On Saturday, Dec. 13, Senator Ted Cruz (R-Texas) attempted to block funding for the president’s executive order on immigration by raising what he called “constitutional point of order” against the homeland security portion of the cromnibus appropriations bill. It was a clever eleventh hour gambit to dramatize the issue. However, it completely missed the mark as a credible point of order because it did not cite any provision of the bill as directly violating the Constitution.  

Instead, Cruz reeled off provisions he said the president’s executive order contravened. The bill itself neither authorized, condoned or condemned the president’s action. The Homeland Security portion targeted by Cruz simply funds the department and its myriad of activities and responsibilities through next February. Whether the president uses the funds to implement his order is a future contingency beyond the immediate reach of the Senate absent an amendment prohibiting their use for that purpose. That option was precluded by the majority leader’s filling the amendment tree, thereby blocking any amendments to the cromnibus.  

Rather than being an assault on the Constitution, the bill belatedly fulfills one of Congress’s most important responsibilities: to make appropriations by law for the operation of the government. Moreover, Divison L of the bill funding the Department of Homeland Security appropriates money for carrying out Congress’s enumerated power “to establish an uniform rule of naturalization,” and with it the implied powers to regulate immigration and protect the borders.  

All that is not to say that constitutional objections cannot be raised against certain legislation or amendments. Former Parliamentarian Floyd Riddick’s “Senate Procedure” makes clear that, “Under the uniform practices of the Senate, whenever a question of constitutionality is raised, the Chair submits the question to the Senate for decision.” Unlike on other points of order, the presiding officer does not make a determination either sustaining or overruling the point of order. Thus, on the Cruz point of order, the chair explained, “Under the precedents and practices of the Senate, the Chair has no power or authority to pass on such a point of order,” and “submits the question to the Senate, Is the point of order well taken?” Following the roll call, the chair announced, “On this vote the yeas are 22, the nays are 74. The point of order is not well taken.”  

Most of the Senate precedents on constitutional points of order have been over the constitutional question of whether a Senate-originated measure or provision is in violation of the House’s constitutional privilege with respect to originating revenue legislation. The House, on the other hand, has a slightly different way of handling the matter since under House precedents the chair does not construe constitutional points of order nor put the question directly to the House. The chair simply refuses to recognize someone attempting to raise the point of order –a refusal that cannot be appealed and overturned.  

Instead, the House may send a Senate-originated revenue measure back to the other body by adopting a so-called “blue slip” resolution, offered by any member, raising a question of the constitutional privileges of the House. By extension, the same method can be used to send a Senate-originated appropriations measure back to the Senate which by precedent must also originate in the House.  

The angry backlash in the Senate over Sen. Cruz’s point of order was due in part to its disruptive effect on a weekend senators were promised would be free. But it was also occasioned by the recognition that the point of order was beyond clearly delineated bounds for such an objection. As the Majority Leader Harry Reid explained just before the vote: “The House of Representatives passed this legislation before us in an exercise of its powers under article I of the United States Constitution,” and “this bill has thus, originated in the House within the meaning of the origination clause of the Constitution.”  

Reid concluded, in exasperation, “The Constitution(al) objection is completely –completely –without merit and should be rejected.” The Senate overwhelmingly agreed with Reid’s assessment, keeping its powder dry and the government open, at least until next Feb. 27 when the homeland security CR in the bill expires.  

Don Wolfensberger is a resident scholar at the Bipartisan Policy Center, a senior scholar at the Woodrow Wilson Center and former staff director of the House Rules Committee.

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