The layman’s constitutional view is that what he likes is constitutional and that which he doesn’t like is unconstitutional.

Hugo Black[1]

[This is Larry. Why am I quoting the late Justice Hugo Black?[2] I’ll explain later. This blog is about the Hastert Rule, an obscure bit of procedure in the House of Representatives that supposedly allows the Speaker to block any appropriation he doesn’t like from ever coming to a vote. There’s a lot of uproar about that, but most of it is phony: i.e., a typical example of the misstatements, confusion and bogus constitutional arguments that the media and our politicians use to divert us from the real issues of the day. And why would they do that? Probably to fill air time, and look busy, while in truth nothing is happening. After all, the Government is shut down.

Anyway, I didn’t want to write about the phony stuff because I think it’s a waste of time; but apparently others around here don’t agree, and they’re giving me a headache. They think some of it is important. So I’ll make one more attempt to lift the fog in their minds and convince them otherwise. Breathe deeply, everybody, and focus your third eye. Clarity (hopefully) will be your reward.]

If you believe Wikipedia, the Hastert Rule is an “informal governing principle” Republican Speakers of the House use to maintain their leadership positions.[3] If Republicans are the majority of House members, they elect the Speaker. A Republican Speaker, to stay in the good graces of the membership, agrees that no legislation will go to the floor of the House unless a majority of House Republicans support it. So today, for example, if a majority of House Republicans want to shut down the Government by denying it funds, all they need to do is tell the Speaker to hold back on appropriations. No new appropriations equals no new spending authority, and workers go home.

So why do Republicans call this a “rule?” It sounds more like a working arrangement between consenting adults, designed for mutual advantage. Well, perhaps by calling it a rule Republicans think they can escape some of the opprobrium for shutting down the Government. After all, they’re only following the rules; people are supposed to do that kind of thing, aren’t they?

But then, of course, there’s Denny Hastert, the Republican Speaker who supposedly authored this “rule” in 2006, during a news conference. He says he never did such a thing. “Generally speaking,” he says, “I needed to have a majority of my majority, at least half of my conference [to introduce legislation]. This wasn’t a rule. I was speaking philosophically at the time…The Hastert Rule is kind of a misnomer.[4]

Fine, that should take care of that. There really is no “rule,” so we can stop talking about one. Are we done? Not really. The Left has a different take on the matter. House Republicans aren’t putting forward a clean bill, i.e., an appropriation without restrictions, and voting on it; and that’s probably unconstitutional. Why? Because a clean bill most likely would pass, even though a majority of Republicans might not like it. So the Democrats, currently the minority party in the House, have a Constitutional right to have their legislation voted on.

Sorry? How does that work? What Constitutional principle is at work here? Is it some new and novel interpretation of the due process clauses of the 5th and 14th Amendments? Or do we have simply an example of Justice Hugo Black’s theorem in action? That the Left deems the House’s failure to act to be unconstitutional because it [the Left] doesn’t like the results?

So far nobody seems to have told the Congress about any of this. The Constitution says “[e]ach House [of Congress] may determine the Rules of its Proceedings, punish its Members for disorderly Behavior, and, with the Concurrence of two-thirds, expel a Member.”[5] Both the House and the Senate have very extensive rule books to control their respective legislative processes. My guess is that neither has changed all that much in the last two centuries. The Senate, for example, still keeps Thomas Jefferson’s Manual of Parliamentary Practice around for handy reference[6].

In the House, after committee hearings, reports, etc. proposed legislation finds its way on to one Calendar or another for action.[7] But even so, the Speaker controls when or if action will be taken. “The scheduling of legislation for House floor action is the fundamental prerogative of the Speaker. Individual Representatives cannot easily circumvent, influence, or reverse leadership decisions about which measures should come to the floor.”[8]

Will the courts look over the Speaker’s shoulder when he does that sort of thing? I very much doubt it.

You see, the people who wrote our Constitution were very careful to draw some lines between the three coequal branches of our Government. With respect to legislation, each House of Congress determines “the Rules of its Proceedings;” no other branch has a vote. In general, the federal courts do not hear cases which deal directly with issues that the Constitution makes the sole responsibility of another branch.[9] So most likely the courts wouldn’t entertain a challenge to today’s voting procedures in the House of Representatives, or the Speaker’s failure to bring up legislation for a vote that is pleasing to Democrats. Those matters simply are not justiciable, because they belong to the House alone.

Anyway, that’s my opinion, and that’s why I think it was a waste of time to even write this blog, and bitterly resent being bludgeoned into doing so. Instead we should have been talking about the real politics in action in the shutdown, how shutdown tactics might be adapted in the future, the role of delusion and wish-fulfillment in the process, and things of that ilk. Hopefully we’ll get around to that important stuff next time.


[1] Hugo Black was a Supreme Court Justice during the Warren Court. This version is from Brainy Quote at http://www.brainyquote.com/quotes/quotes/h/hugoblack110604.html Normally I try to refer people to a better source than this, because Brainy Quote doesn’t even pretend to tell us where its material comes from. But Brainy Quote is accessible, which counts for something, and it seems to be more or less correct in the language. If you want to fuss around for a bit, you can find the original in an article written about an interview Justice Black gave to CBS back in 1968. See The Supreme Court Historical Society, Black, Hugo Black: A Memorial Portrait (1982, 2008), p. 120 – 159, available at http://www.supremecourthistory.org/wp-content/themes/supremecourthistory/inc/schs_publications-1982.pdf “But they [most Americans] think they know it [the Constitution]. And their idea is all the same. You can trace it to the same thing, doesn’t make a difference what it is, what their experience is, or why they’re mad at the Court. It’s all because each one of them believes that the Constitution prohibits that which they think should be prohibited, and it permits that which they think should be permitted.”  See Memorial Portrait at p. 148.

[2] If you want a bare bones biography of Hugo Black, you can get it from the Federal Judicial Center at http://www.fjc.gov/servlet/nGetInfo?jid=181&cid=0&ctype=sc&instate=na If you want to know more, take a look at the Wikipedia write-up, at http://en.wikipedia.org/wiki/Hugo_Black For his judicial philosophy, read Black, The Bill of Rights, a piece he  did for Vol. 35 of the NYU Law Journal (April, 1960); it’s reprinted at http://www.criminology.fsu.edu/faculty/gertz/hugoblack.htm#N_2_

[3] There’s a serviceable explanation in Wikipedia. You can find at http://en.wikipedia.org/wiki/Hastert_Rule

[4] See The Daily Beast, Clift, Denny Hastert Disses the ‘Hastert Rule’: It ‘Never Really Existed’ (October 3, 2013) (Italics added) at http://www.thedailybeast.com/articles/2013/10/03/denny-hastert-disses-the-hastert-rule-it-never-really-existed.html

[5] See U.S. Constitution, Art. I, Sec. 5, cl. 2. You can get a reliable transcript of this and other key documents from the National Archives, at http://www.archives.gov/exhibits/charters/

[6] Today that’s Senate Document 103-8. You too can have a copy. Just download it from http://www.senate.gov/artandhistory/history/resources/pdf/SDoc103-8.pdf Or you can buy it online. As usual, there are lots of people out there who are willing to sell you information that’s otherwise available for free.

[7] That’s pursuant to Rule 13 of the House Rules. Want to read Rule 13 or any of the others? Good luck. You can find the current rules in House Res. 5, 113th Cong., 1st Sess. (2013), available at http://docs.house.gov/billsthisweek/20121231/BILLS-113-HRes5ih_xml.pdf

[8] See Congressional Research Service, Schneider, House and Senate Rules of Procedure: A Comparison (updated 2008), p. CRS-3, available at http://www.senate.gov/reference/resources/pdf/RL30945.pdf

[9] See Baker v. Carr, 369 U.S. 186 (1962). See also Nixon v. United States, 506 U.S. 224 (1993).

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