Resolution to Terminate Trump's Emergency Declaration Doesn’t Specify How It May Lose Privilege
Senators continue to debate whether the rules permit them to amend a resolution of termination considered under the fast-track process established by the National Emergencies Act. Reports indicate that the Senate parliamentarian is advising senators that germane amendments are permitted and that non-germane amendments, if successful, will subject the resolution to a filibuster.
A Question of Privilege
As reviewed here, the National Emergencies Act (as amended) changed the Senate’s procedures governing the legislative process to facilitate its consideration of a resolution of termination. Section 202(c)(2) of the law limits floor debate on the resolution to no more than three calendar days. This prevents senators from filibustering it. It also means that a super-majority of senators (typically 60) does not need to invoke cloture on a resolution before a simple majority of senators (usually 51) can vote up-or-down on its passage. This makes the resolution of termination privileged in Senate parlance.
Privilege means that the Senate has decided to expedite the resolution’s consideration under a unique set of procedures that do not apply to ordinary legislative vehicles. Should a resolution of termination somehow lose its privilege, it would then be considered under the Senate’s ordinary rules. Floor debate would no longer be limited, and a super-majority of senators (typically 60) would be required to invoke cloture before a simple-majority (usually 51) gets to vote, up-or-down, on final passage.
Privilege and Germaneness
The Senate usually (but not always) prohibits its members from offering floor amendments to a privileged legislative vehicle. When it allows amendments, they are usually (but not always) required to be germane to the underlying legislation. The legislation will lose its privilege (at least in theory) if senators add non-germane amendments to it. The argument is that this prevents Senate majorities from using privileged legislative vehicles to to do an end run around Rule XXII’s super-majority requirements to overcome a filibuster. Even though the point at which a legislative vehicle will lose its privilege is imprecise- meaning it has never happened- statutes that confer privilege to specific legislation usually specify that amendments must be germane. A germaneness requirement serves as a standard against which the Senate's deviation from what is permissible can be assessed. Another approach is to prohibit amendments altogether and to stipulate instead exactly what a legislative vehicle must include for it to be privileged.
The reconciliation process created by the Congressional Budget Act of 1974 offers an example of the first approach (allowing amendments but requiring they be germane). Specifically, section 310(e) of the law requires that amendments to reconciliation bills be germane. Section 310(d)(2) lists additional restrictions on what those amendments can include. And section 313 (i.e., the Byrd Rule) prohibits amendments that contain provisions that are deemed to be extraneous.
The Budget Control Act of 2011 offers an example of the second approach (prohibiting amendments and defining precisely the provisions that are allowed in a privileged vehicle). Section 3101A(e) of the law explicitly prohibits senators from offering amendments to a joint resolution to disapprove of the president’s decision to raise the debt ceiling (or a “presidential modification of the debt ceiling” in legislative doublespeak). Section 3101A(b)(2) stipulates that the resolution must not have a preamble. It also requires that it be titled, “Joint resolution relating to the disapproval of the President’s exercise of authority to increase the debt limit, as submitted under section 3101A of title 31, United States Code..” The permissible legislative is defined as
“The matter after the resolving clause of which is only as follows: ‘That Congress disapproves of the President’s exercise of authority to increase the debt limit, as exercised pursuant to the certification under section 3101A(a) of title 31, United States Code.’”
The statute even specifies the dates on which senators are allowed to introduce resolutions of disapproval under a privileged process.
No Standard + No Definition = A Germaneness Requirement?
Reports indicate that some Republicans believe that a resolution considered under the National Emergencies Act will lose its privileged status if the Senate adopts any non-germane amendments to it on the floor. This appears to be because the Senate parliamentarian has advised that amendments to such resolutions must be germane.
Yet it is important to note that the parliamentarian’s role is to advise senators on what the Senate did in the past and to help them understand how those actions relate to their present situation. The parliamentarian is not authorized to infer what the Senate is required to decide on a current parliamentary question. Only the Senate can determine its rules under the Constitution. According to the Senate’s precedents, “the Chair rules on points of order, not the Parliamentarian; the Parliamentarian merely advises the Chair.”
The National Emergencies Act and the Senate's Standing Rules do not prohibit amendments to resolutions of termination. They do not require that amendments be germane. By extension, they do not define precisely what has to happen for such a resolution to lose its privileged status on the Senate floor. Finally, there are no relevant precedents because the Senate has never before considered a resolution under the National Emergencies Act. It is unprecedented!
Senators should not feel bound by the parliamentarian whenever she cannot point to a specific procedural authority (statute, Standing Rule, standing rule, or precedent) to support her advice. In the absence of such information, the Presiding Officer should submit the question to the full Senate to be determined. That is what happened last December during the Senate’s consideration of the Yemen War Powers Resolution. And senators can easily create an analogous precedent here.