[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.