Skip to main content

Can you sue the Senate and Congress for requiring 60 votes to pass legislations? Can you sue them for enforcing the Filibuster?

Roanoke, VA |

1)Where in the Constitution does it say that the minority gets to obstruct governing and have a bigger say in how the country is governed?
2) How do one go about organizing to sue Congress and the Senate for obstruction and non-governance?

+ Read More

Attorney answers 5


No, can do . Your only power is the vote.

NOT LEGAL ADVICE. FOR EDUCATION AND INFORMATION ONLY. Mr. Rafter is licensed to practice in the Commonwealth of Virginia and the US Federal Courts in Virginia. There is no implied or actual attorney-client relationship arising from this education exchange. You should speak with an attorney licensed in your state, to whom you have provided all the facts before you take steps that may impact your legal rights. Mr. Rafter is under no obligation to answer subsequent emails or phone calls related to this matter.


The way to get the rules changed is to vote, and hope that enough people vote for someone willing to take on a rule and get this country running.;; 703-298-9562, 800-401-1583. Answering your question does not create an attorney-client relationship.


You are complaining about the rules of the two houses of congress. See Article ! section 5 which permits them to set their own rules.

The above is not intended as legal advice. The response does not constitute the creation of an attorney client relationship as this forum does not provide for a confidential communication.


The Senate entertained changes in law that would affect gun ownership, a right protected by the Second Amendment. To those that value the right to keep and bear arms, t might be sensible in such times to reject the right of the Senate to amend its rules at any time to eliminate the filibuster provided for in those rules. The so called "nuclear option" - eliminating the filibuster or radically changing it to favor the legislative agenda of the majority faction -- has been noised before both by the current Majority Leader, and by Senators previously frustrated over the seeming incapacity of the Senate to move, for example, on judicial nominations.

A consistent approach to the Constitution, and faithfulness to its text compels only one possible conclusion. The Senate is the judge of its own rules of procedure. The members, proceeding by a majority vote thereof, so long as a quorum of the body is present, has the right at any time to make, abrogate, or amend any of its rules or all of them.

Here's the constitutional text: "Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behavior, and, with the Concurrence of two-thirds, expel a Member." US Const. Art. I, sec. 5.

Fairly straightforward. In fact, the only reason to think that the Senate may not change its rules as directed by a majority of a quorum at any time is a contrived reason. The leading contrived reason offered to deny to the quorum's majority a power to change the Senate's rules at will or whim has been a construct that treats the sitting of the Senate as continuous and to proffer the artificial distinction that the House sits in two-year terms.

All Representatives in the House stand for election every two years. In distinction, the Constitution divides the Senate's membership three classes, with each class constituting a group that stands for election in staggered terms. The result is that every two years all Representatives are up for election and one third of all Senators are up for election. As a consequence of the biennial election of the House, when the newly elected body assembles and a quorum is present, it is said that a new Congress is in session. That session endures til the next elected House assembles when it ends. The two years of the Congress are each treated separately as a session, so that each Congress has a first and a second session.

Unlike the House of Representatives, there is not an entire re-election of the whole body of the Senate at once. This difference is the basis for the contrivance that the Senate's rules -- sacrosanct -- cannot be changed, even at the beginning of each new Congress. Such a view about the facts, that is, the manner of dividing the selection of Senators over a six year period is plainly factual. It is the conclusion drawn from it that is wrong, wrong-headed and against the plain words of the Constitution.

That the rules of the Senate and of the House may be changed by each body by the majority vote of a quorum of the body is the only conclusion that the words of the Constitution permit. This plain meaning was well understood from early after the Constitution's ratification. Here is an excerpt from "The Pocket Catechism of the Constitution," originally published in 1828:

"Q. 75. Who settles what these rules shall be?
A. The rules for the Senate are made by the Senate; the rules for the House of Representatives are made by the House of Representatives. Each house has power to alter its own Rules of Order, or to suspend them; that is to say, a particular rule may be
disobeyed for a certain time, after which it is again in force."

If the filibuster rule is changed to reflect the preferences of the majority when that is the Democratic Party's majority, then the Republicans, who never seem to have the cajones to behave like the majority when they are, will be fully justified in changing filibuster practices to their preference when and if they regain the Senate.

This answer is not a substitute for consulting with and retaining the services of an attorney for your legal needs. By providing this answer, I am not entering into an attorney client relationship with you.


Vote, vote, vote! This is why voting is so important. It is direct participation in the legislative process. You pick who you want to represent your interests. If your elected official does not address the issues important to the/his constituency who elected him/her, then your exercise your disfavor by not voting for that person again.

Information provided in this response is intended to be informational or educational only. It in no way establishes an attorney-client relationship. Because every case is factually dependent, it is not possible to accurately answer each question posed. If you have sincere legal concerns, it is highly recommended that you seek legal counsel in your area. A response is not intended to create, nor does it create, a continuing duty to respond.

Can't find what you're looking for?

Post a free question on our public forum.

Ask a Question

- or -

Search for lawyers by reviews and ratings.

Find a Lawyer