Law Within Congress
abstract. Procedure has long shaped how Congress operates. Procedural battles have been central to legislative contestation about civil rights, the welfare state, tax policy, and presidential impeachments. In these instances and many others, procedural disputes often turn not on written rules but on parliamentary precedents. These precedents constitute a hidden system of law that has received little scholarly attention, despite being critical to shaping what goes on in Congress.
This Article explores parliamentary precedent in Congress. Parliamentary precedent mostly resembles judicial precedent: both are common-law systems that rely on the arguments of adversarial parties. But the two systems differ in key respects. Parliamentary decision-making employs an especially strong form of stare decisis, is minimalist in the extreme, and relies freely on legislative purpose and legislative history as tools of interpretation.
These seemingly legal dynamics play out in the shadow of congressional politics. Understanding parliamentary precedent requires understanding the institutional positions of the parliamentarians, the nonpartisan officials who resolve procedural disputes. The parliamentarians’ distinctive jurisprudence reflects their tenuous positions—namely, that they can be removed, overruled, or circumvented by the majority party. Drawing on novel interviews with parliamentarians and the legislative staffers who work closely with them, this Article illuminates the intersection of law and politics in the making of parliamentary precedent.
A better understanding of parliamentary precedent contributes to our understanding of how Congress operates and the fault lines that emerge in an age of polarization and hardball. These dynamics also hold lessons for public law more broadly. First, the parliamentarians’ efforts to protect themselves from the political fray shed light on efforts by other governmental decision-makers (in all three branches) to do the same. Second, the development of parliamentary precedent provides insight into the relationships between positive law and common law and between law and politics. Third, understanding parliamentary precedent, like understanding other elements of Congress’s internal workings, can inform statutory interpretation.
author. Assistant Professor of Law, University of California, Berkeley. Special thanks to the parliamentarians, parliamentary staff, and legislative staff who generously volunteered their time and perspectives. For helpful comments and conversations, I am grateful to Jacob Abolafia, Eric Beerbohm, Josh Chafetz, Lori Damrosch, Ryan Doerfler, Gregory Elinson, Richard Fallon, Abbe Gluck, Rebecca Goldstein, Bert Huang, Rebecca Kysar, Jacob Lipton, Martha Minow, Walter Oleszek, David Pozen, Kenneth Shepsle, Matthew Stephenson, Charles Tiefer, Susannah Barton Tobin, and Michael Zuckerman; workshop participants at Berkeley Law School, Columbia Law School, Harvard’s Edmond J. Safra Center for Ethics, and Yale’s Legislation Roundtable; and the editors of the Yale Law Journal, especially Ela Leshem, Nikita Lalwani, Soren Schmidt, and Doni Bloomfield. Thanks to Perry Abdulkadir for superb research assistance. Harvard’s Edmond J. Safra Center for Ethics and Center for American Political Studies provided generous financial support. This Article was named a winner of the 2020 AALS Scholarly Papers Competition.