Theorizing the Point-of-Order Interpretive Canons

Abstract

In Law Within Congress, Jonathan Gould suggested that rulings of the House or Senate chair under the advice of their respective parliamentarians might inform statutory interpretation. This Article fleshes out the theoretical foundations of that approach. While such approach is much narrower than the broad reliance on Congress’s rules by other theorists of the “process-based” school, it also comes with strong theoretical justifications and advantages that set it apart. Part I illustrates the broad appeal of “process-based” theories by showing that even textualists have strong theoretical reasons to endorse them. Part II then surveys the theoretical advantages specific to the point-of-order interpretive canons compared to broader approaches in the “process-based” school, such as notice to lawmakers and avoidance of the “rule-flouting” problem. Part III illustrates three basic point-of-order canons, as well as the various theoretical imports of chair rulings and appeals. Part IV explores how the point-of-order interpretive canons might be applied in practice using the Supreme Court case Bankamerica Corp. v. United States, a hypothetical analysis of Special Counsel Jack Smith’s funding, and some miscellaneous examples drawn from congressional records