Four Ways to Enforce the Constitution in the House

The House of Representatives recently changed its rules to let absent members vote by proxy (or remotely) during designated public health emergencies like the COVID-19 pandemic. The new rule, approved by the House on May 15, reverses a decades-old ban on members voting by proxy in committee meetings. And it ends the institution’s 231-year-old requirement that members be physically present to vote on the House floor.

Supporters of the rule change point to the Constitution’s Rules and Expulsion clause (Article I, section 5, clause 2) as evidence that proxy voting is constitutional. Yet while that clause gives the House plenary power to determine the rules of its proceedings, it does not empower its members to adopt practices that violate the Constitution’s other provisions, like its Qualifications and Quorum clause (Article I, section 5, clause 1).

Enforcing the Constitution

There are four ways to enforce the limits that the Constitution places on the House’s rule-making power. First, members of the House, whose behavior those limits regulate, may refuse to transgress them. In this case, a House majority could have amended its proposed rule to strike the provisions relating to proxy voting on the floor before passing it. Under the amended rule, the House would not be able to pass legislation without a physically present quorum on the floor. 

Second, the Senate may refuse to consider legislation that cleared the House without a quorum being physically present on the floor. As James Madison observed in 1813, the legislative power is “concurrently vested” in the House and Senate. They are “independent of, and co-ordinate with each other.” That means that the Senate is under no obligation to vote on every piece of legislation that the House passes. In this case, a Senate majority could signal credibly to the House that any legislation that it passes without a quorum physically present on the floor will not clear the upper chamber and, therefore, will not have the opportunity to be signed into law by the president.

The president may enforce the Constitution's limits on the House's rule-making power if the Senate chooses not to. The Constitution’s Presentment clause (Article I, section 7, clause 2) empowers the president to veto legislation passed by Congress. Presidents routinely vetoed bills in the past when they considered it unconstitutional. For example, James Madison vetoed legislation that would have provided federal funding for internal improvements in 1817 because he believed that Congress did not have the power to do so under the Constitution. In this case, President Trump could likewise veto legislation passed by the House without a physically present quorum because it was unconstitutional. The act would raise awareness of the House's transgression and jumpstart a debate over the importance of honoring the Constitution’s limits on governmental power.

Finally, an injured party may ask the federal judiciary to intervene. In this case, a group of House Republicans led by Chip Roy, R-Tex., have filed suit in the United States District Court for the District of Columbia to enjoin House staff from implementing the new proxy vote rule. The lawsuit asks the Court to declare the rule unconstitutional because it violates the Constitution's Qualifications and Quorum clause (Article I, section 5, clause 1). 

Multiple Enforcement Mechanisms

There are four ways to enforce the Constitution’s limits on the House’s rule-making power. Madison succinctly stated the rationale underlying this arrangement in 1834.

“As the Legislative, Executive & Judicial Departments of the U. S. are co-ordinate, and each equally bound to support the Constitution, it follows that each must in the exercise of its functions, be guided by the text of the Constitution according to its own interpretation of it; and consequently, that in the event of irreconcilable interpretations, the prevalence of the one or the other Departmt. must depend on the nature of the case, as receiving its final decision from the one or the other, and passing from that decision into effect, without involving the functions of any other. It is certainly due from the functionaries of the several Depts. to pay much respect to the opinions of each other and as far as official independence and obligation will permit, to consult the means of adjusting differences, and avoiding practical embarrassments growing out of them; as must be done in like cases between the different co-ordinate branches of the Legislative Dept.”