Constitutional Points of Order in the Senate
Valerie Heitshusen
Analyst on Congress and the Legislative Process
November 12, 2014
Congressional Research Service
7-5700
www.crs.gov
R40948
Constitutional Points of Order in the Senate
Summary
In general, the Senate’s presiding officer does not take the initiative in enforcing Senate rules and
precedents. Instead, a Senator may raise a point of order if he or she believes the Senate is taking
(or is about to take) an action that violates the rules. In most circumstances, the presiding officer
rules on the point of order on advice of the Parliamentarian; that ruling is typically subject to an
appeal on which the Senate votes (unless the appeal is tabled or withdrawn). Pursuant to Rule
XX, however, in certain circumstances a point of order is not ruled on by the presiding officer but
is instead submitted to the Senate for its decision. A point of order that a pending matter (a bill or
amendment, for example) violates the U.S. Constitution presents one such circumstance. This
report explains Senate rules, precedents, and practices in regard to these constitutional points of
order, including an analysis of recent cases in which such a point of order has been raised, and
will be updated as events warrant.
A Senator can raise a constitutional point of order against any pending matter unless a unanimous
consent agreement prohibits points of order or provides for a vote on the pending matter without
any intervening action. A unanimous consent agreement may also affect the time at which it is in
order to raise a point of order. If a specific amount of debate has been agreed to for the pending
matter, the point of order cannot be raised until the time has expired or been yielded back. While
past practice has varied, the Senate’s rules and precedents currently require a constitutional point
of order to be submitted to the Senate for disposition, with a majority of those present and voting
required to sustain the point of order. The point of order is debatable, though the time for debate
may be subject to limitations under a unanimous consent agreement or, in some circumstances,
pursuant to statutory provisions. The submitted point of order is, however, subject to a non-
debatable motion to table.
This report identifies 16 constitutional points of order that have been raised and received a Senate
vote since 1989. Ten of these cases were disposed of negatively.
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Constitutional Points of Order in the Senate
Contents
Raising a Constitutional Point of Order ........................................................................................... 1
Effect of Unanimous Consent Agreements ................................................................................ 1
Disposition of a Constitutional Point of Order ................................................................................ 2
Current and Historical Practice.................................................................................................. 2
Availability of the Motion to Table............................................................................................ 3
Effect of Unanimous Consent Agreements ................................................................................ 3
Recent Instances of Constitutional Points of Order in the Senate ................................................... 3
Tables
Table 1. Constitutional Points of Order on Which the Senate Voted ............................................... 4
Contacts
Author Contact Information............................................................................................................. 6
Congressional Research Service
Constitutional Points of Order in the Senate
n general, the Senate’s presiding officer does not take the initiative in enforcing Senate rules
and precedents. Instead, a Senator may raise a point of order if he or she believes the Senate is
Itaking (or is about to take) an action that violates the rules. In most circumstances, the
presiding officer rules on the point of order on advice of the Parliamentarian; that ruling is
typically subject to an appeal on which the Senate votes (unless the appeal is tabled or
withdrawn). Pursuant to Rule XX, however, in certain circumstances a point of order is not ruled
on by the presiding officer but is instead submitted to the Senate for its decision. A point of order
that a pending matter (a bill or amendment, for example) violates the U.S. Constitution presents
one such circumstance. This report explains Senate rules, precedents, and practices in regard to
these constitutional points of order, including an analysis of recent cases in which such a point of
order has been raised. This report will be updated as events warrant.1
Raising a Constitutional Point of Order
The process for raising a constitutional point of order against a pending2 question does not differ
from that for raising other points of order. A Senator seeking to raise a constitutional point of
order would simply address the presiding officer at a time when no one else holds the floor. The
Senator might say, “Mr. President, I rise to point of order” or simply “Point of order, Mr.
President” and then proceed to state and explain the way in which the pending matter violates the
Constitution.
Raising a constitutional point of order (or any point of order) confers no special recognition
rights—unless a unanimous consent (UC) agreement has provided for it being raised, or
considered as raised, at a certain time. No Senator can interrupt another Senator without his or her
consent for the purposes of raising a point of order.3 In addition, a Senator loses the floor after he
or she has raised the point of order, though the Senator could again seek recognition from the
presiding officer once the point of order is submitted.
Effect of Unanimous Consent Agreements
A UC agreement may affect the availability of any point of order when the agreement includes
language that prohibits all or certain points of order. In addition, if a UC agreement specifies that
a vote on a matter would occur “at a time certain without any intervening action,” it would
preclude a point of order being raised.4 Further, if a UC agreement limits the time for debate of a
matter, then the point of order can be raised against it only after the debate time has been used or
yielded back—except by unanimous consent. This is because if a matter has been guaranteed—by
UC—a certain amount of debate or a vote at a time certain, then a new UC agreement is required
to allow a point of order before that debate is complete, since the disposition of the point of order
could have the effect of making the matter fall.
1 For additional information on points of order in the Senate more generally, see CRS Report 98-306, Points of Order,
Rulings, and Appeals in the Senate, by Valerie Heitshusen.
2 Points of order may only be raised against a pending matter. Floyd M. Riddick and Alan S. Frumin, Riddick’s Senate
Procedure (hereinafter, Riddick’s) 101st Cong., 2nd sess., S. Doc. 101-28 (Washington: GPO, 1992), p. 994.
3 Ibid., pp. 990, 993-994. A Senator yielding to another Senator for this purpose would lose the floor.
4 Ibid., p. 1358.
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Constitutional Points of Order in the Senate
Disposition of a Constitutional Point of Order
Current and Historical Practice
Under current practice and precedents relating to Rule XX, a point of order that a pending matter
is unconstitutional is submitted to the Senate for decision rather than ruled upon by the presiding
officer.5 The logic behind the relevant precedents is that while the presiding officer has authority
to interpret Senate rules, he or she does not have the authority to interpret the Constitution.
While the Senate, in its earliest history, similarly disposed of constitutional points of order
through a vote of the body, there were some intervening periods in which practice varied.6 For an
approximately 40-year period in the late 19th and early 20th centuries, these points of order were
not submitted for disposition, but instead the proceedings resembled the current practice in the
House of Representatives, under which Members are expected to express their opinion on the
constitutionality of a measure implicitly by their vote for or against the measure itself.7 However,
the Senate has generally followed its current practice of submitting the point of order since a
precedent established in 1924.8 Sustaining the submitted point of order requires an affirmative
vote of a majority of Senators who are present and voting, assuming a quorum is present.
A point of order submitted to the Senate for decision is debatable9 except when the Senate is
operating under cloture.10 Under most circumstances, accordingly, a cloture process could
theoretically be used to end extended debate and force a vote on the point of order.11 Under some
circumstances, statutory provisions may limit debate on points of order; these debate limits would
apply equally to a submitted constitutional point of order.12
5 Ibid., pp. 52-54, 685, 987.
6 I am indebted to my CRS colleagues Richard Beth and Elizabeth Rybicki for research and insight they provided on
historical practices prior to the 100th Congress.
7 Asher C. Hinds, Hinds’ Precedent of the House of Representatives of the United States, vol. II, secs. 1255, 1318-1320
(Washington: GPO, 1907); Clarence Cannon, Cannon’s Precedents of the House of Representatives of the United
States, vol. VIII, sec. 3427 (Washington: GWP, 1935).
8 In Riddick’s discussion of the constitutionality of amendments, the June 16, 1924, case is the oldest cited precedent
providing for submission to the Senate of a constitutional point of order. While this was not the first case of the Senate
voting on a constitutional point of order, it appears to be the guiding precedent most frequently cited in subsequent
years for disposition of a constitutional point of order. One apparent exception to the application of the precedent in
subsequent years occurred on August 27, 1940, when a Senator made a point of order that it “is a constitutional matter
for the Senate to have a quorum present.... I make a constitutional point of order.” Congressional Record, vol. 86,
p.11036. In this circumstance, the chair did not submit the question to the Senate, and the Senate—via voice vote—
upheld the ruling of the presiding officer on appeal. The basis on which the point of order was made—and the possible
perception of its dilatory intent—may have led the Senate to consider this a case to which the precedent did not apply.
9 The fact that submitted points of order are typically subject to extended debate in the Senate is central to recent
discussions about potential changes in Senate rules and practices. For more information, see CRS Report R42929,
Procedures for Considering Changes in Senate Rules, by Richard S. Beth.
10 Riddick’s, pp. 53, 686, 766, 987, 989. Once cloture is invoked on a question, Rule XXII prohibits debate on points of
order as well as on appeals of the chair in circumstances on which the chair has ruled.
11 The cloture process provided by Rule XXII involves the filing of a cloture petition, a layover of two days of Senate
session, and then a vote that requires the support of three-fifths of the Senate to invoke cloture. If cloture is invoked, the
point of order would be subject to a maximum of 30 additional hours of Senate consideration.
12 For example, pursuant to Section 305(c)(2) of the Congressional Budget Act, points of order on a budget resolution
or a reconciliation measure are subject to one hour of debate. A constitutional point of order raised in the Senate on
(continued...)
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Constitutional Points of Order in the Senate
Availability of the Motion to Table
While a submitted point of order is generally subject to extended debate, it is also subject to a
non-debatable motion to table.13 The tabling motion could be made at any time after the point of
order has been raised unless the Senate had agreed via unanimous consent to provide a specific
amount of time for debate on the point of order, in which case the tabling motion could not be
made until the time has expired or been yielded back. Agreeing to a tabling motion requires a
majority of those present and voting (assuming a quorum is present). If the motion is agreed to, it
adversely and permanently disposes of the point of order. Thus, if a Senator makes a motion to
table the point of order, a majority of Senators could dispose of it by agreeing to the motion to
table. This disposition would have the effect of determining the point of order not to be well
taken.
Effect of Unanimous Consent Agreements
A unanimous consent agreement may affect the debatability of a submitted point of order. For
example, if a UC agreement sets a time certain for a vote on the matter on which a point of order
is contemplated, then a submitted point of order raised against that matter would be subject to
debate only until that time expires. Other language in a UC agreement (e.g., which makes clear a
specific amount of time for debate on a pending amendment and provides for another action
immediately upon the disposition of that amendment) may also preclude extended debate on a
point of order raised against that amendment that would otherwise be debatable.14
Recent Instances of Constitutional Points of Order
in the Senate
Constitutional points of order are not common, relative to many other points of order that are
more routinely made (e.g., that an amendment violates the Congressional Budget Act, that an
amendment pending after cloture has been invoked is non-germane, or that an amendment to an
appropriations bill constitutes legislation). Table 1 presents data on constitutional points of order
in the Senate made and voted on since 1989 (the start of the 101st Congress) as identified in the
Legislative Information System and the Daily Digest. (An examination of references to
constitutional points of order in the full text of the Congressional Record for the Congresses in
question did not produce any additional examples.) The table does not include any constitutional
points of order that were raised but then withdrawn before a Senate vote or those that may have
been rendered moot because the underlying matter was withdrawn or otherwise negatively
disposed of.
(...continued)
August 6, 1993, (against the conference report on a reconciliation measure) provides an example of the application of
this statutory debate limit.
13 Riddick’s, pp. 989, 992.
14 For more information on precedents providing that debate is restricted on subsidiary motions or amendments when
the Senate has agreed to a debate limitation on the underlying matter, see Riddick’s, pp. 726, 1328, and 1342-1343.
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Constitutional Points of Order in the Senate
Table 1. Constitutional Points of Order on Which the Senate Voted
101st Congress to 113th Congress (through November 7, 2014)
Matter on which
Point of Order
Disposition of
Basis on which Point of
Congress Date
Raised
Point of Order
Vote
Order Raised
111
12/23/09
Amdt. 2786 to H.R.
Not wel taken
39-60
10th Amendment (reserved
3590
powers)
111 12/22/09a
Amdt. 2786 to H.R.
Not wel taken
39-60
Art. 1, Section 8; 5th
3590
Amendment (powers of
Congress; takings)
111
7/6/09
Amdt. 1365 to H.R.
Not well taken
23-70b
Art. 1, Section 8; 10th
2918
Amendment (powers of
Congress; reserved powers)
111
2/25/09
S. 160
Not wel taken
36-62
Art. 1, Section 2 (basis for
congressional representation)
107
6/29/01
Motion to commit
Sustained
57-41
Art 1, Section 7, clause 1
S. 1052 with
(Origination Clause)
instructions
107
6/21/01
Amdt. 807 to S.
Sustained
52-45
Art 1, Section 7, clause 1
1052
(Origination Clause)
106
6/8/00
Amdt. 3214 to
Not wel taken
42-57
Art 1, Section 7, clause 1
Amdt. 3210 to S.
(Origination Clause)
2549
106
2/24/99
Amdt. 29 to S. 4
Sustained
80-20
Art 1, Section 7, clause 1
(Origination Clause)
105
9/18/97
Amdt. 1224 to H.R.
Sustained
59-39
Art 1, Section 7, clause 1
2107
(Origination Clause)
103 8/6/93 Conference
Report
Not well taken
44-56
5th Amendment (Due Process)
on H.R. 2264
103
6/17/93
“S. 3, as amended”c
Not well taken
39-59
1st Amendment (freedom of
speech)
102
4/10/92
Amdt. 1784 to
Not wel taken
45-45
“proposes to impinge upon the
S.Con.Res. 106
rights of citizens to travel
freely from State to State”d
102
10/29/91
Amdt. 1287 to
Not well taken
22-76
“proposes an unconstitutional
Amdt. 1274 to S.
intrusion into the affairs of the
1745
executive and legislative
branches”e
102
9/24/91
Amdt. 1187 to S.
Sustained (after
voice
Art 1, Section 7, clause 1
1722
motion to table
vote
(Origination Clause)
failed, 39-60)
101
6/26/90
Amdt. 2066 to
Sustained 51-48
1st Amendment (freedom of
S.J.Res. 332
speech)
101
7/13/89
Amdt. 255 to S. 358
Tabled
56-43
Art. 1, Section 2 (basis for
Congressional representation)
Source: Congressional Research Services analysis of the Legislative Information System (LIS) and Congressional
Record.
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Constitutional Points of Order in the Senate
Notes: The table does not include any constitutional points of order that may have been raised but were not
disposed of through a vote of the Senate (e.g., were withdrawn or rendered moot when the underlying question
was withdrawn).
a. The point of order was raised on December 22, 2009, but pursuant to the provisions of a unanimous
consent agreement, disposition occurred on the fol owing day (December 23, 2009).
b. The official Senate vote tally for July 6, 2009, was actually recorded as 70-23, because the presiding officer
put the question as whether or not “to allow the amendment” rather than as a vote on the point of order
itself.
c. The Congressional Record indicates that the point of order was raised on “S.3, as amended” by the substitute
amendment, Amdt. 366. However, the Senate had not yet agreed to Amdt. 366 at the time the point of
order was submitted. Both Amdt. 366 and S. 3 were pending, however, so either was subject to a point of
order at the time.
d. The Senator making the point of order did not identify the specific constitutional provision the amendment
might violate but instead used the language quoted in the table to explain the al eged violation. Congressional
Record, April 10, 1992, daily edition, p. S5475.
e. The Senator making the point of order did not identify the specific constitutional provision the amendment
might violate but instead used the language quoted in the table to explain the al eged violation. Congressional
Record, October 29, 1991, daily edition, p. S15390.
Of the cases identified, more than half (10 of 16) were disposed of negatively, either through a
direct vote on the point of order or via a successful motion to table; the remaining six points of
order were sustained. Five of the six sustained points of order were in relation to alleged violation
of the Origination Clause (Article 1, Section 7, clause 1, which provides that only the House may
originate revenue measures).15 On the other hand, nine of the 10 points of order that were not well
taken were raised in relation to other constitutional provisions.
The table makes clear that constitutional points of order raised in the 106th and 107th Congresses
were raised exclusively on the grounds that the pending matter would violate the Origination
Clause. In the most recent Congress (111th) in which a constitutional points of order were raised,
however, they were raised only in relation to other provisions of the Constitution. This dominance
of points of order on the grounds of other (non-Origination Clause) constitutional provisions is
also evident in the Congresses spanning the 1990s. This recent ebb and flow in the constitutional
grounds on which such points of order are raised is similar to the historical variation that
characterizes previous periods. While the Origination Clause was the primary constitutional
provision invoked prior to the 1960s, other constitutional provisions were referenced with almost
equal frequency in the subsequent decades. For example, from the 1960s to 1980s, points of order
were raised on constitutional grounds such as the ability of the Senate to make its own rules, the
process for proposing constitutional amendments, representation and apportionment issues, the
line item veto, and the Equal Protection Clause. As noted in the table above, the two most recent
decades included points of order raised in relation to the First Amendment, the Due Process
Clause, questions of congressional apportionment and representation, and the powers afforded to
Congress (and reserved to the states), among others.
15 For more information on the Origination Clause and its enforcement, see CRS Report RL31399, The Origination
Clause of the U.S. Constitution: Interpretation and Enforcement, by James V. Saturno.
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Constitutional Points of Order in the Senate
Author Contact Information
Valerie Heitshusen
Analyst on Congress and the Legislative Process
vheitshusen@crs.loc.gov, 7-8635
Congressional Research Service
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