Rulemaking Clause

Original public meaning

Story treats the rulemaking grant as too obvious to need real defense: "No person can doubt the propriety of the provision authorizing each house to determine the rules of its own proceedings." He ties the rulemaking power directly to the discipline power that follows it in the same clause: "the power to make rules would be nugatory, unless it was coupled with a power to punish for disorderly behaviour, or disobedience to those rules." The pairing was not a federal invention. State constitutions already in force at the Founding gave their legislatures the same self-protective authority — Maryland's 1776 Constitution let its House of Delegates "punish, by imprisonment, any person who shall be guilty of a contempt in their view, by any disorderly or riotous behavior, or by threats to, or abuse of their members, or by any obstruction to their proceedings". Massachusetts's 1780 Constitution gave its House equivalent power over "disrespect to the house, by any disorderly or contemptuous behavior in its presence".

Story goes further than the clause's text, arguing the rulemaking power carries an implied authority beyond punishing members: "how is either house to conduct its own deliberations, if it may not keep out, or expel intruders?" He grounds that implied contempt power in the common law itself: "by the common law, the power to punish contempts of this nature belongs incidentally to courts of justice, and to each house of parliament." This originalist backdrop — legislative self-governance as an inherent, common-law-rooted power rather than one requiring separate textual enumeration — explains why Ballin and Canning read the Rulemaking Clause broadly rather than as a narrow grant limited to the disorderly-behavior context.

Scope of the rulemaking power

In NLRB v. Canning, 573 U.S. 513 (2014), the Court characterized the Senate's rulemaking authority as broad, quoting United States v. Ballin (1892):

"The Constitution explicitly empowers the Senate to 'determine the Rules of its Proceedings.' And we have held that 'all matters of method are open to the determination' of the Senate, as long as there is 'a reasonable relation between the mode or method of proceeding established by the rule and the result which is sought to be attained' and the rule does not 'ignore constitutional restraints or violate fundamental rights.'"

The power is continuous — it does not exhaust after a single exercise. As Ballin held: "The power to make rules is not one which once exercised is exhausted. It is a continuous power, always subject to be exercised by the house, and within the limitations suggested, absolute and beyond the challenge of any other body or tribunal."

The Senate, as a "continuing body" (McGrain v. Daugherty, 1927), retains its rules from Congress to Congress unless changed. The House readopts its rules at the start of each new Congress.

Two-part Ballin test

Under Ballin, a chamber rule is valid if:

1. There is a "reasonable relation" between the rule's method and the desired result.
2. The rule does not "ignore constitutional restraints or violate fundamental rights."

Case law testing this standard is limited, but two cases illustrate its application.

Judicial review of chamber rules

United States v. Smith, 286 U.S. 6 (1932). The Court held that the Senate's rules did not allow the Senate to deprive an appointee of his title to federal office after confirmation and oath-taking. The Court construed the Senate's rules against the Senate's own post-hoc interpretation: "the Court must give great weight to the Senate's present construction of its own rules; but so far, at least as that construction was arrived at subsequent to the events in controversy, we are not concluded by it."

Christoffel v. United States (1949). The Court upset a perjury conviction because the House committee lacked a quorum at the time of the alleged perjury, notwithstanding the House's practice that a quorum once established is presumed to continue. Justice Jackson's dissent accused the Court of invalidating the House's internal rules in a way that could undermine "any action taken or legislation passed without a record vote."

Justice Sotomayor flagged the unresolved separation-of-powers tension in her concurrence denying certiorari in Schock v. United States (2019): the Court has not resolved whether a federal court may interpret "internal rules adopted by the House of Representatives to govern its own Members."