[110th Congress House Rules Manual -- House Document No. 109-157]
[From the U.S. Government Printing Office Online Database]
[DOCID:hruletx-7]
[Page 83-87]
ARTICLE VI.
\1\ All <<NOTE: Sec. 194. Validity of debts and engagements.>> Debts
contracted and Engagements entered into, before the Adoption of this
Constitution, shall be as valid against the United States under this
Constitution, as under the Confederation.
\2\ This <<NOTE: Sec. 195. Constitution, laws, and treaties the
supreme law of the land.>> Constitution, and the Laws of the United
States which shall be made in Pursuance thereof; and all Treaties made,
or which shall be made, under the Authority of the United States, shall
be the supreme Law of the Land; and the Judges in every State shall be
bound thereby, any Thing in the Constitution or Laws of any State to the
Contrary notwithstanding.
\3\ The <<NOTE: Sec. 196. Oaths of public officers; and prohibition of
religious tests.>> Senators and Representatives before mentioned, and
the Members of the several State Legislatures, and all executive and
judicial Officers, both of the United States and of the several States,
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shall be bound by Oath or Affirmation, to support this Constitution; but
no religious Test shall ever be required as a Qualification to any
Office or public Trust under the United States.
The <<NOTE: Sec. 197. Form of oath.>> form of the oath is prescribed
by statute (5 U.S.C. 3331; I, 128): ``I, AB, do solemnly swear (or
affirm) that I will support and defend the Constitution of the United
States against all enemies, foreign and domestic; that I will bear true
faith and allegiance to the same; that I take this obligation freely,
without any mental reservation or purpose of evasion, and that I will
well and faithfully discharge the duties of the office on which I am
about to enter. So help me God.''
The <<NOTE: Sec. 198. Administration of oath at organization.>> Act of
June 1, 1789 (2 U.S.C. 25), provides that on the organization of the
House and previous to entering on any other business the oath shall be
administered by any Member (generally the Member with longest continuous
service) (I, 131; VI, 6) to the Speaker and by the Speaker to the other
Members and Clerk (I, 130). The Act has at times been considered in the
House as directory merely (I, 118, 242, 243, 245; VI, 6); but at other
times has been observed carefully (I, 118, 140). The Act was cited by
the Clerk in recognizing 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).
Previously it was the custom to administer the oath by State
delegations, but beginning with the 71st Congress Members-elect have
been sworn in en masse (VI, 8). The Clerk supplies printed copies of the
oath to Members and Delegates who have taken the oath in accordance with
law, which shall be subscribed by the Members and Delegates and
delivered to the Clerk to be recorded in the Journal and Congressional
Record as conclusive proof of the fact that the signer duly took the
oath in accordance with law (2 U.S.C. 25). See Deschler, ch. 2. The
Speaker has requested that guests in the gallery rise with the Members
during the administration of the oath of office to a Member-elect (Nov.
12, 1991, p. 31255).
The <<NOTE: Sec. 199. Functions of the Speaker in administering the
oath.>> Speaker possesses no arbitrary power in the administration of
the oath (I, 134), and when objection is made the question must be
decided by the House and not by the Chair (I, 519, 520). An objection
prevents the Speaker from administering the oath of his own authority,
even though the credentials be regular in form (I, 135-138). The Speaker
has frequently declined to administer the oath in cases wherein the
House has, by its action, indicated that he should not do so (I, 139,
140). And in case of doubt he has waited the instruction of the House
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(I, 396; VI, 11). There has been discussion as to the competency of a
Speaker pro tempore to administer the oath (I, 170), and in the absence
of the Speaker a Member-elect waited until the Speaker should be present
(I, 179), but in 1920 a Speaker pro tempore whose designation by the
Speaker had been approved by the House, administered the oath to a
Member (VI, 20). The House may authorize the Speaker to administer the
oath to a Member away from the House (I, 169), or may, in such a case,
authorize another than the Speaker to administer the oath (I, 170; VI,
14). For forms used in this procedure see (VI, 14).
Members-elect <<NOTE: Sec. 200. Administration of the oath as related
to the quorum.>> have been sworn at the beginning of a second session
before the ascertainment of a quorum (I, 176-178), but when the Clerk
called the second session of the 87th Congress to order, Members-elect
were not sworn before ascertainment of a quorum and election of Speaker
McCormack to succeed Speaker Rayburn, who had died during the sine die
adjournment (Jan. 10, 1962, p. 5). Members-elect have also been sworn
where a roll call or other ascertainment has shown the absence of a
quorum (I, 178, 181, 182; VI, 21) but in one instance, however, the
Speaker declined to administer the oath under such circumstances (II,
875).
A <<NOTE: Sec. 201. Privilege of administration of the
oath.>> proposition to administer the oath to a Member is a matter of
high privilege (VI, 14). It has been administered during a call of the
roll and during an electronic vote on a motion to agree to rules at the
time of organization (I, 173; VI, 22; Jan. 5, 2005, p. ----) and during
an electronic vote taken during House deliberations interlocutory to an
ongoing joint session to count the electoral votes (Jan. 6, 2005, p. --
--). It also has been administered before the reading of the Journal (I,
172), in the absence of a quorum (VI, 22), on Calendar Wednesday (VI,
22), before a pending motion to amend the Journal (I, 171), and after
the previous question has been ordered on a bill reported back to the
House from the Committee of the Whole (Oct. 3, 1969, p. 28487). A
division being demanded on a resolution for seating several claimants,
the oath may be administered to each as soon as his case is decided (I,
623). Where a Member-elect whose right to a seat has been determined by
the House presents himself to take the oath, his right to be sworn is
complete and cannot be deferred even by a motion to adjourn (I, 622),
but the Speaker has entertained the motion to adjourn after adoption of
a seating resolution but before the Member-elect was present in the
Chamber to take the oath (May 1, 1985, p. 10019).
The <<NOTE: Sec. 202. Challenge of the right to take the oath.>> right
of a Member-elect to take the oath is sometimes challenged and the
Speaker requests the Member-elect to stand aside temporarily (VI, 9-11,
174; VIII, 3386). This usually occurs at the time of organization of the
House. The challenge proceeds from some Member, but the fact that he has
not yet taken the oath himself does not debar him from making the
challenge (I, 141). The Member challenging does so on his responsibility
as a Member or on the strength of documents (I, 448) or on both (I, 443,
474). And
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where an objection was sustained neither by affidavit nor on the
responsibility of the Member objecting, the House declined to entertain
it (I, 455).
It <<NOTE: Sec. 203. Consideration of an objection to the taking of
the oath.>> has been held, although not uniformly, that in cases where
the right of a Member-elect to take the oath is challenged, the Speaker
may direct the Member to stand aside temporarily (I, 143-146, 474; VI,
9, 174; VIII, 3386). The Member so challenged is not thereby deprived of
any right (I, 155). Similarly, the seating of a Member-elect does not
prejudice a pending contest, brought under the Federal Contested
Elections Act (2 U.S.C. 381-396), over final right to the seat (Jan. 7,
1997, p. 120; Jan. 4, 2007, p. ----). When several are challenged and
stand aside the question is first taken on the Member-elect first
required to stand aside (I, 147, 148). In 1861 it was held that the
House might direct contested names to be passed over until the other
Members-elect had been sworn in (I, 154). Motions and debate are in
order on the questions involved in a challenge, and in a few cases other
business has intervened by unanimous consent (I, 149, 150). By unanimous
consent the consideration of a challenge is sometimes deferred until
after the completion of the organization (I, 474), and by unanimous
consent also the House has sometimes proceeded to legislative business
pending consideration of the right of a Member to be sworn (I, 151-152).
Although <<NOTE: Sec. 204. Relation of credentials to the right to
take the oath.>> the House has emphasized the impropriety of swearing a
Member without credentials (I, 162-168), yet it has been done in cases
wherein the credentials are delayed or lost and there is no doubt of the
election (I, 85, 176-178; VI, 12, 13), or where the governor of a State
has declined to give credentials to a person whose election was
undoubted and uncontested (I, 553). A certificate of election in due
form having been filed, the Clerk placed the name of the Member-elect on
the roll, although he was subsequently advised that a State Supreme
Court had issued a writ restraining the Secretary of State from issuing
such certificate (Jan. 3, 1949, p. 8). Where the prima facie right is
contested the Speaker declines to administer the oath (I, 550), but the
House admits on his prima facie showing and without regard to final
right a Member-elect from a recognized constituency whose credentials
are in due form and whose qualifications are unquestioned (I, 528-534).
If the status of the constituency is in doubt, the House usually defers
the oath (I, 361, 386, 448, 461). In the 99th Congress, the House
declined to give prima facie effect to a certificate of election, the
results of the election being in doubt, and referred the issue of
initial as well as final right to the Committee on House Administration
(H. Res. 1, Jan. 3, 1985, pp. 380-87). After a recount of the votes was
conducted by that committee, the House on its recommendation declared
the candidate without the certificate entitled to the seat (H. Res. 146,
May 1, 1985, p. 9998). The House also may defer the oath when a question
of qualifications arises (I, 474), but it may investigate qualifications
after
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the oath is taken (I, 156-159, 420, 462, 481), and after investigation
unseat the Member by majority vote (I, 428).
Questions <<NOTE: Sec. 205. Sanity, loyalty, and incapacity as related
to the oath.>> of sanity (I, 441) and loyalty (I, 448) seem to pertain
to competency to take the oath as a question of qualifications, although
there has been not a little debate on this subject (I, 479). In one case
a Member-elect who had not taken the oath was excluded from the House
because of disloyalty, where the resolution of exclusion and the
committee report thereon concluded that he was ineligible to take a seat
as a Representative under the express provisions of section 3 of the
14th amendment (VI, 56-59). This action by the House was cited in the
Supreme Court decision of Powell v. McCormack (395 U.S. 486, 545 fn. 83)
which denied the power of the House to exclude Members-elect by a
majority vote for other than failure to meet the express qualifications
stated in the Constitution. In Bond v. Floyd, 385 U.S. 116 (1966), the
Supreme Court held that the exclusion by a State legislature of a
member-elect of that body was unconstitutional, where the legislature
had asserted the power to judge the sincerity with which the Member-
elect could take the oath to support the Constitution of the United
States. In the 97th Congress, the House declared vacant by majority vote
the seat of a Member-elect unable to take the oath because of illness,
where the medical prognosis showed no likelihood of improvement to
permit the Member-elect to take the oath or assume the duties of a
Representative (H. Res. 80, Feb. 24, 1981, pp. 2916-18).
Decisions <<NOTE: Sec. 206. Decisions of the Court.>> of the Supreme
Court of the United States: McCulloch v. Maryland, 17 U.S. (4 Wheat.)
316 (1819); Ex parte Garland, 71 U.S. (4 Wall.) 333 (1867); Davis v.
Beason, 133 U.S. 333 (1890); Mormon Church v. United States, 136 U.S. 1
(1890).