[House Practice: A Guide to the Rules, Precedents and Procedures of the House]
[Chapter 50. Rules and Precedents of the House]
[From the U.S. Government Publishing Office, www.gpo.gov]
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CHAPTER 50 - RULES AND PRECEDENTS OF THE HOUSE
HOUSE PRACTICE
Sec. 1. In General
Sec. 2. Binding Effect
Sec. 3. Construction
Sec. 4. Changing or Waiving Rules
Research References
U.S. Const. art. I, Sec. 5
8 Cannon Sec. Sec. 3376-3396
Deschler, Preface; Ch 5 Sec. Sec. 1-7
Manual Sec. Sec. 58-61a, 283-286, 387, 388, 686, 1130
Sec. 1 . In General
Adoption of Rules
The Constitution empowers each House to determine the rules of its
proceedings. U.S. Const. art. I Sec. 5; Manual Sec. 58. The House may
not by its rules 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 that is sought. However, within these limitations, the House is
free to adopt such rules as it sees fit. Yellin v. United States, 374
U.S. 109 (1963).
It is customary for the House at the beginning of each Congress to
adopt the rules by which it is to be governed during its meetings. In
so doing, the House ordinarily will adopt the rules applicable in the
previous Congress with such amendments as it considers necessary.
Deschler Ch 1 Sec. 10.5. Such rules are adopted or amended pursuant to
a simple resolution that is called up as privileged and debated under
principles of ``general parliamentary law.'' See Assembly of Congress.
Changes in the rules from the prior Congress normally emanate from the
conference or caucus of the party that commands a majority and thus
has the responsibility for organizing the House.
Even before adoption of rules, it is in order to consider as
privileged a resolution in the nature of a special order that makes in
order the subsequent consideration of a resolution adopting the rules
for the newly organized House. Manual Sec. 60; 5 Hinds 5450.
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When a member of the majority party offers a resolution providing
rules for the new Congress:
The resolution is debatable for one hour.
The resolution is not subject to amendment unless the previous
question is rejected or the manager of the resolution yields
for an amendment. Deschler Ch 1 Sec. 10.9.
A motion to refer (with instructions) is in order before
debate begins, but this motion is subject to being laid on the
table. Manual Sec. 60.
A motion to commit is in order pending or following the
ordering of the previous question, which is the prerogative of
the minority but the proponent need not qualify as opposed to
the motion; and it is not debatable. Manual Sec. 60; 5 Hinds
Sec. 5604.
A majority vote is required to adopt a resolution adopting
rules for a new Congress.
The right of the House to determine the rules of its proceedings
may not be impaired by repetition of dilatory motions. 5 Hinds
Sec. 5707.
Publication
The standing rules of the House are published each Congress in the
House Rules and Manual pursuant to resolution. Manual, p iii. This
comprehensive volume also includes, among other pertinent material,
portions of Jefferson's Manual, which was prepared by Thomas Jefferson
for his own guidance while he was President of the Senate from 1797 to
1801. Under rule XXVIII clause 1, the principles recorded in
Jefferson's Manual govern the proceedings of the House where the
principles are applicable and not inconsistent with the standing rules
and orders of the House. Manual Sec. 1104.
Statutory Rules and Joint Rules
In some cases, Congress has enacted statutes setting forth rules
and procedures to be followed when the House considers certain kinds
of legislation, for example, the Congressional Budget and Impoundment
Control Act of 1974. Such statutes are enacted as an exercise of the
rule-making power of Congress, are reincorporated by reference in the
preface of the resolution adopting the rules of each House, and are
carried in the House Rules and Manual. Manual Sec. Sec. 1127-1130;
Deschler Ch 5 Sec. 3.
Joint rules, although in common use until 1876, are rarely used
today except to govern a joint session to count electoral votes.
Manual Sec. 220; Deschler Ch 10 Sec. 2.6.
Rules Based on Precedent or Custom
As Asher Hinds noted in his work on the precedents of the House,
much of what is known as parliamentary law is not part of the formal
writ
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ten rules of the House but springs from precedent or long-standing
custom. 1 Hinds, Introduction, p iii. Such precedent may be invoked to
resolve a procedural question in the absence of an express written
rule on the subject. Deschler Ch 5 Sec. 3; see also 6 Cannon, Preface,
p v; Deschler, Preface, pp iii-xiv. More frequently, the precedents of
the House are used to show the scope and application of one of its
formal rules. A noteworthy example is the House germaneness rule,
which is set forth in less than a sentence in rule XVI clause 7, yet
has been interpreted through thousands of precedents since its
adoption in 1789. Manual Sec. Sec. 928-940; Deschler-Brown Ch 28.
The precedents of the House, which are based primarily on the
rulings of the Speaker or Chairman of the Committee of the Whole, are
compiled in Hinds' Precedents (1907), Cannon's Precedents (1936),
Deschler's Precedents (1977) and Deschler-Brown Precedents. Deschler-
Brown Precedents, which is currently being compiled, is authorized by
section 28b of title 2, United States Code.
Sec. 2 . Binding Effect
Parliamentary law--a term that encompasses both formal rules and
usages--has come to be recognized as binding on the assembly and its
members, except as it may be varied by the adoption by the membership
of special rules or through some other authorized procedural device.
Landes v. State ex rel Matson, 67 NE 189 (Ind. 1903).
On the theory that a government of laws is preferable to a
government of men, the House has repeatedly recognized the importance
of following its precedents and obeying its well-established
procedural rules. See, e.g., 2 Hinds Sec. 1317. The House adheres to
settled rulings, and will not lightly disturb procedures that have
been established by prior decision of the Chair. Deschler, Preface, p
vi. However, the Speaker or Chairman may refuse to follow a precedent
even though it is relevant to a pending question, where it is the only
precedent on the point and was not carefully reasoned. 6 Cannon
Sec. 48.
Sec. 3 . Construction
When a timely point of order is raised, it is the duty of the
Chair, to determine whether language in a pending bill or amendment
conforms to the rules of the House, although the Chair may properly
decline to do so where points of order against the provisions have
been waived by special rule. Deschler Ch 21 Sec. 23.3. In construing a
rule, the Speaker may look beyond its terms and consider all the facts
and circumstances in order to determine the intention of the House in
adopting the rule. Deschler Ch 5 Sec. 6.3. In con
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struing the rules, the Chair may be guided by the general principle
that the object of a parliamentary body is action, and not stoppage of
action. Manual Sec. 902.
The absence of a formal rule governing a particular procedure does
not necessarily mean that the procedure is permitted. Indeed, acts or
proceedings not expressly authorized by the rules may be deemed
inconsistent with, or in violation of, the rules. Deschler Ch 5
Sec. 6.4.
Where two rules of the House are in irreconcilable conflict, the
one adopted later controls. Deschler Ch 5 Sec. 6.1. Similarly, where
the rules of the House and a subsequent legislative enactment are not
consistent, the enactment must prevail. Deschler Ch 5 Sec. 6.2.
Similarly, a rule adopted after an enactment may supersede those
provisions of the statute that would otherwise govern House procedure.
Deschler Ch 5 Sec. 6.
Sec. 4 . Changing or Waiving Rules
Generally
Pursuant to its authority under article I, section 5 of the
Constitution, the House may change or waive the rules governing its
proceedings. This is so even with respect to rules enacted by statute.
Manual Sec. 857. Once the rules have been adopted at the convening of
the House in a new Congress, further amendments to the rules are
generally implemented by resolution reported from the Committee on
Rules. A rule may in effect be suspended or modified through the use
of certain procedural devices, such as a unanimous-consent request.
Deschler Ch 5 Sec. 5.
A motion to amend the rules of the House does not present a
question of ``constitutional'' privilege. 8 Cannon Sec. 3377. A
question of the privileges of the House may not be invoked to effect a
change in the rules of the House or their interpretation. Manual
Sec. 706; generally, see Questions of Privilege.
The effect of a proposed change in the rules or a proposed special
order of business is a matter for debate and not within the
jurisdiction of the Chair to decide on a parliamentary inquiry during
its pendency. Manual Sec. 628; Deschler Ch 5 Sec. 5.12.
For the motion to suspend the rules, see Suspension of Rules.
By Resolution
Amendments to the rules are generally offered in the form of a
privileged resolution reported and called up by the Committee on
Rules. Such a resolution may not be amended unless the Member in
charge yields for that purpose or the previous question is voted down.
Deschler Ch 5 Sec. 5.8.
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The resolution may be considered in the Committee of the Whole
pursuant to the terms of a special order reported from the Committee
on Rules. Deschler Ch 5 Sec. 5.6.
Although a resolution from the Committee on Rules to amend a House
rule is privileged, a resolution offered from the floor to amend a
House rule is not privileged for consideration as against a demand
that business proceed in the regular order. 8 Cannon Sec. 3377;
Deschler Ch 5 Sec. 5.1.
Rule XV clause 2, the discharge rule, has also been used to bring
a proposed rules change before the House. Manual Sec. 892.
By Unanimous Consent
Minor changes in the standing rules may be considered by unanimous
consent. Deschler Ch 5 Sec. 5.2. The House may by unanimous consent
waive the requirements of a particular rule unless the rule itself
provides that it is not subject to waiver even by unanimous consent.
See, e.g., rule XVII clause 7.
By Special Order
The House may adopt a special rule from the Committee on Rules
that has the effect of setting aside the standing rules of the House
insofar as they impede the consideration of a particular bill.
Deschler Ch 21 Sec. 19.7. The special rule may waive one or more--or
indeed all--points of order against consideration of a particular bill
or against provisions therein. For example, the special order may
waive points of order that could otherwise be raised against
legislative provisions in an appropriation bill, points of order based
on the germaneness requirement, or points of order based on the
Ramseyer rule. Deschler Ch 5 Sec. 7. A rule that waives a point of
order under section 425 of the Congressional Budget Act of 1974
(unfunded intergovernmental mandates) is itself subject to a point of
order under section 426 of that Act.
A special rule that ``self-executes'' the adoption of an amendment
is not subject to a point of order that the amendment would otherwise
be subject to because the amendment is not separately before the House
during consideration of the special order. For example, a special rule
has been held not subject to points of order for ``self-executing'' an
amendment that violated rule XVI clause 7 (germaneness) (Manual
Sec. 928), rule XXI clause 2 (legislation on an appropriation bill)
(Manual Sec. 1044), and rule XXI clause 4 (appropriation on a
legislative bill) (Manual Sec. 1065).
For a full discussion of special orders, see Special Orders of
Business.