[Deschler's Precedents]
[From the U.S. Government Printing Office via GPO Access]
[DOCID:52093c02_txt-6]
[Page 112-127]
CHAPTER 2
Enrolling Members; Administering the Oath
Sec. 5. Administering the Oath
The Constitution requires, at article 6, clause 3, that every
Senator and every Representative swear or affirm to uphold the
Constitution of the United States. Since neither the form, nor the
procedure of administration, nor the time of administration of the oath
of office are specified by constitutional provisions, they are all
regulated by statute. The form of the oath taken by Members-elect (the
same oath taken by the Speaker and officers of the House)<SUP>(5)</SUP>
has undergone revision
[[Page 113]]
since the first Congress,<SUP>(6)</SUP> and now reads as followings:
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5. 2 USC Sec. 26 requires the oath of the Speaker and Clerk as well as
of Members. The form of the oath prescribed for an individual
elected or appointed to an office in the civil service or
uniformed service appears at 5 USC Sec. 3331. If a new Speaker
is elected after the organization of the House, and after he
has taken the oath of office as a Member, he nevertheless must
be administered the oath again as Speaker. See 1 Hinds'
Precedents Sec. 225.
6. The first oath of office was worded, by the Act of June 1, 1789,
Ch. 1, 1 Stat. 23, as follows: ``I, A. B., do solemnly swear or
affirm (as the case may be) that I will support the
Constitution of the United States.'' National sentiment in the
wake of the Civil War lead to a new oath, under the Act of July
2, 1862, Ch. 128, 12 Stat. 502, which disqualified for a
congressional seat any person with a past record of disloyalty
to the United States (disloyalty was exhaustively defined
within the wording of that oath). Pursuant to the ratification
of the Fourteenth Amendment (whose clause 3 disqualified, among
others, past supporters of the Confederate cause, with a
provision for removal of such disqualification), Congress
provided in the Act of July 11, 1868, Ch. 129, 15 Stat. 85, for
a specific oath to be taken by those who ``participated in the
late rebellion'' but whose disability for membership in
Congress had been removed by an act of Congress. The 1868 act
contained the form of the oath that is used today. Finally, the
Act of May 13, 1884, Ch. 46, 23 Stat. 22, repealed all of the
lengthy and disqualifying 1862 oath and provided for the 1868
oath to be thenceforth applicable to all officers of the United
States government save the President. Further minor revisions,
now incorporated in 5 USC Sec. 3331, were added by the Act of
Sept. 6, 1966, Pub. L. 89-554, 80 Stat. 424.
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I, AB, do solemnly swear (or affirm) that I will support and
defend the Constitution of the United States against all enemies,
foreign and domestic; that I will bear true faith and allegiance to
the same; that I take this obligation freely, without any mental
reservation or purpose of evasion; and that I will well and
faithfully discharge the duties of the office on which I am about
to enter. So help me God.
Since appearing to be sworn is a mandatory step to bestow full
membership on persons elected to Congress, there has been some debate
on whether the requirement can be construed as a ``qualification'' for
membership, with Congress determining whether that qualification has
been met.<SUP>(7)</SUP> But
[[Page 114]]
no precedents grant to the taking of the oath the status of a
constitutional qualification whereby the House becomes the judge of the
willingness and sincerity of the Member taking it. The United States
Code (2 USC) Sec. 25) provides that the oath be administered to the
Speaker, and by him to the Members and Delegates present and to the
Clerk, ``previous to entering on any other business. . . .'' Although
that statute has been considered directory and not mandatory as to the
general sequence of events at organization,<SUP>(8)</SUP> the oath is
always administered first to the Speaker (immediately after his
election) and then to the Members-elect.<SUP>(9)</SUP>
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7. See Ch. 7, infra, wherein is discussed the limits on the power of
the House to exclude a Member-elect for disloyalty.
For a recent general statement on the oath as bestowing
membership, see Sec. 2.1, supra. As to the responsibility of
governmental officials who have omitted to take the required
oath, one federal court stated that where such an official has
been elected or appointed and has discharged his duties, he
would be estopped to deny his right to the office if prosecuted
for an offense committed in the discharge of duties. ``[I]t is
not probable that a failure to take the oath would affect the
acts of one who is by the [United States] Senate actually
admitted to a seat therein, and who actually exercises the
functions of that office, or that it would constitute any
defense to a prosecution for a criminal offense . . . committed
during his incumbency of the office.'' U.S. v Dietrich, 126 F
676, 681, 682 (C.C. Neb. 1904) (dicta). In some Congresses,
Members have taken seats and discharged their functions without
taking the oath for months afterwards; see, for example, 1
Hinds' Precedents Sec. 185. In current practice, Members-elect
take the oath as soon as they appear. See Sec. Sec. 5.13-5.16,
infra.
8. See Ch. 1, Sec. 7, supra, for the traditional sequence of events
based on the statutory language.
9. See Ch. 1, Sec. 7.1, supra.
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In contemporary practice, the Members are sworn in all at one time,
after the Speaker directs them to rise for that purpose.<SUP>(10)</SUP>
If a challenge is to be made to the right of a Member-elect to be
sworn, it is made after the Speaker directs the Members (and the
Delegates and the Resident Commissioner)<SUP>(11)</SUP> to rise to take
the oath.<SUP>(12)</SUP> Where Members-elect are absent on opening day,
the House may authorize the Speaker himself or a deputy to be appointed
by him to administer the oath to such absentees away from the
House.<SUP>(13)</SUP> After the Speaker, or the deputy appointed by
him,<SUP>(14)</SUP>
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informs the House that the oath has been administered in
absentia,<SUP>(15)</SUP> the House adopts a resolution accepting the
administration of the oath to the missing Member-elect.<SUP>(16)</SUP>
On occasion, the Speaker pro tempore may be authorized by the House to
administer the oath when the Speaker is absent,<SUP>(17)</SUP> but this
procedure is rarely followed because of the explicit statutory
directive to the Speaker.<SUP>(18)</SUP> Where the Speaker's office
becomes vacant during a Congress, the oath cannot be administered to
Members-elect until after a new Speaker is elected.<SUP>(19)</SUP>
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10. See Sec. 5.1, infra, for the modern practice and for a discussion
of the former method of administering the oath by states.
11. Since the Resident Commissioner is elected for a four-year term, as
opposed to Members and Delegates, he rises to take the oath
only at the beginning of that term, and not at the convening of
the second Congress for which elected. See Sec. 5.4, infra.
12. See Sec. 6.1, infra.
13. See Sec. Sec. 5.8, 5.9, 5.11, infra. Although the statute directing
the administration of the oath to Members-elect only designates
the Speaker as the proper official, the House has decided that
it has constitutional power to authorize a ``Deputy'' to
administer the oath as well as to perform other functions of
the Speaker. See 1 Hinds' Precedents Sec. 170.
14. While the Speaker has discretion to select a deputy, by custom a
Member of the House is appointed, unless inexpedient, in which
case an official authorized to administer oaths is appointed. 1
Hinds' Precedents Sec. Sec. 14-16. See Sec. 5.11, infra (state
supreme court justice appointed).
15. See Sec. Sec. 5.8, 5.10, 5.12, infra.
16. See Sec. Sec. 5.8, 5.10, 5.12, infra.
17. See Sec. 5.2, infra.
18. Only on rare occasions has the oath been administered to Members-
elect, in the Speaker's absence, by a Speaker pro tempore (see
Sec. 5.2, infra and 6 Cannon's Precedents Sec. 20).
19. See Sec. 5.3, infra.
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On occasion, it is necessary to administer the oath individually to
Members who are not present for the en masse swearing in ceremony; by
statute, such Members-elect may not take their seats until they are
sworn.<SUP>(20)</SUP> The administration of the oath to individual
Members is a privileged matter, and takes precedence over other
business.<SUP>(1)</SUP> Administering the oath is in order after the
previous question is ordered on a pending question,<SUP>(2)</SUP>
during debate on a resolution, <SUP>(3~)</SUP> and on a day when no
other business is permitted.<SUP>(4)</SUP>
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20. 2 USC Sec. 25. For the procedure of administering the oath to
detained Members-elect, see Sec. Sec. 5.13, 5.14, infra.
1. See House Rules and Manual Sec. 233 (comment) (1973). The right of
Members-elect to seats and questions incidental thereto,
including oath administration, are raised under the privilege
of the House itself and not as a matter of personal privilege.
See Cannon's Procedure in the House of Representatives, H. Doc.
No. 122, p. 284, 86th Cong. 1st Sess. (1959).
The administration of the oath takes precedence over even
the privileged motion to adjourn (see 1 Hinds' Precedents
Sec. 622).
2. See Sec. 5.17, infra.
3. See Sec. 5.18, infra.
4. See Sec. 5.19, infra (adjournment out of respect to deceased
Member).
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In some instances, the House authorizes the administration of the
oath by resolution, as where the right to be sworn has been challenged
or where no credentials have been received for the Member-elect. Some
such resolutions have included provisions collateral to the actual
administration of the oath, such as condi
[[Page 116]]
tions of punishment<SUP>(5)</SUP> or conditions that the final right to
the seat be referred to committee.<SUP>(6)</SUP>
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5. See Sec. 5.7, infra.
6. For resolutions relating to challenges and the right to seats, see
Sec. 6, infra.
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In former times, there existed no documentary evidence of the fact
that the oath had been administered to an individual Member-elect. A
Member-elect might state that he had taken the oath, and his
declaration would be the sole evidence thereof.<SUP>(7)</SUP> To remedy
that situation, Congress has by law provided for official copies of the
oath of office taken by a Member-elect, to be accorded conclusive
evidentiary weight, and required that a record of all those subscribing
to the oath be printed in both the Journal and in the Congressional
Record.<SUP>(8)</SUP> The single aim of the enactment was to ``provide
a way by which any Member of the House could establish by record
evidence the fact that he took the oath of office and so became a
Member.<SUP>(9)</SUP>
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7. See, for example, the confusing situation created at the beginning
of the 79th Congress, when several Members who were absent for
the calling of the Clerk's roll were present for the swearing
in ceremonies (Sec. 5.20, infra). An early oath provision, the
Act of July 2, 1862, Ch. 128, 12 Stat. 502, required a signed
oath to be preserved in the House files, but the practice was
seldom followed (see 1 Hinds' Precedents Sec. 128). Currently,
5 USC Sec. 2906, enacted in 1966, specifically requires such
preservation by the House.
8. For the form in which the oath administration is recorded in the
Journal and in the Record, see Sec. 5.21, infra. The
authorizing provision which Congress enacted in 1948 (Act of
Feh. 18, 1948, Ch. 53, 62 Stat. 20) appears as the second
paragraph of 2 USC Sec. 25.
9. 2 U.S. Code Cong. Serv. p. 1048 (1948).
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The only persons entitled to be administered the oath on opening
day are those whose names appear on the Clerk's roll, with the
exclusion of those whose right to take the oath is
challenged;<SUP>(10)</SUP> as stated above, the House may add the names
of those Members whose credentials have not appeared but about whose
election there is no contest or question.<SUP>(11)</SUP> Members-elect
entitled to take the oath may, however, decline or refuse to do so, by
resigning before taking a seat in the House,<SUP>(12)</SUP> since
membership in (Congress
[[Page 117]]
cannot be imposed on one without his consent.<SUP>(13)</SUP> A Member-
elect may be permitted to defer his taking of the oath, without
declining his seat, until such time that he meets qualifications not
theretofore met.<SUP>(14)</SUP> However, the House may determine a
Member's seat vacant if he is not qualified at the time of
convening.<SUP>(15)</SUP>
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10. The oath is administered to ``Members and Delegates present''
previous to their taking their seats. 2 USC Sec. 25. U.S.
Const. art. VI, clause 3 requires the taking of the oath by
``Representatives before mentioned.''
11. See Sec. 3.5, infra.
12. See 1 Hinds' Precedents Sec. Sec. 1230-35 for past instances of
declination to take the oath by resignation.
13. See U.S. v Dietrich, 126 F 676, 681 (C. C. Neb. 1904), holding,
inter alia, that a person elected a U.S. Senator is not a
``Member of Congress'' until he has been accepted by the Senate
as a Member and until he has voluntarily assumed the duties of
his office, including the taking of the oath.
14. See Sec. 2.5, supra.
15. See 1 Hinds' Precedents Sec. 500.
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A few notable distinctions may be drawn between the administration
of the oath of office in the House and in the Senate. Under Senate
practice, Senators-elect are sworn in four at a time, in alphabetical
order and not by state.<SUP>(16)</SUP> And the Senate rarely authorizes
the administration of the oath to an absent Senator-elect away from the
Chamber.<SUP>(17)</SUP> In addition, there is no provision according
evidentiary weight to certified copies of the oath of office taken by
Senators-elect, nor is there any statutory provision directing the
sequence of the administration of the oath in relation to other
business. The United States Code merely provides that the oath of
office shall be administered by the President of the Senate to each
Senator-elect, previous to his taking his seat.<SUP>(18)</SUP>
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16. See Sec. 5.23, infra.
17. See Sec. 5.24, infra, for instances wherein the Secretary of the
Senate was authorized to administer the oath to a Senator-elect
in his home state.
18. 2 USC Sec. 21. -------------------
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Administering Officer; Time of Administration
Sec. 5.1 In contemporary practice, immediately following the election
of the Speaker of a new Congress, he swears in Members-elect all at
one time.
On Jan. 5, 1937, the opening day of the 75th
Congress,<SUP>(1)</SUP> after the election of Speaker William B.
Bankhead, of Alabama, he made the following announcement:
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1. 81 Cong. Rec. 12, 75th Cong. 1st Sess.
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Some years ago a precedent which had theretofore existed of
having the oath administered to Members by States was discontinued
and a precedent set whereby all Members took the oath of office at
one and the same time. In order to avoid confusion the Chair thinks
it best to follow the latter precedent, and the Chair asks each
Member of the House and each Delegate to rise in his place while
the Chair administers the oath of office.
[[Page 118]]
The practice preferred by Speaker Bankhead has been followed from
the 71st Congress to the present.<SUP>(2)</SUP>
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2. House Rules and Manual Sec. 230 (comment to U.S. Const. art. VI,
clause 3) (1973) The ``latter precedent'' referred to,
beginning the prevailing practice of swearing in Members and
Delegates all at one time, occurred on Apr. 15, 1929, as an
innovation by Speaker Nicholas Longworth (Ohio). 71 Cong. Rec.
25, 71st Cong. 1st Sess. (paraphrased at 6 Cannon's Precedents
Sec. 8).
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Sec. 5.2 The House has authorized, by unanimous consent, the Speaker
pro tempore to administer the oath of office to a Member-elect in
the absence of the Speaker.
On Mar. 12, 1940,<SUP>(3)</SUP> the House authorized Speaker pro
tempore Sam Rayburn, of Texas, who had been appointed for three
legislative days by Speaker Bankhead on Mar. 11, to administer the oath
of office to Mr. Robert K. Goodwin, of Iowa, in the absence of the
Speaker, after the receipt of a certificate of election of Mr.
Goodwin.<SUP>(4)</SUP>
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3. 86 Cong. Rec. 2724, 76th Cong. 3d Sess.
4. Apparently on only one other occasion has the oath been
administered to an individual Member-elect in the absence of
the Speaker by consent of the House (see 6 Cannon's Precedents
Sec. 20).
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Sec. 5.3 Where the Speaker dies during the term of a Congress, the oath
cannot be administered to Members-elect to fill vacancies until
after a new Speaker is elected.
On Jan. 10, 1962,<SUP>(5)</SUP> the House convened for the second
session after the Speaker, Sam Rayburn, of Texas, had died during the
adjournment sine die. The House immediately proceeded to the election
of Speaker John W. McCormack, of Massachusetts, who then administered
the oath of office to several Representatives-elect to fill vacancies.
The Members-elect had not been included on the roll to establish a
quorum or to elect a Speaker.<SUP>(6)</SUP>
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5. 108 Cong. Rec. 5-7, 87th Cong. 2d Sess.
6. Where there exists a vacancy in the Speaker's office, there is no
official authorized to administer the oath to Members-elect.
See 2 USC Sec. 25 and 1 Hinds' Precedents Sec. 170.
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Administration to Resident Commissioner
Sec. 5.4 A Resident Commissioner elected to the House for a four year
term takes the oath of office only once, at the beginning of his
term of office.
On Jan. 21, 1971,<SUP>(7)</SUP> the opening day of the 92d
Congress, the Resi
[[Page 119]]
dent Commissioner from Puerto Rico, Mr. Jorge L. Cordova, did not arise
to take the oath of office en masse with the Members-elect, as he had
taken the oath at the beginning of his four-year term, with the
commencement of the 91st Congress.<SUP>(8)</SUP>
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7. 117 Cong Rec. 13, 92d Cong. 1st Sess.
8. 115 Cong. Rec. 15, 91st Cong. 1st Sess.
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Resolutions Authorizing Oath Administration
Sec. 5.5 When a Member offers a resolution authorizing the Speaker to
administer the oath to a challenged Member before the adoption of
the rules, no amendments are in order unless the Member in control
yields for that purpose or the previous question is rejected.
On Jan. 4, 1965,<SUP>(9)</SUP> Mr. Carl Albert, of Oklahoma,
offered the following resolution:
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9. 111 Cong. Rec. 20, 89th Cong. 1st Sess.
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Resolved, That the Speaker is hereby authorized and directed to
administer the oath of office to the gentleman from New York, Mr.
Richard L. Ottinger.
In response to two parliamentary inquiries by Mr. James C.
Cleveland, of New Hampshire, Speaker John W. McCormack, of
Massachusetts, ruled: the pending resolution was not subject to
amendment unless Mr. Albert yielded for that purpose; and unless Mr.
Albert yielded there would be no opportunity to discuss the merits of
the case prior to the vote on the resolution.
The previous question was ordered and the resolution was agreed to.
Immediately after adoption of the resolution, the challenged Member
appeared at the bar of the House and took the oath of
office.<SUP>(10)</SUP>
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10. Under general parliamentary law, employed by the House before the
adoption of rules (applicable in this instance), the 40 minutes
debate permitted under Rule XXVII clause 3 [House Rules and
Manual Sec. 907 (1971)] after the ordering of the previous
question on a debatable proposition is not in order. See Ch.1
Sec. 9, supra.
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Sec. 5.6 An amendment providing for conditions of punishment is not
germane to a resolution authorizing the administration of the oath
of office to a Member-elect.
On Jan. 3, 1969,<SUP>(11)</SUP> Speaker John W. McCormack, of
Massachusetts, ruled not germane, to a resolution providing that the
Speaker administer the oath of of
[[Page 120]]
fice to Mr. Adam Clayton Powell, Jr., of New York, an amendment adding
several conditions of punishment predicated on acts committed in a
prior Congress.
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11. 115 Cong. Rec. 23-25, 91st Cong. 1st Sess.
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Sec. 5.7 On one occasion, a Representative-elect was administered the
oath of office pursuant to a resolution authorizing the
administration of the oath, but providing for a fine to be deducted
on a monthly basis, reducing seniority to that of a new Member, and
specifying that the Representative-elect must take the oath by a
certain date or his seat would be declared vacant.
On Jan. 3, 1969, Representative-elect Adam Clayton Powell, Jr., of
New York, appeared in the well and was administered the oath of office
as a Member of the 91st Congress,<SUP>(~2)</SUP> subsequent to the
adoption by the House of a resolution authorizing such administration
of the oath, but including other provisions as follows:
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12. 115 Cong. Rec. 33, 34, 91st Cong. 1st Sess.
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H. Res. 2
Resolved--
(1) That the Speaker administer the oath of office to the said
Adam Clayton Powell, Member-elect from the Eighteenth District of
the State of New York.
(2) That as punishment Adam Clayton Powell be and he hereby is
fined the sum of $25,000, said sum to be paid to the Clerk to be
disposed of by him according to law. The Sergeant-at-Arms of the
House is directed to deduct $1,150 per month from the salary
otherwise due the said Adam Clayton Powell, and pay the same to
said clerk until said $25,000 fine is fully paid.
(3) That as further punishment the seniority of the said Adam
Clayton Powell in the House of Representatives commence as of the
date he takes the oath as a Member of the 91st Congress.
(4) That if the said Adam Clayton Powell does not present
himself to take the oath of office on or before January 15, 1969,
the seat of the Eighteenth District of the State of New York shall
be deemed vacant and the Speaker shall notify the Governor of the
State of New York of the existing vacancy.
Administration to Absentees
Sec. 5.8 The Speaker informs the House of the fact that he has
administered the oath of office to an absent Member-elect pursuant
to an order of the House, whereupon a resolution is offered
accepting such oath.
On Mar. 13, 1933,<SUP>(13)</SUP> Speaker Henry T. Rainey, of
Illinois, informed the House that he had ad
[[Page 121]]
ministered the oath of office to absent Member-elect Wilburn
Cartwright, of Oklahoma, as authorized by House Resolution 36. The
House then adopted the following resolution:
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13. 77 Cong. Rec. 283, 73d Cong. 1st Sess.
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Whereas Wilburn Cartwright, a Representative from the State of
Oklahoma, has been unable from sickness to appear in person to be
sworn as a Member of this House, but has sworn to and subscribed
the oath of office before the Speaker, authorized by resolution of
this House to administer the oath, and the said oath of office has
been presented in his behalf to the House, and there being no
contest or question as to his election: Therefore
Resolved, That the said oath be accepted and received by the
House as the oath of office of the said Wilburn Cartwright as a
Member of this House.
Administration by Deputies
Sec. 5.9 When authorized by resolution to designate deputies to
administer the oath of office to absent Members-elect, the Speaker
usually appoints as deputies Members of the House from the home
states of the absentees.
On Jan. 8, 1937,<SUP>(14)</SUP> Speaker William B. Bankhead, of
Alabama, announced that pursuant to authorizing resolutions, he had
appointed Mr. Schuyler O. Bland, of Virginia, to administer the oath of
office to Mr. Andrew J. Montague, of Virginia, Mr. William J. Driver,
of Arkansas, to administer the oath of office to Mr. William B.
Cravens, of Arkansas, and Mr. Clarence F. Lea, of California, to
administer the oath of office to Mr. Henry E. Stubbs, of California.
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14. 81 Cong. Rec. 133, 75th Cong. 1st Sess.
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Sec. 5.10 A Member designated by the Speaker to administer the oath of
office to an absent Member-elect informs the House when he has
performed that duty and offers a resolution accepting the oath.
On Jan. 20, 1943,<SUP>(15)</SUP> Mr. Edward J. Hart, of New Jersey,
made the following report to the House:
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15. 89 Cong. Rec. 245, 246, 78th Cong. 1st Sess.
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Mr. Speaker,<SUP>(16)</SUP> in accordance with your designation
of me, pursuant to House Resolution 45, Seventy-eighth Congress,
adopted by the House of Representatives, to administer the oath of
office to Representative-elect Mary T. Norton, of the Thirteenth
District of New Jersey, I have the honor to report that on the 16th
day of January 1943, at Jersey City, N.J., I adminis
[[Page 122]]
tered the oath of office to Mrs. Norton, form prescribed by section
1757 of the Revised Statutes of the United States, being the form
of oath administered to Members of the House of Representatives, to
which Mrs. Norton subscribed.
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16. Speaker Sam Rayburn (Tex.).
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Mr. Hart then offered a resolution providing that the House accept
the oath so administered to the absent Member-elect.
Sec. 5.11 The Speaker may designate officers of the state judiciary to
administer the oath to absent Members-elect.
On Jan. 7, 1959,<SUP>(17)</SUP> the Clerk read the following
statement of Speaker Sam Rayburn, of Texas:
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17. 105 Cong. Rec. 16, 86th Cong. 1st Sess.
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Pursuant to the authority of House Resolution 11, 86th
Congress, the Chair appoints the Honorable Donald Stephen Taylor,
Justice of the Supreme Court of New York, Troy, N.Y., to administer
the oath of office to the Honorable Dean P. Taylor.
Sec. 5.12 A non-Member named by the Speaker to administer the oath of
office to an absent Member-elect informs the House when he has
performed that duty, whereupon the House adopts a resolution
receiving and accepting such oath.
On Mar. 21, 1933,<SUP>(18)</SUP> there was laid before the House a
communication from Judge Blanton Fortson, of the Western Judicial
Circuit, Athens, Georgia, informing the House that he had administered
the oath of office to Mr. Charles H. Brand, of Georgia, in Athens,
Georgia, pursuant to House Resolution 37 and pursuant to the
designation by Speaker Henry T. Rainey, of Illinois, of Judge Fortson
to administer the oath to the absent Member-elect. The House then
adopted the following resolution:
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18. 77 Cong. Rec. 660, 73d Cong. 1st Sess.
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Whereas Charles H. Brand, a Representative from the State of
Georgia, from the tenth district thereof, has been unable from
sickness to appear in person to be sworn as a Member of this House,
but has sworn to and subscribed the oath of office before Judge
Blanton Fortson, authorized by resolution of this House to
administer the oath, and the said oath of office has been presented
in his behalf to the House, and there being no contest or question
as to his election: Therefore
Resolved, That the said oath be accepted and received by the
House as the oath of office of the said Charles H. Brand as a
Member of this House.
Administration to Delayed Members
Sec. 5.13 Members arriving too late on opening day to take the oath en
masse are administered the oath as they appear at the bar of the
House for that purpose.
[[Page 123]]
On Jan. 3, 1945,<SUP>(19)</SUP> Speaker Sam Rayburn, of Texas, made
the following statement, on opening day, in relation to detained
Members:
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19. 91 Cong. Rec. 14, 79th Cong. 1st Sess.
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The Members who have not taken the oath of office will present
themselves in the well of the House and all others will clear the
well of the House.
Sec. 5.14 Members-elect who appear subsequent to the day other Members-
elect are sworn in present themselves in the well of the House and
the Speaker administers the oath to them.
On Jan. 13, 1953,<SUP>(20)</SUP> ten days after the opening of the
83d Congress, two House Members-elect who had not yet taken the oath of
office presented themselves in the well of the House and were
administered the oath.
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20. 99 Cong. Rec. 368, 83d Cong. 1st Sess.
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Sec. 5.15 When a term of a Member began on Jan. 3, 1943, he did not
receive the oath of office until Sept. 14, 1943, due to illness.
On Sept. 14, 1943,<SUP>(1)</SUP> Speaker Sam Rayburn, of Texas,
administered the oath of office to Representative-elect Lawrence Lewis,
of Colorado, whose term of office commenced with the beginning of the
78th Congress on Jan. 3, 1943. Mr. Lewis was absent due to illness.
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1. 89 Cong. Rec. 7549, 78th Cong. 1st Sess.
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Sec. 5.16 A Member announced, for the information of constituents, that
an absent Member-elect would be delayed in taking the oath because
of his duties as a naval officer overseas.
On Jan. 4, 1945,<SUP>(2)</SUP> Mr. John Taber, of New York, made
the following announcement:
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2. 91 Cong. Rec. 34, 79th Cong. 1st Sess.
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Mr. Speaker,<SUP>(3)</SUP> Henry J. Latham was elected to
Congress from the Third District of New York last November. He is a
lieutenant in the Navy, and was at that time, and is now, on duty
in the far Pacific. He will not be able to return to this country
to be sworn in until the month of February. I feel, in justice to
his constituents, that I should make this announcement at this
time.
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3. Speaker Sam Rayburn (Tex.).
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Privilege of Oath Administration
Sec. 5.17 Administration of the oath of office to a Member-elect is a
matter of high privilege and is in order after the previous
question is
[[Page 124]]
ordered on a pending question.
On Oct. 3, 1969,<SUP>(4)</SUP> after the previous question had been
ordered on a bill reported from the Committee of the Whole, Mr. Carl
Albert, of Oklahoma, asked that a Member-elect be permitted to take the
oath of office at that time. The request was granted, and Speaker John
W. McCormack, of Massachusetts, administered the oath to Mr. Michael J.
Harrington, Representative-elect from Massachusetts to fill a vacancy.
Since Mr. Harrington's certificate of election had not yet arrived, the
administration of the oath was authorized by unanimous consent.
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4. 115 Cong. Rec. 28487, 91st Cong. 1st Sess.
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Sec. 5.18 On one occasion, debate on a resolution reported from the
Committee on Rules was interrupted to allow a new Member to take
the oath of office.
On Dec. 24, 1963,<SUP>(5)</SUP> debate on a privileged resolution
reported from the Committee on Rules and making in order a conference
report was interrupted to allow Mr. James J. Pickle, of Texas, to take
the oath of office.
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5. 109 Cong. Rec. 25526, 88th Cong. 1st Sess.
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Sec. 5.19 Administration of the oath of office to a Member-elect was
the only business permitted on the day of the death of the Chairman
of the Committee on Appropriations.
On May 12, 1964,<SUP>(6)</SUP> the day on which Mr. Clarence A.
Cannon, of Missouri, passed away in the early morning hours, the only
item of business permitted was the administration of the oath to Mr.
William J. Green III, of Pennsylvania.
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6. 110 Cong. Rec. 10695, 88th Cong. 2d Sess.
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Form; Record Evidence of Administration
Sec. 5.20 Where various Members, detained on opening day, were absent
for the roll call but were present for the swearing in of Members
en masse, the Speaker stated that he would accept the statement of
any Member declaring that he was present for the swearing-in
ceremony; this was permitted prior to the 1948 amendments to 2 USC
Sec. 25, establishing record evidence of swearing-in ceremonies.
On Jan. 3, 1945, after Speaker Sam Rayburn, of Texas, had accepted
the statements of several Members that they were present
[[Page 125]]
for the swearing-in ceremony, but were absent for the roll call due to
late trains,<SUP>(7)</SUP> the Speaker made a statement on the subject
pursuant to a parliamentary inquiry by Mr. Harold Knutson, of
Minnesota:<SUP>(8)</SUP>
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7. 91 Cong. Rec. 14, 79th Cong. lst Sess.
8. 91 Cong. Rec. 16, 79th Cong. 1st Sess.
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Mr. Knutson: Mr. Speaker, a number of Members were not in the
city at the time the roll call was had but were here in time to be
sworn in. What is their status?
The Speaker: The Chair has sworn in quite a number of Members
since the roll was called.
Mr. Knutson: They were sworn in but the Record does not show
that they were here.
The Speaker: If any Member says he was here at the time of the
swearing in, the Chair will take his statement for it.
Sec. 5.21 The form of the oath and the record of subscription to the
oath of office, as specified by law, appear in the Congressional
Record and in the Journal of the House.
In the 91st Congress, the record of the subscription to the oath by
Members was printed in the Record of Feb. 18, 1969, as follows:
The oath of office required by the sixth article of the
Constitution of the United States, and as provided by section 2 of
the act of May 13, 1884 (23 Stat. 22), to be administered to
Members and Delegates of the House of Representatives, the text of
which is carried in section 1757 of title XIX of the Revised
Statutes of the United States and being as follows:
I, A B, do solemnly swear (or affirm) that I will support
and defend the Constitution of the United States against all
enemies, foreign and domestic; that I will bear true faith and
allegiance to the same; that I take this obligation freely,
without any mental reservation or purpose of evasion; and that
I will well and faithfully discharge the duties of the office
on which I am about to enter. So help me God.
has been subscribed to in person and filed in duplicate with the Clerk
of the House of Representatives by each of the following Members and
Resident Commissioner of the 91st Congress, pursuant to Public Law 412
of the 80th Congress entitled ``An act to amend section 30 of the
Revised Statutes of the United States'' (U.S.C., title 2, sec. 25),
approved February 18, 1948. . . .<SUP>(9)</SUP>
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9. 115 Cong. Rec. 3788, 91st Cong. 1st Sess., Feb. 18, 1969; H. Jour.
269, 91st Cong. 1st Sess. (1969).
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Sec. 5.22 Copies of the signed oath of office executed by House Members
cannot be mandated by the process of ordinary courts without the
permission of the House of Representatives.
[[Page 126]]
On Jan. 9, 1959,<SUP>(10)</SUP> the House was informed by the Clerk
of a subpoena from the United States District Court for the Middle
District of Pennsylvania, in the case of United States v John P.
Gilroy, Jr., et al., No. 12880, criminal, commanding the Clerk of the
House to appear before the court with certified copies of the signed
oaths of offices executed by a certain Congressman. In response, the
House adopted a resolution stating that under the privilege of the
House no evidence of a documentary character under the control and in
the possession of the House of Representatives could be mandated by
process of the ordinary courts without the permission of the House. The
resolution further stated that the House would permit the production of
certified copies of the oath of office, along with other papers,
pursuant to a determination by the court upon the materiality and the
relevancy of the papers and documents called for in the subpoena duces
tecum.
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10. 105 Cong. Rec. 363, 86th Cong. 1st Sess.
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Senate Procedure
Sec. 5.23 In Senate practice, the oath of office is administered to
four Senators at a time in alphabetical order; each four Senators
are accompanied to the desk by four other Senators.
On Jan. 3, 1953,<SUP>(11)</SUP> Vice President Alben W. Barkley, of
Kentucky, announced as follows:
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11. 99 Cong. Rec. 7, 83d Cong. 1st Sess.
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The Secretary will now call, alphabetically, and in groups of
four, the names of the Senators-elect who as their names are called
will advance to the desk and the oath of office will be
administered to them.
The legislative clerk called the names of the first four Senators,
who were escorted to the desk by four other Senators.
Sec. 5.24 Although the House regularly authorizes the administration of
the oath to absent Members-elect, the Senate has done so only on
rare occasions, one occurring since 1936.
On many occasions, the House authorizes the administration of the
oath at the beginning of a new Congress to absentees, either by the
Speaker himself or through deputies.<SUP>(12)</SUP> The Senate,
however, has provided such authorization on only two recorded
occasions, the first on May 3, 1929,<SUP>(13)</SUP> and
[[Page 127]]
the second on Jan. 3, 1973, when the Secretary of the Senate was
authorized by resolution to administer the oath of office to Senator-
elect Joseph R. Biden, of Delaware, absent because of a death in his
family.<SUP>(14)</SUP>
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12. See Sec. Sec. 5.8, 5.9, and 5.11, supra. See also 6 Cannon's
Precedents Sec. Sec. 14-16.
13. 71 Cong. Rec. 833, 71st Cong. 1st Sess.
14. 119 Cong. Rec. 9, 93d Cong. 1st Sess.
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