Limiting Unlimited Government through Constitutional Points of Order

Justin T. Sigman, University of Texas at Austin

Abstract

This article identifies a salient feature of the recent health care debate that has been overlooked by the academy, historians and advocates of federalism: on December 23, 2009, for the first time in its history, the United States Senate directly debated and voted on the meaning of the Tenth Amendment. Equally unprecedented is the manner in which this came about: points of order, including constitutional points of order, had previously been a form of procedural objection to a bill or amendment; allowing a point of order that a bill or amendment violates a substantive provision of the Constitution is analogous to the adoption of substantive due process doctrine by the judiciary. These Senate precedents provide for an internal process of constitutional review of proposed legislation by Congress. Part I places the development of constitutional points of order in context with the developing practice of presidential signing statements, as an example of a co-ordinate branch of government exercising its prerogative to interpret the Constitution. Justification for constitutionality review in Congress precedes an examination of the events of December 23, 2009 in Part II, where analysis of precedents and procedural rules in the House and Senate demonstrates that constitutionality review need not be provided for by new legislation. This paper identifies an overlooked but extant mechanism in Senate and House procedural rules, and modestly proposes that defenders of federalism principles in Congress utilize this resource. It argues that advocates of federalism have at their disposal a powerful tool to limit unlimited government.