What Happens If House Changes Its Mind on Mayorkas Impeachment

The debate will shift to the U.S. Senate if the House of Representatives successfully reconsiders its failed vote and passes the resolution (H. Res. 863) to impeach Department of Homeland Security Secretary Alejandro Mayorkas. The ensuing House action to appoint managers and notify the Senate marks the formal start of the impeachment process under the “Rules of Procedure and Practice in the Senate When Sitting On Impeachment Trials” (the Senate Impeachment Rules). The rules clearly stipulate that senators must hold a trial or act in some other way to dispose of House-passed impeachment resolutions. But if at least one senator raises a point of order, the Senate cannot simply ignore the resolution.

Like its Standing Rules, the Senate’s Impeachment Rules are not self-enforcing—meaning rule violations that do not elicit a point of order may be ignored. However, a scenario in which no senator raises a point of order regarding the Mayorkas impeachment resolution is improbable.

The Preparation

Impeachment Rule II stipulates that senators should start the trial once House managers have arrived at “the bar of the Senate” to exhibit their two articles of impeachment against Mayorkas. When that happens, the rule instructs the presiding officer to inform House managers that the Senate will notify the House when it is prepared for trial. The managers then leave the Senate and return to the House.

The rules then require senators to begin preparing for trial. Under Impeachment Rule III, the first order of business is administering oaths to senators and the Senate’s presiding officer. The presiding officer is then directed to instruct the sergeant-at-arms to announce the trial’s start. Once the trial is underway, the Senate must remain in session “from day to day (Sundays excepted) after the trial shall commence (unless otherwise ordered by the Senate) until final judgment shall be rendered.”

“Unless otherwise ordered by the Senate” means that senators can adopt a different trial schedule by passing a resolution. They may also suspend the impeachment trial by unanimous consent in order to consider legislative business and presidential nominations.

The Trial

Impeachment Rule VIII requires senators to issue a writ of summons setting the date Mayorkas must respond to the accusations against him in the House-passed impeachment resolution. (Senators also determine the date on which House managers must respond to Mayorkas’ response.) Impeachment Rule XXV prescribes the text of the summons.

Under the Senate’s regular rules (i.e., its “Standing Rules”), senators could filibuster the writ of summons. The Impeachment Rules prohibit such dilatory tactics to ensure the trial is not delayed and that a verdict is reached. For example, Impeachment Rule XXIV stipulates that “[a]ll the orders and decisions may be acted upon without objection” during the trial. But if senators do object, “the orders and decisions shall be voted on without debate by yeas and nays …. subject, however, to the operation of Rule VII.”

Impeachment Rule VII requires the presiding officer to “direct all the forms of proceedings while the Senate is sitting for the purpose of trying an impeachment.” In that capacity, senators expect the presiding officer to rule on questions of evidence (i.e., relevancy, materiality, redundancy) and any “incidental questions” that may arise during the trial. The presiding officer may rule when presented with such questions or submit them directly to the Senate to be decided. If the presiding officer does rule on a question raised during the trial, any senator may appeal it and ask for a formal vote.

The Impeachment Rules prohibit floor debate regardless of how questions are decided. That means senators vote immediately on questions whenever they arise during a trial, and the side with more votes (a simple majority) wins. While the rules permit limited debate during closed sessions, senators are each allowed only one speech in such circumstances under the provisions of Impeachment Rule XXIV. The rule also caps speeches on “interlocutory questions” at 10 minutes.

The Takeaway

The Senate’s Impeachment Rules will require senators to dispose of the Mayorkas impeachment resolution if the House reconsiders its failed vote and passes it. These rules detail the steps senators must take to prepare for trial and regulate how that trial unfolds. Senators may also change their rules, ignore them, or take other dispositive action vis-à-vis this resolution.