A Non-Delegation Doctrine for Congress’s Power to “punish its Members for Disorderly Behavior”

December 28th, 2016

Last summer, House Democrats held a “sit-in” to protest the decision not to bring a gun-control bill up for a vote. Because the session had already ended, House leadership turned off the C-SPAN cameras. In response, several Democratic members started to livestream the sit-in from their phones. House Republicans have huddled for some time about how to punish future efforts to livestream from the floor. Politico reports on a proposal that would “empower the sergeant-at-arms to fine lawmakers up to $2,500 for shooting video or taking photos on the chamber floor.” Is this constitutional?

Over the last century, Congress has seen fit to delegate virtually all of its lawmaking powers to regulatory agencies, giving near-carte blanche to the executive branch to decide the content of laws. Since the New Deal, the courts have uniformly upheld these delegations, so long as the law contains a “intelligible principle” (translated as some ill-defined, nebulous guidance).  There is another attribute of the non-delegation doctrine that I hadn’t considered: can the House of Representatives delegate other powers within Article I to congressional employees?

Article I, Section 5 provides that “Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behaviour, and, with the Concurrence of two thirds, expel a Member.”

Usually, disciplinary matters are referred to the bipartisan House Ethics Committee. The committee then recommends whether a member should be disciplined, accompanied by a “Letter of Reproval” (which by itself does nothing). If the member objects, he or she can appeal to a full House vote to decide the appropriate remedy.

Under Speaker Ryan’s proposal, there would be no opportunity to appeal a decision of the sergeant-at-arms. Rather that congressional employee would make the final call about whether the fine should be assessed.

Mike Stern, a longtime congressional counsel, suggested that as proposed, the punishment may amount to unlawful delegation of authority to sergeant-at-arms.

“The Constitution gives the House the authority to discipline members; I have never heard of anything where an officer of the House was given that authority,” said Mike Stern, a former lawyer for the nonpartisan House counsel’s office and the Senate Homeland Security Committee’s GOP staff.

Stern, who called the proposed rule a “plausible Constitutional issue to raise,” said Democrats could take the matter to court. “Their strongest argument would be: The House doesn’t have the authority to give these officers the power to punish us; only the power of the House can do that, and [Republicans] have short-circuited our rights by the way they’ve done it.’”

Robert Walker, former chief counsel and staff director to the Senate and House ethics panels, did not think Republicans would run afoul of the Constitution with the new rule. But he nonetheless wasn’t sure it was a good idea because it could open the door to the House delegating other duties to officers.

“Do members really want to start this?” he asked. “Once you start delegating punishment to an officer, it raises a question of precedent and whether it can be expanded, and I think members will want to think carefully before they do this.”

Remarkably, and conveniently, Democrats have suddenly found a delegation of authority they deem too broad!

As Democrats blasted the new rule Tuesday, House Minority Leader Nancy Pelosi (D-Calif.) and lawyers representing the Democratic minority began examining its legality. “We are reviewing this language as it appears to raise constitutional concerns,” Pelosi spokesman Drew Hammill told POLITICO in an email Tuesday.

Some Democrats are itching for a fight over the rule. Rep. Eric Swalwell (D-Calif.), one of the leaders of last summer’s protest, tweeted at Republicans to “bring it on” and dared them to “fine me & @HouseDemocrats all the way into bankruptcy for #gunviolence sit-in, but we will always speak for victims.”

“If they cut the camera feed again, I’m going to turn on my phone again,” Swalwell vowed during a brief interview Tuesday.

Any member fined could file suit against the sergeant-at-arms, claiming that the punishment amounted to an unconstitutional delegation of power. Recall that Powell v. McCormack held that members could not be sued–in light of the Speech or Debate Clause–but legislative employees, such as the sergeant-at-arms can. But Powell involved the “qualifications” clause–that is whether Powell could be seated–not the “punishment” clause.

The Politico piece explains how this could work.

Brand said the sergeant-at-arms doesn’t have as many legal protections as lawmakers and could actually be sued by House members should they feel he unlawfully deducted their pay. Brand said it would be better if Republicans simply used their own authority to punish members with a House vote — and not “pass on their dirty work,” as he put it, to nonpartisan House staff.

“It’s the House that has the power, the self-disciplinary authority, to do this,” Brand said, noting that it’s never been tested in court. “I’m not sure they can delegate the disciplinary power to an individual house officer.”

I asked Stern on Twitter whether this sort of issue has ever been litigated. He wasn’t aware of anything. The closest precedent he could think of was Nixon v. United States, where a committee of Senators heard evidence regarding the impeachment of Chief Judge Nixon. Ultimately, the full Senate voted to remove him. Nixon contended that the committee acted unlawfully because it was not the whole Senate.

Petitioner Walter L. Nixon, Jr., asks this Court to decide whether Senate Rule XI, which allows a committee of Senators to hear evidence against an individual who has been impeached and to report that evidence to the full Senate, violates the Impeachment Trial Clause, Art. I, 3, cl. 6. That Clause provides that the “Senate shall have the sole Power to try all Impeachments.”

However, the Court did not address this question, finding the dispute was not justiciable.

Ryan’s proposal could be cured by permitting the full House to vote on any punishment.

Walker also noted that members don’t appear to have a venue to appeal the verdict: “What happens when there is a difficult circumstance and one of the members thinks there ought to be a right to appeal? Maybe you add that to the rule: a right to appeal. Members ought to have procedural rights as well.”

But this change would defeat the ostensible purpose of this proposal, which is to quickly fine members that misbehave, without having to take the accountability of sanctioning a colleague.

Republicans could recraft the proposal to alleviate such concerns, but that might ultimately defeat their initial intent: deterring Democrats from future occupations of the chamber.

One option could be to have the ethics panel serve as an appeals panel. But, as Stern notes, the committee “takes forever” to litigate so “I don’t think it would be as much of a deterrent.” The panel is also evenly split between Democrats and Republicans, potentially allowing the minority to block a punishment.

Republicans could also amend the rule to force the House to vote to approve the sanctions on members. But that, in theory, would allow Democrats to continue the public spectacle Republicans are trying to quash, giving them an even larger platform for their cause.

“Look, I understand the Republicans are trying not to inflame things by coming up with something to put a stop on [this protesting], but there is no way around them exercising their own authority to control breeches of decorum,” Brand said. “That’s the way do it — not by delegating it to some poor officer of the House.”

Here, passing the buck to a congressional officer can save face, but also may violate the Constitution.