Legislative Separation of Powers

I find nowadays that many of my constitutional interests revolve around comparing the United States and Britain.  In that spirit, I want to raise the following issue about rule making within Congress.

A fundamental principle of our legal system is that no person should be a judge in his or her own case.  This idea dates back to Blackstone, and is behind many of our legal institutions and ideals.  There is, though, one significant exception.  Each House of Congress makes and applies its own rules.  This means that the majority can be a judge in its own case when the rules are inconvenient.  You can make a reasonable argument that the current lack of cooperation in Congress stems from this merger of procedure and partisanship.  The Speaker largely makes the rules in the House, and Senator Reid does the same in the Senate.  And you wouldn’t call either of these guys nonpartisan.

How do legislatures deal with this problem in other countries or in the states?  There are several options.  One is to say that the rules may only be changed by a supermajority, or may only be changed at a particular time (not just any time the majority wants).  Another thought is that there could be a norm that the rules should not be changed by the majority (even though it can be done that way).  A third possibility is that you delegate rules decisions to someone who is insulated from the majority in some way (a committee chairman or a neutral presiding officer).

None of these are being done now.  I wonder whether each House of Congress could, to so speak, do with a stronger dose of internal separation of powers.

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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.”