In general, the Senate’s presiding officer does not take the initiative in enforcing Senate rules and precedents. Instead, a Senator may raise a point of order if he or she believes the Senate is taking (or is about to take) an action that violates the rules. In most circumstances, the presiding officer rules on the point of order on advice of the Parliamentarian; that ruling is typically subject to an appeal on which the Senate votes (unless the appeal is tabled or withdrawn). Pursuant to Rule XX, however, in certain circumstances a point of order is not ruled on by the presiding officer but is instead submitted to the Senate for its decision. A point of order that a pending matter (a bill or amendment, for example) violates the U.S. Constitution presents one such circumstance. A Senator can raise a constitutional point of order against any pending matter unless a unanimous consent agreement prohibits points of order or provides for a vote on the pending matter without any intervening action. A unanimous consent agreement may also affect the time at which it is in order to raise a point of order. If a specific amount of debate has been agreed to for the pending matter, the point of order cannot be raised until the time has expired or been yielded back. While past practice has varied, the Senate’s rules and precedents currently require a constitutional point of order to be submitted to the Senate for disposition, with a majority of those voting (a quorum being present) required to sustain the point of order. The point of order is debatable, though the time for debate may be subject to limitations under a unanimous consent agreement or under cloture, in some circumstances, pursuant to statutory provisions. The submitted point of order is, however, subject to a non-debatable motion to table. This report identifies 17 constitutional points of order that have been raised and received a Senate vote in relation thereto since 1989. Eleven of these cases were disposed of negatively.
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