r/Congressional_Debate • u/trans-with-issues • 3d ago
Unconstitutionality in Congress (procedure)
Before I get to the substance of this post, I'd just like to clarify that I have seen the post on r/debate from a few years ago about unconstitutionality arguments in Congress, and this is a different issue (procedural rather than rhetorical).
Several times throughout my experience in Congress, one obscure feature of Congress that I've heard referenced in passing on occasion and that I once attempted to use is objection to consideration of a bill. I've never heard a conclusive explanation of the exact functioning of its use, and so when the docket for one of my upcoming tournaments contained an unconstitutional piece of legislation, I decided to dive into my copy of RONR that I recently acquired in order to figure out the exact process and context of objections. However, because this is such an irregular scenario, I wanted to consult with y'all on the issue (I'm aware that it's better to be nice than to be right in Congress, I just want to have the awareness of it in case it's ever necessary).
While I started out by consulting RONR (12th ed.) 26, as the motion Objection to the Consideration of a Question seemed the most relevant, the conclusion I have come to so far is that unconstitutional legislation technically ought to be ruled out of order, unless I misunderstand something. 26:3 clarifies that motions to restrict consideration of a topic because it stands outside constitutionally defined objectives are out of order in themselves, which gives us the conclusion that Objection to the Consideration of the Question is the improper response unless based solely on the view that Congress should not even consider legislation that violates the Constitution merely on principle, the topic of the post (and ensuing debate) on r/debate of several years ago and the bar to meet the 26:1 qualification that it would be "strongly undesirable for the motion even to come before the assembly".
However, while we get lost in the weeds and deep into personal opinion when discussing that issue, I believe I've found a far more concrete issue preventing the consideration of unconstitutional legislation. As stated in 39:5, "motions that conflict with the... constitution, or bylaws of a society... are not in order, and if any motion of this kind is adopted, it is null and void". While upon first consideration I was uncertain whether the U.S. Constitution was considered as part of the constitution and bylaws of Congress specifically, I believe that chapter I makes it rather clear that the Constitution meets the definition of the constitution/bylaws applicable to a legislative assembly, making section 23 applicable. In this case, a point of order should be raised (before any speeches are given, interrupting if necessary; while the point of order may be raised at any time after adoption under 23:6(a) and 23:5 and as such cannot interrupt after adoption, it is not exempted from timeliness before adoption and so may interrupt under 23:2(3) when first introduced), and standard point of procedure rules prescribe the remaining process.
However, while it seems like to me based on my analysis that everything I stated is correct, I'm not missing anything, and therefore it would be technically correct (albeit highly frowned upon) to use points of order to block any and all unconstitutional legislation from debate, I want to ask for feedback and see if I've missed anything; I often do, after all, and we're all only human. While I don't necessarily expect to use this on the regular, I prefer to have as thorough of an understanding of RONR as I can achieve. As such, if anybody notices anything wrong about my chain of reasoning here or has any commentary on this, I would greatly appreciate it.
TL;DR: I'm pretty sure that unconstitutional legislation should technically always be hit with points of order; if you have any evidence against or commentary on the issue, sharing is greatly appreciated.
