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The Supercommittee, Moral Entrenchment, and the Puzzle of Statutized Rules

The Budget Control Act of 2011 (“BCA”) establishes a number of expedited procedures to govern House and Senate consideration of the legislative proposal from the “Supercommittee.” In essence, it requires that both the House and Senate have an up-or-down vote on the bill as proposed, and it forbids amendment of the bill in either house.

These provisions, of course, amend the normal rules of procedure that apply in the House and Senate.  The BCA expressly recognizes this and provides that these procedures are enacted “as an exercise of the rulemaking power of the House of Representatives and the Senate, respectively, and as such they shall be considered as part of the rules of each House, respectively, or of that House to which they specifically apply, and such rules shall supersede other rules only to the extent that they are inconsistent therewith.”

It is not unusual for Congress to enact in statute special rules to expedite the consideration of particular legislation (examples include “fast track” approval for trade agreements and the closing of military bases under the Base Realignment and Closure Act). Such “statutized rules” raise some thorny constitutional questions, however. See Aaron-Andrew P. Bruhl, Using Statutes to Set Legislative Rules: Entrenchment, Separation of Powers, and the Rules of Proceedings Clause, 19 J.L.& Po. 345 (2003).

For example, are the House and Senate legally bound to follow the rules prescribed in the BCA? The generally accepted answer to this is no. Because the Constitution grants each house the power to determine its own rules, a statute cannot remove this power, and thus each house must remain free to change its rules independently. Indeed, the BCA expressly states that its congressional procedural provisions are enacted “with full recognition of the constitutional right of either House to change such rules (so far as relating to such House) at any time, in the same manner, and to the same extent as in the case of any other rule of such House.”

If that is so, then either the House or Senate is legally free, notwithstanding the procedures specified in the BCA, to supersede those procedures with respect to consideration in its own body. As Professor Bruhl notes, this may not mean so much in the Senate, where it can be extremely difficult to change the rules. In the House, however, changing the rules is quite easy. It is typical in the House that legislation sent to the floor is accompanied by a special rule from the Rules Committee that sets the terms of the debate and consideration for that particular bill. This special rule can vary or waive any of the provisions of the Standing Rules of the House.

For example, this CRS report discusses the use of expedited rules in military base closings, and notes some instances where the House waived the requirements of those rules. The report states: “As House Parliamentarian Emeritus Charles W. Johnson observes, a chamber may ‘change or waive the rules governing its proceedings. This is so even with respect to rules enacted by statute.’ These changes can be accomplished, for example, by the adoption of a special rule from the House Committee on Rules, by suspension of the rules, or by unanimous consent agreement.”

I am informed by a congressional source that it is unlikely the Rules Committee would promulgate a special rule to accompany the Supercommittee’s proposed bill. The reason, however, is not lack of constitutional power to do so; rather it is the fear that the adoption of a special rule, if it contravened any of the procedures established in the BCA, could jeopardize the bill’s “privileged status” in the Senate. In other words, the BCA forms something like a contract between the House and Senate, and one party’s breach of the requirements would arguably free the other from complying with its terms.

Nevertheless, there would appear to be no legal barrier to the House changing the procedures set forth in the BCA if a simple majority so desires (the situation is more complicated in the Senate due to the ability of a minority to filibuster a motion to amend the rules). In what sense, then, can the BCA be said to have entrenched the rules governing consideration of the Super-committee’s legislation? As Bruhl observes, “statutized rules can be understood as devices for preventing Congress from engaging in certain types of procedural opportunism [yet because] Congress believes that the Constitution limits its ability to constrain itself in matters of procedure [, they are] a curiously noncommittal form of commitment.”

Another way of describing the effect of statutized rules is that they are “morally entrenched.” That is, they reflect a promise by the House and Senate to follow certain rules, and not to utilize such constitutional power as they have to alter or amend such rules. But if should they break their promise (which has happened from time to time with regard to other statutized rules), there is (probably) no legal violation and (certainly) no legal remedy.

To make things just a little more complicated, it should be noted that BCA differs from the typical statutized rule situation in a couple of ways. First, because of the short duration of the Supercommittee, the provisions of the BCA only affect the Congress that enacted it. This is important because there is precedent in the House for the proposition that a statutized rule can constitutionally bind the Congress that enacted it. Bruhl thinks, and I agree, that this precedent is probably wrong, but it could be used to argue that the 112th Congress is in fact without constitutional power to modify the rules set forth in the BCA (absent a statutory amendment). The savings provision quoted earlier might defeat such an argument anyway, but the provision arguably does nothing more than reflect a particular understanding of the constitutional powers of the House and Senate, which understanding might turn out to be incorrect.

Second, the BCA does more than merely prescribe a particular procedure for considering certain legislation. It imposes a consequence (automatic spending cuts in excess of one trillion dollars) for the failure to enact the legislation proposed by the Supercommittee. If Congress passes such legislation in accordance with the requirements of the BCA, then any constitutional questions regarding the procedure would not affect the validity of the final product. Moreover, even if Congress enacts a law that varies substantively from the requirements of the BCA, or in a manner that violates the BCA’s procedural prescriptions, it is likely that this law will be written in such a way as to ensure that BCA’s automatic spending cuts are overridden.

But what happens if Congress cannot agree on any legislation and the automatic spending cuts go into effect? At that point could not there be a constitutional challenge to the procedures established in the BCA? It could be argued that the BCA unconstitutionally attempts to prescribe procedures for the House and Senate, violating the constitutional mandate that each house determine the rules of its own proceedings.

Bruhl argues, reasonably enough, that statutized rules do not violate the Constitution so long as each house remains free to change those rules without interference from the other house or the President. But one could ask whether each house is free to depart from the procedures specified by BCA, for example by amending the Supercommittee’s proposed bill, when the consequence of doing so would be the automatic spending cuts triggered by non-compliance with BCA. In essence, by providing a draconian “penalty” for changing the procedures established in the statute, the BCA imposes an unconstitutional condition on the exercise of the rulemaking power.

One final piece of this puzzle. Section 401(b)(3)(B) of the BCA provides that “[a]ny change to the Rules of the House of Representatives or the Standing Rules of the Senate included in the report or legislative language shall be merely advisory.” This means, apparently, that even if the Super-committee proposes legislative language that effects a permanent change in House or Senate rules, and the Congress passes a bill that purports to enact those changes, the changes are not in fact effective. The Super-committee could not, for example, force Congress to enact a rule that makes the Super-committee permanent, or requires Congress to use expedited procedures for future legislation.

This seems to be the legislative equivalent of the genie saying that you get three wishes, but “ixnay on the wishing for more wishes.” See Aladdin (1992). It seems to reflect some discomfort with the enormous power that the BCA invests in the Supercommittee. As a constitutional matter, it seems to put the BCA in the awkward position of both entrenching certain rules and prohibiting future legislation from entrenching additional rules.

Hopefully I will get some feedback on these thoughts, and refine them as we go along.


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