Rules of Proceedings

In the exercise of their constitutional power to determine their rules of proceedings, the Houses of Congress may not “ignore constitutional restraints or violate fundamental rights, and there should be a reasonable relation between the mode or method of proceeding established by the rule and the result which is sought to be attained. But within these limitations all matters of method are open to the determination of the house. . . . The power to make rules is not one which once exercised is exhausted. It is a continuous power, always subject to be exercised by the house, and within the limitations suggested, absolute and beyond the challenge of any other body or tribunal.”410 If a rule affects private rights, its construction becomes a judicial question. In United States v. Smith,411 the Court held that the Senate’s reconsideration of a presidential nominee for chairman of the Federal Power Commission, after it had confirmed him and he had taken the oath of office, was not warranted by its rules and did not deprive the appointee of his title to the office. In Christoffel v. United States,412 a sharply divided Court upset a conviction for perjury in a federal district court of a witness who had denied under oath before a House committee any affiliation with Communist programs. The reversal was on the ground that, because a quorum of the committee, although present at the outset, was not present at the time of the alleged perjury, testimony before it was not before a “competent tribunal” within the sense of the District of Columbia Code.413 Four Justices, in an opinion by Justice Jackson, dissented, arguing that, under the rules and practices of the House, “a quorum once established is presumed to continue unless and until a point of no quorum is raised” and that the Court was, in effect, invalidating this rule, thereby invalidating at the same time the rule of self-limitation observed by courts “where such an issue is tendered.”414

The Appointments Clause provides that the President “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint . . . Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law. . . .”415 The Constitution provides that “Each House may determine the Rules of its Proceedings,”416 and the Senate has enacted a cloture rule417 requiring a supermajority vote (60 votes) to close debate on any matter pending before the Senate. Absent the invocation of cloture or some other means of ending debate, matters can remain before the Senate indefinitely. The practice of preventing closure is known as a filibuster. Although no provision of the Constitution expressly requires that the Senate or House act by majority vote in enacting legislation or in exercising their other constitutional powers, the framers of the Constitution were committed to a majority rule as a general principle.418 These facts have given rise to disagreement as to the constitutionality of the filibuster as applied to judicial nominees— disagreement over whether the “Advice and Consent” of the Senate means the majority of the Senate and not a super-majority. The constitutionality of the filibuster has been challenged in court several times, but those cases have never reached the merits of the issue.

419 More recently, the Senate interpreted its rules to require only a simple majority to invoke cloture on most nominations.420


United States v. Ballin, 144 U.S. 1, 5 (1892). The Senate is “a continuing body.” McGrain v. Daugherty, 273 U.S. 135, 181–82 (1927). Hence its rules remain in force from Congress to Congress except as they are changed from time to time, whereas those of the House are readopted at the outset of each new Congress. back
286 U.S. 6 (1932). back
338 U.S. 84 (1949). back
338 U.S. at 87–90. back
338 U.S. at 92–95. back
Art. II, § 2, cl. 2. back
Art. I, § 5, cl. 2. back
Rule XXII, par. 2. back
See, e.g., Federalist No. 58, p. 397 (Cooke ed.; Wesleyan Univ. Press: 1961) (Madison, responding to objections that the Constitution should have required “more than a majority . . . for a quorum, and in particular cases, if not in all, more than a majority of a quorum for a decision,” asserted that such requirements would be inconsistent with majority rule, which is “the fundamental principle of free government”); id., No. 22, p. 138–39 (Hamilton observed that “equal suffrage among the States under the Articles of Confederation contradicts that fundamental maxim of republican government which requires that the sense of the majority should prevail”). back
See, e.g., Common Cause v. Biden, 748 F.3d 1280 (D.C. Cir. 2014); Judicial Watch, Inc. v. United States Senate, 432 F.3d 359 (D.C. Cir. 2005); Page v. Shelby, 995 F. Supp. 23 (D.D.C. 1998). The constitutionality of the filibuster has been a subject of debate for legal scholars. See, e.g., Josh Chafetz & Michael J. Gerhardt, Debate, Is the Filibuster Constitutional?, 158 U. PA L. REV. PENNUMBRA 245 (2010). back
159 CONG. REC. S8416–S8418 (daily ed. Nov. 21, 2013). back