[110th Congress House Rules Manual -- House Document No. 109-157]
[From the U.S. Government Printing Office Online Database]
[DOCID:hruletx-2]
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ARTICLE I.
Section 1. All <<NOTE: Sec. 3. Legislative powers vested in
Congress.>> legislative Powers herein granted shall be vested in a
Congress of the United States, which shall consist of a Senate and House
of Representatives.
The power to legislate includes the power to conduct inquiries and
investigations. See Kilbourn v. <<NOTE: Sec. 4. Power to
investigate.>> Thompson, 103 U.S. 168 (1881); McGrain v. Daugherty, 273
U.S. 135 (1927); Watkins v. United States, 354 U.S. 178 (1957);
Barenblatt v. United States, 360 U.S. 109 (1959). For the power of the
House to punish for contempt in the course of investigations, see
Sec. 293, infra.
<<NOTE: Sec. 5. Members chosen by the people of the States every second
year.>> Section 2. \1\ The House of Representatives shall be composed
of Members chosen every second Year by the People of the several States,
* * *.
This clause requires election by the people and State authority may
not determine a tie by lot (I, 775).
The phrase ``by the people of the several States'' means that as
nearly as practicable one person's vote in a congressional election is
to be worth as much as another's. Wesberry v. Sanders, 376 U.S. 1
(1964); Kirkpatrick v. Preisler, 385 U.S. 450 (1967). 2 U.S.C. 2a
mandates apportionment of Representatives based upon population, and 2
U.S.C. 2c requires the establishment by the States of single-Member
congressional districts. For elections generally, see Deschler, ch. 8.
The term of a <<NOTE: Sec. 6. Term of a Congress.>> Congress, before
the ratification of the 20th amendment to the Constitution, began on the
4th of March of the odd numbered years and extended through two years.
This resulted from the action of the Continental Congress on September
13, 1788, in declaring, on authority conferred by the Federal
Convention, ``the first Wednesday in March next'' to be ``the time for
commencing proceedings under the said Constitution.'' This date was the
4th of March, 1789. Soon after the first Congress assembled a joint
committee determined that the terms of Representatives and Senators of
the first class commenced on that day, and must necessarily terminate
with the 3d of March, 1791 (I, 3). Under the 20th amendment to the
Constitution the terms of Representatives and Senators begin on the 3d
of January of the odd-numbered years, regardless of when Congress
actually convenes. By a practice having the force of common law, the
House meets at noon when no other hour is fixed (I, 4, 210). In the
later practice a
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resolution fixing the daily hour of meeting at noon or some other hour
is agreed to at the beginning of each session.
Before adoption of the 20th amendment, the legislative day of March 3
extended to noon on March 4 (V, 6694-6697) and, unless earlier
adjourned, the Speaker could at that time declare the House adjourned
sine die, without motion or vote, even to the point of suspending a roll
call then in progress (V, 6715-6718).
The Legislative Reorganization Act of 1970 (84 Stat. 1140) provides
that unless Congress otherwise specifies the two Houses shall adjourn
sine die not later than the last day in July. This requirement is not
applicable, under the terms of that Act, where a state of war exists
pursuant to a congressional declaration or where, in an odd-numbered
(nonelection) year, the Congress has agreed to adjourn for the month
preceding Labor Day. For more on this provision, see Sec. 1105, infra.
<<NOTE: Sec. 7. Electors of the House of Representatives.>> * * * and
the Electors in each State shall have the Qualifications requisite for
Electors of the most numerous Branch of the State Legislature.
The House, in the decision of an election case, has rejected votes
cast by persons not naturalized citizens of the United States, although
they were entitled to vote under the statutes of a State (I, 811); but
where an act of Congress had provided that a certain class of persons
should be deprived of citizenship, a question arose over the proposed
rejection of their votes in a State wherein citizenship in the United
States was not a qualification of the elector (I, 451). In an
exceptional case the House rejected votes cast by persons lately in
armed resistance to the Government, although by the law of the State
they were qualified voters (I, 448); but later, the House declined to
find persons disqualified as voters because they had formerly borne arms
against the Government (II, 879).
The power <<NOTE: Sec. 8. Decisions of the Court.>> of the States to
set qualifications for electors is not unlimited, being subject to the
15th, 19th, 24th, and 26th amendments, and to the equal protection
clause of the United States Constitution. Carrington v. Rash, 380 U.S.
89 (1965); Kramer v. Union Free School District, 395 U.S. 621 (1969).
Congress has some power in setting qualifications for electors, as in
protecting the right to vote and lowering the minimum age for electors
in congressional elections. Katzenbach v. Morgan, 384 U.S. 641 (1966);
Oregon v. Mitchell, 400 U.S. 112 (1970).
<<NOTE: Sec. 9. Age as a qualification of the Representative.>> \2\ No
Person shall be a Representative who shall not have attained
to the Age of twenty five Years, * * *.
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A Member-elect not being of the required age, was not enrolled by the
Clerk and he did not take the oath until he had reached the required age
(I, 418).
<<NOTE: Sec. 10. Citizenship as a qualification of the Member.>> * * *
and been seven Years a Citizen of the United States, * * *.
Henry Ellenbogen, Pa., had not been a citizen for seven years when
elected to the 73d Congress, nor when the term commenced on March 4,
1933. He was sworn at the beginning of the second session on January 3,
1934, when a citizen for seven and one-half years (see H. Rept. 1431 and
H. Res. 370, 73d Cong.). A native of South Carolina who had been abroad
during the Revolution and on his return had not resided in the country
seven years, was held to be qualified as a citizen (I, 420). A woman who
forfeited her citizenship through marriage to a foreign subject and
later resumed it through naturalization less than seven years before her
election, was held to fulfill the constitutional requirement as to
citizenship and entitled to a seat in the House (VI, 184). A Member who
had long been a resident of the country, but who could not produce
either the record of the court nor his final naturalization papers, was
nevertheless retained in his seat by the House (I, 424).
<<NOTE: Sec. 11. Inhabitancy as a qualification of the Member.>> * * *
and who shall not, when elected, be an Inhabitant of that State in which
he shall be chosen.
The meaning of the word ``inhabitant'' and its relation to citizenship
has been discussed (I, 366, 434; VI, 174), and the House has held that a
mere sojourner in a State was not qualified as an inhabitant (I, 369),
but a contestant was found to be an actual inhabitant of the State
although for sufficient reason his family resided in another State (II,
1091). Residence abroad in the service of the Government does not
destroy inhabitancy as understood under the Constitution (I, 433). One
holding an office and residing with his family for a series of years in
the District of Columbia exclusively was held disqualified to sit as a
Member from the State of his citizenship (I, 434); and one who had his
business and a residence in the District of Columbia and had no business
or residence in Virginia was held ineligible to a seat from that State
(I, 436). One who had a home in the District of Columbia, and had
inhabited another home in Maryland a brief period before his election,
but had never been a citizen of any other State, was held to be
qualified (I, 432). Also a Member who had resided a portion of a year in
the District of Columbia, but who had a home in the State of his
citizenship and was actually living there at the time of the election,
was held to be qualified (I, 435). In the Updike v. Ludlow case, 71st
Congress, it was decided that residence in the District of Colum
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bia for years as a newspaper correspondent and maintenance there of
church membership were not considered to outweigh payment of poll and
income taxes, ownership of real estate, and a record for consistent
voting in the district from which elected (VI, 55), and in the same case
excuse from jury duty in the District of Columbia on a plea of
citizenship in the State from which elected and exercise of incidental
rights of such citizenship, were accepted as evidence of inhabitancy
(VI, 55).
Whether Congress <<NOTE: Sec. 12. Qualifications other than those
specified by the Constitution.>> may by law establish qualifications
other than those prescribed by the Constitution has been the subject of
much discussion (I, 449, 451, 457, 458, 478); but in a case wherein a
statute declared a Senator convicted of a certain offense ``forever
thereafter incapable of holding any office of honor, trust, or profit
under the Government of the United States,'' the Supreme Court expressed
the opinion that the final judgment of conviction did not operate, ipso
facto, to vacate the seat or compel the Senate to expel or regard the
Senator as expelled by force alone of the judgment (II, 1282). Whether
the House or Senate alone may set up qualifications other than those of
the Constitution has also been a subject often discussed (I, 414, 415,
443, 457, 458, 469, 481, 484). The Senate has always declined to act on
the supposition that it had such a power (I, 443, 483), and during the
stress of civil war the House of Representatives declined to exercise
the power, even under circumstances of great provocation (I, 449, 465).
But later, in one instance, the House excluded a Member-elect on the
principal argument that it might itself prescribe a qualification not
specified in the Constitution (I, 477). The matter was extensively
debated in the 90th Congress in connection with the consideration of
resolutions relating to the seating of Representative-elect Adam C.
Powell of New York (H. Res. 1, Jan. 10, 1967, p. 14; H. Res. 278, Mar.
1, 1967, p. 4997).
The exclusion of Mr. Powell was the subject of litigation reaching the
Supreme Court of the United States. In Powell v. McCormack, 395 U.S. 486
(1969), the Court found that the power of Congress to judge the
qualifications of its Members was limited to an examination of the
express qualifications stated in the Constitution.
It has been decided by the House and Senate that no State may add to
the qualifications prescribed by the Constitution (I, 414-416, 632); and
the Supreme Court so ruled in U.S. Term Limits, Inc., v. Thorton, 63
U.S.L.W. 4413 (1995). There, the Court held that States may not
``change, add to, or diminish'' constitutional qualifications of
Members, striking down a State statute prohibiting three-term incumbents
from appearing on the general election ballot. For qualifications
generally, see Deschler, ch. 7, Sec. Sec. 9-14.
For expulsion of seated Members, which requires a two-thirds vote
rather than a majority vote, see article I, section 5, clause 2
(Sec. 62, infra).
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Both Houses of <<NOTE: Sec. 13. Minority candidate not seated when
returned Member is disqualified.>> Congress have decided, when a Member-
elect is found to be disqualified, that the person receiving the next
highest number of votes is not entitled to the seat (I, 323, 326, 450,
463, 469; VI, 58, 59), even in a case wherein reasonable notice of the
disqualification was given to the electors (I, 460). In the event of the
death of a Member-elect, the candidate receiving the next highest number
of votes is not entitled to the seat (VI, 152).
\3\ [Representatives and direct <<NOTE: Sec. 14. The old provision for
apportionment of Representatives and direct taxes.>> Taxes shall be
apportioned among the several States which may be included within this
Union, according to their respective Numbers, which shall be determined
by adding to the whole Number of free Persons, including those bound to
Service for a Term of Years, and excluding Indians not taxed, three
fifths of all other Persons.] * * *
The part of this clause relating to the mode of apportionment of
Representatives was changed after the Civil War by section 2 of the 14th
amendment and, as to taxes on incomes without apportionment, by the 16th
amendment.
* * * The actual <<NOTE: Sec. 15. Census as a basis of
apportionment.>> Enumeration shall be made within three Years after the
first Meeting of the Congress of the United States, and within every
subsequent Term of ten Years, in such Manner as they shall by Law
direct. The Number of Representatives shall not exceed one for every
thirty Thousand, but each State shall have at Least one Representative;
and until such enumeration shall be made, the State of New Hampshire
shall be entitled to chuse three, Massachusetts eight, Rhode- Island and
Providence Plantations one, Connecticut five, New York six, New Jersey
four, Pennsylvania eight, Delaware one, Maryland
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six, Virginia ten, North Carolina five, South Carolina five, and Georgia
three.
The census has been taken decennially since 1790, and, with the
exception of 1920, was followed each time by reapportionment. In the
First Congress the House had 65 Members; increased after each census,
except that of 1840, until 435 was reached in 1913 (VI, 39, 40). The Act
of June 18, 1929 (46 Stat. 26), as amended by the Act of November 15,
1941 (55 Stat. 761), provides for reapportionment of the existing number
(435) among the States following each new census (VI, 41-43; see 2
U.S.C. 2a). Membership was temporarily increased to 436, then to 437,
upon admission of Alaska (72 Stat. 345) and Hawaii (73 Stat. 8), but
returned to 435 on January 3, 1963, the effective date of the
reapportionment under the 18th Decennial census.
Under the later but not the earlier practice, bills relating to the
census and apportionment are not privileged for consideration (I, 305-
308; VI, 48, VII, 889; Apr. 8, 1926, p. 7147).
Decisions <<NOTE: Sec. 16. Decisions of the Court.>> of the Supreme
Court of the United States: Dred Scott v. Sandford, 19 Howard, 393;
Veazie Bank v. Fenno, 8 Wall., 533; Scholey v. Rew, 23 Wall., 331; De
Treville v. Smalls, 98 U.S. 517; Gibbons v. District of Columbia, 116
U.S. 404; Pollock v. Farmers Loan & Trust Co. (Income Tax case), 157
U.S. 429; Pollock v. Farmers' Loan & Trust Co. (Rehearing), 158 U.S.
601; Thomas v. United States, 192 U.S. 363; Flint v. Stone Tracy Co.,
220 U.S. 107; Corporation Tax cases, 220 U.S. 107; Eisner v. Macomber,
252 U.S. 189; New York Trust Co. v. Eisner, 256 U.S. 345; Franklin v.
Massachusetts, 505 U.S. 788 (1992); Utah v. Evans, 536 U.S. 452 (2002).
\4\ When vacancies <<NOTE: Sec. 17. Writs for elections to vacancies
in representation.>> happen in the Representation from any State, the
Executive Authority thereof shall issue Writs of Election to fill such
Vacancies.
Vacancies are caused by death, resignation, declination, withdrawal,
or by action of the House in declaring a vacancy as existing or causing
one by expulsion. When a vacancy occurs, or when a new Member is sworn,
the Speaker announces the resulting adjustment in the whole number of
the House pursuant to clause 5(d) of rule XX (see Sec. 1024b, infra).
Clause 5(c) of rule XX permits the House to operate with a provisional
number of the House where the House is without a quorum due to
catastrophic circumstances (see Sec. 1024a, infra). In extraordinary
circumstances, section 8 of title 2, United States Code, prescribes
special election rules to expedite the filling of vacancies in
representation of the House.
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It was long the <<NOTE: Sec. 18. Vacancy from death.>> practice to
notify the executive of the State when a vacancy was caused by the death
of a Member during a session (II, 1198-1202); but since improvements in
transportation have made it possible for deceased Members to be buried
at their homes it has been the practice for State authorities to take
cognizance of the vacancies without notice. When a Member dies while not
in attendance on the House or during a recess the House is sufficiently
informed of the vacancy by the credentials of his successor, when they
set forth the fact of the death (I, 568). The death of a Member-elect
creates a vacancy, although no certificate may have been awarded (I,
323), and in such a case the candidate having the next highest number of
votes may not receive the credentials (I, 323; VI 152). A Member whose
seat was contested having died, the House did not admit a claimant with
credentials until contestant's claim was settled (I, 326); where a
contestant died after a report in his favor, the House unseated the
returned Member and declared the seat vacant (II, 965), and in a later
case the contestant having died, the committee did not recommend to the
House a resolution it had agreed to declaring he had not been elected
(VI, 112). In the 93d Congress, when two Members-elect were passengers
on a missing aircraft and were presumed dead, the Speaker laid before
the House documentary evidence of the presumptive death of one Member-
elect and the declaration of a vacancy by the Governor, as well as
evidence that the status of the other Member-elect had not been
officially determined by State authority. The House then adopted a
privileged resolution declaring vacant the seat of the latter Member-
elect to enable the Governor of that State to call a special election
(Jan. 3, 1973, p. 15). For further discussion, see Sec. 23, infra.
In recent practice <<NOTE: Sec. 19. Vacancy from resignation.>> the
Member frequently informs the House by letter that his resignation has
been sent to the State executive (II, 1167-1176) and this is
satisfactory evidence of the resignation (I, 567). However, Members have
resigned by letter to the House alone, it being presumed that the Member
would also notify his Governor (VI, 226). Where a Member resigned by
letter to the House the Speaker was authorized to notify the Governor
(Nov. 27, 1944, p. 8450; July 12, 1957, p. 11536; Sept. 1, 1976, p.
28887). Where a Member does not inform the House, the State executive
may do so (II, 1193, 1194; VI, 232). The House has, on occasion, learned
of a Member's resignation by means of the credentials of his successor
(II, 1195, 1356). Where the fact of a Member's resignation has not
appeared either from the credentials of his successor or otherwise, the
Clerk has been ordered to make inquiry (II, 1209) or the House has
ascertained the vacancy from information given by other Members (II,
1208).
It has been established that a Member or Senator may resign,
appointing a future date for his resignation to take effect, and until
the arrival of the date may participate in the proceedings (II, 1220-
1225, 1228, 1229; VI, 227, 228; Dec. 15, 1997, p. 26709; June 5, 2001,
p. 9882; Nov. 27,
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2001, p. 23006; Jan. 27, 2003, pp. 1750, 1751). It has been possible
even for a Member to resign a seat in the House to be effective on a
date following the anticipated date of a special election that might
fill the vacancy thereby created (Deschler, ch. 8, Sec. 9.3). However,
the State concerned must be willing to treat the prospective resignation
as a Constitutional predicate for the issuance of a writ of election to
fill a vacancy. For examples of resignation letters indicating that the
Executive of the State took cognizance of a prospective resignation,
see, January 8, 1952, (p. 14) (New York); July 9, 1991, (p. 17301)
(Virginia); June 5, 2001, (p. 9882) (Florida), and Jan. 27, 2003, (p.
1751) (Texas). When the Governor of Oklahoma received a prospective
resignation from one of its Members, the State provided by statute
(enrolled Senate Bill Number 7X) for the holding of a special election
before the effective date of the resignation (Feb. 28, 2002, p. 2245)).
For the State to take cognizance of a prospective resignation, it must
have assurances that there is no possibility of withdrawal (or
modification). In one case a Member who had resigned was not permitted
by the House to withdraw the resignation (II, 1213). However, the House
has allowed withdrawal in the case of defective resignation; that is,
where the Member had not actually transmitted the letter of resignation
(VI, 229), or had transmitted it to an improper state official (Oct. 9,
1997, p. 22020). A Member may include in a letter of prospective
resignation a statement of intention that the resignation be
``irrevocable'' in order to allay any concern about the prospect of
withdrawal (June 5, 2001, p. 9882).
Acceptance of the resignation of a Member of the House is unnecessary
(VI, 65, 226), and the refusal of a Governor to accept a resignation
cannot operate to continue membership in the House (VI, 65). Only in a
single exceptional case has the House taken action in the direction of
accepting a resignation (II, 1214). Sometimes Members who have resigned
have been reelected to the same House and taken seats (II, 1210, 1212,
1256; Jan. 28, 1965 and June 16, 1965, pp. 1452, 13774; Jan. 6, 1983 and
Feb. 22, 1983, pp. 114, 2575). A Member who has not taken his seat
resigned (II, 1231).
A letter of resignation is presented as privileged (II, 1167-1176);
but a resolution to permit a Member to withdraw his resignation was not
so treated (II, 1213). The Speaker having been elected Vice President
and a Representative of the succeeding Congress at the same election,
transmitted to the Governor of his State his resignation as a Member-
elect (VI, 230, 453). A Member of the House having been nominated and
confirmed as Vice President pursuant to the 25th amendment, submitted a
letter of resignation as a Representative to the Governor of his State,
and a copy of his letter of resignation was laid before the House by the
Speaker following the completion of a joint meeting for his swearing as
Vice President (Dec. 6, 1973, p. 39927). A Member of the House having
been confirmed as Secretary of Defense, a copy of his letter of
resignation was laid before the House before his taking the oath of that
office (Mar. 20, 1989, p. 4976).
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A Member who <<NOTE: Sec. 20. Vacancy from declination.>> has been
elected to a seat may decline to accept it, and in such a case the House
informed the executive of the State of the vacancy (II, 1234). The House
has decided an election contest against a returned Member who had not
appeared to claim the seat (I, 638). In one instance a Member-elect who
had been convicted in the courts did not appear during the term (IV,
4484, footnote). On November 7, 1998, less than a week after his re-
election as Representative from the 6th district of Georgia, Speaker
Gingrich announced that he would not be a candidate for Speaker in the
106th Congress and that he would resign his seat as a Member of the
106th Congress. Although the letter of ``withdrawal'' was tendered on
November 22, the Governor did not attempt to call a special election
until after the term began on January 3, 1999 (Jan. 6, 1999, p. 42).
At the time <<NOTE: Sec. 21. Vacancy by withdrawal.>> of the secession
of several States, Members of the House from those States withdrew (II,
1218). In the Senate, in cases of such withdrawals, the Secretary was
directed to omit the names of the Senators from the roll (II, 1219), and
the act of withdrawal was held to create a vacancy that the legislature
might recognize (I, 383).
Where the House, <<NOTE: Sec. 22. Vacancy by action of the House.>> by
its action in a question of election or otherwise, creates a vacancy,
the Speaker is directed to notify the Executive of the State (I, 502,
709, 824; II, 1203-1205; Mar. 1, 1967, p. 5038; Jan. 3, 1973, p. 15;
Feb. 24, 1981, pp. 2916-18). A resolution as to such notification is
presented as a question of privilege (III, 2589), as is a resolution
declaring a vacancy where a Member-elect was unable to take the oath of
office or to resign because of an incapacitating illness (Feb. 24, 1981,
pp. 2916-18).
The House declines <<NOTE: Sec. 23. Questions as to the existence of a
vacancy.>> to give prima facie effect to credentials, even though they
be regular in form, until it has ascertained whether or not the seat is
vacant (I, 322, 518, 565, 569), and a person returned as elected at a
second election was unseated on ascertainment that another person had
actually been chosen at the first election (I, 646). Where a Member was
reelected to the House, although at the time of the election he had been
unaccounted for for several weeks following the disappearance of the
plane on which he was a passenger, the Governor of the State from which
he was elected transmitted his certificate to the House in the regular
fashion. When the Member-elect was still missing at the time the new
Congress convened, and circumstances were such that other passengers on
the missing plane had been presumed dead following judicial inquiries in
the State where the plane was lost, the House declared the seat vacant
(H. Res. 1, 93d Cong., Jan. 3, 1973, p. 15). In the 108th Congress the
House codified in clause 5 of rule XX its practice of accounting for
vacancies (sec. 2(l), H. Res. 5, Jan. 7, 2003, p. 7).
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The term ``vacancy'' <<NOTE: Sec. 24. Functions of the State executive
in filling vacancies.>> as occurring in this paragraph of the
Constitution has been examined in relation to the functions of the State
executive (I, 312, 518). A Federal law empowers the States and
Territories to provide by law the times of elections to fill vacancies
(I, 516; 2 U.S.C. 8); but an election called by a governor in pursuance
of constitutional authority was held valid although no State law
prescribed time, place, or manner of such election (I, 517). Where two
candidates had an equal number of votes, the governor did not issue
credentials to either, but ordered a new election after they had waived
their respective claims (I, 555). A candidate elected for the 104th
Congress was appointed by the Governor to fill a vacancy for the
remainder of the 103d Congress pursuant to a State law requiring the
Governor to appoint the candidate who won the election to the 104th
Congress. In that case the House authorized the Speaker to administer
the oath to the Member-elect and referred the question of his final
right to the seat in the 103d Congress to the Committee on House
Administration (Nov. 29, 1994, pp. 29585, 29586). For a discussion of a
State election to fill a prospective vacancy of the House, see Sec. 19.
<<NOTE: Sec. 25. Term of a Member elected to fill a vacancy.>> A
Member elected to fill a vacancy serves no longer time than the
remainder of the term of the Member whose place he fills (I, 3). For the
compensation and allowances of such Members, see Sec. 87, infra.
<<NOTE: Sec. 26. House chooses the Speaker and other officers.>> \5\
The House of Representatives shall chuse their Speaker and other
Officers; * * *
The officers of the House are the Speaker, who has always been one of
its Members and whose term as Speaker must expire with his term as a
Member; and the Clerk, Sergeant-at-Arms, Chief Administrative Officer,
and Chaplain (I, 187), no one of whom has ever been chosen from the
sitting membership of the House and who continue in office until their
successors are chosen and qualified (I, 187). In one case the officers
continued through the entire Congress succeeding that in which they were
elected (I, 244, 263). Former officers include Doorkeeper (abolished by
the 104th Congress, see Sec. 663a, infra) and Postmaster (abolished
during the 102d Congress, see Sec. 668, infra). The House formerly
provided by special rule that the Clerk should continue in office until
another should be chosen (I, 187, 188, 235, 244). Currently, certain
statutes impose on the officers duties that contemplate their
continuance (I, 14, 15; 2 U.S.C. 75a-1, 83).
The Speaker, who <<NOTE: Sec. 27. Election of a Speaker.>> was at
first elected by ballot, has been chosen viva voce by surname in
response to a call of the roll since 1839 (I, 187). The Speaker is
elected by a majority of Members-elect voting by surname, a quorum being
present (I, 216; VI, 24; Jan. 7, 1997, p. 117). The Clerk appoints
tellers for this election (I, 217). Ultimately, the House, and not the
Clerk, decides
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by what method it shall elect the Speaker (I, 210). On two occasions, by
special rules, Speakers were chosen by a plurality of votes; but in each
case the House by majority vote adopted a resolution declaring the
result (I, 221, 222). The House has declined to choose a Speaker by lot
(I, 221).
The motion to proceed to the election of a Speaker is privileged (I,
212, 214; VIII, 3883), and debatable unless the previous question is
ordered (I, 213). Relying on the Act of June 1, 1789 (2 U.S.C. 25), the
Clerk recognized for nominations for Speaker as being of higher
constitutional privilege than a resolution to postpone the election of a
Speaker and instead provide for the election of a Speaker pro tempore
pending the disposition of certain ethics charges against the nominee of
the majority party (Jan. 7, 1997, p. 115). On several occasions the
choice of a Speaker has been delayed for several weeks by contests (I,
222; V, 5356, 6647, 6649; VI, 24). The contest over the election of a
Speaker in 1923 was resolved after a procedure for the adoption of rules
for the 68th Congress had been presented (VI, 24). In 1860 the voting
for Speaker proceeded slowly, being interspersed with debate (I, 223),
and in one instance the House asked candidates for Speaker to state
their views before proceeding to election (I, 218).
A proposition <<NOTE: Sec. 28. Vacancies in the Office of
Speaker.>> to elect a Speaker is in order at any time a vacancy exists
and presents a question of the highest privilege (VIII, 3383). Upon a
vacancy in the Office of Speaker, the House elects a new Speaker either
viva voce following nominations (in the case where a Speaker has died
between sessions of Congress or resigned) or by resolution (in the case
where a Speaker has died during a session of Congress). For example, in
the case where the Speaker had died between sessions of Congress, the
Clerk at the next session called the House to order, ascertained the
presence of a quorum, and then the House proceeded to elect a successor
viva voce following nominations (I, 234; Jan. 10, 1962, p. 5). In a case
where the Speaker died during a session of Congress, but not while the
House was sitting, the Clerk on the following day called the House to
order and the Speaker's successor was elected by resolution (June 4,
1936, p. 9016; Sept. 16, 1940, p. 12231). In a case where the Speaker
resigned ``on the election of my successor'' (May 31, 1989, p. 10440),
he entertained nominations for Speaker and, following the roll call,
declared the winner of the election ``duly elected Speaker'' (June 6,
1989, p. 10801). In one instance a Speaker resigned on the last day of
the Congress, and the House unanimously adopted a motion to elect a
successor for the day (I, 225).
Form of resolution offered on death of a Speaker (Sept. 16, 1940, p.
12232; Jan. 10, 1962, p. 9) and of a former Speaker (VIII, 3564; Mar. 7,
1968, p. 5742; H. Res. 328, Jan. 25, 1994, p. 89; H. Res. 418, Feb. 8,
2000, p. 834). A resolution declaring vacant the Office of Speaker is
presented as a matter of high constitutional privilege (VI, 35).
Speakers have resigned by rising in their place and addressing the House
(I, 231, 233), by calling a Member to the Chair and tendering the
resignation verbally from the
[[Page 15]]
floor (I, 225), by tendering the resignation during recognition under a
question of personal privilege (May 31, 1989, p. 10440), or by sending a
letter that the Clerk reads to the House at the beginning of a new
session (I, 232). When the Speaker resigns no action of the House
excusing him from service is taken (I, 232). Instance wherein the
Speaker, following a vote upon an essential question indicating a change
in the party control of the House, announced that under the
circumstances it was incumbent upon the Speaker to resign or to
recognize for a motion declaring vacant the Office of Speaker (VI, 35).
In the 108th Congress the House adopted clause 8(b)(3) of rule I, under
which the Speaker is required to deliver to the Clerk a list of Members
in the order in which each shall act as Speaker pro tempore in the case
of a vacancy in the Office of Speaker (sec. 2(a), H. Res. 5, Jan. 7,
2003, p. 7). The Speaker delivered to the Clerk the first such letter on
February 10, 2003 (Mar. 13, 2003, p. 6118).
<<NOTE: Sec. 29. Power of House to elect its officers as related to
law.>> The effect of a law to regulate the action of the House in
choosing its own officers has been discussed (IV, 3819), and such a law
has been considered of doubtful validity (V, 6765, 6766) in theory and
practice (I, 241, 242). The Legislative Reorganization Act of 1946 (2
U.S.C. 75a-1) authorizes the Speaker to fill temporary vacancies in the
offices of Clerk, Sergeant-at-Arms, Chief Administrative Officer, and
Chaplain. For a history of the Speaker's exercise of such authority, see
Sec. 640, infra; and, for further information on the elections of
officers, see Deschler, ch. 6.
<<NOTE: Sec. 30. Election of Clerk in relation to business.>> It has
been held that the Act of June 1, 1789 (2 U.S.C. 25) bound the House to
elect a Clerk before proceeding to business (I, 237, 241). In some
instances the House has proceeded to legislation and other busines
before electing a Clerk (I, 242, 244). When a vacancy arises in the
office of Clerk during a session, business has intervened before the
election of a new Clerk (I, 239).
* * * <<NOTE: Sec. 31. House of Representatives alone impeaches.>> and
[the House of Representatives] shall have the sole Power of Impeachment.
In 1868 the Senate ceased in its rules to describe the House, acting in
an impeachment, as the ``grand inquest of the nation'' (III, 2126). See
also art. II, sec. 4 (Sec. 173, infra); Deschler, ch. 14.
A Federal court having subpoenaed certain evidence gathered by a
committee of the House in an impeachment inquiry, the House adopted a
resolution granting such limited access to the evidence as would not
infringe upon its sole power of impeachment (Aug. 22, 1974, p. 30047).
Until the law expired on June 30, 1999, an independent counsel was
required to advise the House of any substantial and credible information
that may constitute grounds for impeachment of an officer under his
investigation (28 U.S.C. 595(c)). For a description of impeachment
proceedings
[[Page 16]]
prompted by a communication from an independent counsel, see Sec. 176,
infra.
Section 3. \1\ [The Senate <<NOTE: Sec. 32. Numbers, terms, and votes
of Senators.>> of the United States shall be composed of two Senators
from each State, chosen by the Legislature thereof, for six Years; and
each Senator shall have one Vote.]
This provision was changed by the 17th amendment.
\2\ Immediately <<NOTE: Sec. 33. Division of the Senate into
classes.>> after they shall be assembled in Consequence of the first
Election, they shall be divided as equally as may be into three Classes.
The Seats of the Senators of the first Class shall be vacated at the
Expiration of the second Year, of the second Class at the Expiration of
the fourth Year, and of the third Class at the Expiration of
the <<NOTE: Sec. 34. Filling of vacancies in the Senate.>> sixth Year,
so that one-third may be chosen every second Year; [and if Vacancies
happen by Resignation, or otherwise, during the Recess of the
Legislature of any State, the Executive thereof may make temporary
Appointments until the next Meeting of the Legislature, which shall then
fill such Vacancies.]
That part of the above paragraph in brackets was changed by the 17th
amendment.
\3\ No Person <<NOTE: Sec. 35. Qualifications of Senators.>> shall be
a Senator who shall not have attained to the Age of thirty Years, and
been nine Years a Citizen of the United States, and who shall not, when
elected, be an Inhabitant of that State for which he shall be chosen.
[[Page 17]]
In 1794 the Senate decided that Albert Gallatin was disqualified, not
having been a citizen nine years although he had served in the war of
Independence and was a resident of the country when the Constitution was
formed (I, 428); and in 1849 that James Shields was disqualified, not
having been a citizen for the required time (I, 429). But in 1870 the
Senate declined to examine as to H. R. Revels, a citizen under the
recently adopted 14th amendment (I, 430). As to inhabitancy the Senate
seated one who, being a citizen of the United States, had been an
inhabitant of the State from which he was appointed for less than a year
(I, 437). Also one who, while stationed in a State as an army officer
had declared his intention of making his home in the State, was admitted
by the Senate (I, 438). A Senator who at the time of his election was
actually residing in the District of Columbia as an officeholder, but
who voted in his old home and had no intent of making the District his
domicile, was held to be qualified (I, 439).
\4\ The Vice <<NOTE: Sec. 36. The Vice President and his
vote.>> President of the United States shall be President of the Senate,
but shall have no Vote, unless they be equally divided.
The right of the Vice President to vote has been construed to extend
to questions relating to the organization of the Senate (V, 5975), as
the election of officers of the Senate (V, 5972-5974), or a decision on
the title of a claimant to a seat (V, 5976, 5977). The Senate has
declined to make a rule relating to the vote of the Vice President (V,
5974).
<<NOTE: Sec. 37. Choice of President pro tempore and other officers of
the Senate.>> \5\ The Senate shall chuse their other Officers, and
also a President pro tempore, in the Absence of the Vice President, or
when he shall exercise the Office of President of the United States.
In the 107th Congress the Senate elected two Presidents of the Senate
pro tempore for different periods when the majority of the Senate
shifted after inauguration of the Vice President (S. Res. 3, Jan. 3,
2001, p. 7).
- \6\ The Senate <<NOTE: Sec. 38. Senate tries impeachment and convicts
by twothirds vote.>> shall have the sole Power to try all Impeachments.
When sitting for that Purpose, they shall be on Oath or Affirmation.
When the President of the United States is tried, the Chief Justice
shall preside: And no Person shall be convicted
[[Page 18]]
without the Concurrence of two thirds of the Members present.
For the exclusive power of the Senate to try impeachments under the
United States Constitution, see Ritter v. United States, 84 Ct. Cls. 293
(1936), cert. denied, 300 U.S. 668 (1937). See also Mississippi v.
Johnson, 71 U.S. (4 Wall.) 475 (1867) (dictum). For the
nonjusticiability of a claim that Senate Rule XI violates the
impeachment trial clause by delegating to a committee of 12 Senators the
responsibility to receive evidence, hear testimony, and report to the
Senate thereon, see Nixon v. United States, 506 U.S. 224 (1993). For a
discussion of Senate impeachment procedures, see Sec. Sec. 608-20,
infra.
\7\ Judgment in <<NOTE: Sec. 41. Judgment in cases of
impeachment.>> Cases of Impeachment shall not extend further than to
removal from Office, and disqualification to hold and enjoy any Office
of honor, Trust or Profit under the United States: but the Party
convicted shall nevertheless be liable and subject to Indictment, Trial,
Judgment and Punishment, according to Law.
There has been discussion as to whether or not the Constitution
requires both removal and disqualification on conviction (III, 2397);
but in the case of Pickering, the Senate decreed only removal (III,
2341). In the case of Humphreys, judgment of both removal and
disqualification was pronounced (III, 2397). In the Ritter case, it was
first held that upon conviction of the respondent, judgment of removal
required no vote, following automatically from conviction under article
II, section 4 (Apr. 17, 1936, p. 5607). In the 99th Congress, having
tried to conviction the first impeachment case against a Federal
district judge since 1936, the Senate ordered his removal from office
(Oct. 9, 1986, p. 29870). In the 101st Congress, two other Federal
district judges were removed from office following their convictions in
the Senate (Oct. 20, 1989, p. 25335; Nov. 3, 1989, p. 27101). For a
further discussion of judgments in cases of impeachment, see Sec. 619,
infra.
Section 4. \1\ The Times, <<NOTE: Sec. 42. Times, places, and manner
of elections of Representatives and Senators.>> Places and Manner of
holding Elections for Senators and Representatives, shall be prescribed
in each State by the Legislature thereof; but the Congress may at
[[Page 19]]
any time by Law make or alter such Regulations, except as to the places
of chusing Senators.
The relative powers of the Congress and the States under this graph
have been the subject of much discussion (I, 311, 313, 507, footnote);
but Congress has in fact fixed by law the time of elections (I, 508; VI,
66; 2 U.S.C. 7), and has controlled the manner to the extent of
prescribing a ballot or voting machine (II, 961; VI, 150; 2 U.S.C. 9).
When a State delegated to a municipality the power to regulate the
manner of holding an election, a question arose (II, 975). A question
has arisen as to whether or not a State, in the absence of action by
Congress, might make the time of election of Congressmen contingent on
the time of the State election (I, 522). This paragraph gives Congress
the power to protect the right to vote in primaries where they are an
integral part of the election process. United States v. Wurzbach, 280
U.S. 396 (1930); United States v. Classic, 313 U.S. 299 (1941). Congress
may legislate under this paragraph to protect the exercise of the
franchise in congressional elections. Ex parte Siebolt, 100 U.S. 371
(1880); Ex parte Yarbrough, 110 U.S. 651 (1884).
The meaning of <<NOTE: Sec. 43. Functions of a State legislature in
fixing time, etc., of elections.>> the word ``legislature'' in this
clause of the Constitution has been the subject of discussion (II, 856),
as to whether or not it means a constitutional convention as well as a
legislature in the commonly accepted meaning of the word (I, 524). The
House has sworn in Members chosen at an election the time, etc., of
which was fixed by the schedule of a constitution adopted on that
election day (I, 519, 520, 522). But the House held that where a
legislature has been in existence a constitutional convention might not
exercise the power (I, 363, 367). It has been argued generally that the
legislature derives the power herein discussed from the Federal and not
the State Constitution (II, 856, 947), and therefore that the State
constitution might not in this respect control the State legislature
(II, 1133). The House has sustained this view by its action (I, 525).
But where the State constitution fixed a date for an election and the
legislature had not acted, although it had the opportunity, the House
held the election valid (II, 846). Title III of the Legislative Branch
Appropriations Act, 2006, amended Federal election law to require States
to hold special elections for the House within 49 days after a vacancy
is announced by the Speaker in the extraordinary circumstance that
vacancies in representation from the States exceed 100 (P.L. 109-55; 2
U.S.C. 8).
Decisions <<NOTE: Sec. 44. Decisions of the Court.>> of the Supreme
Court of the United States: Ex parte Siebold, 100 U.S. 371 (1880); Ex
parte Clark, 100 U.S. 399 (1880); Ex parte Yarbrough, 110 U.S. 651
(1884); In re Coy, 127 U.S. 731 (1888); Ohio v. Hildebrant, 241 U.S. 565
(1916); United States v. Mosley, 238 U.S. 383 (1915); United States v.
Gradwell, 243 U.S. 476 (1917); Newberry v. United States, 256
[[Page 20]]
U.S. 232 (1921); Smiley v. Holme, 285 U.S. 355 (1932); United States v.
Classic, 313 U.S. 299 (1941); Smith v. Allwright, 321 U.S. 649 (1944);
Roudebush v. Hartke, 405 U.S. 15 (1972); Storer v. Brown, 415 U.S. 724
(1974); Buckley v. Valeo, 424 U.S. 1 (1976); U.S. Term Limits, Inc., v.
Thorton, 514 U.S. 779 (1995); and Foster v. Love, 522 U.S. 67 (1997). In
Public Law 91-285, Congress lowered the minimum age of voters in all
Federal, State, and local elections from 21 to 18 years. In Oregon v.
Mitchell, 400 U.S. 112 (1970), the Supreme Court upheld the power of
Congress under article I, section 4 and under section 5 of the 14th
amendment to the Constitution to fix the age of voters in Federal
elections, but held that the tenth amendment to the Constitution
reserved to the States the power to establish voter age qualifications
in State and local elections. The 26th amendment to the Constitution
extended the right of persons 18 years of age or older to vote in
elections held under State authority.
\2\ [The Congress <<NOTE: Sec. 45. Annual meeting of Congress.>> shall
assemble at least once in every Year, and such Meeting shall be on the
first Monday in December, unless they shall by Law appoint a different
Day.]
This provision has been superseded by the 20th amendment.
In the later but not the earlier practice (I, 5), before the 20th
amendment, the fact that Congress had met once within the year did not
make uncertain the constitutional mandate to meet on the first Monday of
December (I, 6, 9-11). Early Congresses, convened either by proclamation
or law on a day earlier than the constitutional day, remained in
continuous session to a time beyond that day (I, 6, 9-11). But in the
later view an existing session ends with the day appointed by the
Constitution for the regular annual session (II, 1160); see Sec. 84,
infra. Congress has frequently appointed by law a day for the meeting
(I, 4, 5, 10-12, footnote; see also Sec. 243, infra).
Section 5. \1\ Each <<NOTE: Sec. 46. House the judge of elections,
returns, and qualifications.>> House shall be the Judge of the
Elections, Returns and Qualifications of its own Members, * * *.
In judging the qualifications of its Members, the House may not add
qualifications to those expressly stated in the United States
Constitution. Powell v. McCormack, 395 U.S. 486 (1969). This phrase
allows the House or Senate to deny the right to a seat without
unlawfully depriving a State of its right to equal representation. Barry
v. United States ex rel Cunningham, 279 U.S. 597 (1929). But a State may
conduct a recount of votes without interfering with the authority of the
House under this phrase. Roudebush v. Hartke, 405 U.S. 15 (1972). For
discussion of the power of the House to judge elections, see Deschler,
ch. 8 (elections) and
[[Page 21]]
ch. 9 (election contests); for discussion of the power of the House to
judge qualifications, see Deschler, ch. 7.
The House has the same authority to determine the right of a Delegate
to his seat that it has in the case of a Member (I, 423). The House may
not delegate the duty of judging its elections to another tribunal (I,
608), and the courts of a State have nothing to do with it (II, 959).
The House has once examined the relations of this power to the power to
expel (I, 469).
As nearly all <<NOTE: Sec. 47. Power of judging as related to State
laws as to returns.>> the laws governing the elections of
Representatives in Congress are State laws, questions have often arisen
as to the relation of this power of judging to those laws (I, 637). The
House decided very early that the certificate of a State executive
issued in strict accordance with State law does not prevent examination
of the votes by the House and a reversal of the return (I, 637). The
House has also held that it is not confined to the conclusions of
returns made up in strict conformity to State law, but may examine the
votes and correct the returns (I, 774); and the fact that a State law
gives canvassers the right to reject votes for fraud and irregularities
does not preclude the House from going behind the returns (II, 887). The
highest court in one State (Colorado) has ruled that it lacked
jurisdiction to pass upon a candidate's allegations of irregularities in
a primary election and that the House had exclusive jurisdiction to
decide such questions and to declare the rightful nominee (Sept. 23,
1970, p. 33320).
When the question <<NOTE: Sec. 48. Power of judging as related to
State laws as to acts of the voter.>> concerns not the acts of returning
officers, but the act of the voter in giving his vote, the House has
found more difficulty in determining on the proper exercise of its
constitutional power. While the House has always acted on the principle
of giving expression to the intent of the voter (I, 575, 639, 641; II,
1090), yet it has held that a mandatory State law, even though
arbitrary, may cause the rejection of a ballot on which the intent of
the voter is plain (II, 1009, 1056, 1077, 1078, 1091). See Deschler, ch.
8, Sec. 8.11, for discussion of distinction between directory State laws
governing the conduct of election officials as to ballots, and mandatory
laws regulating the conduct of voters.
Where the State <<NOTE: Sec. 49. Power of House as related to
constitutionality of State laws.>> courts have upheld a State election
law as constitutional the House does not ordinarily question the law
(II, 856, 1071). But where there has been no such decision the House, in
determining its election cases, has passed on the validity of State laws
under State constitutions (II, 1011, 1134), and has acted on its
decision that they were unconstitutional (II, 1075, 1126), but it is not
the policy of the House to pass upon the validity of State election laws
alleged to be in conflict with the State constitution (VI, 151).
[[Page 22]]
The courts of <<NOTE: Sec. 50. Effect of interpretation of State
election laws by State courts.>> a State have nothing to do directly
with judging the elections, qualifications, and returns of
Representatives in Congress (II, 959), but where the highest State court
has interpreted the State law the House has concluded that it should
generally be governed by this interpretation (I, 645, 731; II, 1041,
1048), but does not consider itself bound by such interpretations (VI,
58). The House is not bound, however, by a decision on an analogous but
not the identical question in issue (II, 909); and where the alleged
fraud of election judges was in issue, the acquittal of those judges in
the courts was held not to be an adjudication binding on the House (II,
1019). For a recent illustration of a protracted election dispute
lasting four months see House Report 99-58, culminating in House
Resolution 146 of the 99th Congress (May 1, 1985, p. 9998).
The statutes of <<NOTE: Sec. 51. Laws of Congress not binding on the
House in its function of judging its elections.>> the United States
provide specific methods for institution of a contest as to the title to
a seat in the House (I, 678, 697-706) (2 U.S.C. 381-396); but the House
regards this law as not of absolute binding force, but rather a
wholesome rule not to be departed from except for cause (I, 597, 719,
825, 833), and it sometimes by resolution modifies the procedure
prescribed by the law (I, 449, 600).
Decisions <<NOTE: Sec. 51a. Decisions of the Court.>> of the Supreme
Court of the United States: In re Loney, 134 U.S. 317 (1890); Reed v.
County Commissioners, 277 U.S. 376 (1928); Barry v. United States ex
rel. Cunningham, 279 U.S. 597 (1929); Roudebush v. Hartke, 405 U.S. 15
(1972).
* * * and a <<NOTE: Sec. 52. The quorum.>> Majority of each [House]
shall constitute a Quorum to do Business; but a smaller Number may
adjourn from day to day, and may be authorized to compel the Attendance
of absent Members, in such Manner, and under such Penalties as each
House may provide.
Out of conditions <<NOTE: Sec. 53. Interpretation of the Constitution
as to number constituting a quorum.>> arising between 1861 and 1891 the
rule was established that a majority of the Members chosen and living
constituted the quorum required by the Constitution (IV, 2885-2888); but
later examination has resulted in a decision confirming in the House of
Representatives the construction established in the Senate that a quorum
consists of a majority of Senators duly chosen and sworn (I, 630; IV,
2891-2894). So the decision of the House now is that after the House is
once organized the quorum consists of a majority of those Members
chosen, sworn, and living whose membership has not been terminated by
resignation or by the action of the House (IV, 2889, 2890; VI, 638).
Under clause
[[Page 23]]
5(d) of rule XX, when a vacancy occurs or when a new Member is sworn,
the Speaker announces the resulting adjustment in the whole number of
the House (see Sec. 1024b, infra). Under clause 5(c) of rule XX, the
House may establish a provisional number of the House where, due to
catastrophic circumstances, a quorum fails to appear (sec. 2(h), H. Res.
5, Jan. 4, 2005, p. ----; see Sec. 1024a, infra).
For many years <<NOTE: Sec. 54. The theory of the quorum present; and
the count by the Speaker.>> a quorum was determined only by noting the
number of Members voting (IV, 2896, 2897), with the result that Members
by refusing to vote could often break a quorum and obstruct the public
business (II, 1034; IV, 2895, footnote; V, 5744). However, in 1890
Speaker Reed directed the Clerk to enter on the Journal as part of the
record of a yea-and-nay vote names of Members present but not voting,
thereby establishing a quorum of record (IV, 2895). This decision, which
was upheld by the Supreme Court (IV, 2904; United States v. Ballin, 144
U.S. 1 (1892)), established the principle that a quorum present made
valid any action by the House, although an actual quorum might not vote
(I, 216, footnote; IV, 2932). Thenceforth the point of order as to a
quorum was required to be that no quorum was present and not that no
quorum had voted (IV, 2917). At the time of the establishment of this
principle the Speaker revived the count by the Chair as a method of
determining the presence of a quorum at a time when no record vote was
ordered (IV, 2909). The Speaker has permitted his count of a quorum to
be verified by tellers (IV, 2888), but has not conceded it as a right of
the House to have tellers under the circumstances (IV, 2916; VI, 647-
651; VIII, 2369, 2436), claiming that the Chair might determine the
presence of a quorum in such manner as he should deem accurate and
suitable (IV, 2932). The Chair counts all Members in sight, whether in
the cloak rooms, or within the bar (IV, 2970; VIII, 3120). Later, as the
complement to the new view of the quorum, the early theory that the
presence of a quorum was as necessary during debate or other business as
on a vote was revived (IV, 2935-2949). Also, a line of rulings made
under the old theory was overruled; and it was established that the
point of no quorum might be made after the House had declined to verify
a division by tellers or the yeas and nays (IV, 2918-2926). For a
discussion of the Ballin decision and the Chair's count to determine a
quorum, see House Practice, ch. 43, Sec. 5.
The absence of <<NOTE: Sec. 55. Relations of the quorum to acts of the
House.>> a quorum having been disclosed, there must be a quorum of
record before the House may proceed to business (IV, 2952, 2953; VI,
624, 660, 662), and the point of no quorum may not be withdrawn even by
unanimous consent after the absence of a quorum has been ascertained and
announced by the Chair (IV, 2928-2931; VI, 657; Apr. 13, 1978, p. 10119;
Sept. 25, 1984, p. 26778). But when an action has been completed, it is
too late to make the point of order that a quorum was not present when
it was done (IV, 2927; VI, 655). But where action requiring a quorum was
taken in the ascertained absence of a quorum by ruling of a Speaker
[[Page 24]]
pro tempore, the Speaker on the next day ruled that the action was null
and void (IV, 2964; see also VIII, 3161). But such absence of a quorum
should appear from the Journal if a legislative act is to be vacated for
such reason (IV, 2962), and where the assumption that a quorum was
present when the House acted was uncontradicted by the Journal, it was
held that this assumption might not be overthrown by expressions of
opinion by Members individually (IV, 2961).
Major revisions in the House rules concerning the necessity and
establishment of a quorum occurred in the 94th, 95th, and 96th
Congresses. Under the practice in the 93d Congress, for example, a point
of no quorum would prevent the report of the chairman of a Committee of
the Whole (VI, 666); but in the 93d Congress clause 7 of rule XX
(formerly clause 6 of rule XV) was adopted to provide that after the
presence of a quorum is once ascertained on any day, a point of no
quorum could not be entertained after the Committee had risen and
pending the report of the Chairman to the House (see Sec. 1027, infra).
Clause 7 of rule XX now specifically precludes a point of no quorum
unless a question has been put to a vote. However, the Speaker retains
the right to recognize a Member to move a call of the House at any time
(but may, under clause 7(c) of rule XX recognize for a call of the House
after the previous question has been ordered only when the Speaker
determines by actual count that a quorum is not present). A point of
order of no quorum during debate only in the House does not lie
independently under this clause of the Constitution because clause 7 of
rule XX (formerly clause 6 of rule XV) is a proper exercise of the
House's constitutional rulemaking authority that can be interpreted
consistently with the requirement that a quorum be present to conduct
business (as opposed to mere debate) (Sept. 8, 1977, p. 28114; Sept. 12,
1977, p. 28800).
Before these changes to rule XX (formerly rule XV), a quorum was
required at all times during the reading of the Journal (IV, 2732, 2733;
VI, 625, 629) or messages from the President or the Senate (IV, 3522; VI
6600, 6650; VIII 3339); but the modern practice would require the
presence of a quorum only when the question is put on a pending motion
or proposition in the House such as on a motion incident to the reading,
amendment, or approval of the Journal or on the referral or other
disposition of other papers read to the House. A point of no quorum no
longer lies during debate in the House. The practice in the Committee of
the Whole is now governed by clause 6 of rule XVIII. No motion is in
order on the failure of a quorum but the motions to adjourn and for a
call of the House (IV, 2950; VI, 680) and the motion to adjourn has
precedence over the motion for a call of the House (VIII, 2642). A call
of the House is in order under the Constitution before the adoption of
the rules (IV, 2981). Those present on a call of the House may prescribe
a fine as a condition on which an arrested Member may be discharged (IV,
3013, 3014), but this is rarely done. A quorum is not required on
motions incidental to a call of the House (IV, 2994; VI, 681; Oct. 8,
1940, p. 13403; and Oct. 8, 1968, p. 30090).
[[Page 25]]
The House may adjourn sine die in the absence of a quorum where both
Houses have already adopted a concurrent resolution providing for a sine
die adjournment on that day (Oct. 18, 1972, p. 37200).
At the time <<NOTE: Sec. 56. Relations of the quorum to organization
of the House.>> of organization the two Houses inform one another of the
appearance of the quorum in each, and the two Houses jointly inform the
President (I, 198-203). A message from one House that its quorum has
appeared is not delivered in the other until a quorum has appeared there
also (I, 126). But at the beginning of a second session of a Congress
the House proceeded to business, although a quorum had not appeared in
the Senate (I, 126). At the beginning of a second session of a Congress
unsworn Members-elect were taken into account in ascertaining the
presence of a quorum (I, 175); however, at the beginning of the second
session of the 87th Congress, the Clerk called the House to order,
announced the death of Speaker Rayburn during the sine die adjournment,
and did not call unsworn Members-elect or Members who had resigned
during the hiatus to establish a quorum or elect a new Speaker (Jan. 10,
1962, p. 5). In both Houses the oath has been administered to Members-
elect in the absence of a quorum (I, 174, 181, 182; VI, 22), although in
one case the Speaker objected to such proceedings (II, 875). Prayer by
the Chaplain is not business requiring the presence of a quorum and the
Speaker declines to entertain a point of no quorum before prayer is
offered (VI, 663; clause 7 of rule XX).
Decisions <<NOTE: Sec. 57. Decisions of the Court.>> of the Supreme
Court of the United States: Kilbourn v. Thompson, 103 U.S. 190 (1881);
United States v. Ballin, 144 U.S. 1 (1892); Burton v. United States, 202
U.S. 344 (1906).
<<NOTE: Sec. 58. The House determines its rules.>> \2\ Each House may
determine the Rules of its Proceedings, * * *
The power of <<NOTE: Sec. 59. Power to make rules not impaired by
rules or law.>> each House of Representatives to make its own rules may
not be impaired or controlled by the rules of a preceding House (I, 187,
210; V, 6002, 6743-6747), or by a law passed by a prior Congress (I, 82,
245; IV, 3298, 3579; V, 6765, 6766). The House in adopting its rules
may, however, incorporate by reference as a part thereof all applicable
provisions of law that constituted the Rules of the House at the end of
the preceding Congress (H. Res. 5, 95th Cong., Jan. 4, 1977, pp. 53-70)
and has also incorporated provisions of concurrent resolutions that were
intended to remain applicable under the Budget Act (H. Res. 5, 107th
Cong., Jan. 3, 2001, p. 25). The House twice reaffirmed free-standing
directives to the Committee on Standards of Official Conduct contained
in a simple House resolution (H. Res. 168, 105th Cong., p. 19317,
reaffirmed for the 106th Congress by sec. 2(c), H. Res. 5, Jan. 6, 1999,
p. 47, and reaffirmed for the 107th Congress with an exception by sec.
3(a), H. Res. 5, Jan. 3, 2001, p. 24; see Sec. 806, infra). In the 108th
Congress those free-standing directives
[[Page 26]]
were codified in clause 3 of rule XI (sec. 2(h), H. Res. 5, Jan. 7,
2003, p. 7). Ordinary rights and functions of the House under the
Constitution are exercised in accordance with the rules (III, 2567), and
under later decisions questions of so-called constitutional privilege
should also be considered in accordance with the rules (VI, 48; VII,
889; Apr. 8, 1926, p. 7147). But a law passed by an existing Congress
with the concurrence of the House has been recognized by that House as
of binding force in matters of procedure (V, 6767, 6768). In exercising
its constitutional power to change its rules the House may confine
itself within certain limitations (V, 6756; VIII, 3376); but the attempt
of the House to deprive the Speaker of his vote as a Member by a rule
was successfully resisted (V, 5966, 5967). While the Act of June 1, 1789
(see 2 U.S.C. 25) requires the election of a Clerk before the House
proceeds to business yet the House has held that it may adopt rules
before electing a Clerk (I, 245). Although the Speaker ceases to be an
officer of the House with the expiration of a Congress, the Clerk, by
old usage, continues in a new Congress (I, 187, 188, 235, 244; see 2
U.S.C. 26). In case of a vacancy in the Office of Clerk, Sergeant-at-
Arms, Doorkeeper (abolished by the 104th Congress; see Sec. 663a,
infra), Postmaster (abolished during the 102d Congress; see Sec. 668,
infra), Chaplain, or Chief Administrative Officer, the Speaker is
authorized to make temporary appointments (2 U.S.C. 75a-1). The House
has adopted a rule before election of a Speaker (I, 94, 95); but in 1839
was deterred by the Act of June 1, 1789 and the Constitution from
adopting rules before the administration of the oath to Members-elect
(I, 140). The earlier theory that an officer might be empowered to
administer oaths by a rule of either House has been abandoned in later
practice and the authority has been conferred by law (III, 1823, 1824,
2079, 2303, 2479; 2 U.S.C. 191).
Before the adoption <<NOTE: Sec. 60. Procedure in the House before the
adoption of rules.>> of rules the House is governed by general
parliamentary law, but Speakers have been inclined to give weight to the
rules and precedents of the House in modifying the usual constructions
of that law (V, 5604, 6758-6760; VIII, 3384; Jan. 3, 1953, p. 24; Jan.
10, 1967, p. 14). The general parliamentary law as understood in the
House is founded on Jefferson's Manual as modified by the practice of
American legislative assemblies, especially of the House of
Representatives (V, 6761-6763; Jan. 3, 1953, p. 24), but the provisions
of the House's accustomed rules are not necessarily followed (V, 5509).
Before the adoption of rules, the statutory enactments incorporated into
the rules of the prior Congress as an exercise of the rulemaking power
do not control the proceedings of the new House until it adopts rules
incorporating those provisions (Jan. 22, 1971, p. 132).
Before the adoption of rules, it is in order for any Member who is
recognized by the Chair to offer a proposition relating to the order of
business without asking consent of the House (IV, 3060). Relying on the
Act of June 1, 1789 (2 U.S.C. 25), the Clerk recognized for nominations
for Speaker as being of higher constitutional privilege than a
resolution to postpone
[[Page 27]]
the election of a Speaker and instead provide for the election of a
Speaker pro tempore pending the disposition of certain ethics charges
against the nominee of the majority party (Jan. 7, 1997, p. 115). The
Speaker may recognize the Majority Leader to offer an initial resolution
providing for the adoption of the rules as a question of privilege in
its own right (IV, 3060; Deschler, ch. 1, Sec. 8), even before
recognizing another Member to offer as a question of privilege another
resolution calling into question the constitutionality of that
resolution (Speaker Foley, Jan. 5, 1993, p. 49). The Speaker also may
recognize a Member to offer for immediate consideration a special order
providing for the consideration of a resolution adopting the rules
(Speaker Gingrich, H. Res. 5, Jan. 4, 1995, p. 447; H. Res. 5, Jan. 4,
2007, p. ----). The resolution adopting rules for a Congress has
included a special order of business for consideration of specified
legislation (sec. 108, H. Res. 6, Jan. 4, 1995, p. 463; sec. 3, H. Res.
5, Jan. 6, 1999, p. 76). The Speaker held as not cognizable a point of
order that a resolution adopting the Rules of the House contained a
provision that the House had no constitutional authority to adopt,
stating that the House decides such issues by way of the question of
consideration or disposition of the resolution (Speaker Hastert, Jan. 4,
2005, p. ----).
During debate on the resolution adopting rules, any Member may make a
point of order that a quorum is not present based upon general
parliamentary precedents, since the provisions of clause 7 of rule XX
(formerly clause 6(e) of rule XV) prohibiting the Chair from
entertaining such a point of order unless the question has been put on
the pending proposition are not yet applicable (Jan. 15, 1979, p. 10).
Before adoption of rules, under general parliamentary law as modified by
usage and practice of the House, an amendment may be subject to the
point of order that it is not germane to the proposition to which
offered (Jan. 3, 1969, p. 23). Before adoption of rules, the Speaker may
maintain decorum by directing a Member who has not been recognized in
debate beyond an allotted time to be removed from the well and by
directing the Sergeant-at-Arms to present the mace as the traditional
symbol of order (Jan. 3, 1991, p. 58).
The motion to commit is permitted after the previous question has been
ordered on the resolution adopting the rules (V, 5604; Jan. 3, 1989, p.
81; Jan. 3, 1991, p. 61) but is not debatable (Jan. 7, 1997, p. 139). It
is the prerogative of the minority to offer a motion to commit even
before the adoption of the rules, but at that point the proponent need
not qualify as opposed to the resolution (Jan. 3, 1991, p. 61; Jan. 4,
1995, p. 457). Such a motion to commit is not divisible, but if it is
agreed to and more than one amendment is reported back pursuant thereto,
then separate votes may be had on the reported amendments (Jan. 5, 1993,
p. 98). The motion to refer has also been permitted upon the offering of
a resolution adopting the rules, and before debate thereon, subject to
the motion to lay on the table (Jan. 5, 1993, p. 52).
[[Page 28]]
The two Houses <<NOTE: Sec. 61. Joint rules.>> of Congress adopted in
the early years of the Government joint rules to govern their procedure
in matters requiring concurrent action; but in 1876 these joint rules
were abrogated (IV, 3430; V, 6782-6787). The most useful of their
provision continued to be observed in practice, however (IV, 3430; V,
6592).
Decisions <<NOTE: Sec. 61a. Decisions of the Court.>> of the Supreme
Court of the United States: United States v. Smith, 286 U.S. 6 (1932);
Christoffel v. United States, 338 U.S. 84 (1949); United States v.
Bryan, 339 U.S. 323 (1950); Yellin v. United States, 374 U.S. 109
(1963); Powell v. McCormack, 395 U.S. 486 (1969).
* * * [Each House may] <<NOTE: Sec. 62. Punishment and expulsion of
Members.>> punish its Members for disorderly Behaviour, and, with the
Concurrence of two thirds, expel a Member.
Among the <<NOTE: Sec. 63. Punishment and expulsion,
generally.>> punishments that the House may impose under this provision,
the rules of the Committee on Standards of Official Conduct outline the
following: (1) expulsion from the House; (2) censure; (3) reprimand; (4)
fine; (5) denial or limitation of any right, power, privilege, or
immunity of the Member if not in violation of the Constitution; or (6)
any other sanction determined by the Committee to be appropriate (rule
24, Committee on Standards of Official Conduct, 110th Cong.). Under rule
10 of the rules of the Committee on Standards of Official Conduct, a
statement of alleged violation must be proven by clear and convincing
evidence.
In action for censure or expulsion, the House has discussed whether or
not the principles of the procedure of the courts should be followed
(II, 1255, 1264). The House, in a proceeding for expulsion, declined to
give the Member a trial at the bar (II, 1275); but the Senate has
permitted a counsel to appear at its bar (II, 1263), although it
declined to grant a request for a specific statement of charges or
compulsory process for witnesses (II, 1264). In one instance, pending
consideration of a resolution to censure a Member, the Speaker informed
him that he should retire (II, 1366), but this is not usual. Members or
Senators, against whom resolutions have been pending, have participated
in debate either by consent to make a personal explanation (II, 1656) or
without question as to consent (II, 1246, 1253, 1269, 1286). A Member
against whom a resolution of censure was pending was asked by the
Speaker if he desired to be heard (VI, 236). However, after the House
had voted censure and the Member has been brought to the bar by the
Sergeant-at-Arms to be censured, it was held that he might not then be
heard (II, 1259). In the modern practice, the manager of the resolution
proposing the punishment (who controls the entire hour) yields a portion
of his time to the accused (Oct. 2, 1980, p. 28966; July 24, 2002, p.
14309). In the latter case, the House extended debate on the resolution
for a specified period and yielded that entire time
[[Page 29]]
to the Member who was the subject of the resolution (July 24, 2002, p.
14310). The manager of the resolution has the right to close debate, not
the Member who is the subject of the resolution (July 24, 2002, p.
14313). Where the manager of a resolution has divided his hour three
ways, the Chair announced that the order of closing speeches would be as
follows: The minority manager of the resolution, the subject of the
resolution, and the manager of the resolution (July 24, 2002, p. 14314).
Debate on a resolution recommending a disciplinary sanction against a
Member may not exceed the scope of the conduct of the accused Member
(Dec. 18, 1987, p. 36271).
A resolution recommending reprimand, censure, or expulsion of a Member
presents a question of privilege (II, 1254; III, 2648-2651; VI, 236;
Dec. 9, 1913, pp. 584-86; July 26, 1990, p. 19717; May 22, 2007, p. ----
). If reported by the Committee on Standards of Official Conduct (or a
derivation thereof), the resolution may be called up at any time after
the committee has filed its report (Jan. 21, 1997, p. 393). Before
debate, an expulsion resolution is subject to the motion to lay on the
table (Oct. 1, 1976, p. 35111), to postpone to a date certain (Oct. 2,
1980, p. 28953; July 24, 2002, p. 14300), or to refer to committee (Mar.
1, 1979, p. 3753). A proposition to censure is not germane to a
proposition to expel (VI, 236).
The Senate once expelled several Senators by a single resolution (II,
1266); however, the House has refused to censure more than one Member by
a single resolution (II, 1240, 1621).
In <<NOTE: Sec. 64. Punishment by reprimand.>> the 94th Congress the
House by adopting a report from the Committee on Standards of Official
Conduct reprimanded a Member for failing to report certain financial
holdings in violation of rule XXVI (formerly rule XLIV) and for
investing in stock in a Navy bank the establishment of which he was
promoting, in violation of the Code of Ethics for Government Service (H.
Res. 1421, July 29, 1976, pp. 24379-82). (For the Code of Ethics for
Government Service, see H. Con. Res. 175, 85th Cong., 72 Stat. B12.) In
the 95th Congress following an investigation by the Committee on
Standards of Official Conduct into whether Members or employees had
improperly accepted things of value from the Republic of Korea or
representatives thereof, the House reprimanded three Members, one for
falsely answering an unsworn questionnaire relative to such gifts and
violating the Code of Official Conduct, one for failing to report as
required by law the receipt of a campaign contribution and violating the
Code of Official Conduct, and one for failing to report a campaign
contribution, converting a campaign contribution to personal use,
testifying falsely to the committee under oath, and violating the Code
of Official Conduct (Oct. 13, 1978, pp. 36984, 37009, 37017). In the
100th Congress the House adopted a resolution reprimanding a Member for
``ghost voting,'' improperly diverting government resources, and
maintaining a ``ghost employee'' on his staff (Dec. 18, 1987, p. 36266).
In the 101st Congress another was reprimanded for seeking dismissal of
parking tickets received by a person with whom he had a personal
relationship
[[Page 30]]
and not related to official business and for misstatements of fact in a
memorandum relating to the criminal probation record of that person
(July 26, 1990, p. 19717). In the 105th Congress the House reprimanded
the Speaker and ordered him to reimburse a portion of the costs of the
investigation by the Committee on Standards of Official Conduct (Jan.
21, 1997, p. 393).
Censure <<NOTE: Sec. 65. Punishment by censure.>> is inflicted by the
Speaker (II, 1259) and the words are entered in the Journal (II, 1251,
1656; VI 236), but the Speaker may not pronounce censure except by order
of the House (VI, 237). When Members have resigned pending proceedings
for censure, the House has nevertheless adopted the resolutions of
censure (II, 1239, 1273, 1275, 1656). Members have been censured for
personalities and other disorder in debate (II, 1251, 1253, 1254, 1259),
assaults on the floor (II, 1665), for presenting a resolution alleged to
be insulting to the House (II, 1246), and for corrupt acts (II, 1274,
1286). For abuse of the leave to print, the House censured a Member
after a motion to expel him had failed (VI, 236). In one instance
Members were censured for acts before the election of the then existing
House (II, 1286). In the 96th Congress two Members were censured by the
House as follows: (1) A Member who during a prior Congress both
knowingly increased an office employee's salary for repayment of that
Member's personal expenses and who was unjustly enriched by clerk-hire
employees' payments of personal expenses later compensated by salary
increases, was censured and ordered to repay the amount of the unjust
enrichment with interest (July 31, 1979, p. 21592); (2) a Member was
censured for receiving over a period of time sums of money from a person
with a direct interest in legislation in violation of clause 3 of rule
XXIII (formerly clause 4 of rule XLIII), and for transferring campaign
funds into office and personal accounts (June 10, 1980, pp. 13801-20)).
In the 98th Congress the House adopted two resolutions (as amended in
the House), each censuring a Member for an improper relationship with a
House page in a prior Congress (July 20, 1983, p. 20020 and p. 20030).
Five <<NOTE: Sec. 66. Punishment by expulsion.>> Members have been
expelled in the history of the House. Among those, three were expelled
for various offenses related to their service for the Confederacy in the
Civil War: John B. Clark of Missouri (a Member-elect) (II, 1262, July
13, 1861); Henry C. Burnett of Kentucky (II, 1261, Dec. 3, 1861); and
John W. Reid of Missouri (II, 1261, Dec. 6, 1861). Michael J. Myers of
Pennsylvania was expelled after being convicted in a Federal court of
bribery and conspiracy in accepting funds to perform official duties
(Oct. 2, 1980, p. 28978). James A. Traficant of Ohio was expelled after
being convicted in a Federal court for crimes including (1) trading
official acts and influence for things of value; (2) demanding and
accepting salary kickbacks from his congressional employees; (3)
influencing a congressional employee to destroy evidence and to provide
false testimony to a Federal grand jury; (4) receiving personal labor
and the services of his congressional employees while they were being
paid by the taxpayers to perform public
[[Page 31]]
service; and (5) filing false income tax returns (July 24, 2002, p.
14319). Three Senators were expelled for their association with the
Confederates during the Civil War (II, 1268-1270).
The power of expulsion has been the subject of much discussion (I,
469, 476, 481; II, 1264, 1265, 1269; VI, 56, 398; see Powell v.
McCormack, 395 U.S. 486 (1969)). In one case a Member-elect who had not
taken the oath was expelled (II, 1262), and in another case the power to
do this was discussed (I, 476). In one instance the Senate assumed to
annul its action of expulsion (II, 1243). The Supreme Court has decided
that a judgment of conviction under a disqualifying statute does not
compel the Senate to expel (II, 1282; Burton v. United States, 202 U.S.
344 (1906)). The power of expulsion in its relation to offenses
committed before the Members' election has been discussed (II, 1264,
1284, 1285, 1286, 1288, 1289; VI, 56, 238). In one case the Judiciary
Committee of the House concluded that a Member might not be punished for
an offense alleged to have been committed against a preceding Congress
(II, 1283); but the House itself declined to express doubt as to its
power to expel and proceeded to inflict censure (II, 1286). In addition,
the 96th Congress punished Members on two occasions for offenses
committed during a prior Congress (H. Res. 378, July 31, 1979, p. 21592;
H. Res. 660, June 10, 1980, pp. 13801-20). It has been held that the
power of the House to expel one of its Members is unlimited; a matter
purely of discretion to be exercised by a two-thirds vote, from which
there is no appeal (VI, 78). The resignation of the accused Member has
always caused a suspension of proceedings for expulsion (II, 1275, 1276,
1279; VI, 238). Following the expulsion of a Member, the Clerk notifies
the Governor of the relevant state of the action of the House (July 24,
2002, p. 14319).
Decisions <<NOTE: Sec. 67. Decisions of the Court.>> of the Supreme
Court of the United States: Anderson v. Dunn, 6 Wh. 204 (1821); Kilbourn
v. Thompson, 103 U.S. 168 (1881); United States v. Ballin, 144 U.S. 1
(1892); In re Chapman, 166 U.S. 661 (1897); Burton v. United States, 202
U.S. 344 (1906); Powell v. McCormack, 395 U.S. 486 (1969).
\3\ Each House <<NOTE: Sec. 68. Each House to keep a journal.>> shall
keep a Journal of its Proceedings, and from time to time publish the
same, excepting such Parts as may in their Judgment require Secrecy; * *
*
The Journal and <<NOTE: Sec. 69. The Journal the official
record.>> not the Congressional Record is the official record of the
proceedings of the House (IV, 2727). Its nature and functions have been
the subject of extended discussions (IV, 2730, footnote). The House has
fixed its title (IV, 2728). While it ought to be a correct transcript of
the proceedings of the House, the House has not insisted on a strict
chronological order of entries
[[Page 32]]
(IV, 2815). The Journal is dated as of the legislative and not the
calendar day (IV, 2746).
The Journal records <<NOTE: Sec. 70. Journal a record of proceedings
and not of reasons.>> proceedings but not the reasons therefor (IV,
2811) or the circumstances attending (IV, 2812), or the statements or
opinions of Members (IV, 2817-2820). Exceptions to this rule are rare
(IV, 2808, 2825). Protests have on rare occasions been admitted by the
action of the House (IV, 2806, 2807), but the entry of a protest on the
Journal may not be demanded by a Member as a matter of right (IV, 2798)
and such demand does not present a question of privilege (IV, 2799). A
motion not entertained is not entered on the Journal (IV, 2813, 2844-
46).
The House <<NOTE: Sec. 71. House's absolute control of entries in the
Journal.>> controls the Journal and may decide what are proceedings,
even to the extent of omitting things actually done or recording things
not done (IV, 2784; VI, 634). While the Speaker has entertained motions
to amend the Journal so as to cause it to state what was not the fact,
leaving it for the House to decide on the propriety of such act (IV,
2785), and holding that he could not prevent a majority of the House
from so amending the Journal as to undo an actual transaction (IV, 3091-
93), in none of those rulings was an amendment permitted to correct the
Journal that had the effect of collaterally changing the tabling of a
motion to reconsider. In fact, under the precedents cited in Sec. 902,
infra, under clause 1 of rule XVI it has been held not in order to amend
or strike out a Journal entry setting forth a motion exactly as made
(IV, 2783, 2789), and thus it was held not in order to amend the Journal
by striking out a resolution actually offered (IV, 2789), but on one
occasion the House vacated the Speaker's referral of an executive
communication by amending the Journal of the preceding day (Mar. 19,
1990, p. 4488). Only on rare instances has the House nullified
proceedings by rescinding the records of them in the Journal (IV, 2787),
the House and Senate usually insisting on the accuracy of its Journal
(IV, 2783, 2786). In rare instances the House and Senate have rescinded
or expunged entries in Journals of preceding Congresses (IV, 2730,
footnote, 2792, 2793).
The Journal should <<NOTE: Sec. 72. Record of votes in the
Journal.>> record the result of every vote and state in general terms
the subject of it (IV, 2804); but the result of a vote is recorded in
figures only when the yeas and nays are taken (IV, 2827), when the vote
is recorded by electronic device or by clerks, or when a vote is taken
by ballot, it having been determined in latest practice that the Journal
should show not only the result but the state of the ballot or ballots
(IV, 2832).
It is the <<NOTE: Sec. 73. Approval of the Journal.>> uniform practice
of the House to approve its Journal for each legislative day (IV, 2731).
Where Journals of more than one session remain unapproved, they are
taken up for approval in chronological order (IV, 2771-2773). In
ordinary practice the Journal is approved by the House without the
formal putting of the motion to vote (IV, 2774).
[[Page 33]]
The former rule required the reading of the Journal on each
legislative day. The reading could be dispensed with only by unanimous
consent (VI, 625) or suspension of the rules (IV, 2747-2750) and had to
be in full when demanded by any Member (IV, 2739-2741; VI, 627-628; Feb.
22, 1950, p. 2152).
The present form of the rule (clause 1 of rule I; see Sec. 621, infra)
was drafted from section 127 of the Legislative Reorganization Act of
1970 (84 Stat. 1140), incorporated into the standing rules in the 92d
Congress (H. Res. 5, Jan. 22, 1971, p. 144), and was further amended in
the 96th Congress (H. Res. 5, Jan. 15, 1979, pp. 7-16). Under the
current practice, the Speaker is authorized to announce his approval of
the Journal, which is deemed agreed to by the House, subject to the
right of any Member to demand a vote on agreeing to the Speaker's
approval (which, if decided in the affirmative, is not subject to the
motion to reconsider). In the 98th Congress, the Speaker was given the
authority to postpone a record vote on agreeing to his approval of the
Journal to a later time on that legislative day (H. Res. 5, Jan. 3,
1983, p. 34). While the transaction of any business is not in order
before approval of the Journal (IV, 2751; VI, 629, 637; Oct. 8, 1968, p.
30096), approval of the Journal yields to the simple motion to adjourn
(IV, 2757), administration of the oath (I, 171, 172), an arraignment of
impeachment (VI, 469), and questions of the privileges of the House (II,
1630), and the Speaker may in his discretion recognize for a
parliamentary inquiry before approval of the Journal (VI, 624). Under
clause 1 of rule I, as amended in the 96th Congress, a point of order of
no quorum is not in order before the Speaker announces his approval of
the Journal. Clause 7 of rule XX generally prohibits the making of
points of order of no quorum unless the Speaker has put the question on
the pending motion or proposition.
Under the practice <<NOTE: Sec. 74. Motions to amend the
Journal.>> before clause 1 of rule I was adopted in its present form,
the motion to amend the Journal took precedence over the motion to
approve it (IV, 2760; VI, 633); but the motion to amend may not be
admitted after the previous question is demanded on a motion to approve
(IV, 2770; VI, 633; VIII, 2684). An expression of opinion as to a
decision of the Chair was held not in order as an amendment to the
Journal (IV, 2848). A proposed amendment to the Journal being tabled
does not carry the Journal with it (V, 5435, 5436). While a proposed
correction of the Journal may be recorded in the Journal, yet it is not
in order to insert in full in this indirect way what has been denied
insertion in the first instance (IV, 2782, 2804, 2805). The earlier
practice was otherwise, however (IV, 2801-2803). The Journal of the last
day of a session is not approved on the assembling of the next session,
and is not ordinarily amended (IV, 2743, 2744). For further discussion
of the composition and approval of the Journal, see Deschler, ch. 5.
[[Page 34]]
Decisions <<NOTE: Sec. 74a. Decisions of the Court.>> of the Supreme
Court of the United States: Field v. Clark, 143 U.S. 649 (1892); United
States v. Ballin, 144 U.S. 1 (1892).
* * * and the <<NOTE: Sec. 75. Yeas and Nays entered on the
Journal.>> Yeas and Nays of the Members of either House on any question
shall, at the Desire of one fifth of those Present, be entered on the
Journal.
The yeas and <<NOTE: Sec. 76. Conditions of ordering yeas and
nays.>> nays may be ordered before the organization of the House (I, 91;
V, 6012, 6013), but are not taken in Committee of the Whole (IV, 4722,
4723). They are not necessarily taken on the passage of a resolution
proposing an amendment to the Constitution (V, 7038, 7039; VIII, 3506),
but are required to pass a bill over a veto (Sec. 104; VII, 1110). In
the earlier practice of the House it was held that less than a quorum
might not order the yeas and nays, but for many years the decisions have
been uniformly the other way (V, 6016-6028). Neither is a quorum
necessary on a motion to reconsider the vote whereby the yeas and nays
are ordered (V, 5693). When a quorum fails on a yea and nay vote it is
the duty of the Speaker and the House to take notice of that fact (IV,
2953, 2963, 2988). If the House adjourns, the order for the yeas and
nays remains effective whenever the bill again comes before the House
(V, 6014, 6015; VI, 740; VIII, 3108), and it has been held that the
question of consideration might not intervene on a succeeding day before
the second calling of the yeas and nays (V, 4949). However, when the
call of the House is automatic, the Speaker directs the roll to be
called or the vote to be taken by electronic device without motion from
the floor (VI, 678, 679, 694, 695); and should a quorum fail to vote and
the House adjourn, proceedings under the automatic call are vacated and
the question recurs de novo when the bill again comes before the House
(Oct. 10, 1940, pp. 13534-35; Oct. 13, 1962, p. 23474; Oct. 19, 1966, p.
27641). While the Constitution and the Rules of the House guarantee that
votes taken by the yeas and nays be spread upon the Journal, neither
requires that a Member's vote be announced to the public immediately
during the vote (Sept. 19, 1985, p. 24245).
The yeas and nays may not be demanded until the Speaker has put the
question in the form prescribed by clause 6 of rule I (formerly clause
5) (Oct. 2, 1974, p. 33623).
The yeas and <<NOTE: Sec. 77. Demanding the yeas and nays.>> nays may
be demanded while the Speaker is announcing the result of a division (V,
6039), while a vote by tellers is being taken (V, 6038), and even after
the announcement of the vote if the House has not passed to other
business (V, 6040, 6041; VIII, 3110) and if the Member seeking the yeas
and nays is on his feet and seeking recognition for that purpose when
[[Page 35]]
the Chair announces the result of the voice vote (Nov. 22, 1991, p.
34075; Sep. 21, 2005, p. ----). But after the Speaker has announced the
result of a division on a motion and is in the act of putting the
question on another motion it is too late to demand the yeas and nays on
the first motion (V, 6042). And it is not in order during the various
processes of a division to repeat a demand for the yeas and nays that
has once been refused by the House (V, 6029, 6030, 6031). The
constitutional right of a Member to demand the yeas and nays may not be
overruled as dilatory (V, 5737; VIII, 3107); but this constitutional
right does not exist as to a vote to second a motion when such second is
required by the rules (V, 6032-6036; VIII, 3109). The right to demand
yeas and nays is not waived by the fact that the Member demanding them
has just made the point of no quorum and caused the Chair to count the
House (V, 6044).-
In passing on <<NOTE: Sec. 78. Yeas and nays ordered by onefifth.>> a
demand for the yeas and nays the Speaker need determine only whether
one-fifth of those present sustain the demand (V, 6043; VIII, 3112,
3115). In ascertaining whether one-fifth of those present support a
demand for the yeas and nays the Speaker counts the entire number
present and not merely those who rise to be counted (VIII, 3111, 3120).
Such count is not subject to verification by appeal (Sept. 12, 1978, p.
28984; Mar. 8, 2006, p. ----), and a request for a rising vote of those
opposed to the demand is not in order (VIII, 3112-3114). Where the Chair
prolongs his count of the House in determining whether one-fifth have
supported the demand for yeas and nays, he counts latecomers in support
of the demand as well as for the number present (Sept. 24, 1990, p.
25521). After the House, on a vote by tellers, has refused to order the
yeas and nays it is too late to demand the count of the negative on an
original vote (V, 6045).
A motion to <<NOTE: Sec. 79. Reconsideration of the vote ordering the
yeas and nays.>> reconsider the vote ordering the yeas and nays is in
order (V, 6029; VIII, 2790), and the vote may be reconsidered by a
majority. If the House votes to reconsider the yeas and nays may again
be ordered by one-fifth (V, 5689-5691). But when the House, having
reconsidered, again orders the yeas and nays, a second motion to
reconsider may not be made (V, 6037). In one instance it was held that
the yeas and nays might be demanded on a motion to reconsider the vote
whereby the yeas and nays were ordered (V, 5689), but evidently there
must be a limit to this process. The vote whereby the yeas and nays are
refused may be reconsidered (V, 5692).
A motion <<NOTE: Sec. 80. Effect of an order of the yeas and
nays.>> to adjourn may be admitted after the yeas and nays are ordered
and before the roll call has begun (V, 5366); and a motion to suspend
the rules has been entertained after the yeas and nays have been
demanded on another matter (V, 6835). Consideration of a conference
report (V, 6457), and a motion to reconsider the vote by which the yeas
and nays were ordered (V, 6029; VIII, 2790) may be admitted. A demand
for tellers or for a division is
[[Page 36]]
not precluded or set aside by the fact that the yeas and nays are
demanded and refused (V, 5998; VIII, 3103).
Decisions <<NOTE: Sec. 81. Decisions of the Court.>> of the Supreme
Court of the United States: Field v. Clark, 143 U.S. 649 (1892); United
States v. Ballin, 144 U.S. 1 (1892); Twin City Bank v. Nebeker, 167 U.S.
196 (1897); Wilkes County v. Coler, 180 U.S. 506 (1901); Marshall v.
Gordon, 243 U.S. 521 (1917).
\4\ Neither House, <<NOTE: Sec. 82. Adjournment for more than three
days or to another place.>> during the Session of Congress shall,
without the Consent of the other, adjourn for more than three days, nor
to any other Place than that in which the two Houses shall be sitting.
The word ``Place'' in <<NOTE: Sec. 82a. Adjournment to another
place.>> the above paragraph was construed to mean the seat of
Government, and consent of the Senate is not required where the House
orders its meetings to be held in another structure at the seat of
Government (Speaker Rayburn, Aug. 17, 1949, pp. 11651, 11683). Under
clause 12(d) of rule I, the Speaker may convene the House in a place
within the District of Columbia, other than the Hall of the House,
whenever, in his opinion, the public interest shall warrant it
(Sec. 639, infra). In recent practice the two Houses have granted joint
leadership (or their designees) authority for an entire Congress to
assemble the Congress at a place outside the District of Columbia
whenever the public interest shall warrant it (H. Con. Res. 1, Feb. 13,
2003, p. 4080; H. Con. Res. 1, Jan. 4, 2005, p. ---- (not adopted by the
Senate); H. Con. Res. 1, Jan. 4, 2007, p. ----). The Speaker executes by
letter his designation under such resolution (e.g., Mar. 13, 2003, p.
6123; Jan. 20, 2005, p. ----). After September 11, 2001, recall
authority carried in adjournment resolutions has allowed reassembly at
such place as may be designated (see Sec. 84, infra). The President may
convene Congress at places outside the seat of Government during
hazardous circumstances (2 U.S.C. 27; Deschler, ch. 1, Sec. 4).
On November 22, 1940, p. 13715, the House adopted a resolution
providing that thereafter until otherwise ordered its meetings be held
in the Caucus room of the new House Office Building. Likewise the Senate
on the same day, p. 13709, provided that its meetings be held in the
Chamber formerly occupied by the Supreme Court in the Capitol. The two
Houses continued to hold their sessions in these rooms until the opening
of the 77th Congress. These actions were necessitated by the precarious
condition of the roofs in the two Chambers. On June 28, 1949, p. 8571,
and on September 1, 1950, p. 14140, the House provided that until
otherwise ordered its meetings be held in the Caucus room of the new
House Office Building, pending the remodeling of its Chamber. On June
29, 1949, p. 8584, and
[[Page 37]]
on Aug. 9, 1950, p. 12106, the Senate provided that its meetings be held
in the Chamber formerly occupied by the Supreme Court in the Capitol,
pending remodeling of its Chamber. The House returned to its Chamber on
January 3, 1950, and again on January 1, 1951. The Senate returned to
its Chamber on January 3, 1950, and again on January 3, 1951.
There has been no occasion for the convening of a session of Congress
outside the seat of Government. However, the Congress has engaged in
ceremonial functions outside the seat of Government, which were
authorized by concurrent resolution (H. Con. Res. 131, May 28, 1987, p.
14031; H. Con. Res. 96, Apr. 18, 1989, p. 6834; H. Con. Res. 448, July
25, 2002, p. 14645).-
The House of <<NOTE: Sec. 83. Adjournment of the House within the
threeday limit.>> Representatives in adjourning for not more than three
days must take into the count either the day of adjourning or the day of
the meeting, and Sunday is not taken into account in making this
computation (V, 6673, 6674). The House may provide for a session of the
House on a Sunday, traditionally a ``dies non'' under the precedents of
the House (Dec. 17, 1982, p. 31946; Dec. 18, 1987, p. 36352; Nov. 17,
1989, p. 30029; Aug. 20, 1994, p. 23367). The House has by standing
order provided that it should meet on two days only of each week instead
of daily (V, 6675). Before the election of Speaker, the House has
adjourned for more than one day (I, 89, 221). The House has by unanimous
consent agreed to an adjournment for less than three days but specified
that it would continue in adjournment for 10 days pursuant to a
concurrent resolution already passed by the House if the Senate adopted
the concurrent resolution before the third day of the House's
adjournment (Nov. 20, 1987, p. 33054). The Committee on Rules has
reported a rule authorizing the Speaker to declare the House in recesses
subject to calls of the Chair during five discrete periods, each
consistent with the constitutional constraint that neither House adjourn
(or recess) for more than three days without consent of the other House
(Dec. 21, 1995, p. 38141; Jan. 5, 1996, p. 357). Under clause 12(c) of
rule I, during any recess or adjournment of not more than three days, if
the Speaker is notified by the Sergeant-at-Arms of an imminent
impairment of the place of reconvening, then he may, in consultation
with the Minority Leader, postpone the time for reconvening within the
three-day limit prescribed by the Constitution. In the alternative, the
Speaker, under the same conditions, may reconvene the House before the
time previously appointed solely to declare the House in recess within
that three-day limit (see Sec. 639, infra).
Congress is adjourned <<NOTE: Sec. 84. Resolutions for adjournment of
the two Houses.>> for more than three days by a concurrent resolution
(IV, 4031, footnote). When it adjourns in this way, but not to or beyond
the day fixed by Constitution or law for the next regular session to
begin, the session is not thereby necessarily terminated (V, 6676,
6677). At the close of the first session of the 66th Congress, the two
Houses adjourned sine die under authority granted each House by simple
resolutions
[[Page 38]]
consenting to such adjournment sine die at any time before a specified
date (Nov. 19, 1919, p. 8810).
Until the 67th Congress neither House had ever adjourned for more than
three days by itself with the consent of the other, but resolutions had
been offered for the accomplishment of that end (V, 6702, 6703). In the
modern practice it is common for a concurrent resolution to provide for
a one-House adjournment or to provide for each House to adjourn for
different time periods. For example: (1) the House adjourned until
August 15, 1922, with the consent of the Senate (June 29, 1922, p.
10439); (2) the two Houses provided for an adjournment sine die of the
House on August 20, 1954, and of the Senate at any time before December
25, 1954 (H. Con. Res. 266); (3) the two Houses provided for an
adjournment sine die of the House on December 20 or December 21 pursuant
to a motion made by the Majority Leader or his designee, and of the
Senate at any time before January 3, 1983, as determined by the Senate,
and for adjournments or recesses of the Senate for periods of more than
three days as determined by the Senate during such period (H. Con. Res.
438, Dec. 20, 1982, p. 32951); (4) the two Houses provided for an
adjournment of the Senate to a day certain and of the House for more
than three days to a day certain, or to any day before that day as
determined by the House (S. Con. Res. 102, May 27, 1982, pp. 12504,
12505); (5) the two Houses provided for an adjournment to a day certain,
with a provision that if there should be no quorum present on that day
the session should terminate (V, 6686).
A concurrent resolution adjourning both Houses for more than three
days, or sine die, normally includes joint leadership authority to
reassemble the Members whenever the public interest shall warrant it
(see, e.g., July 8, 1943, p. 7516; June 23, 1944, p. 6667; Sept. 21,
1944, p. 8109; July 18, 1945, p. 7733; July 26, 1947, p. 10521; June 20,
1948, p. 9348; Aug. 7, 1948, p. 10247; Dec. 22, 1973, p. 43327; Dec. 20,
1974, p. 41815; Nov. 21, 1989, 101st Cong., p. 31156; Oct. 3, 1996,
104th Cong., p. 12275; Nov. 13, 1997, 105th Cong., p. 26538; Dec. 15,
2000, 106th Cong., p. 27019). Pursuant to such recall authority: (1) the
Speaker and the Majority Leader of the Senate notified Members of the
House to reassemble, the Senate already being in session (Mar. 20, 2005,
p. ----, pursuant to H. Con. Res. 103, 109th Cong., Mar. 17, 2005, p. --
--); (2) the Speaker and the Majority Leader of the Senate notified
Members of both Houses to reassemble (Sept. 2, 2005, p. ----, pursuant
to H. Con. Res. 225, 109th Cong., July 28, 2005, p. ----).
After September 11, 2001, such recall authority has allowed reassembly
at such place as may be designated (see, e.g., S. Con. Res. 160, Nov.
22, 2002, p. 23512; H. Con. Res. 531, Dec. 9, 2004, p. ----). More
recently, such recall authority permitted recall by designees of the
Speaker and the Majority Leader of the Senate (see, e.g., S. Con. Res.
132, July 26, 2002, p. 15138). The Speaker executes by letter his
designation under a concurrent resolution of adjournment, as well as his
designation under
[[Page 39]]
House Concurrent Resolution 1 (e.g., Mar. 13, 2003, p. 6123; Jan. 20,
2005, p. ----). The Speaker also executes by letter his designation of
another Member to utilize reassembly authority under a joint resolution
changing the convening date of the next session (H. J. Res. 80, 108th
Cong., Dec. 15, 2003, p. ----).
On occasion an adjournment resolution has provided for one-House
recall (see, e.g., July 20, 1970, 91st Cong., p. 24978). Joint
leadership and House only recall provisions were included in the sine
die adjournment resolution for the second session of the 105th Congress
(H. Con. Res. 353, Oct. 20, 1998, p. 27348), and the Speaker exercised
his recall authority under that resolution to reassemble the House (Dec.
17, 1998, p. 27802).
When the Senate is out of session for not more than three days, the
Senate Majority and Minority Leaders may modify an order for the time or
place of convening when, in their opinion, such action is warranted by
intervening circumstances (S. Res. 296, 108th Cong., Feb. 3, 2004, p. --
--). Pursuant to such authority, during an adjournment of the Senate for
not more than three days, the Senate convened earlier than previously
ordered to adopt a House concurrent resolution providing for an
adjournment of the two Houses (H. Con. Res. 103, Mar. 17, 2005, p. ----
), section 2 of which enabled a recall of the House (Mar. 20, 2005, p.
----).
A resolution adopted in the first session of the 106th Congress
provided for an adjournment to a date certain, unless the House sooner
received a specified message from the Senate, in which case it would
stand adjourned sine die (H. Con. Res. 235, Nov. 18, 1999, p. 30734). It
has become the common practice for the House, by unanimous consent
adopted after originating an adjournment resolution, to fix a time to
which it would adjourn within three days unless the House were sooner to
receive a message from the Senate transmitting its adoption of the
adjournment resolution, in which case the House would stand adjourned
pursuant to that resolution (see, e.g., Nov. 3, 2000, p. 25993; Mar. 20,
2002, p. 3726).
A concurrent resolution providing for the sine die adjournment of the
first session may contain a proviso that when the second session
convenes the Senate or House may not conduct organizational or
legislative business but shall adjourn on that day until a date certain,
unless sooner recalled (H. Con. Res. 232, 96th Cong., Dec. 20, 1979, p.
37317; H. Con. Res. 260, 102d Cong., Nov. 26, 1991, p. 35840; H. Con.
Res. 235, 106th Cong., Nov. 18, 1999, p. 30734). The prohibition on the
conduct of such business may be applied to the House by simple
resolution and may vest the Speaker with the authority to dispense with
such business over a period of time (H. Res. 619, as amended by H. Res.
640, 109th Cong., Dec. 16, 2005, p. ----, Dec. 18, 2005, p. ----). Such
a prohibition does not preclude recognition for one-minute speeches and
special-order speeches by unanimous consent (Jan. 3, 1992, pp. 2, 9) or
the introduction and numbering of bills and resolutions (which would not
be noted in the Congressional Record or referred by the Speaker until
the next legislative day, when executive communications, petitions, and
memorials also would be numbered and
[[Page 40]]
referred) (Jan. 24, 2000, p. 48). The House has passed a joint
resolution appointing a day for the convening of a second session of a
Congress and provided for possible earlier assembly by joint-leadership
recall (see, e.g., H. J. Res. 80, 107th Cong., Dec. 20, 2001, p. 27597;
H. J. Res. 80, 108th Cong., Nov. 21, 2003, p. ----).
A concurrent resolution to provide for adjournment for more than three
days or an adjournment sine die is offered in the House as a matter of
privilege (V, 6701-6706), and is not debatable (VIII, 3372-3374), though
a Member may be recognized under a reservation of objection to a
unanimous-consent request that the resolution be agreed to (Oct. 27,
1990, p. 36850). The Legislative Reorganization Act of 1970 provides for
a sine die adjournment, or (in an odd numbered year) an adjournment of
slightly over a month (from that Friday in August which is at least 30
days before Labor Day to the Wednesday following Labor Day) unless the
nation is in a state of war, declared by Congress (sec. 461(b); 84 Stat.
1140). Congress may, of course, waive this requirement and make other
determinations regarding its adjournment (see Sec. 1106, infra).
The requirement that resolutions providing for an adjournment sine die
of either House may not be considered until Congress has completed
action on the second concurrent resolution on the budget for the fiscal
year in question, and on any reconciliation legislation required by such
a resolution, contained in section 310(f) of the Congressional Budget
Act of 1974 (P.L. 93-344), was repealed by the Balanced Budget and
Emergency Deficit Control Act of 1985 (P.L. 99-177). That law amended
sections 309 and 310 of the Congressional Budget Act to prohibit the
consideration of concurrent resolutions providing adjournments for more
than three calendar days during the month of July in excess of three
days until the House has approved annual appropriation bills within the
jurisdictions of all the subcommittees on Appropriations for the ensuing
fiscal year, and until the House has completed action on all
reconciliation legislation for the ensuing fiscal year required to be
reported by the concurrent resolution on the budget for that year (see
Sec. 1127, infra).
Section 6. \1\ The Senators <<NOTE: Sec. 85. Compensation of
Members.>> and Representatives shall receive a Compensation for their
Services, to be ascertained by Law, and paid out of the Treasury of the
United States.
The 27th amendment to the Constitution addresses laws varying the
compensation for the services of the Senators and Representatives (see
Sec. 258, infra). The present rate of compensation of Representatives,
the Resident Commissioner from Puerto Rico, Delegates, the Speaker, the
Majority and Minority Leaders of the House, and the Vice President is
established by law (2 U.S.C. 31; 3 U.S.C. 104) with an additional amount
per annum to assist in defraying expenses (2 U.S.C. 31b; 3 U.S.C. 111).
These rates
[[Page 41]]
of compensation are all (except for the expense allowances) subject to
annual cost of living adjustments (2 U.S.C. 31(2)). The present rate of
compensation of Senators is that fixed by section 1101 of Public Law
101-194, as adjusted pursuant to 2 U.S.C. 31(2).
Under <<NOTE: Sec. 86. Salary and deductions.>> the Federal Salary Act
of 1967 (2 U.S.C. 351-362), the Citizens' Commission on Public Service
and Compensation (formerly the Commission on Executive, Legislative and
Judicial Salaries) is authorized and directed to conduct quadrennial
reviews of the rates of pay of specified government officials, including
Members of Congress, and to report to the President the results of each
review and its recommendations for adjustments in such rates. The
enactment of those recommendations is governed by the Federal Salary Act
(see Sec. 1130(12), infra).
The statute also provides for deductions from the pay of Members and
Delegates who are absent from the sessions of the House for reasons
other than illness of themselves and families, or who retire before the
end of the Congress (2 U.S.C. 39; IV, 3011, footnote). The law as to
deductions has been held to apply only to Members who have taken the
oath (II, 1154). Members and Delegates are paid monthly on certificate
of the Speaker (2 U.S.C. 34, 35, 37, 57a). The law also provides that
the residence of a Member of Congress for purpose of imposing State
income tax laws shall be the State from which elected and not the State,
or subdivision thereof, in which the Member maintains an abode for the
purpose of attending sessions of Congress (4 U.S.C. 113).
Questions have arisen <<NOTE: Sec. 87. Questions as to
compensation.>> frequently as to compensation of Members especially in
cases of Members elected to fill vacancies (I, 500; II, 1155) and where
there have been questions as to incompatible offices (I, 500) or claims
to a seat (II, 1206). The Supreme Court has held that a Member chosen to
fill a vacancy is entitled to salary only from the time that the
compensation of his predecessor has ceased. Page v. United States, 127
U.S. 67 (1888); see also 2 U.S.C. 37.
In the 92d <<NOTE: Sec. 88. Travel and Members' representational
allowances.>> Congress, the provisions of H. Res. 457 of that Congress,
authorizing the Committee on House Administration to adjust allowances
of Members and committees without further action by the House, were
enacted into permanent law (2 U.S.C. 57), but the 94th Congress enacted
into permanent law H. Res. 1372 of that Congress, stripping the
Committee of that authority and requiring House approval of the
committee's recommendations, except in cases made necessary by price
changes in materials and supplies, technological advances in office
equipment, and cost of living increases (2 U.S.C. 57a). The Committee on
House Administration retains authority under 2 U.S.C. 57 to
independently adjust amounts under certain conditions outlined in 2
U.S.C. 57a (Mar. 21, 1977, p. 8227; Apr. 21, 1983, p. 9339). The text of
those statutes follow:
[[Page 42]]
``Sec. 57. Adjustment of House of Representatives allowances by
Committee on House Administration
``(a) In general.--Subject to the provision of law specified in
subsection (b) of this section, the Committee on House Administration of
the House of Representatives may, by order of the Committee, fix and
adjust the amounts, terms, and conditions of, and other matters relating
to, allowances of the House of Representatives within the following
categories:
``(1) For Members of the House of Representatives, the
Members' Representational Allowance, including all aspects of
the Official Mail Allowance within the jurisdiction of the
Committee under section 59(e) of this title.
``(2) For committees, the Speaker, the Majority and Minority
Leaders, the Clerk, the Sergeant at Arms, and the Chief
Administrative Officer, allowances for official mail (including
all aspects of the Official Mail Allowance within the
jurisdiction of the Committee under section 59e of this title),
stationery, and telephone and telegraph and other
communications.
``(b) Provision specified.--The provision of law referred to in
subsection (a) of this section is section 57a of this title.
``(c) Member of the House of Representatives defined.--As used in this
section, the term `Member of the House of Representatives' means a
Representative in, or a Delegate or Resident Commissioner to, the
Congress.''
``Sec. 57a. Limitation on allowance authority of Committee on House
Administration.
``(a) In general.--An order under the provision of law specified in
subsection (c) of this section may fix or adjust the allowances of the
House of Representatives only by reason of--
``(1) a change in the price of materials, services, or office
space;
``(2) a technological change or other improvement in office
equipment; or
``(3) an increase under section 5303 of title 5 in rates of
pay under the General Schedule.
``(b) Resolution requirement.--In the case of reasons other than the
reasons specified in paragraph (1), (2), or (3) of subsection (a) of
this section, the fixing and adjustment of the allowances of the House
of Representatives in the categories described in the provision of law
specified in subsection (c) of this section may be carried out only by
resolution of the House of Representatives.
``(c) Provision specified.--The provision of law referred to in
subsections (a) and (b) of this section is section 57 of this title.''
In the 104th Congress the Committee on House Administration
promulgated an order abolishing separate allowances for Clerk Hire,
Official Expenses, and Official Mail, in favor of a single ``Members'
Representational
[[Page 43]]
Allowance'' (MRA), which was ultimately enacted into law (2 U.S.C. 57b).
The MRA is provided for the employment of staff in the Member's
Washington and district offices, official expenses incurred by the
Member, and the postage expenses of first, third, and fourth class
frankable mail.
Until January 1, 1988, the maximum salary for staff members was the
rate of basic pay authorized for Level V of the Executive Schedule (by
order of the Committee on House Administration, Mar. 21, 1977, p. 8227).
Under section 311 of the Legislative Branch Appropriations Act, 1988, as
contained in section 101(i) of Public Law 100-202 (2 U.S.C. 60a-2a), the
maximum salary for staff members is set by pay order of the Speaker. A
Member may not employ a relative on his MRA (5 U.S.C. 3110). The Code of
Official Conduct also precludes certain hiring practices of Members (see
Sec. 1095, infra).
Until the 103d Congress, a Member could employ a ``Lyndon Baines
Johnson Congressional Intern'' for a maximum of two months at not to
exceed $1,160 per month. Such internships were available for college
students and secondary or postsecondary school teachers (H. Res. 420,
93d Cong., Sept. 18, 1973, p. 30186). Any paid internship is now funded
through the MRA.
The statutes provide for continuation of the pay of clerical
assistants to a Member upon his or her death or resignation, until a
successor is elected to fill the vacancy, and such clerical assistants
perform their duties under the direction of the Clerk of the House (2
U.S.C. 92a-92d). Upon the explusion of a Member in the 96th Congress,
the House by resolution extended those provisions to any termination of
service by a Member during the term of office (H. Res. 804, Oct. 2,
1980, p. 28978).
For current information on the MRA and the method of its accounting
and disbursement, see current U.S. House of Representatives
Congressional Handbook, Committee on House Administration.
At its <<NOTE: Sec. 88a. Ban on Legislative Service
Organizations.>> organization the 104th Congress prohibited the
establishment or continuation of any legislative service organization
(as that term had been understood in the 103d Congress) and directed the
Committee on House Administration to take such steps as were necessary
to ensure an orderly termination and accounting for funds of any
legislative service organization in existence on January 3, 1995 (sec.
222, H. Res. 6, Jan. 4, 1995, p. 477).
Separate from the <<NOTE: Sec. 89. Leadership staff allowances.>> MRA
specified above, the leaders of the House (the Speaker, Majority Leader,
Minority Leader, Majority Whip, and Minority Whip) are entitled to
office staffing allowances consisting of certain statutory positions as
well as lump-sum appropriations authorized by section 473 of the
Legislative Reorganization Act of 1970 (84 Stat. 1140). The portion of
these allowances for leadership office personnel may be adjusted by the
Clerk of the House in certain situations when the President effects a
pay adjustment
[[Page 44]]
for certain classes of Federal employees under the Federal Pay
Comparability Act of 1970 (P.L. 91-656; 84 Stat. 1946).
Under <<NOTE: Sec. 89a. Speaker's ``pay orders.''>> section 311(d) of
the Legislative Branch Appropriations Act, 1988 [2 U.S.C. 60a-2a], the
Speaker may issue ``pay orders'' that adjust pay levels for officers and
employees of the House to maintain certain relationships with comparable
levels in the Senate and in the other branches of government. For the
text of section 311(d), see Sec. 1130, infra.
* * * They [the <<NOTE: Sec. 90. Privilege of Members from
arrest.>> Senators and Representatives] shall in all Cases, except
Treason, Felony, and Breach of the Peace, be privileged from Arrest
during their attendance at the Session of their respective Houses, and
in going to and returning from the same; * * *
The word ``felony'' <<NOTE: Sec. 91. Assertions of privilege of
Members by the House.>> in this provision has been interpreted not to
refer to a delinquency in a matter of debt (III, 2676), and ``treason,
felony, and breach of the peace'' have been construed to mean all
indictable crimes (III, 2673). The Supreme Court has held that the
privilege does not apply to arrest in any criminal case. Williamson v.
United States, 207 U.S. 425 (1908). The courts have discussed and
sustained the privilege of the Member in going to and returning from the
session (III, 2674); and where a person assaulted a Member on his way to
the House, although at a place distant therefrom, the House arrested him
on warrant of the Speaker, arraigned him at the bar and committed him
(II, 1626, 1628). Other assaults under these circumstances have been
treated as breaches of privilege (II, 1645). Where a Member had been
arrested and detained under mesne process in a civil suit during a
recess of Congress, the House decided that he was entitled to discharge
on the assembling of Congress, and liberated him and restored him to his
seat by the hands of its own officer (III, 2676). Service of process is
distinguished from arrest in civil cases and related historical data are
collected in Long v. Ansell, 293 U.S. 76 (1934), where the Supreme Court
held that the clause was applicable only to arrests in civil suits, now
largely obsolete but common at the time of the adoption of the United
States Constitution. Rule VIII (formerly rule L) was added in the 97th
Congress to provide a standing procedure governing subpoenas to Members,
officers, and employees directing their appearance as witnesses relating
to the official functions of the House, or for the production of House
documents.
[[Page 45]]
<<NOTE: Sec. 92. Members privileged from being questioned for speech or
debate.>> * * * and for any Speech or Debate in either House, they
[the Senators and Representatives] shall not be questioned in any other
place.
This privilege as <<NOTE: Sec. 93. Scope of the privilege.>> to ``any
speech or debate'' applies generally to ``things done in a session of
the House by one of its Members in relation to the business before it.''
Kilbourn v. Thompson, 103 U.S. 168 (1881), cited at III, 2675. See also
II, 1655 and Sec. Sec. 301-302, infra, for provisions in Jefferson's
Manual on the privilege; and Deschler, ch. 7. The clause precludes
judicial inquiry into the motivation, preparation, or content of a
Member's speech on the floor and prevents such a speech from being made
the basis for a criminal conspiracy charge against the Member. United
States v. Johnson, 383 U.S. 169 (1966). The Supreme Court held in United
States v. Helstoski, 442 U.S. 447 (1979), that under the Speech or
Debate Clause, neither evidence of nor references to legislative acts of
a Member of Congress may be introduced by the Government in a
prosecution under the official bribery statute. But the Supreme Court
has limited the scope of legislative activity that is protected under
the clause by upholding grand jury inquiry into the possession and
nonlegislative use of classified documents by a Member. Gravel v. United
States, 408 U.S. 606 (1972). The Court has also sustained the validity
of an indictment of a Member for accepting an illegal bribe to perform
legislative acts where the prosecution established a prima facie case
without relying on the Member's constitutionally-protected legislative
speech. United States v. Brewster, 408 U.S. 501 (1972). Nor does the
clause protect transmittal of allegedly defamatory material issued in
press releases and newsletters by a Senator, as neither was essential to
the deliberative process of the Senate. Hutchinson v. Proxmire, 443 U.S.
111 (1979). A complaint against an officer of the House relating to the
dismissal of an official reporter of debates has been held
nonjusticiable on the basis that her duties were directly related to the
due functioning of the legislative process. Browning v. Clerk, 789 F.2d
923 (D.C. Cir. 1986), cert. den. 479 U.S. 996 (1986). For a discussion
of waivers of the Speech and Debate clause, see Sec. 301, infra.
Legislative employees acting under orders of the House are not
necessarily protected under the clause from judicial inquiry into the
constitutionality of their actions. Kilbourn v. Thompson, 103 U.S. 165
(1880); Dombrowski v. Eastland, 387 U.S. 82 (1967); Powell v. McCormack,
395 U.S. 486 (1969). But see Gravel v. United States, 408 U.S. 606
(1972), where the Supreme Court held that the aide of a Senator was
protected under the clause when performing legislative acts that would
have been protected under the clause if performed by the Senator
himself. There is no distinction between the Members of a Senate
subcommittee and its chief counsel insofar as complete immunity under
the Speech and Debate
[[Page 46]]
Clause is provided for the issuance of a subpoena pursuant to legitimate
legislative inquiry. Eastland v. U.S. Servicemen's Fund, 421 U.S. 491
(1975). See also Doe v. McMillan, 412 U.S. 306 (1973) (relating to the
dissemination of a congressional report) for the immunity under this
clause of Members of the House and their staffs, and for the common-law
immunity of the Public Printer and Superintendent of Documents.
For Federal court decisions on the applicability of the clause to
unofficial circulation of reprints from the Congressional Record, see
McGovern v. Martz, 182 F. Supp. 343 (1960); Long v. Ansell, 69 F.2d 386
(1934), aff'd, 293 U.S. 76 (1934); Methodist Federation for Social
Action v. Eastland, 141 F. Supp. 729 (1956). For inquiry into a Member's
use of the franking privilege, see Hoellen v. Annunzio, 468 F.2d 522
(1972), cert. denied, 412 U.S. 953 (1973); Schiaffo v. Helstoski, 350 F.
Supp. 1076 (1972), rev'd 492 F.2d 413 (1974). For inquiry into the
printing of committee reports, see Doe v. McMillan, 412 U.S. 306 (1973);
Hentoff v. Ichord, 318 F. Supp. 1175 (1970).
For assaulting a <<NOTE: Sec. 94. Action by the House.>> Member for
words spoken in debate, Samuel Houston, not a Member, was arrested,
tried, and censured by the House (II, 1616-1619). Where Members have
assaulted other Members for words spoken in debate (II, 1656), or
proceeded by duel (II, 1644), or demanded explanation in a hostile
manner (II, 1644), the House has considered the cases as of privilege. A
communication addressed to the House by an official in an Executive
Department calling in question words uttered by a Member in debate was
criticized as a breach of privilege and withdrawn (III, 2684). An
explanation having been demanded of a Member by a person not a Member
for a question asked of the latter when a witness before the House, the
matter was considered but not pressed as a breach of privilege (III,
2681). A letter from a person supposed to have been assailed by a Member
in debate, asking properly and without menace if the speech was
correctly reported, was held to involve no question of privilege (III,
2682). Unless it be clear that a Member has been questioned for words
spoken in debate, the House declines to act (II, 1620; III, 2680).
For assaulting a Member, Charles C. Glover was arrested, arraigned at
the bar of the House, and censured by the Speaker by direction of the
House, although the provocation of the assault was words spoken in
debate in the previous Congress (VI, 333).
Decisions <<NOTE: Sec. 95. Decisions of the Court.>> of the Supreme
Court of the United States: Kilbourn v. Thompson, 103 U.S. 168 (1881);
Tenney v. Brandhove, 341 U.S. 367 (1951); United States v. Johnson, 383
U.S. 169 (1966); Dombrowski v. Eastland, 387 U.S. 82 (1967); Powell v.
McCormack, 395 U.S. 486 (1969); Gravel v. United States, 408 U.S. 606
(1972); United States v. Brewster, 408 U.S. 501 (1972); United States v.
Helstoski, 442 U.S. 477 (1979); Hutchinson v. Proxmire, 443 U.S. 111
(1979).
[[Page 47]]
\2\ No Senator or <<NOTE: Sec. 96. Restriction on appointment of
Members to office.>> Representative shall, during the Time for which he
was elected, be appointed to any Civil Office under the Authority of the
United States, which shall have been created, or the Emoluments whereof
shall have been encreased during such time; * * *.
In a few cases questions have arisen under this paragraph (I, 506,
footnote; and see 42 Op. Att'y Gen. 36 (1969); see also Deschler, ch.
7).
<<NOTE: Sec. 97. Members not to hold office under the United States.>>
* * * and no Person holding any Office under the United States, shall
be a Member of either House during his Continuance in Office.
The meaning of the word ``office'' as used in this paragraph has been
discussed (I, 185, 417, 478, 493; II, 993; VI, 60, 64), as has also the
general subject of incompatible offices (I, 563).
The Judiciary Committee <<NOTE: Sec. 98. As to what are incompatible
offices.>> has concluded that members of commissions created by law to
investigate and report, but having no legislative, executive, or
judicial powers, and visitors to academies, regents, directors, and
trustees of public institutions, appointed under the law by the Speaker,
are not officers within the meaning of the Constitution (I, 493).
Membership on joint committees created by statute is not an office in
the contemplation of the constitutional provision prohibiting Members of
Congress from holding simultaneously other offices under the United
States (VII, 2164). A Member of either House is eligible to appointment
to any office not forbidden him by law, the duties of which are not
incompatible with those of a Member (VI, 63) and the question as to
whether a Member may be appointed to the Board of Managers of the
Soldiers' Home and become local manager of one of the Homes, is a matter
for the decision of Congress itself (VI, 63). The House has also
distinguished between the performance of paid services for the Executive
(I, 495), like temporary service as assistant United States attorney
(II, 993), and the acceptance of an incompatible office. The House has
declined to hold that a contractor under the Government is
constitutionally disqualified to serve as a Member (I, 496). But the
House, or its committees, have found disqualified a Member who was
appointed a militia officer in the District of Columbia (I, 486) and in
various States (VI, 60), and Members who have accepted commissions in
the Army (I, 491, 492, 494). But the Judiciary Committee has expressed
the opinion that persons on the retired list of the Army do not hold
office under the United States in the constitutional sense (I, 494). A
Member-elect has con
[[Page 48]]
tinued to act as governor of a State after the assembling of the
Congress to which he was elected (I, 503), but the duties of a Member of
the House and the Governor of a State are absolutely inconsistent and
may not be simultaneously discharged by the same Member (VI, 65).-
The House decided <<NOTE: Sec. 99. Appointment of Memberselect to
offices under the United States.>> that the status of a Member-elect was
not affected by the constitutional requirement (I, 499), the theory
being advanced that the status of the Member-elect is distinguished from
the status of the Member who has qualified (I, 184). A Member-elect, who
continued in an office after his election but resigned before taking his
seat, was held entitled to the seat (I, 497, 498). However, when a
Member-elect held an incompatible office after the meeting of Congress
and his taking of the oath, he was held to have disqualified himself (I,
492). In other words, the Member-elect may defer until the meeting of
Congress and his taking of the oath, his choice between the seat and an
incompatible office (I, 492). As early as 1874 the Attorney General
opined that a Member-elect is not officially a Member of the House, and
thus may hold any office until sworn (14 Op. Att'y Gen. 408 (1874)).
The House has <<NOTE: Sec. 100. Relation of contestants to
incompatible offices.>> manifestly leaned to the idea that a contestant
holding an incompatible office need not make his election until the
House has declared him entitled to the seat (I, 505). Although a
contestant had accepted and held a State office in violation of the
State constitution, if he were really elected a Congressman, the House
did not treat his contest as abated (II, 1003). Where a Member had been
appointed to an incompatible office a contestant not found to be elected
was not admitted to fill the vacancy (I, 807).
Where a Member <<NOTE: Sec. 101. Procedure of the House when
incompatible offices are accepted.>> has accepted an incompatible
office, the House has assumed or declared the seat vacant (I, 501, 502;
VI, 65). In the cases of Baker and Yell, the Elections Committee
concluded that the acceptance of a commission as an officer of
volunteers in the national army vacated the seat of a Member (I, 488),
and in another similar case the Member was held to have forfeited his
right to a seat (I, 490). The House has seated a person bearing regular
credentials on ascertaining that his predecessor in the same Congress
had accepted a military office (I, 572). But usually the House by
resolution formally declares the seat vacant (I, 488, 492). A Member-
elect may defer until the meeting of Congress and his taking of the oath
of office his choice between the seat and an incompatible office (I,
492). But when he retains the incompatible office and does not qualify,
a vacancy has been held to exist (I, 500). A resolution excluding a
Member who has accepted an incompatible office may be agreed to by a
majority vote (I, 490). A Member charged with acceptance of an
incompatible office was heard in his own behalf during the debate (I,
486).
Where it was held in Federal court that a Member of Congress may not
hold a commission in the Armed Forces Reserve under this clause,
[[Page 49]]
the U.S. Supreme Court reversed on other grounds, the plaintiff's lack
of standing to maintain the suit. Reservists Committee to Stop the War
v. Laird, 323 F. Supp. 833 (1971), aff'd, 595 F.2d 1075 (1972), rev'd on
other grounds, 418 U.S. 208 (1974).
Section 7. \1\ All Bills <<NOTE: Sec. 102. Bills raising revenue to
originate in the House.>> for raising Revenue shall originate in the
House of Representatives; but the Senate may propose or concur with
Amendments as on other Bills.
This provision has been the subject of much discussion (II, 1488,
1494). In the earlier days the practice was not always correct (II,
1484); but in later years the House has insisted on its prerogative and
the Senate has often shown reluctance to infringe thereon (II, 1482,
1483, 1493). In several instances, however, the subject has been matter
of contention, conference (II, 1487, 1488), and final disagreement (II,
1485, 1487, 1488). Sometimes, however, when the House has questioned an
invasion of prerogative, the Senate has receded (II, 1486, 1493). The
disagreements have been especially vigorous over the right of the Senate
to concur with amendments (II, 1489), and while the Senate has
acquiesced in the sole right of the House to originate revenue bills, it
has at the same time held to a broad power of amendment (II, 1497-1499).
The House has frequently challenged the Senate on this point (II, 1481,
1491, 1496; Sept. 14, 1965, p. 23632). When the House has perceived an
invasion of its prerogative, it has ordered the bill or Senate amendment
to be returned to the Senate (II, 1480-1499; VI, 315, 317; Mar. 30,
1937, p. 2930; July 2, 1960, p. 15818; Oct. 10, 1962, p. 23014; May 20,
1965, p. 11149; June 20, 1968, p. 22127; Nov. 8, 1979, p. 31518; May 17,
1983, p. 12486; Oct. 1, 1985, p. 25418; Sept. 25, 1986, p. 26202; July
30, 1987, p. 21582; June 16, 1988, p. 14780; June 21, 1988, p. 15425;
Sept. 23, 1988, p. 25094; Sept. 28, 1988, p. 26415; Oct. 21, 1988, pp.
33110-11; June 15, 1989, p. 12167; Nov. 9, 1989, p. 28271; Oct. 22,
1991, p. 27087; Oct. 31, 1991, p. 29284; Feb. 25, 1992, p. 3377; July
14, 1994, p. 16593; July 21, 1994, p. 17280; July 21, 1994, p. 17281;
Aug. 12, 1994, pp. 7642, 7643; Oct. 7, 1994, p. 29136, 29137; Mar. 21,
1996, p. 5950; Apr. 16, 1996, pp. 7642, 7643; Sept. 27, 1996, p. 25542;
Sept. 28, 1996, p. 25931; Mar. 5, 1998, p. 2618; Oct. 15, 1998, p.
26483; July 15, 1999, p. 16317; Nov. 18, 1999, p. 30732; Oct. 24, 2000,
p. 24149; Sept. 20, 2001, p. 17454), or declined to proceed further with
it (II, 1485). Among the measures the House has returned to the Senate:
a Senate-passed bill providing for the sale of Conrail and containing
provisions relating to the tax treatment of the sale, notwithstanding
inclusion in that bill of a disclaimer section requiring all revenue
provisions therein to be contained in separate legislation originating
in the House (Sept. 25, 1986, p. 26202); a Senate-passed bill
prohibiting the importation of commodities subject to tariff (July 30,
1987, p. 21582); a Senate-passed bill banning all imports
[[Page 50]]
from Iran, a tariff measure as affecting revenue from dutiable imports
(June 16, 1988, p. 14780); a Senate-passed bill dealing with the tax
treatment of income derived from the exercise of Indian treaty fishing
rights (June 21, 1988, p. 15425); a Senate-passed bill creating a tax-
exempt government corporation (June 15, 1989, p. 12167); a Senate-passed
bill addressing the tax treatment of police-corps scholarships and the
regulation of firearms under the Internal Revenue Code (Oct. 22, 1991,
p. 27087); a Senate-passed bill including certain import sanctions in an
export administration statute (Oct. 31, 1991, p. 29284); a Senate-passed
bill requiring the President to impose sanctions including import
restrictions against countries that fail to eliminate large-scale
driftnet fishing (Feb. 25, 1992, p. 3377); a Senate amendment to a
general appropriation bill prohibiting funds for the Internal Revenue
Service to enforce a requirement to use undyed diesel fuel for use in
recreational boats (July 14, 1994, p. 16593); a Senate-passed bill
proposing to regulate toxic substances by prohibiting the import of
products containing more than specified level of lead (July 21, 1994, p.
17280); a Senate amendment to a general appropriation bill proposing a
user fee raising revenue to finance broader activities of the agency
imposing the levy, thereby raising general revenue (Aug. 12, 1994, p.
21656); a Senate-passed bill proposing to repeal a fee on electricity
generated by nuclear energy that otherwise would raise revenue (Mar. 5,
1998, p. 2618); a Senate-passed bill proposing new import restrictions
on products containing any substance derived from rhinoceroses or tigers
(Oct. 15, 1998, p. 26483); Senate-passed bills proposing an amendment to
the criminal code that would make it unlawful to import certain assault
weapons (Oct. 22, 1991, p. 27087) or to import large capacity ammunition
feeding devices (July 15, 1999, p. 16317); Senate-passed bills
prescribing the tax treatment of certain benefits to members of the
Armed Forces (Nov. 18, 1999, p. 30732) or of public-sector retirement
plans (Nov. 18, 1999, p. 30734); a Senate-passed bill proposing to
create a new basis for applying import restrictions on bear viscera or
products derived therefrom (Oct. 24, 2000, p. 24149); a Senate amendment
proposing to enact by reference a Senate bill providing for a ban on
(dutiable) imports of diamonds from certain countries (Sept. 20, 2001,
p. 17454). The House laid on the table a resolution asserting that a
conference report (on which the House was acting first) accompanying a
House bill originated provisions in derogation of the constitutional
prerogative of the House and resolving that such bill be recommitted to
conference (July 27, 2000, p. 16565).
A bill raising revenue incidentally was held not to infringe upon the
constitutional prerogative of the House to originate revenue legislation
(VI, 315). Discussion of differentiation between bills for the purpose
of raising revenue and bills that incidentally raise revenue (VI, 315).
A question relating to the invasion of the constitutional prerogatives
of the House by a Senate amendment may be raised at any time when the
House is in possession of the papers, but not otherwise; thus, the
question has been presented pending the motion to call up a conference
report on the bill (June 20,
[[Page 51]]
1968, Deschler, ch. 13, Sec. 14.2; Aug. 19, 1982, p. 22127), but has
been held nonprivileged with respect to a bill already presented to the
President (Apr. 6, 1995, p. 10700). On January 16, 1924, p. 1027, the
Senate decided that a bill proposing a gasoline tax in the District of
Columbia should not originate in the Senate (VI, 316).
Clause 5(a) of rule XXI prohibits consideration of any amendment,
including any Senate amendment, proposing a tax or tariff measure during
consideration of a bill or joint resolution reported by a committee not
having that jurisdiction (Sec. 1066, infra).
For a discussion of the prerogatives of the House under this clause,
and discussion of the prerogatives of the House to originate
appropriation bills, see Deschler, ch. 13. For a discussion of the
prerogatives of the House with respect to treaties affecting revenue,
see Sec. 597, infra. For examples of Senate messages requesting the
return of Senate measures that intruded on the Constitutional
prerogative of the House to originate revenue measures, see Sec. 565,
infra.
Decisions <<NOTE: Sec. 103. Decisions of the Court.>> of the Supreme
Court of the United States: Field v. Clark, 143 U.S. 649 (1892); Twin
City Bank v. Nebeker, 167 U.S. 196 (1897); Flint v. Stone Tracy Co., 220
U.S. 107 (1911); Millard v. Roberts, 202 U.S. 429 (1906); Rainey v.
United States, 232 U.S. 310 (1914); United States v. Munoz-Flores, 495
U.S. 385 (1990).
\2\ Every Bill <<NOTE: Sec. 104. Approval and disapproval of bills by
the President.>> which shall have passed the House of Representatives
and the Senate, shall, before it become a Law, be presented to the
President of the United States; If he approve he shall sign it, but if
not he shall return it, with his Objections to that House in which it
shall have originated, who shall enter the Objections at large on their
Journal, and proceed to reconsider it. If after such Reconsideration two
thirds of that House shall agree to pass the Bill, it shall be sent,
together with the Objections, to the other House, by which it shall
likewise be reconsidered, and if approved by two thirds of that House,
it shall become a Law. But in all such Cases the Votes of both Houses
shall be determined by Yeas and Nays, and the Names of the
[[Page 52]]
Persons voting for and against the Bill shall be entered on the Journal
of each House respectively. * * *.
Under the usual <<NOTE: Sec. 105. The act of approval.>> practice,
bills are considered to have been presented to the President at the time
they are delivered to the White House. In 1959, bills delivered to the
White House while the President was abroad were held for presentation to
the President upon his return to the United States by the White House.
The United States Court of Claims held, in Eber Bros. Wine and Liquor
Corp. v. United States, 337 F.2d 624 (1964), cert. denied, 380 U.S. 950
(1965), that where the President had determined, with the informal
acquiescence of leaders of Congress, that bills from the Congress were
to be received at the White House only for presentation to him upon his
return to the United States and the bill delivered to the White House
was so stamped, the Presidential veto of the bill more than 10 days
after delivery to the White House but less than 10 days after his return
to the country was timely. The second session of the 89th Congress
adjourned sine die while President Johnson was on an Asian tour and
receipts for bills delivered to the White House during that time were
marked in like manner. The approval of a bill by the President of the
United States is valid only with his signature (IV, 3490). Before the
adoption of the 20th amendment to the Constitution, at the close of a
Congress, when the two Houses prolonged their sessions into the forenoon
of March 4, the approvals were dated on the prior legislative day, as
the legislative portion of March 4 belonged to the term of the new
Congress. In one instance, however, bills signed on the forenoon of
March 4 were dated as of that day with the hour and minute of approval
given with the date (IV, 3489). The 20th amendment to the Constitution
changed the date of meeting of the Congress to January 3d. The act of
President Tyler in filing with a bill an exposition of his reasons for
signing it was examined and severely criticized by a committee of the
House (IV, 3492); and in 1842 a committee of the House discussed the act
of President Jackson in writing above his signature of approval a
memorandum of his construction of the bill (IV, 3492). But where the
President has accompanied his message announcing the approval with a
statement of his reasons there has been no question in the House (IV,
3491). The statutes require that bills signed by the President shall be
received by the Archivist of the United States and deposited in his
office (1 U.S.C. 106a). Formerly these bills were received by the
Secretary of State (IV, 3485) and deposited in his office (IV, 3429).
Notice of the <<NOTE: Sec. 106. Notice of approval sent by
message.>> signature of a bill by the President is sent by message to
the House in which it originated (VII, 1089) and that House informs the
other (IV, 3429). But this notice is not necessary to the validity of
the act (IV, 3495). Sometimes, at the close of a Congress the President
informs the House of such bills as he has approved and of such as he has
allowed
[[Page 53]]
to fail (IV, 3499-3502). In one instance he communicated his omission to
sign a bill through the committee appointed to notify him that Congress
was about to adjourn (IV, 3504). A bill that had not actually passed
having been signed by the President, he disregarded it and a new bill
was passed (IV, 3498). Messages of the President giving notice of bills
approved are entered in the Journal and published in the Congressional
Record (V, 6593).
A message withholding <<NOTE: Sec. 107. Disapproval (or veto) of
bills.>> approval of a bill, called a veto message, is sent to the House
in which the bill originated; but it has been held that such a message
may not be returned to the President on his request after it has been
laid before the Senate (IV, 3521). In one instance a veto message that
had not been laid before the House was returned to the President on his
request (Aug. 1, 1946, p. 10651). A vetoed bill received in the House by
way of the Senate is considered as if received directly from the
President and supersedes the regular order of business (IV, 3537; VII,
1109). A veto message may not be read in the absence of a quorum, even
though the House be about to adjourn sine die (IV, 3522; VII, 1094); but
the message may be read and acted on at the next session of the same
Congress (IV, 3522). When the President has been prevented by
adjournment from returning a bill with his objections he has sometimes
at the next session communicated his reasons for not approving (V, 6618-
6620).
Although the ordinary form of a return veto is a message under seal
returning the enrollment with a statement of the President's objections,
an enrolled House bill returned to the Clerk during the August recess
with a ``memorandum of disapproval'' setting forth the objections of the
President was considered as a return veto (Sept. 11, 1991, p. 22643).
It is possible, <<NOTE: Sec. 108. Consideration of a vetoed bill in
the House.>> although not invariable, that a bill returned with the
objections of the President shall be voted on at once (IV, 3534-3536)
and when laid before the House the question on the passage is considered
as pending and no motion from the floor is required (VII, 1097-1099),
but it has been held that the constitutional mandate that ``the House
shall proceed to consider'' means that the House shall immediately
proceed to consider it under the Rules of the House, such that the
ordinary motions under the Rules of the House (e.g., to refer or to
postpone to a day certain) are in order (IV, 3542-3550; VII, 1100, 1105,
1113; Speaker Wright, Aug. 3, 1988, p. 20280) and (for the stated
examples) debatable under the hour rule (VIII, 2740). Although under
clause 4 of rule XVI, and under the precedents the motion for the
previous question takes precedence over motions to postpone or to refer
when a question is under debate, where the Speaker has laid before the
House a veto message from the President but has not yet stated the
question to be on overriding the veto, that question is not ``under
debate'' and the motion for the previous question does not take
precedence (Speaker Wright, Aug. 3, 1988; Procedure, ch. 24, Sec. 15.8).
A resolution asserting that to recognize for a motion to refer a veto
message
[[Page 54]]
before stating the question on overriding the veto would interfere with
the constitutional prerogative of the House to proceed to that question,
and directing the Speaker to state the question on overriding the veto
as pending before recognizing for a motion to refer, did not give rise
to a question of the privileges of the House (Speaker Wright, Aug. 3,
1988, p. 20281). A motion to refer a vetoed bill, either with or without
the message, has been held allowable within the constitutional mandate
that the House ``shall proceed to reconsider'' (IV, 3550; VII, 1104,
1105, 1108, 1114), and in the 101st Congress, a veto pending as
unfinished business was referred with instructions to consider and
report promptly (Jan. 24, 1990, p. 421). But while the ordinary motion
to refer may be applied to a vetoed bill, it is not in order to move to
recommit it pending the demand for the previous question or after it is
ordered (IV, 3551; VII, 1102). When a veto message is before the House
for consideration de novo or as unfinished business, a motion to refer
the message to committee takes precedence over the question of passing
the bill, the objections of the President to the contrary
notwithstanding (Procedure, ch. 24, Sec. 15.8; Oct. 25, 1983, p. 29188),
but the motion to refer may be laid on the table (Oct. 25, 1983, p.
29188). A vetoed bill having been rejected by the House, the message was
referred (IV, 3552; VII, 1103). Committees to which vetoed bills have
been referred have sometimes neglected to report (IV, 3523, 3550,
footnotes; VII, 1108, 1114).
A vetoed bill may be laid on the table (IV, 3549; VII, 1105), but it
is still highly privileged and a motion to take it from the table is in
order at any time (IV, 3550; V, 5439). Also a motion to discharge a
committee from the consideration of such a bill is privileged (IV, 3532;
Aug. 4, 1988, p. 20365; Sept. 19, 1996, p. 23815) and (in the modern
practice) is debatable (Mar. 7, 1990, p. 3620) but is subject to the
motion to lay on the table (Sept. 7, 1965, p. 22958; Aug. 4, 1988, p.
20365). When the motion to discharge is agreed to, the veto message is
pending as unfinished business (Mar. 7, 1990, p. 3621). While a vetoed
bill is always privileged, the same is not true of a bill reported in
lieu of it (IV, 3531; VII, 1103).
If two-thirds of <<NOTE: Sec. 109. Action on a vetoed bill.>> the
House to which a bill is returned with the President's objections agree
to pass it, and then two-thirds of the other House also agree, it
becomes a law (IV, 3520). The yeas and nays are required to pass a bill
over the President's veto (art. I, sec. 7; IV, 2726, 3520; VII, 1110).
The two-thirds vote required to pass the bill is two-thirds of the
Members present and voting and not two-thirds of the total membership of
the House (IV, 3537, 3538; Missouri Pac. Ry. Co. v. Kansas, 248 U.S. 276
(1919)). Only Members voting should be considered in determining whether
two-thirds voted in the affirmative (VII, 1111). The motion to
reconsider may not be applied to the vote on reconsideration of a bill
returned with the objections of the President (V, 5644; VIII, 2778).
It is the practice for one House to inform the other by message of its
decision that a bill returned with the objections of the President shall
not
[[Page 55]]
pass (IV, 3539-3541). A bill passed notwithstanding the objections of
the President is sent by the presiding officer of the House that last
acts on it to the Archivist, who receives it and deposits it in his
office (1 U.S.C. 106a). Formerly these bills were sent to the Secretary
of State (IV, 3524) and deposited in his office (IV, 3485).
A bill incorrectly <<NOTE: Sec. 110. Errors in bills sent to the
President.>> enrolled has been recalled from the President, who erased
his signature (IV, 3506). Bills sent to the President but not yet signed
by him are sometimes recalled by concurrent resolution of the two Houses
(IV, 3507-3509; VII, 1091; Sept. 4, 1962, p. 18405; May 6, 1974, p.
13076), and amended; but this proceeding is regarded as irregular (IV,
3510-3518). When the two Houses of Congress request the President by
concurrent resolution to return an enrolled bill delivered to him and
the President honors the request, the ten-day period under this clause
runs anew from the time the bill is re-enrolled and is again presented
to the President. Thus, in the 93d Congress the President returned on
May 7, 1974 a bill pursuant to the request of Congress (H. Con. Res.
485, May 6, 1974, p. 13076). The bill was again enrolled, presented to
the President on May 7, and marked ``received May 7'' at the White
House. An error in an enrolled bill that has gone to the President may
also be corrected by a joint resolution (IV, 3519; VII, 1092). In the
99th Congress, two enrollments of a continuing appropriation bill for FY
1987 were presented to and signed by the President, the second
correcting an omission in the first (see P.L. 99-500 and 99-591). In
Clinton v. City of New York, 524 U.S. 417 (1998), the Supreme Court
held that the cancellation procedures of the Line Item Veto Act violated
the presentment clause of article I, section 7 of the Constitution. For
a discussion of the operation of the Act during the period of its
effectiveness, see Sec. 1130, infra.
Decisions <<NOTE: Sec. 110a. Decisions of the Court.>> of the Supreme
Court of the United States: Matthews v. Zane, 20 U.S. (7 Wheat.) 164
(1822); Gardner v. Collector, 73 U.S. (6 Wall.) 499 (1868); Lapeyre v.
United States, 84 U.S. (17 Wall.) 191 (1873); La Abra Silver Mining Co.
v. United States, 175 U.S. 423 (1899); Missouri Pacific Railway Co. v.
Kansas, 248 U.S. 276 (1919); Edwards v. United States, 286 U.S. 482
(1932); Wright v. United States, 302 U.S. 583 (1938); Clinton v. City of
New York, 524 U.S. 417 (1998).
* * * If any <<NOTE: Sec. 111. Bills that become laws without the
President's approval.>> Bill shall not be returned by the President
within ten Days (Sundays excepted) after it shall have been presented to
him, the Same shall be a Law, in like Manner as if he had signed it,
unless the Congress by their Adjournment prevent its Return, in which
Case it shall not be a Law.
[[Page 56]]
A bill signed by the President within 10 days (Sunday excepted) after
it has been presented to him becomes a law even though such signing
takes place when Congress is not in session, whether during the period
of an adjournment to a day certain or after the final adjournment of a
session. Presidents currently sign bills after sine die adjournment but
within 10 days after their receipt. President Truman signed several
bills passed in the 81st Congress after the convening of the 82d
Congress but within 10 days (P.L. 910-921; 64 Stat. 1221-1257); and
President Reagan approved bills passed in the 97th Congress that were
presented after the convening of the 98th Congress. It was formerly
contended that the President might not approve bills during a recess
(IV, 3493, 3494), and in one instance, in 1864, when the President
signed a bill after final adjournment of Congress but within 10 days
grave doubts were raised and an adverse report was made by a House
committee (IV, 3497). Later opinions of the Attorney General have been
to the effect that the President has the power to approve bills within
10 days after they have been presented to him during the period of an
adjournment to a day certain (IV, 3496) and after an adjournment sine
die (VII, 1088). The Supreme Court has held valid as laws bills signed
by the President within 10 days during a recess for a specified time (La
Abra Silver Mining Co. v. United States, 175 U.S. 451 (1899); IV, 3495)
and also those signed after an adjournment sine die (Edwards v. United
States, 286 U.S. 482 (1932)).
A bill that <<NOTE: Sec. 112. The pocket veto.>> is passed by both
Houses of Congress during the first regular session of a Congress and
presented to the President less than 10 days (Sundays excepted) before
the sine die adjournment of that session, but is neither signed by the
President, nor returned by him to the House in which it originated, does
not become a law (``The Pocket Veto Case,'' 279 U.S. 655 (1929); VII,
1115). President Truman during an adjournment to a day certain pocket
vetoed several bills passed by the 81st Congress and also, after the
convening of the 82d Congress, pocket vetoed one bill passed in the 81st
Congress. The Supreme Court has held that the adjournment of the House
of origin for not exceeding three days while the other branch of the
Congress remained in session, did not prevent a return of the vetoed
bill to the House of origin. Wright v. United States, 302 U.S. 583
(1938).
Doubt has existed <<NOTE: Sec. 113. Effect of adjournment to a day
certain.>> as to whether a bill that remains with the President 10 days
without his signature, Congress meanwhile before the tenth day having
adjourned to a day certain, becomes a law (IV, 3483, 3496; VII, 1115);
an opinion of the Attorney General in 1943 stated that under such
circumstances a bill not signed by the President did not become a law
(40 Op. Att'y Gen. 274 (1943)). However, more recently, where a Member
of the Senate challenged in Federal court the effectiveness of such a
pocket veto, a United States Court of Appeals held that a Senate bill
could not be pocket-vetoed by the President during an ``intrasession''
adjournment of Congress to a day certain for more than three days, where
the Secretary
[[Page 57]]
of the Senate had been authorized to receive Presidential messages
during such adjournment. Kennedy v. Sampson, 511 F.2d 430 (D.C. Cir.,
1974). See also Kennedy v. Jones, 412 F. Supp. 353 (D.D.C. 1976).
Following a consent decree in this case, it was announced that President
Ford would utilize a ``return'' veto, subject to override, in
intersession and intrasession adjournments where authority exists for
the appropriate House to receive such messages notwithstanding the
adjournment.
In the 101st Congress, when President Bush returned an enrolled bill
during the intersession adjournment, not by way of message under seal
but with a ``memorandum of disapproval'' setting forth his objections,
the House treated it as a return veto subject to override under article
I, section 7 (Jan. 23, 1990, p. 4). Similarly, in the 102d Congress, an
enrolled House bill returned to the Clerk during the August recess, not
by way of message under seal but with a ``memorandum of disapproval''
setting forth the objections of the President, was considered as a
return veto (Sept. 11, 1991, p. 22643). Also in the 102d Congress,
President Bush purported on December 20, 1991, to pocket veto a bill (S.
1176) that was presented to him on December 9, 1991, notwithstanding
that the Congress was in an intrasession adjournment (from Nov. 27,
1991, until 11:55 a.m., Jan. 3, 1992) rather than an adjournment sine
die (see Jan. 23, 1992 [Daily Digest]); and during debate on a
subsequent bill (S. 2184) purporting to repeal the provisions of S. 1176
and to enact instead provisions acceding to the objections of the
President, the Speaker inserted remarks on the pocket veto in light of
modern congressional practice concerning the receipt of messages and
communications during recesses and adjournments (Mar. 3, 1992, p. 4081).
In the 93d Congress, the President returned a House bill without his
signature to the Clerk of the House, who had been authorized to receive
messages from the President during an adjournment to a day certain, and
the President asserted in his veto message that he had ``pocket vetoed''
the bill during the adjournment of the House to a day certain. The House
regarded the President's return of the bill without his signature as a
veto within the meaning of article I, section 7 of the Constitution and
proceeded to reconsider and to pass the bill over the President's veto,
after postponing consideration to a subsequent day (motion to postpone,
Nov. 18, 1974, p. 36246; veto override, Nov. 20, 1974, p. 36621).
Subsequently, on November 21, 1974, the Senate also voted to override
the veto (p. 36882) and pursuant to 1 U.S.C. 106a the Enrolling Clerk of
the Senate forwarded the bill to the Archives for publication as a
public law. The Administrator of General Services at the Archives (now
Archivist), upon instructions from the Department of Justice, declined
to promulgate the bill as public law on the day received. The question
as to the efficacy of the congressional action in passing the bill over
the President's veto was mooted when the House and Senate passed on
November 26, 1974 (pp. 37406, 37603), an identical bill that was signed
into law on December 7, 1974 (P.L. 93-516). On similar occasions, when
the President has asserted a ``pocket veto,'' the House has
[[Page 58]]
regarded the President's actual return of the bill without his signature
as a veto within the meaning of article I, section 7 of the Constitution
and proceeded to reconsider the bill over the President's objections
(Jan. 23, 1990, p. 3; Sept. 6, 2000, p. 17156; Nov. 13, 2000, p. 26022).
As part of the concurrent resolution providing for the sine die
adjournments of the first sessions of the 101st Congress and 105th
Congress, the Congress reaffirmed its position that an intersession
adjournment did not prevent the return of a bill where the Clerk and the
Secretary of the Senate were authorized to receive messages during the
adjournment (H. Con. Res. 239, Nov. 21, 1989, p. 31156; S. Con. Res. 68,
Nov. 13, 1997, p. 26538). For the views of the Speaker, the Minority
Leader, and the Attorney General concerning pocket veto authority during
an intrasession adjournment, see correspondence inserted in the
Congressional Record (Jan. 23, 1990, p. 3; Sept. 19, 2000, p. 18594;
Nov. 13, 2000, p. 26022); and for discussions of the constitutionality
of intersession or intrasession pocket vetoes see Kennedy, ``Congress,
The President, and The Pocket Veto,'' 63 Va. L. Rev. 355 (1977), and
Hearing, Subcommittee on Legislative Process, Committee on Rules, on
H.R. 849, 101st Congress.
Decisions <<NOTE: Sec. 114. Decisions of the Court.>> of the Supreme
Court of the United States: La Abra Silver Mining Co. v. United States,
175 U.S. 423 (1899); Wilkes County v. Coler, 180 U.S. 506 (1901); the
Pocket Veto Case, 279 U.S. 655 (1929); Edwards v. United States, 286
U.S. 482 (1932); Wright v. United States, 302 U.S. 583 (1938); Burke v.
Barnes, 479 U.S. 361 (1987) (vacating and remanding as moot the decision
sub nom. Barnes v. Kline, 759 F.2d 21 (D.C. Cir. 1984)).
\3\ Every Order, <<NOTE: Sec. 115. As to presentation of orders and
resolutions for approval.>> Resolution, or Vote to which the Concurrence
of the Senate and House of Representatives may be necessary (except on a
question of Adjournment) shall be presented to the President of the
United States; and before the Same shall take Effect, shall be approved
by him, or being disapproved by him, shall be repassed by two thirds of
the Senate and House of Representatives, according to the Rules and
Limitations prescribed in the Case of a Bill.
It has been settled conclusively that a joint resolution proposing an
amendment to the Constitution should not be presented to the President
for his approval (V, 7040; Hollingsworth v. Virginia, 3 U.S. (3 Dall.)
378 (1798)). Such joint resolutions, after passage by both Houses, are
presented to the Archivist (1 U.S.C. 106b). Although the requirement of
the Constitu
[[Page 59]]
tion seems specific, the practice of Congress has been to present to the
President for approval only such concurrent resolutions as are
legislative in effect (IV, 3483, 3484), something not within the scope
of the modern form of concurrent resolutions.
For discussion of Presidential approval of a joint resolution
extending the period for State ratification of a constitutional
amendment already submitted to the States, see Sec. 192, infra. For
discussion of ``Statutory Legislative Procedures'' contained in public
laws, see Sec. 1130, infra.
Decisions <<NOTE: Sec. 116. Decisions of the Court.>> of the Supreme
Court of the United States: Field v. Clark, 143 U.S. 649 (1892); United
States v. Ballin, 144 U.S. 1 (1892); Fourteen Diamond Rings v. United
States, 183 U.S. 176 (1901); INS v. Chadha, 462 U.S. 919 (1983); Process
Gas Consumer's Group v. Consumer Energy Council of America 463 U.S. 1216
(1983).
Section 8. The Congress <<NOTE: Sec. 117. The revenue power.>> shall
have Power \1\ To lay and collect Taxes, Duties, Imposts and Excises, to
pay the Debts and provide for the common Defence and general Welfare of
the United States; but all Duties, Imposts and Excises shall be uniform
throughout the United States;
<<NOTE: Sec. 118. The borrowing power.>> \2\ To borrow Money on the
credit of the United States:
\3\ To regulate <<NOTE: Sec. 119. Power over commerce.>> Commerce with
foreign Nations, and among the several States, and with the Indian
Tribes;
\4\ To establish <<NOTE: Sec. 120. Naturalization and bankruptcy.>> an
uniform Rule of Naturalization, and uniform Laws on the subject of
Bankruptcies throughout the United States;
<<NOTE: Sec. 121. Coinage, weight, and measures.>> \5\ To coin Money,
regulate the Value thereof, and of foreign Coin, and fix the Standard of
Weights and Measures;
\6\ To provide <<NOTE: Sec. 122. Counterfeiting.>> for the Punishment
of counterfeiting the Securities and current Coin of the United States;-
-
[[Page 60]]
<<NOTE: Sec. 123. Postoffices and postroads.>> \7\ To establish Post
Offices and Post Roads;
\8\ To promote <<NOTE: Sec. 124. Patents and copyrights.>> the
Progress of Science and useful Arts, by securing for limited Times to
Authors and Inventors the exclusive Right to their respective Writings
and Discoveries;
<<NOTE: Sec. 125. Inferior courts.>> \9\ To constitute Tribunals
inferior to the supreme Court;
<<NOTE: Sec. 126. Piracies and offenses against law of nations.>> \10\
To define and punish Piracies and Felonies committed on the high Seas,
and Offenses against the Law of Nations;
<<NOTE: Sec. 127. Declarations of war and maritime operations.>> \11\
To declare War, grant Letters of Marque and Reprisal, and make Rules
concerning Captures on Land and Water;
In the 93d <<NOTE: Sec. 128. War powers of Congress and the
President.>> Congress, the Congress passed over the President's veto
Public Law 93-148, relating to the power of Congress to declare war
under this clause and the power of the President as Commander in Chief
under article II, section 2, clause 1 (Sec. 178, infra). The law
requires that the President report to Congress on the introduction of
United States Armed Forces in the absence of a declaration of war. The
President must terminate use of the Armed Forces unless Congress, within
60 calendar days after a report is submitted or is required to be
submitted, (1) declares war or authorizes use of the Armed Forces; (2)
extends by law the 60-day period; or (3) is physically unable to meet as
result of armed attack. The Act also provided that Congress could adopt
a concurrent resolution requiring the removal of Armed Forces engaged in
foreign hostilities, a provision that should be read in light of INS v.
Chadha, 462 U.S. 919 (1983). Sections 6 and 7 of the Act provide
congressional procedures for joint resolutions, bills, and concurrent
resolutions introduced pursuant to the provisions of the Act (see
Sec. 1130, infra). For further discussion of that Act, and war powers
generally, see Deschler, ch. 13.
[[Page 61]]
\12\ To raise <<NOTE: Sec. 129. Raising and support of armies.>> and
support Armies, but no Appropriation of Money to that Use shall be for a
longer Term than two Years;
<<NOTE: Sec. 130. Provisions for a navy.>> \13\ To provide and
maintain a Navy;
<<NOTE: Sec. 131. Land and naval forces.>> \14\ To make Rules for the
Government and Regulation of the land and naval Forces;
\15\ To provide <<NOTE: Sec. 132. Calling out the militia.>> for
calling forth the Militia to execute the Laws of the Union, suppress
Insurrections and repel Invasions;
\16\ To provide <<NOTE: Sec. 133. Power over militia.>> for
organizing, arming, and disciplining, the Militia, and for governing
such Part of them as may be employed in the Service of the United
States, reserving to the States respectively, the Appointment of the
Officers, and the Authority of training the Militia according to the
discipline prescribed by Congress;
\17\ To exercise <<NOTE: Sec. 134. Power over territory of the United
States.>> exclusive Legislation in all Cases whatsoever, over such
District (not exceeding ten Miles square) as may, by Cession of
particular States, and the Acceptance of Congress, become the Seat of
the Government of the United States, and to exercise like Authority over
all Places purchased by the Consent of the Legislature of the State in
which the Same shall be, for the Erection of Forts, Magazines, Arsenals,
dock-Yards, and other needful Buildings;--And
[[Page 62]]
Congress has provided <<NOTE: Sec. 135. Congressional authority over
the District of Columbia.>> by law that ``all that part of the territory
of the United States included within the present limits of the District
of Columbia shall be the permanent seat of government of the United
States'' (4 U.S.C. 71). Pursuant to its authority under this clause,
Congress provided in 1970 for the people of the District of Columbia to
be represented in the House of Representatives by a Delegate and for a
Commission to report to the Congress on the organization of the
government of the District of Columbia (P.L. 91-405; 84 Stat. 845). For
the powers and duties of the Delegate from the District of Columbia, see
rule III (Sec. 675, infra) and Deschler, ch. 7, Sec. 3. In 1973,
Congress passed the District of Columbia Self-Government and
Governmental Reorganization Act, which reorganized the governmental
structure of the District, provided a charter for local government
subject to acceptance by a majority of the registered qualified voters
of the District, delegated certain legislative powers to the District,
and implemented certain recommendations of the Commission on the
Organization of the Government of the District of Columbia (P.L. 93-198;
87 Stat. 774). Section 604 of that Act provides for congressional action
on certain district matters by providing a procedure for approval and
disapproval of certain actions by the District of Columbia Council. The
section, as amended by Public Law 98-473, permits a highly privileged
motion to discharge a joint resolution of approval or disapproval that
has not been reported by the committee to which referred within 20
calendar days after its introduction (see Sec. 1130, infra).
- \18\ To make <<NOTE: Sec. 136. General legislative power.>> all Laws
which shall be necessary and proper for carrying into Execution the
foregoing Powers, and all other Powers vested by this Constitution in
the Government of the United States, or in any Department or Officer
thereof.
Section 9. \1\ The <<NOTE: Sec. 137. Migration or importation of
persons.>> Migration or Importation of such Persons as any of the States
now existing shall think proper to admit, shall not be prohibited by the
Congress prior to the Year one thousand eight hundred and eight, but a
Tax or duty may be imposed on such Importation, not exceeding ten
dollars for each Person.
[[Page 63]]
\2\ The Privilege of <<NOTE: Sec. 138. Writ of habeas corpus.>> the
Writ of Habeas Corpus shall not be suspended, unless when in Cases of
Rebellion or Invasion the public Safety may require it.
<<NOTE: Sec. 139. Bills of attainder and ex post facto laws.>> \3\ No
Bill of Attainder or ex post facto Law shall be passed.
\4\ [No Capitation, <<NOTE: Sec. 140. Capitation and direct
taxes.>> or other direct, tax shall be laid, unless in Proportion to the
Census or Enumeration herein before directed to be taken.]
This provision was changed in 1913 by the 16th amendment.
<<NOTE: Sec. 141. Export duties.>> \5\ No Tax or Duty shall be laid on
Articles exported from any State.
\6\ No Preference <<NOTE: Sec. 142. Freedom of commerce.>> shall be
given by any Regulation of Commerce or Revenue to the Ports of one State
over those of another: nor shall Vessels bound to, or from, one State,
be obliged to enter, clear, or pay Duties in another.
\7\ No Money <<NOTE: Sec. 143. Appropriations and accounting of public
money.>> shall be drawn from the Treasury, but in Consequence of
Appropriations made by Law; and a regular Statement and Account of the
Receipts and Expenditures of all public Money shall be published from
time to time.
\8\ No Title of <<NOTE: Sec. 144. Titles of nobility and gifts from
foreign states.>> Nobility shall be granted by the United States: And no
Person holding any Office of Profit or Trust under them, shall, without
the Consent of the Congress, accept of any present, Emolument, Office,
or Title, of any kind whatever, from any King, Prince, or foreign State.
[[Page 64]]
Consent has been <<NOTE: Sec. 145. Foreign gifts and
decorations.>> granted to officers and employees of the government,
under enumerated conditions, to accept certain gifts and decorations
from foreign governments (see 5 U.S.C. 7342). The adoption of this act
largely has obviated the practice of passing private bills to permit the
officer or employee to retain the award. However, where the Speaker (who
was one of the officers empowered by an earlier law to approve retention
of decorations by Members of the House) was himself tendered an award
from a foreign government, a private law (Private Law 91-244) was
enacted to permit him to accept and wear the award so that he would not
be in the position of reviewing his own application under the provisions
of the law.
Public Law 95-105 amended the Foreign Gifts and Decorations Act (now 5
U.S.C. 7342) to designate the Committee on Standards of Official Conduct
of the House of Representatives as the employing agency for the House
with respect to foreign gifts and decorations received by Members and
employees; under that statute the Committee may approve the acceptance
of foreign decorations and has promulgated regulations to carry out the
Act with respect to Members and employees (Jan. 23, 1978, p. 452), and
disposes of foreign gifts that may not be retained by the donee.
Opinions of Attorneys General:
Gifts from Foreign Prince, 24 Op. Att'y Gen. 117 (1902); Foreign
Diplomatic Commission, 13 Op. Att'y Gen. 538 (1871); Marshal of Florida,
6 Op. Att'y Gen. 409 (1854).
Section 10. \1\ No <<NOTE: Sec. 146. States not to make treaties, coin
money, pass ex post facto laws, impair contracts, etc.>> State shall
enter into any Treaty, Alliance, or Confederation; grant Letters of
Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing
but gold and silver Coin a Tender in Payment of Debts; pass any Bill of
Attainder, ex post facto Law, or Law impairing the Obligation of
Contracts, or grant any Title of Nobility.
\2\ No State <<NOTE: Sec. 147. States not to lay imposts or
duties.>> shall, without the Consent of the Congress, lay any Imposts or
Duties on Imports or Exports, except what may be absolutely necessary
for executing it's inspection Laws: and the net Produce of all Duties
and Imposts, laid by any State on Imports or Exports, shall be for the
Use of the Treasury of the
[[Page 65]]
United States; and all such Laws shall be subject to the Revision and
Controul of the Congress.
\3\ No State <<NOTE: Sec. 148. States not to lay tonnage taxes, make
compacts, or go to war.>> shall, without the Consent of Congress, lay
any Duty of Tonnage, keep Troops, or Ships of War in time of Peace,
enter into any Agreement or Compact with another State, or with a
foreign Power, or engage in War, unless actually invaded, or in such
imminent Danger as will not admit of delay.