[Deschler's Precedents]
[From the U.S. Government Printing Office via GPO Access]
[DOCID:52093c02_txt-4]
[Page 95-102]
CHAPTER 2
Enrolling Members; Administering the Oath
Sec. 3. Presentation of Credentials
The device through which the House satisfies itself that it is
composed at its first meeting of duly-elected Representatives is the
presentation of credentials.<SUP>(9)</SUP> Although the credentials
themselves may give rise to substantive questions as to form, validity,
and grounds for challenge,<SUP>(10)</SUP> the presentation and use of
the credentials is largely an administrative matter. Although there are
still differences among the states in the preparation of credentials,
and in their trans
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mittal to the House, the process has become more standardized than in
former years. Credentials certified by the Member-elect
himself,<SUP>(11)</SUP> or certified by military or de facto
governors<SUP>(12)</SUP> or prepared without regard to state
law,<SUP>(13)</SUP> have not been received by the House in contemporary
practice. In addition, the office of the Clerk requires strict
compliance with state law, pursuant to federal statute, before
enrolling a Member-elect;<SUP>(14)</SUP> disputes have seldom arisen as
to the Clerk's action in accepting credentials.<SUP>(15)</SUP>
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9. For a discussion of the function of credentials in legislative
organization, in general, see 1 Hinds' Precedents Sec. 631.
10. See Ch. 8, infra, for the substantive aspects of credentials as
related to elections and election campaigns.
11. See 1 Hinds' Precedents Sec. 427 (Senate credentials).
12. See 1 Hinds' Precedents Sec. Sec. 383, 388.
13. See 1 Hinds' Precedents Sec. 605 (credentials showed on face they
were not issued according to law); 1 Hinds' Precedents Sec. 376
(credentials signed by mere claimant to governorship); 1 Hinds'
Precedents Sec. 374 (credentials from suspended state
government).
14. 2 USC Sec. 26 requires credentials which show the Representatives-
elect ``were regularly elected in accordance with the laws of
their states respectively, or the laws of the United States.
15. The most recent debate over the Clerk's action in enrolling a
Member-elect occurred on Mar. 9, 1933 (see Sec. 3.4, infra).
See the remarks of Mr. Bertrand H. Snell (N.Y.), on that
occasion, opposing the administration of the oath to a Member-
elect without credentials, and objecting, post facto, to the
Clerk's action in enrolling the Member-elect. 73 Cong. Rec. 71,
72, 73d Cong. 1st Sess. Mr. Snell argued that state law, as
interpreted by the state supreme court, required the official
certificate before the taking of the oath of office. Mr. Snell
stated that the Clerks of the House had ``always been very
particular to see that the certificate which the Clerk accepted
before he put the name on the roll was in strict compliance
with the law of the state itself'' and averred that the Clerk
had not exceeded his authority in such a manner for 50 years.
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The term ``credentials'' actually refers to a very specific
document, the certificate of election, certified by the state executive
and attesting to the due election of the respective Member-
elect.<SUP>(16)</SUP> Certificates are transmitted, usually by
certified mail, to the Clerk of the House,<SUP>(17)</SUP> and may
arrive anytime up to the date of the convening of Congress; their
failure to arrive before that date will result in the individual's name
not appearing on the Clerk's roll.<SUP>(18)</SUP> The Clerk
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has in the past enrolled a Member-elect whose certificate of election
was not yet prepared, when the Governor notified the House that a
certificate would be forthcoming.<SUP>(19)</SUP>
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16. See Ch. 8, infra, for the elements and form of the certificate, and
the issuance thereof by the proper state official.
17. When a paper was received by the House during the call of the roll,
addressed to the Speaker, the Clerk presiding declined to open
it, although it was supposed to contain a missing credential. 1
Hinds' Precedents Sec. 47.
18. Generally, although the House may authorize the taking of seats by
Members-elect whose credentials have not yet arrived, the Clerk
may not enroll such Members-elect. See Sec. 3.7, infra.
19. See Sec. 3.4, infra. The objection to the Clerk's action by a
Member of the House indicated that the Clerk had acted contrary
to the prevailing practice. See 73 Cong. Rec. 71, 72, 73d Cong.
1st Sess., Mar. 9, 1933.
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The Clerk is empowered by statute to inquire into the regularity
under state law of the credentials when they are
delivered.<SUP>(1)</SUP> On occasion, the Clerk has enrolled a Member
with due credentials on file, although notified of an adverse judicial
decision in the state of representation.<SUP>(2)</SUP>
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1. The phrasing of 2 USC Sec. 26, requiring credentials showing
regular election under state law, contemplates some discretion
in reviewing state law. For the Clerk's functions in that
respect, see Sec. 4, infra. In early Congresses, a committee
examined the credentials of every Member-elect before
authorizing the taking of seats. See 1 Hinds' Precedents
Sec. Sec. 386-387.
2. See Sec. 4.3, infra.
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Only one original certificate is transmitted to the Clerk's office
(although the Member himself may receive a ``ceremonial'' copy); the
original is retained in the custody of the Clerk's office during and
after the period of organization.<SUP>(3)</SUP> The set of credentials
for one Congress is delivered by the Clerk, after a period of four
years, to the National Archives, where they are kept as a public
record.<SUP>(4)</SUP> (The credentials are filed in the same order in
which Members are enrolled, alphabetically by state.)
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3. Since credentials are transmitted directly from the state executive
to the Clerk of the House, it is a misnomer to describe
Members-elect as ``bearing'' or ``presenting'' their
credentials (see, for example, 1 Hinds' Precedents Sec. 30--
Member-elect as ``bearer''). The Clerk's office will accept,
however, credentials which are hand-delivered by the Member-
elect because of the immediacy of the convening date of
Congress.
4. Since the credentials of the Resident Commissioner from Puerto
Rico, unlike the certificates of Members and Delegates, extend
for four years (see Sec. 5.4, infra), the entire set of
credentials for one Congress is retained by the Clerk's office
until the end of the succeeding Congress.
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Although the Clerk will not as a general rule enroll Members-elect
who appear without certificates of election, the House itself may
authorize the administration of oath to Members-elect who appear with
``substitute'' credentials, where the original certificate is
delayed.<SUP>(5)</SUP>
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For example, Members-elect have been sworn on the basis of letters and
telegrams from the executive department of the state of representation,
attesting as to the due election of the Member-elect and stating that
regular credentials would be forthcoming.<SUP>(6)</SUP> Such state
executive declarations may state, as a basis for authorizing the
administration of the oath, the result of official election returns and
may request that such communications constitute official notice of
election.<SUP>(7)</SUP> (On many occasions, the House authorizes the
administration of the oath where credentials have not yet arrived,
pursuant to a statement by another Member-elect that the election in
issue is neither contested nor questioned.)<SUP>(8)</SUP>
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5. For early instances of such action, see 1 Hinds' Precedents
Sec. Sec. 162-168. On some occasions, the House has enrolled
claimants where the state executive refused to issue any
credentials. See 1 Hinds' Precedents Sec. Sec. 553-564.
6. See Sec. Sec. 3.1-3.4, infra.
7. See, for example, Sec. 3.2, infra.
8. Swearing in Members-elect who do not have credentials but whose
elections are unquestioned is authorized by unanimous consent.
See Sec. 3.5, infra.
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The Clerk may receive during the term of a Congress late
credentials and credentials of Members-elect to fill unexpired terms;
those certificates are laid before the House and then filed by the
Clerk with the other certificates for that Congress.<SUP>(9)</SUP>
Until the certificate is laid before the House, the respective
Representative-elect is not entered on the regular roll of the
House.<SUP>(10)</SUP>
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9. See Sec. 3.6, infra.
10. See Sec. 3.7, infra. If Members-elect to fill vacancies appear to
take the oath following the intervening death of the Speaker,
their credentials are not laid before the House and they are
not sworn or enrolled until after a new Speaker's election, in
which they are not entitled to participate. See Sec. 5.3,
infra.
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The credentials of Delegates-elect and Resident Commissioners are
similarly transmitted to the Clerk and filed with the other documents
for the same Congress. The main distinction is that the credentials of
those officials do not entitle them to be included on the Clerk's roll;
the other distinction is that the credentials for the Resident
Commissioner extend for four years as opposed to two.<SUP>(11)</SUP>
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11. See Sec. 3.8, infra.
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Evidence of Certificate; Telegrams
Sec. 3.1 Not having received their certificates of election, the House
authorized the administration of the oath to certain Members-elect
pursuant to the receipt of a telegram
[[Page 99]]
from the state Attorney General and Chairman of the state Board of
Canvassers.
On Nov. 15, 1937,<SUP>(12)</SUP> the Clerk of the House submitted
to the House a telegram from the Honorable John J. Bennett, Jr.,
Attorney General of New York and Chairman of the state Board of
Canvassers, indicating the election of three Representatives to fill
vacancies. The telegram indicated that certificates of election issued
by the state Board of Canvassers would be forwarded shortly. The House
authorized Speaker William B. Bankhead, of Alabama, to administer the
oath to the three Representatives-elect.
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12. 82 Cong. Rec. 9, 75th Cong. 2d Sess.
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Sec. 3.2 The oath was administered, by unanimous consent, to a
Delegate-elect whose certificate of election had not arrived,
pursuant to a communication from the territorial governor attesting
to the election results and requesting that the communication
constitute official notice of election.
On Aug. 4, 1954,<SUP>(13~)</SUP> the House authorized the
Speaker<SUP>(14)</SUP> to administer the oath of office to Mrs.
Elizabeth P. Farrington, Delegate-elect of Hawaii, whose certificate of
election had not yet arrived. She was administered the oath pursuant to
a letter from the Governor of Hawaii stating the election results and
requesting that the communication be accepted as notice of her election
pending arrival of the official certificate, due to the desirability of
having Hawaii represented in the House during the closing days of the
session.
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13. 100 Cong. Rec. 13282, 83d Cong. 2d Sess.
14. Joseph W. Martin, Jr. (Mass.).
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Sec. 3.3 The House authorized, by unanimous consent, the administration
of the oath to a Member-elect, whose certificate of election had
not arrived, pursuant to a telegram from the Secretary of State
stating that the Member-elect was duly elected according to
unofficial returns.
On Oct. 30, 1963,<SUP>(15)</SUP> the House authorized the
administration of the oath to Mr. Mark Andrews, of North Dakota,
pursuant to a telegram from Ben Meier, Secretary of State of North
Dakota, stating that according to unofficial returns Mr. Andrews had
been elected to complete an unexpired term.
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15. 109 Cong. Rec. 20612, 88th Cong. 1st Sess.
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Sec. 3.4 A Member-elect appearing without credentials has
[[Page 100]]
been enrolled and sworn where the state executive notified the
House that although the Member-elect had been duly elected, the
preparation of the certificate was delayed by the technicalities of
state law.
On Mar. 9, 1933,<SUP>(16)</SUP> the Clerk placed on the roll and
the House authorized to be sworn in the Member-elect from Maine, Mr.
John G. Utterback, who had appeared without a certificate of election.
The Governor of Maine had informed the House that Mr. Utterback was
duly elected but that a certificate of election would not be
forthcoming until the assembly of the executive council, which was
required by state law to act with the Governor in the preparation of
the certificate.<SUP>(17)</SUP>
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16. 73 Cong. Rec. 71, 72, 73d Cong. 1st Sess.
17. See the remarks, in opposing the authorization of the
administration of the oath to Mr. Utterback, of Mr. Bertrand H.
Snell (N.Y.), who argued that the action of the House set a
dangerous precedent and violated both state and federal law. 73
Cong. Rec. 71, 72, 73d Cong. 1st Sess.
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Oath Administration Absent Credentials
Sec. 3.5 Where certificates of election have not been received, the
House may by unanimous consent authorize the Speaker to administer
the oath to Members-elect whose elections are not contested.
On Nov. 15, 1937,<SUP>(18)</SUP> the House authorized Speaker
William B. Bankhead, of Alabama, by unanimous consent, to administer
the oath to three Representatives-elect for whom certificates of
election had not yet been received, and whose elections were not
contested.
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18. 82 Cong. Rec. 9, 75th Cong. 2d Sess.
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Similarly, on Oct. 3, 1940,<SUP>(~19)</SUP> the House authorized,
by unanimous consent, Speaker Sam Rayburn, of Texas, to administer the
oath of office to Member-elect Florence R. Gibbs, of Georgia,
notwithstanding the fact that the certificate of election had not yet
been received in the Clerk's office.
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19. 86 Cong. Rec. 13117, 76th Cong. 3d Sess.
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Also, on June 20, 1941,<SUP>(20)</SUP> the oath was administered by
unanimous consent to Mr. John H. Foulder, of North Carolina, whose
certificate of election had not yet been received.<SUP>(1)</SUP>
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20. 87 Cong. Rec. 5398, 77th Cong. 1st Sess.
1. Similar House action has been taken on numerous occasions. See, for
example, 109 Cong. Rec. 11233 (June 20, 1963), 14242 (Aug. 6,
1963), 20612 (Oct. 30, 1963), 88th Cong. 1st Sess.; 111 Cong.
Rec. 13774 (June 16, 1965), 27171 (Oct. 18, 1965), 89th Cong.
1st Sess.
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[[Page 101]]
Credentials to Fill Vacancies
Sec. 3.6 The Clerk of the House informs the House of the receipt of a
certificate of election of a Member-elect, elected to fill an
unexpired term, whereupon the new Member is sworn in.
On May 21, 1934,<SUP>(2)</SUP> Speaker Henry T. Rainey, of
Illinois, laid before the House the following communication:
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2. 78 Cong. Rec. 9151, 73d Cong. 2d Sess.
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Honorable Henry T. Rainey,
Speaker of the House of Representatives, Washington, D.C.
Dear Sir: The certificate of election of Honorable J.Y.
Sanders, Jr., has been received, to fill the unexpired term of
Honorable Bolivar E. Kemp, of the sixth district of the State
of Louisiana.
Very respectfully,
South Trimble,
Clerk of the House of Representatives.
Mr. Sanders was then presented to the House and administered the
oath of office by the Speaker.
Sec. 3.7 Members-elect, elected to fill vacancies occurring in the
first session, are not included on the roll call to ascertain the
presence of a quorum when the second session convenes; their names
are included on the roll only after their certificates of election
have been laid before the House and after the oath has been
administered to them.
On Jan. 10, 1966, the opening day of the second
session,<SUP>(3)</SUP> after the call of the roll to ascertain the
presence of a quorum, the certificates of election of Mr. Clarence J.
Brown, Jr., of Ohio, and Mr. Thomas M. Rees, of California, both
elected to fill vacancies, were laid before the House. The oath was
then administered to them by Speaker pro tempore Carl Albert, of
Oklahoma, and their names were then included on subsequent roll calls.
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3. 112 Cong. Rec. 6, 89th Cong. 2d Sess.
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Credentials of Delegates and Resident Commissioners
Sec. 3.8 At the opening of a Congress, the Clerk informs the House of
the receipt of the credentials of Delegates and of the Resident
Commissioner from Puerto Rico, whose names are not placed on the
Clerk's roll.
On Jan. 3, 1973,<SUP>(4)</SUP> immediately after the call of the
Clerk's roll to
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establish a quorum, the Clerk announced to the House the receipt of the
credentials of: Delegate-elect Walter E. Fauntroy, of the District of
Columbia, Delegate-elect Antonio Borja Won Pat, of Guam, Delegate-elect
Ron De Lugo, of the Virgin Islands, and Resident Commissioner-elect
Jamie Benitez, of Puerto Rico. As the names of Delegates and Resident
Commissioners are not called to establish a quorum or to vote for
Speaker, their names were not included on the Clerk's roll.
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4. 119 Cong. Rec. 12, 93d Cong. 1st Sess.
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Parliamentarian's Note: The credentials of Delegates expire with
the term of the House, but the Resident Commissioner's credentials
extend for a four-year term.
Sec. 3.9 The Clerk informs the House of the receipt of the credentials
of the new Resident Commissioner of Puerto Rico to fill a vacancy,
whereupon the Commissioner is sworn.
On Jan. 3, 1940,<SUP>(5)</SUP> the Clerk of the House, South
Trimble, informed the the House of the receipt of a certificate signed
by the Governor of Puerto Rico, showing the appointment of Mr. Bolivar
Pagan as Resident Commissioner of Puerto Rico, to fill a vacancy.
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5. 86 Cong. Rec. 6, 76th Cong. 3d Sess.
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Mr. Pagan was then administered the oath of office.
Sec. 3.10 On one occasion the House was informed of the appointment of
the Resident Commissioner of the Philippines by the President of
the United States.
On Aug. 18, 1944,<SUP>(6)</SUP> Speaker Sam Rayburn, of Texas, laid
before the House a communication from the President of the United
States, the Honorable Franklin D. Roosevelt, transmitting a
communication from the President of the Philippines advising the
President of the appointment of Colonel Carlos P. Romulo, as Resident
Commissioner of the Philippines.
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6. 90 Cong. Rec. 7102, 78th Cong. 2d Sess.
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Parliamentarian's Note: The Philippine Government was sitting in
Washington due to Japanese occupation of the Islands.