Using Statutes to Set Legislative Rules: Entrenchment, Separation of Powers, and the Rules of Proceedings Clause

Abstract

Each house of Congress ordinarily governs its proceedings through its own standing rules or through informal means such as consent. But sometimes Congress passes a statute that purports to regulate its parliamentary procedures. Indeed, such statutes have become increasingly prevalent in recent decades. The most famous of these regimes of "statutized rules" is probably the fast track procedure governing congressional consideration of trade agreements, but there are dozens of other examples spread throughout the US Code.

These proliferating statutes raise a number of interesting questions that have been little explored in the literature. Why would Congress use a statute instead of a rule? Is Congress legally required to follow these statutes, and does it typically follow them in fact? If statutized rules are unconstitutional, why? This article explores and offers preliminary answers to those questions. It concludes that such statutes can be either binding or constitutional, but not both.

Keywords: rules of proceedings, fast track, framework legislation, congressional procedure, entrenchment, separation of powers