[Deschler's Precedents]
[From the U.S. Government Printing Office via GPO Access]
[DOCID:52093c02_txt-2]
[Page 85-87]
CHAPTER 2
Enrolling Members; Administering the Oath
Sec. 1. In General
Before a newly convened body of Representatives-elect can begin
exercising all its constitutional functions as a legislative assembly,
Members-elect must become full legal Members of the House, having
satisfied all qualifications and having sworn to uphold the
Constitution and to faithfully perform their duties.<SUP>(1)</SUP> The
process through which Members-elect become Members consists of four
steps: first, the presentation of individual credentials; second, the
preparation of the Clerk's roll; third, the administration of the oath
to duly qualified and elected Members; fourth, the resolution of
challenges to the qualifications and elections of individual Members.
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1. ``[T]he legal existence of a legislative body is dependent upon
compliance with the constitutional requirements regarding
membership.'' Sutherland, Statutory Construction Sec. 404 (3d
ed. 1943). That general statement of legislative law must be
qualified in its applicability to the House of Representatives,
since the House has sole jurisdiction over elections and
qualifications of Members-elect (U.S. Const. art. I, Sec. 5,
clause 1). If the House seats a Member, the courts will not
question the validity of legislative action in which the Member
participates, even lacking satisfaction of election and
qualification requirements. See Lyons v Woods, 153 U.S. 649
(1894).
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This chapter covers the administration of those four steps of
proceeding during the organization of a newly convened House of
Representatives. The scope of the chapter is limited, however, to the
basic procedure governing those orders of business; the reader is
referred elsewhere for a discussion of the substantive issues related
to credentials, election contests, and elections and election
campaigns.<SUP>(2)</SUP> This chapter likewise does not concern itself
with those general aspects of procedure and orders of business
connected with organization.<SUP>(3)</SUP>
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2. See Ch. 8, infra, for the form, validity, and grounds for
challenges of credentials. See Ch. 8, infra, for elections and
election campaigns, and Ch. 9, infra, for election contests.
3. See Ch. 1, supra, for the orders of business at organization, and
for the procedure that is followed.
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Some discussion of substantive law is necessarily included in this
chapter, such as the rights and duties accruing to those persons
elected to Congress but not yet
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seated and sworn by the House, since the status of those Members-elect
is specifically related to the presentation of credentials, the
preparation of the Clerk's roll, and the administration of the oath.
Some mention is also made of the substantive state law which the Clerk
must review in determining whether to enroll Members-elect.
The preparation, transmission to the House, and custody of the
credentials of Members-elect are discussed in this chapter, as are
their use in preparing the Clerk's roll. The form of the Clerk's roll
and its relationship to the regular roll of the House and to the
administration of the oath receives analysis.
The chapter covers the history and form of the oath of office, the
procedure of its administration, the types of resolutions relating to
the right to be sworn, and the related subject of challenges, including
form, procedure, and preliminary House action.
There are several points of substantive procedure which should be
kept in mind in any discussion of the enrolling of Members and the
administration of the oath. The first is that the enrolling and the
swearing in of Members-elect are authorized and regulated by provisions
of the U.S. Constitution and the United States Code.<SUP>(4~)</SUP>
Therefore, the House and its officers follow an established procedure
when undertaking those orders of business.
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4. The principal provisions are: U.S. Const. art. VI, clause 3
(requirement of oath administration); U.S. Const. art. I,
Sec. 5, clause 1 (House sole judge of elections and
qualifications); 2 USC Sec. 25 (procedure of oath
administration and record evidence thereof); 2 USC Sec. 26
(preparation of Clerk's roll and regularity of credentials).
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Second, the House is governed, as stated above,<SUP>(5)</SUP> by
general parliamentary law during the period of organization and before
the adoption of rules. Since the rules are not adopted until after the
administration of the oath, en masse, to the membership-
elect,<SUP>(6)</SUP> most of the activities covered in this chapter
take place while general parliamentary law, and not the body of
standing rules, is in effect.
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5. See, generally, Ch. 1, supra.
6. For the priority of oath administration over the adoption of rules,
based on 2 USC Sec. 25, see Ch. 1, 7, supra.
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Third, the order in which activities take place during the
organization of the House is governed both by tradition and by
statute.<SUP>(7)</SUP> The oath is administered to Mem
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bers directly after the Speaker has been elected and has been sworn,
and before the completion of other organizational business or before
the consideration of general legislative business.
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7. For the sequence of organizational business, while the Speaker is
presiding at organization, see Ch. 1, Sec. 7, supra.
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The fourth aspect of procedure related to this chapter is the
functions of officers. The receipt of credentials by the House, and the
preparation and calling of the Clerk's roll, are functions exercised by
the Clerk of the preceding House.<SUP>(8)</SUP> The administration of
the oath to Members and floor action taken on challenges are presided
over by a newly-elected Speaker, whose scope of authority during the
organizational period should be reviewed for a comprehensive
understanding of how those orders of business are completed by the
House.<SUP>(9)</SUP>
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8. See 2 USC Sec. 26. For the authority and functions of the Clerk of
the preceding House at the organization of Congress, see Ch. 1,
Sec. 5, supra.
9. For the Speaker's functions and authority after he has been elected
at the convening of a new Congress, see Ch. 1, Sec. 7, supra.
For his entertainment of motions during the organizational
period, see Ch. 1, Sec. 9, supra; for his rulings on action on
resolutions, including those relating to oath administration,
during organization, see Ch. 1, Sec. 12, supra.
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The final area of substantive procedure relating to the enrollment
of Members and to the administration of the oath is the delineation of
authority between state and federal government. Since the House depends
on the individual states for the administration of elections and the
preparation of credentials, issues may be suggested in this chapter as
to those powers reserved for the states and those granted to the House
of Representatives under the U.S. Constitution. The reader is referred
to other portions of this work for discussion of such
issues.<SUP>(10)</SUP>
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10. See Ch. 8, infra, on elections and election campaigns, and Ch. 9,
infra, on election contests, which discuss the respective roles
of the state and federal governments.
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