendment.

    Reply
  5. Barb Zakszewski
    Barb Zakszewski says:

    It is truly amazing to be reading our Constitution Article by Article.. The Founding Fathers and Framers of the Constitution thought EVERY detail through. And now, over 200 years later, we can understand and fully appreciate why.. The Framers and Founders had such great wisdom and foresight… It is truly amazing!! I can’t tell you how much I am learning and how grateful I am for that.. Again, Thank you!! for this wonderful site!!

    Reply
  6. Susan
    Susan says:

    Janine and/or Dr. Teller may I repost this with questions on another blog site just to get a few more readers of it?

    Reply
  7. Rochelle
    Rochelle says:

    I too concur with the other comments. I appreciate the explanation of the House Rules. For now in class, I’m going with what the Constitution says – it kind of keeps order when 2/3rds of the class agrees that another student(s) are unruly and could be “expelled”. Works with kids, at least for now. Seriously, thanks I love learning too!

    Reply
  8. Randal Stader
    Randal Stader says:

    Obamacare is going to cause unpredictable problems that almost all consumers are not even realizing. I suppose it is really tough with a law so huge which unfortunately no person would be able to fully understand the legislation even if they even look at it. My partners market health insurance in Tennessee, and we basically had our earnings reduced by greater than one half. We wish anybody cared to protect small business people.

    Reply

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