What Happens If House Changes Its Mind On Mayorkas Impeachment?

The impeachment debate will shift to the Senate if the House successfully reconsiders its failed vote and passes the resolution (H. Res. 863) to impeach Department of Homeland Security Secretary Alejandro Mayorkas. The ensuing House action to appoint managers and notify the Senate marks the formal start of the impeachment process under the Senate’s “Rules of Procedure When Sitting On Impeachment Trials” (i.e., the Senate's Impeachment Rules). Those rules clearly stipulate that senators must consider resolutions containing impeachment articles when they arrive from the House. In short, the Senate must hold a trial or act in some other way to dispose of the House-passed impeachment resolution. Senators cannot simply ignore the resolution under the Senate's Impeachment Rules if at least one of them raises a point of order.

Of course, the Senate's Impeachment Rules - like its Standing Rules - are not self-enforcing. And rule violations that do not elicit a point of order may be ignored. But a scenario in which the Senate ignores the Mayorkas impeachment resolution and no senator raises a point of order that doing so violates the Senate's Impeachment Rules is improbable.

The Preparation

Impeachment Rule II stipulates that senators should start the trial once the House managers have arrived at "the bar of the Senate" to exhibit their two articles of impeachment against Mayorkas. When that happens, the rule instructs the presiding officer to inform the House managers that the Senate will notify the House when it is prepared for the trial. The managers then leave the Senate and return to the House.

After the withdrawal of the House managers, the Senate’s Impeachment Rules require senators to begin preparing for the trial. Under Impeachment Rule III, the first order of business is administering oaths to senators and the Senate's presiding officer. The impeachment rules then direct the presiding officer to instruct the sergeant at arms to announce the trial's start. Once the trial is underway, the rule requires the Senate to remain in session "from day to day…after the trial shall commence (unless otherwise ordered by the Senate) until final judgment shall be rendered" (Sundays excepted).

"Unless otherwise ordered by the Senate" highlights that senators can adopt a different trial schedule by passing a resolution. Senators may also suspend the impeachment trial by unanimous consent to consider legislative business and presidential nominations.

The Trial

Impeachment Rule VIII requires senators to issue a writ of summons setting the date Mayorkas must respond to the accusations against him in the House-passed impeachment resolution. (Senators also determine the date on which House managers must respond to the Mayorkas's response to the allegations against him in the House-passed impeachment resolution.) Impeachment Rule XXV prescribes the text of the summons.

Under the Senate’s regular rules (i.e., its “Standing Rules”), senators could filibuster the writ of summons. But under its Impeachment Rules, such dilatory tactics are prohibited to ensure that the trial is not delayed and that a verdict is reached. For example, Impeachment Rule XXIV stipulates that “all the orders and decisions may be acted upon without objection” during the trial. If senators object, “the orders and decisions shall be voted on without debate by yeas and nays….subject to the operation of Rule VII.”

Impeachment Rule VII requires the presiding officer to “direct all the forms of proceedings while the Senate is sitting for the purpose of trying an impeachment.” In that capacity, senators expect the presiding officer to rule on questions of evidence (i.e., issues of relevancy, materiality, redundancy) and any “incidental questions” that may arise during the trial. The presiding officer may rule when presented with such questions, or he may submit them directly to the Senate to be decided. If the presiding officer does rule on a question raised during the trial, any senator may appeal it and ask for a “formal vote.”

The Senate's impeachment rules prohibit floor debate regardless of how questions are decided. That means senators vote immediately on questions whenever they arise during a trial, and the side with more votes (i.e., a simple majority) wins. While the Senate’s impeachment rules permit limited debate during closed sessions, senators are allowed only one speech each in such circumstances under the provisions of Rule XXIV. The rule also caps speeches on “interlocutory questions” at ten minutes.

The Takeaway

The Senate's Impeachment Rules will require senators to dispose of the Mayorkas impeachment resolution if the House reconsiders its failed vote and passes it. Those rules detail the steps senators must take to prepare for the trial and regulate how that trial unfolds. Senators may also change their rules, ignore them, or take other dispositive action vis-a-vis the Mayorkas impeachment resolution.