Legislative Separation of Powers

Gerard Magliocca

Gerard N. Magliocca is the Samuel R. Rosen Professor at the Indiana University Robert H. McKinney School of Law. Professor Magliocca is the author of three books and over twenty articles on constitutional law and intellectual property. He received his undergraduate degree from Stanford, his law degree from Yale, and joined the faculty after two years as an attorney at Covington and Burling and one year as a law clerk for Judge Guido Calabresi on the United States Court of Appeals for the Second Circuit. Professor Magliocca has received the Best New Professor Award and the Black Cane (Most Outstanding Professor) from the student body, and in 2008 held the Fulbright-Dow Distinguished Research Chair of the Roosevelt Study Center in Middelburg, The Netherlands. He was elected to the American Law Institute (ALI) in 2013.

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8 Responses

  1. Joe says:

    Courts also to some extent make rules and apply them. If a case involving judicial salaries, e.g., came to the Supreme Court, the USSC might rule on its constitutionality, even though they are self-interested. Courts are also delegated some power to make their own rules of procedure. If being self-interested is wrong, shouldn’t that too be a problem?

    I also am not sure if the legislative example is the sort of “case” meant there. The 18th Century Parliament set rules of procedure, yes? Was this deemed wrong? Is Congress a “legal institution”? If Congress cannot make its own rules of procedure because they are self-interested, seems to open up a serious whole in respect to self-government and democracy. The majority could not be trusted to act like it normally does.

    This seems to me different than a judicial “case” that usually involves two sides with a neutral magistrate presiding.

  2. Gerard Magliocca says:

    True, but Congress is self-interested far more often than the courts in the example you give. As for the history of legislative rule making, I need to do a lot more research on that (and I think I will).

  3. Joe says:

    I think internal rule making and “cases” that more directly involve third parties (such as the famous case from Coke) are at least somewhat different – it’s an interesting issue, but they don’t to me seem quite the same thing.

  4. Mike Stern says:

    Of course, the situation you speak of is the result, in the Senate, of the exercise of the nuclear option. I think you know my views on that (http://www.pointoforder.com/2013/03/02/the-nuclear-option-the-law-of-the-senate-and-the-conscientious-senator/).

    Many people, including me, have suggested that the use of the nuclear option would make the Senate like the House in the sense that the rules can be changed at any time. But, in reality, the House rarely makes changes to its rules except at the beginning of a new Congress. What it routinely does is waive certain types of rules relating to floor procedure through adoption of a special rule proposed by the Rules Committee (which is effectively controlled by the Speaker). While other types of rules, ethics rules for example, could theoretically be changed by a majority vote, this does not happen as a practical matter. Moreover, even if it did happen, it would represent a prospective change to the rules and would not change the application of the rules to acts which had occurred beforehand.

    What the Senate did in the nuclear option was arguably quite different. It didn’t waive a rule. It didn’t change a rule. It didn’t even invalidate a rule. Instead, it simply ignored a rule that the majority found inconvenient. I don’t think one can explain this “precedent” in any other way. Nor am I sure that this precedent is something that the Majority Leader necessarily can control. Anytime there is a majority on the floor for any proposition, the nuclear option would seem to entitle it to act on that proposition regardless of any established procedure or written rule.

    In effect, the nuclear option seems to establish there is no such thing as a Senate “rule” at all. If you can figure out how to undo that damage, let me know.

  5. Gerard Magliocca says:


    Thanks. This is an excellent comment that makes some important points. Gerard

  6. Joe says:

    “simply ignored a rule that the majority found inconvenient.”

    I don’t think, as applied here, the word “inconvenient” fairly addresses the situation. This would be the case even if I thought the Senate did something improper here. And, even “inconvenience,” which again is blatantly misleading given the situation, is more than “any time,” which means a rule change for any reason.

  7. Brian says:

    You open with “I find nowadays that many of my constitutional interests revolve around comparing the United States and Britain”; how does the British parliament handle such matters?

  8. Gerard Magliocca says:


    The Speaker of the House of Commons has a considerable amount of authority to decide procedural questions and (by tradition) leaves partisan politics behind once elected and runs for reelection as “the Speaker.”