[HOUSE PRACTICE, 104th Congress, 2d Session]
[A Guide to the Rules, Precedents and Procedures of the House]
[From the U.S. Government Printing Office via GPO Access]
[DOCID:hp_txt-34]
[Page 609-613]
[[Page 609]]
OATHS
Sec. 1. In General; Administering the Oath
Sec. 2. Absent Members and the Oath; Use of Deputies
Sec. 3. Challenging the Right To Be Sworn
Sec. 4. Oaths Relating to Classified Information
Research References
1 Hinds Secs. 6-22
6 Cannon Secs. 127-185
1 Deschler Ch 2 Secs. 5, 6
Manual Secs. 197-206
U.S. Const. art. I Sec. 5, art. VI clause 3
Sec. 1 . In General; Administering the Oath
Generally
The Constitution requires that every Senator and every
Representative swear or affirm to uphold the Constitution of the
United States. U.S. Const. art. VI clause 3. The form of the oath and
the procedure for its administration is regulated by statute. 2 USC
Sec. 25. Form of oath, see 5 USC Sec. 3331 and Manual Sec. 197.
Until a Member-elect has subscribed to the oath, he does not enjoy
all the rights and prerogatives of a Member of Congress. Deschler Ch 2
Sec. 2.1. Members who have not taken the oath are not entitled to vote
(8 Cannon Sec. 3122) or introduce bills (Manual Sec. 300). However,
unsworn Members have participated at the beginning of a session in
organizational business, such as the election of the Speaker. 1 Hinds
Sec. 224. Although a Member has been named to a committee before
taking the oath (4 Hinds Sec. 4483) under the modern practice the
election of such a Member to a standing committee may be made
effective only upon being sworn. See H. Res. 26, H. Res. 27, Jan. 6,
1983.
In the early practice of the House, it was the custom to
administer the oath by state delegations. Beginning with the 71st
Congress, however, Members-elect have been sworn in en masse. 6 Cannon
Sec. 8. Under this practice, the Speaker, on opening day, administers
the oath of office to all Members-elect at one time, although a
Member-elect whose right to take the oath has been challenged may be
asked to stand aside. 93-1, Jan. 3, 1973, p 15; 94-1, Jan. 14, 1975, p
19. A Member-elect who does not take the oath of office on opening day
may appear in the well, in response to the Speaker's invita-
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tion, and take the oath. 92-1, Jan. 25, 1971, p 229; 92-1, Feb. 1,
1971, p 1257. Included among those to whom the Speaker administers the
oath are Delegates-elect and the Resident Commissioner from Puerto
Rico (93-1, Jan. 3, 1973, p 15), and Members-elect elected to fill
vacancies (92-2, Apr. 10, 1972, p 11865; 96-1, Apr. 9, 1979, pp 7744,
7745).
Credentials as Basis for Taking Oath
Although the Clerk will not as a general rule enroll Members-elect
who appear without certificates of election, the House itself may
authorize the administration of the oath to Members-elect who appear
without appropriate formal credentials. 1 Hinds Secs. 162-168, 553-
564. For example, a Member-elect may be sworn on the basis of letters
or telegrams from the executive department of the state of
representation, attesting as to his due election. See Deschler Ch 2
Secs. 3.1-3.4. And the House may authorize the administration of the
oath where credentials have not yet arrived, pursuant to a statement
by another Member-elect or a state official that the election in issue
is neither contested nor questioned. Deschler Ch 2 Sec. 3. Such
authorization is provided by unanimous consent. 86-2, Mar. 11, 1960, p
5294; 92-2, Apr. 11, 1972, p 12172; 95-2, Feb. 21, 1978, p 3853.
Unofficial state communications declaring the results of the election
may be laid before the House before the unanimous-consent request for
the administration of the oath. 97-2, July 15, 1982, p 16332.
Authorization by Resolution
The administration of the oath may be authorized by resolution
after a challenge to the right to be sworn has been made. Such
resolutions have included provisions collateral to the actual
administration of the oath, such as a condition that the final right
to the seat be referred to a committee. Deschler Ch 2 Sec. 5.
Failure or Refusal to Take the Oath
Members-elect entitled to take the oath may decline it by
resigning before taking a seat (2 Hinds Secs. 1230-1234), since
membership cannot be imposed on one without his consent. A Member-
elect may be permitted to defer his taking of the oath, without
declining his seat, until such time as questions regarding his
qualifications are resolved. Deschler Ch 2 Sec. 5. But where a Member-
elect fails to appear to take the oath, the House may by resolution
provide that if he fails to appear to take the oath by a certain date,
the seat will be declared vacant. 90-1, Mar. 1, 1967, p 4997.
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Precedence
The administration of the oath is a matter of high privilege. The
oath may be administered before the reading of the Journal (1 Hinds
Sec. 172), and takes precedence of a motion to amend the Journal (1
Hinds Sec. 171). It has been held in order to administer the oath
during a roll call (97-1, Jan. 22, 1981, p 693), in the absence of a
quorum (1 Hinds Sec. 174), or on Calendar Wednesday (6 Cannon
Sec. 22). The administration of the oath is in order even after the
previous question has been ordered on a pending matter. 91-1, Oct. 3,
1969, p 28487; 97-1, Jan. 5, 1981, p 103. And debate on a resolution
reported from the Committee on Rules may be interrupted to allow a new
Member to take the oath of office. 88-1, Dec. 24, 1963, p 25526.
Sec. 2 . Absent Members and the Oath; Use of Deputies
The Speaker, or a deputy named by him, may be authorized by
resolution to administer the oath of office to a Member-elect absent
because of his illness (92-1, Jan. 22, 1971, p 144; 93-1, Jan. 3,
1973, p 28; 94-1, Jan. 14, 1975, p 33), or because of some illness in
his family (98-1, Jan. 3, 1983, pp 51, 52). The resolution may
authorize the administration of the oath at some location other than
the House. 1 Hinds Sec. 170; 6 Cannon Sec. 14. Persons who may be
designated by the Speaker to administer the oath to an absent Member-
elect include another Member (87-1, Jan. 3, 1961, p 26), a state or
county judge (92-1, Jan. 22, 1971, p 144; 93-1, Jan. 3, 1973, p 28),
or a federal district court judge (97-1, Jan. 5, 1981, p 114). The
deputy so designated reports thereon to the House (92-1, Jan. 22,
1971, p 145; 96-1, Jan. 24, 1979, p 976), which report may take the
form of a letter from the deputy designated by the Speaker (86-1, Jan.
12, 1959, p 559).
Sec. 3 . Challenging the Right To Be Sworn
Generally
Any Member-elect may challenge the right of any other Member-elect
to be sworn when the Speaker directs the membership-elect to rise to
take the oath of office. Deschler Ch 2 Sec. 6. The fact that the
challenging party has not himself been sworn is no bar to his right to
invoke this procedure. 1 Hinds Sec. 141. He must base his challenge
either on his own responsibility as a Member-elect or on specified
facts or documents. Deschler Ch 2 Sec. 6.2. Such challenges are
generally directed at a single Member-elect, but in several instances
the challenge has been directed against an entire state delegation. 1
Hinds Secs. 457, 460-462; Deschler Ch 2 Sec. 6.4. The authority to
challenge the right of a Member-elect to be sworn is based on the U.S.
Constitu-
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tion, which designates the House as the sole judge of the elections,
returns, and qualifications of Members. U.S. Const. art. I Sec. 5
clause 1. Generally, see Election of Members.
Procedure
When a challenge is proposed, the Speaker asks the challenged
Member not to rise to take the oath en masse with the rest of the
membership. The House and not the Speaker determines the action to be
taken in such cases. Deschler Ch 2 Sec. 6.1; Manual Sec. 199. Debate
on the right of the Member-elect to be sworn is not in order until
after the remaining Members have been sworn. Deschler Ch 2 Sec. 6.3.
The pendency of a challenge does not preclude the entertainment of
other business before the House, and all other organizational business
may completed before a challenge is resolved. 1 Hinds Sec. 474;
Deschler Ch 2 Sec. 6.
Several courses of action are open to the House in disposing of a
challenge. First, the House may simply seat a Member by authorizing
the administration of the oath pursuant to a resolution determining
the right to the seat. Deschler Ch 2 Sec. 6.5. Second, the House may
by resolution authorize the administration of the oath based on the
Member-elects prima facie right to the seat, but at the same time
refer the determination of his final right to committee. 1 Hinds
Secs. 528-534. Finally, the House may by resolution refer the prima
facie as well as the final right to the seat to committee, without
authorizing the administration of the oath. Deschler Ch 2 Secs. 6.6,
6.7.
Resolutions relating to the right of a challenged Member-elect to
be sworn are privileged. 90-1, Mar. 1, 1967, p 4997. The resolution is
open to amendment where the House has not ordered the previous
question thereon. 91-1, Jan. 3, 1969, pp 15, 22-25. The challenged
Member-elect may, by unanimous consent, be permitted to participate in
debate on the resolution. 90-1, Jan. 10, 1967, pp 15, 23. The time for
debate on the resolution may be extended by unanimous consent. 90-1,
Mar. 1, 1967, p 4997.
As to the procedure to be followed in contested elections, see
Election Contests and Disputes.
Sec. 4 . Oaths Relating to Classified Information
In 1995, a new provision was added to the Code of Official
Conduct--Rule XLIII of the House rules. The new provision, clause 13,
prescribes an oath to be executed by all Members, officers and
employees of the House before obtaining access to classified
information:
I do solemnly swear (or affirm) that I will not disclose any
classified information received in the course of my service with the
House of Rep-
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resentatives, except as authorized by [the] House of Representatives
or in accordance with its rules. Manual Sec. 939.
The Committee on Standards of Official Conduct has interpreted
this clause as applying to classified information provided by ``any
person,'' not merely to data furnished by the House or by the
executive branch. Memorandum For All Members, Officers and Employees,
July 12, 1995.