Quorum vs. Unanimous Consent

Here’s an obscure question that I’m wondering about.  The Constitution requires each House of Congress to have a majority for a quorum.  Now picture the following scene:

Senator X stands up in an empty chamber immediately after the Senate is gaveled into session.  She says to the Chair “I request unanimous consent that” something be done.  The Chair responds, “Without objection, so ordered.”  Action taken.

In that circumstance, isn’t the quorum rule being ignored?  Only two senators are there.  Is a quorum presumed unless someone objects and asks for a quorum call?  If so, that’s stretching the Constitution pretty far.  I suppose each chamber gets to decide what counts toward a quorum, as the House famously decided under Speaker “Czar” Reed that present members who refused to answer a quorum call should be counted, but should that extend to absent members?  Put another way, is the quorum rule an affirmative defense that some Senator must raise lest it be waived?

UPDATE:  A sharp-eyed reader points out that Tom Goldstein talked about this on Friday and said that a quorum is presumed.  (Thanks for telling me.)  The next question, then, is why is that constitutional?

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6 Responses

  1. Alice Forlán says:

    Tom Goldstein over at SCOTUSblog posted on this topic on Friday, and he says you are correct: Senate procedural rules dictate that a quorum is presumed unless and until a point of no quorum (quorum call) is made.

  2. Joe says:

    The constitutional language appears to be possibly read either way. I take that the assumption would be that the quorum rule would not be abused enough for it to matter and if contesting things after the fact could be unwieldy. Still, it does seem to open up the possibility of abuse with the assumed victims not present to challenge. Plus, if each House felt it was necessary, they could pass a rule to clarify the matter.

    • Brett Bellmore says:

      It strikes me as more than a little absurd to suggest the ‘possibility’ of abuse, where there are so many concrete examples of the abuse actually occurring. To give but one example, the ’94 assault weapon ban only passed thanks to a rule adopted when no quorum was present.

      • Joe says:

        Since I disagree repeatedly on your interpretation of specific instances, to save time, I won’t deal with the specific one allegedly cited. Anyway, the phrasing was a polite way of phrasing things.

  3. Joe says:

    This is off topic, but given the GM’s “Four Horsemen” interest, came across a book “A Supreme Court Justice Is Appointed” by David J. Danelski regarding Pierce Butler. It’s from the 1960s and probably a tad obscure but such are the charms of libraries.

  4. Gerard Magliocca says:

    Supposedly Danelski is working on a massive biography of Justice Douglas–a project that has been ongoing for decades.