Congressional Self-Discipline: The Constitutionality of Supermajority Rules

By Bloch, Susan Low | Constitutional Commentary, Spring 1997 | Go to article overview

Congressional Self-Discipline: The Constitutionality of Supermajority Rules


Bloch, Susan Low, Constitutional Commentary


Congress needs to be more disciplined. It has at times become sloppy and even cavalier. When, for example, Congress enacted the federal Gun-Free School Zone Act of 1990,(2) it was asking for trouble. Neither the legislation nor the legislative history said anything about any effect on interstate commerce.(3) It was therefore not surprising to see the Supreme Court strike the law down in United States v. Lopez.(4) So I agree that Congress should be more responsible and more respectful of its constitutional constraints.

I also believe the budget deficit is a serious problem. The numbers are fairly staggering. According to the Congressional Budget Office (CBO), in the 192 years from 1789 through 1981, the total national debt reached $1 trillion dollars.(5) In the 15 years since 1981, it has multiplied 5 times, reaching the 5 trillion dollar level by 1996. (6) Without significant reform, the CBO says that number will grow by an additional 1 trillion dollars in the next 4 years.(7)

But I believe we should be wary of crafting new constitutional and quasi-constitutional limitations. Many of the proposed constitutional amendments, such as a balanced budget amendment, are in my opinion unwise@ many of the quasi-constitutional statutory fixes, such as the supermajority requirement for tax increases, are both unwise and unconstitutional.

Let me address the specifics of House Rule XXI(5)(c), the supermajority requirement that the 104th congress adopted as one of its internal rules of proceeding. The Rule provides. "No bill increasing a federal income tax rate shall be considered as passed except by 3/5 vote."(8) The goal is, obviously, to make it more difficult to get tax increases passed. I question the wisdom of having such a rule, especially when there is no corresponding impediment to spending bills. But more importantly, I believe the House cannot constitutionally adopt such a rule.

Proponents of the rule point out that under Article I, section of the Constitution, each house may determine the rules of its proceedings, and, they argue, that is all the House has done here. But the supermajority requirement contained in Rule XXI(5)(c) is not merely a rule of internal procedure. It is, in effect, a "presentment" rule. Unlike the Senate's filibuster rule, which governs when things come to a vote,(9) House Rule XXI(5)(c) determines when things get presented to the other chamber and to the President. Article I, section I of the Constitution defines how a law is to be enacted. In particular, the Presentment Clause provides that [e]very Bill which shall have passed the House of Representatives and the Senate, shall, before it becomes a Law, be presented to the President of the United States."(10) What the House has done in Rule XXI(5) is to define the word "passed" in the Presentment Clause.

Both sides of the debate agree on one proposition: the presumption is that passed,, means agreed to by a majority of a quorum. The question is whether either house can, by an internal rule of proceeding, change that meaning and insist that "passed" requires something more than a majority.

It is not an easy question. There are good arguments on both sides. But, on balance, I am persuaded that the better argument is that neither chamber can define "passed" to require more than a majority. In particular, I believe that the House's adoption of Rule XXI(5) unconstitutionally aggrandizes its own power and intrudes on the powers of the Senate and the President. Let me explain.

Obviously nothing in the constitutional text explicitly denies either house the power to require a supermajority. But that is true of many constitutional limits we infer from the structure of the Constitution. In INS v. Chadha,(11) for example, notwithstanding no mention of legislative vetoes in the Constitution, the Supreme Court found that the legislative veto violates the Constitution.(12) Similarly, in United States v. …

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