Life is full of mysteries. Does a tree make a sound when it falls in the forest, and no one is around to hear it? What lies beyond the edge of the observable universe? Can senators amend a resolution of termination under the National Emergencies Act?
Well. Maybe not that last one. Some questions may not have answers. Others have yet to be answered. But we already know senators can amend a resolution of termination.
Why? Because the Senate hasn’t yet said they can’t. It’s as simple as that.
What’s the Current Debate
Some Republicans believe that they can amend a resolution to terminate a presidential emergency declaration. However, many suspect that those amendments must be germane to the underlying resolution. Some worry that adding non-germane amendments to the resolution could risk its privileged status and thus make it subject to the filibuster.
This week, Sen. Ron Johnson (R-Wis.) acknowledged that he and his colleagues are trying to determine if amendments are in order and, if so, whether they must be germane to the underlying resolution. “We’re checking right now with the parliamentarian whether it’s amendable.”
Since 1935, the Senate’s parliamentarian has advised senators on the rules and practices that govern their proceedings. The parliamentarian can be especially helpful in situations like this where, in Johnson’s words, “there’s all kinds of gray area.”
But it is good to remember that senators can also answer these questions for themselves. This is because the parliamentarian is not an oracle. She does not practice divination. When senators ask her a question, she looks to the rules for the answers. And so can they.
How Does the Senate Make A Rule?
The Constitution gives the Senate plenary power over its rules. Consequently, only the Senate has the authority to decide if its members can offer amendments to a resolution of termination considered under the fast-track procedures created by the National Emergencies Act of 1976. That decision must have occurred on the Senate floor in the form of passing a statute, adopting a Standing Rule or standing order, or establishing a new precedent. A prohibition does not exist if it cannot be found in one of these procedural authorities (or the Constitution).
What the Statute Says
The rules governing the Senate’s consideration of resolutions of termination are set, in part, by the National Emergencies Act. The law created a fast-track process in the House and Senate to make it easier for Congress to terminate a presidential emergency declaration. That process does so by limiting debate on termination resolutions in committee and on the House and Senate floors.
The National Emergencies Act does not mention floor amendments. For that reason, it cannot prohibit senators from offering amendments to resolutions considered under it.
In contrast, the fast-track process created by the Trade Act of 1974 to expedite consideration of trade agreements in Congress explicitly prohibits amendments. Section 151(d) of the law stipulates,
No amendment to an implementing bill or approval resolution shall be in order in either the House of Representatives or the Senate; and no motion to suspend the application of this subsection shall be in order in either House, nor shall it be in order in either House for the Presiding Officer to entertain a request to suspend the application of this subsection by unanimous consent.
In the Budget Control Act of 2011, Congress delegated to the president its discretion on when to raise the debt ceiling and created a fast-track process to expedite the consideration of resolutions of disapproval whenever he used it. Section 3101A(e) of the law explicitly prohibits senators from offering amendments to disapproval resolutions.
A joint resolution of disapproval considered pursuant to this section shall not be subject to amendment in either the House of Representatives or the Senate.
Other fast-track processes allow amendments but require that they be germane to the underlying question. For example, section 305(b)(2)of the Budget Act of 1974 stipulates, “no amendment that is not germane to the provisions [of the budget resolution] shall be received.” Section 310(e) applies this germaneness requirement to amendments offered to reconciliation bills. Section 310(d)(2) lists additional restrictions on what those amendments can include.
Unlike these fast-tracks processes, the National Emergencies Act does not include similar provisions. And the statute can’t prohibit amendments if it doesn’t mention them. Therefore, it is reasonable to conclude that the statute does not prohibit senators from offering amendments to National Emergencies Act resolutions or require that their amendments be germane.
The Standing Rules
In 1908, the Senate’s chief clerk, Henry H. Gilfry, observed, “Regarding amendments, pure and simple, the Senate rules have but little to say.” That remains true today. The Standing Rules [link]that do speak to the amendment process are XV, XVI, and XXII. Rule XV requires that amendments be reduced to writing and read. It also specifies when a senator may withdraw an amendment.
Rule XXII prohibits senators from offering amendments after cloture has been invoked if they were not filed (or introduced) by a certain time. Rule XVI prohibits legislative amendments (i.e., amendments not strictly limited to spending money) on general appropriation bills.
Both Rule XVI and Rule XXII impose a germaneness requirement on amendments offered in specific situations. Rule XXII stipulates that “no dilatory motion, or dilatory amendment, or amendment not germane shall be in order” after senators have voted to invoke cloture. Rule XVI prohibits non-germane amendments to general appropriation bills.
The Standing Rules do not limit senators’ ability to offer amendments to a resolution of termination under the National Emergencies Act or require that their amendments are germane.
Standing Orders Aren’t a Barrier
A number of different standing orders impact how the legislative process works in the Senate. Of those, one creates a non-debatable motion to waive the requirement that amendments be read if they meet certain conditions. None of the standing orders currently in force prohibit senators from offering amendments to National Emergencies Act resolutions or require that their amendments be germane.
What Precedents Say
According to precedent, “Any senator recognized is entitled to offer an amendment when such amendment is otherwise in order.” While there are thousands of precedents that record situations when the Senate decided that an amendment was not in order, there are no precedents that apply to the National Emergencies Act. Why?
The Senate has never considered a resolution of disapproval under it. By definition, a precedent is a record of something that has already happened. And this hasn’t happened.
Some precedents record what the Senate decided to do in similar circumstances. For example, during the Senate debate on the Yemen War Powers Resolution in December, Sen. Bob Corker (R-Tenn.) raised a point of order that “amendments offered under 50 U.S.C. 1546(a) must be germane to the underlying joint resolution to which they are offered.”
In response, the presiding officer submitted the question—“shall amendments offered under 50 U.S.C. 1546(a) be germane to the underlying joint resolutions to which they are offered?”—to the Senate because it was unprecedented (only the Senate has the power to decide what its rules should be). The Senate voted 96 to 3 to prohibit senators from offering non-germane amendments to joint resolutions offered under 50 U.S.C. 1546(a) moving forward. Notably, this precedent does not impact the National Emergencies Act because of its specific reference to 50 U.S.C. 1546(a).
Still, some have suggested that a series of parliamentary inquiries by Majority Leader Mitch McConnell (R-Ky.) immediately before the vote on Corker’s point of order are sufficient to impose a germaneness requirement on amendments offered to resolutions of termination considered under the National Emergencies Act. Yet whatever the content of those parliamentary inquiries, they are not sufficient themselves to impose a germaneness requirement on amendments under the National Emergencies Act.
This is because parliamentary inquiries do not create a precedent. They do not represent a collective decision of the Senate. They cannot be appealed.
The Senate Decides
Under the Constitution, only the Senate has the power to regulate the rules of its proceedings. Its rules and practices must originate in senators’ actions. This means that if senators have not taken action in the past to specifically prohibit amendments to resolutions of termination under the National Emergencies Act, or otherwise require that those amendments be germane, there is no such prohibition or requirement.
Rules can’t be conjured out of thin air. They have to come from somewhere. And if we can’t find them, that means they don’t exist.
This article is republished with permission from Legislative Procedure.