Image, Claudette Gallant

op-art photo, green and blue seen through glass with convex bubble-like circles in nine rows of eight, with some distorted yellow reflections especially in left-hand circles, with olive green border

​Congressional Rules and the Courts

Congress has the right to make its administrative rules but they may not violate any provision of the Constitution. 

               Article I, Section 5: “Each House may determine the Rules of its Proceedings,”

              Article I, Section 2: “All legislative Powers herein granted shall be vested in a Congress of the United States,”

              Article I, Section 8: 
"The Congress shall have Power to [...] make all Laws which shall be necessary and proper for                                       carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government  

              of the United States." 

              Article VI: "This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; […]

              shall be the supreme Law of the Land; [...] The Senators and Representatives […] shall be bound […] to support

              this Constitution;"

Note the similarity of the clauses granting Congress the powers to make law and to make rules: they don’t express that they must comply with the other provisions of the Constitution. They don’t have to express it because Article VI states it in two ways, and the Preamble says more. And “shall have power to” and “powers shall be vested in” are stronger terms than “may”. Since the courts must upholdthe Constitution against lawsCongress makes under it,

the courts must uphold the Constitution against rules Congressmakes under it. 

The people have the right to keep Congress’ rules constitutional.

The courts do not entertain certain political questions under theSeparation of Powers doctrine. But separation of powers assumes that all members have equal power in session. The courts may not fail to address divisions of internal power because districts’ relative access to political power is affected, limiting the public's ability to correct the problem by using the political process. Because the ballot can’t protect you from an internal division of power in government that reduces your district’s or state’s relative political power, giving you less political power than a constituent in another district or state, the courts will address it (see also Redistricting and the Courts).

And when the United States guarantees a republican form of government to every state it guarantees each state that nothing - not even its own government - will interfere with its ability to freely choose its representation in state and federal government.

              Article I, Section 6: "for any Speech or Debate in either House, they shall not be questioned in any other Place."  

Article I, Section 6’s intent can’t be to exclude from court everything about which Congress speaks or debates because that would even exclude laws, which are also written down after speech and debate.

Section 5 works with this section by asserting the overarching requirement. 

Section 3 corrects a lot of damage without amending any text. More serious change ought to be avoidable.