[House Document 116-177]
[From the U.S. Government Publishing Office]
116th Congress, 2d Session - - - - - - - House Document No. 116-177
________________________________________________________________________
CONSTITUTION
JEFFERSON'S MANUAL
AND
RULES OF THE HOUSE OF
REPRESENTATIVES
OF THE UNITED STATES
ONE HUNDRED SEVENTEENTH CONGRESS
JASON A. SMITH
PARLIAMENTARIAN
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
U.S. GOVERNMENT PUBLISHING OFFICE
44-700 WASHINGTON : 2021
________________________________________________________________________
For sale by the Superintendent of Documents, U.S. Government Publishing
Office
Washington, DC 20402
HOUSE RESOLUTION 1233
In the House of Representatives, U.S.,
November 20, 2020.
Resolved, That a revised edition of the Rules and Manual of the
House of Representatives for the One Hundred Seventeenth Congress be
printed as a House document, and that three thousand additional copies
shall be printed and bound for the use of the House of Representatives,
of which nine hundred eighty copies shall be bound in leather with thumb
index and delivered as may be directed by the Parliamentarian of the
House.
Attest:
Cheryl L. Johnson,
Clerk.
(III)
[[Page [v]]]
PREFACE
The House Rules and Manual contains the fundamental source material
for parliamentary procedure used in the House of Representatives: the
Constitution of the United States; applicable provisions of Jefferson's
Manual; Rules of the House (as of the date of this preface); provisions
of law and resolutions having the force of Rules of the House; and
pertinent decisions of the Speakers and other presiding officers of the
House and Committee of the Whole interpreting the rules and other
procedural authority used in the House of Representatives.
The rules for the One Hundred Seventeenth Congress were adopted on
January 4, 2021, when the House agreed to House Resolution 8. In
addition to a series of changes to various standing rules, House
Resolution 8 included separate free-standing orders constituting
procedures to be followed in the One Hundred Seventeenth Congress.
Explanations of the changes to the standing rules appear in the
annotations following each rule in the text of this Manual.
The substantive changes in the standing rules made by House
Resolution 8 of the One Hundred Seventeenth Congress included:
(1) removal of outdated authority for Clerk maintenance of former
Speaker staff on the House payroll (clause 2(i) of rule II);
(2) codification of the Office of Diversity and Inclusion and Office
of the Whistleblower Ombuds and establishment of policy direction and
oversight thereof (clauses 9 and 10 of rule II; clause 4(d) of rule X);
(3) clarification that continuing litigation authority includes the
authority to issue subpoenas (clause 8(c) of rule II);
(4) expansion of admission in the Hall of the House to the Mayor of
the District of Columbia and prohibition of admission in the Hall of the
House for former Members, officers, and staff convicted of any crime
related to the individual's election or service to the House (clause 2
and 4 of rule IV);
(5) modification of numerous provisions to establish gender-neutral
terminology and elimination of a blanket gen
[[Page [vi]]]
der-neutrality clause (rules X, XXIII, XXVII, and clause 2 of rule
XXIX);
(6) clarification of the jurisdiction of the Committee on Armed
Services to include the Space Force and Marine Corps (clause 1(c) of
rule X);
(7) modification to the committee oversight plan requirement to
require priority consideration of diversity-related inequities in the
development of such plans (clause 2(d) of rule X);
(8) elimination of the printing requirement for availability of a
report by the Committee on House Administration on expense resolutions
(clause 6 of rule X);
(9) modification of the availability requirement for the report on a
Senate amendment reported in disagreement to permit availability
pursuant to clause 3 of rule XXIX (clause 8(b) of rule XXII);
(10) removal of the requirement that committee votes be made
available by the committee for physical inspection in the committee
offices, and expansion of amendment text availability requirement to
include all amendments disposed of or withdrawn (clause 2(e) of rule
XI);
(11) expansion of the committee hearing witness disclosure
requirements to include disclosure of any fiduciary interest in an
entity with an interest in the subject matter of the hearing, to include
grants as part of the foreign government disclosure, and to extend the
disclosure window to 36 months (clause 2(g) of rule XI);
(12) codification of a prior separate order to allow electronic
filing of reports and to permit electronic signatures to satisfy certain
signature requirements under the rules (rules XIII, XXV, and XXVII);
(13) clarification of the application of committee subpoena
authority to all persons, including current and former Presidents and
Vice Presidents, as well as current or former employees of Presidential
offices (clause 2(m) of rule XI);
(14) modernization of the restriction on the use of committee audio
and visual coverage for partisan political campaign purposes (clause
4(b) of rule XI);
(15) modification of the cosponsorship process to permit Members to
remove themselves as cosponsors as a matter of right (clause 7(b) of
rule XII);
(16) elimination of certain comparative print requirements (clause
12 of rule XXI);
(17) codification of points of order against the consideration of an
unreported bill or joint resolution and against
[[Page [vii]]]
the consideration of a reported bill or joint resolution that fails to
include in the report a list of related committee and subcommittee
hearings and the designation of at least one committee or subcommittee
hearing used to develop or consider such bill or joint resolution
(clause 3(c) of rule XIII; clause 12 of rule XXI);
(18) elimination of the motion to recommit with instructions and of
debatability of the motion to recommit, and establishment of automatic
ordering of previous question thereon (clause 2 of rule XIX; clause 7(d)
of rule XXII), and conforming modification to the restriction of the
authority of the Committee on Rules to report a special order of
business preventing the offering of a motion to recommit (clause 6(c) of
rule XIII);
(19) elimination of the special days for the consideration of
District of Columbia business (clause 4 of rule XV);
(20) restriction of the authority to offer a motion to amend the
title of a measure to the Majority Leader or a designee (clause 6 of
rule XVI);
(21) elimination of a point of order against consideration of a
concurrent resolution on the budget containing reconciliation directives
that specify changes in law that would require reported reconciliation
legislation to cause an increase in net direct spending (clause 7 of
rule XXI);
(22) modification of the availability requirement for unreported
bills and joint resolutions to allow the publicly-available text of an
unintroduced bill or joint resolution to count for purposes of
availability under the rule (clause 11 of rule XXI);
(23) removal of outdated proscriptive regulatory requirement for the
ethics rule prohibiting Members from serving as an officer or director
of a public company (clause 19(c) of rule XXIII);
(24) prohibition against the prevention of or retaliation for the
provision of truthful information by an individual to the Committee on
Ethics, the Office of Congressional Ethics, the Office of Congressional
Workplace Rights, or law enforcement (clause 20 of rule XXIII);
(25) prohibition against the disclosure of the identity of or
personally identifiable information about individuals providing
information pursuant to specified whistleblower laws (clause 21 of rule
XXIII); and
(26) conforming update to the name of the House Communications
Standards Commission (clause 5 of rule XXIV).
[[Page [viii]]]
In addition to the amendments cited above, the definition of ``mass
mailing'' in clause 9 of rule XXIV was expanded (P.L. 116-260, Dec. 27,
2020) and clause 3(g) of rule II was modified to conform the Committee
on Ethics appeals process under such clause to similar appeals processes
established in the 117th Congress (sec. 8, H. Res. 85, Feb. 2, 2021, p.
_).
Citations in this edition refer to:
(1) Hinds' Precedents of the House of Representatives of the United
States (volumes I through V) and Cannon's Precedents of the House of
Representatives of the United States (volumes VI through VIII), by
volume and section (e.g., V, 5763; VIII, 2852);
(2) Deschler's Precedents of the U.S. House of Representatives
(volumes 1 through 9), Deschler-Brown Precedents of the U.S. House of
Representatives (volumes 10 through 16), Deschler-Brown-Johnson
Precedents of the U.S. House of Representatives (volume 17), and
Deschler-Brown-Johnson-Sullivan Precedents of the U.S. House of
Representatives (volume 18), by chapter and section (e.g., Deschler, ch.
26, Sec. 79.7; Deschler-Brown, ch. 28, Sec. 4.26);
(3) Precedents of the U.S. House of Representatives (volumes 1
through 2), by Parliamentarian last name, chapter and section (e.g.,
Precedents (Wickham), ch. 1, Sec. 1.1);
(4) the Congressional Record, by date and page (e.g., Jan. 29, 1986,
p. 684);
(5) House Practice (2017), by chapter and section (e.g., House
Practice, ch. 1, Sec. 2);
(6) Deschler-Brown Procedure in the U.S. House of Representatives
(4th edition and 1987 supplement), by chapter and section (e.g.,
Procedure, ch. 5, Sec. 8.1);
(7) the United States Code, by title and section (e.g., 2 U.S.C.
287); and
(8) the United States Reports, by volume and page (e.g., 395 U.S.
486).
All of the members of the Office of the Parliamentarian - Anne
Gooch, Kyle T. Jones, Julia Cook, Ben Osheroff, Christina Reid, Lloyd
Jenkins, Kristen Donahue, and Matthew Kowalewski, as well as Charles
Johnson, Max Spitzer, Andrew Neal, Catherine Moran, and Bryan Feldblum -
worked diligently to annotate the decisions of the Chair and other
parliamentary precedents of the 116th Congress and of the 117th Congress
to the date of publication of this edition. Their contributions, and
their devotion to the pursuit of excellence in the procedural practices
of the House, are gratefully acknowledged.
[[Page [ix]]]
Finally, we take a moment to express our gratitude to Thomas J.
Wickham, Jr., not only for his significant contribution to this
publication but for his decades of service to the office. Tom's
immeasurable knowledge and adroit application of House procedure were
matched only by his reverence for the institution and his commitment to
mentorship. Like his predecessors, Tom has left an indelible mark on his
colleagues and on the procedure of the House.
Jay Smith
March 31, 2021
[[Page [xi]]]
CONTENTS
__________
THE CONSTITUTION
Page
Preamble.......................................................... 3
Article I.--The legislative power..................... 4
II.--The executive power....................... 68
III.--The judicial power........................ 81
IV.--Obligations, duties, etc., of the States.. 83
V.--Amendments to............................. 85
VI.--Law of the land, etc...................... 87
VII.--Ratification of........................... 92
Amendments ratified....................... 94
JEFFERSON'S MANUAL
Section I.--Importance of adhering to rules........... 129
III.--Privilege................................. 132
VI.--Quorum.................................... 153
VII.--Call of the House......................... 154
IX.--Speaker................................... 154
X.--Address................................... 157
XI.--Committees................................ 157
XII.--Committee of the Whole.................... 161
XIII.--Examination of witnesses.................. 170
XIV.--Arrangement of business................... 175
XV.--Order..................................... 176
XVI.--Order respecting papers................... 177
XVII.--Order in debate........................... 178
XVIII.--Orders of the House....................... 203
XIX.--Petition.................................. 207
XX.--Motion.................................... 208
XXI.--Resolutions............................... 209
XXIII.--Bills, leave to bring in.................. 211
XXIV.--Bills, first reading...................... 212
XXV.--Bills, second reading..................... 212
XXVI.--Bills, commitment......................... 213
XXVII.--Report of committee....................... 224
[[Page [xii]]]
Page
Section XXVIII.--Bill, recommitment........................ 225
XXIX.--Bills, reports taken up................... 226
XXX.--Quasi-committee........................... 228
XXXI.--Bill, second reading in the House......... 231
XXXII.--Reading papers............................ 234
XXXIII.--Privileged questions...................... 236
XXXIV.--The previous question..................... 249
XXXV.--Amendments................................ 251
XXXVI.--Division of the question.................. 260
XXXVII.--Coexisting questions...................... 263
XXXVIII.--Equivalent questions...................... 264
XXXIX.--The question.............................. 266
XL.--Bills, third reading...................... 267
XLI.--Division of the House..................... 271
XLII.--Titles.................................... 276
XLIII.--Reconsideration........................... 276
XLIV.--Bills sent to the other House............. 280
XLV.--Amendments between the Houses............. 281
XLVI.--Conferences............................... 291
XLVII.--Messages.................................. 304
XLVIII.--Assent.................................... 309
XLIX.--Journals.................................. 311
L.--Adjournment............................... 314
LI.--A session................................. 315
LII.--Treaties.................................. 319
LIII.--Impeachment............................... 322
RULES OF THE HOUSE
Rule I.--The Speaker............................... 345
II.--Other Officers and Officials.............. 371
III.--The Members, Delegates, and Resident
Commissioner of Puerto Rico............... 396
IV.--The Hall of the House..................... 401
V.--Broadcasting the House.................... 410
VI.--Official Reporters and News Media
Galleries................................. 412
VII.--Records of the House...................... 425
VIII.--Response to Subpoenas..................... 429
IX.--Questions of Privilege.................... 432
X.--Organization of Committees................ 454
XI.--Procedures of Committees and Unfinished
Business.................................. 567
XII.--Receipt and Referral of Measures and
Matters................................... 639
XIII.--Calendars and Committee Reports........... 655
XIV.--Order and Priority of Business............ 691
XV.--Business in Order on Special Days......... 701
[[Page [xiii]]]
Page
Rule XVI.--Motions and Amendments.................... 720
XVII.--Decorum and Debate........................ 776
XVIII.--The Committee of the Whole House on the
state of the Union........................ 809
XIX.--Motions Following the Amendment Stage..... 840
XX.--Voting and Quorum Calls................... 854
XXI.--Restrictions on Certain Bills............. 884
XXII.--House and Senate Relations................ 943
XXIII.--Code of Official Conduct.................. 970
XXIV.--Limitations on Use of Official Funds...... 987
XXV.--Limitations on Outside Earned Income and
Acceptance of Gifts....................... 992
XXVI.--Financial Disclosure...................... 1021
XXVII.--Disclosure by Members and Staff of
Employment Negotiations................... 1047
XXVIII.--Statutory Limit on the Public Debt........ 1048
XXIX.--General Provisions........................ 1051
Provisions of Legislative Reorganization Act of 1946, as Amended by the
Legislative Reorganization Act of 1970, Applicable to Both Houses
Congressional adjournment......................................... 1057
Preservation of committee hearings................................ 1058
Joint and Select Committees
Economic Committee, Joint......................................... 1059
Taxation, Joint Committee on...................................... 1059
Library, Joint Committee of Congress on the....................... 1060
Printing, Joint Committee on...................................... 1060
Inaugural Ceremonies, Joint Congressional Committee on............ 1060
Select committees................................................. 1060
House and Congressional Offices
House Communications Standards Commission......................... 1063
House Office Building Commission.................................. 1063
Government Accountability Office.................................. 1063
Office of Congressional Workplace Rights.......................... 1063
Congressional Research Service.................................... 1064
Legislative Counsel............................................... 1064
Congressional Budget Office....................................... 1064
Law Revision Counsel.............................................. 1064
Technology Assessment............................................. 1064
Office of the Parliamentarian..................................... 1064
Speaker's Office for Legislative Floor Activities................. 1065
[[Page [xiv]]]
Page
Office of Interparliamentary Affairs.............................. 1065
House Recording Studio............................................ 1065
United States Capitol Preservation Commission..................... 1065
Office of General Counsel......................................... 1065
Former Office of Emergency Planning, Preparedness, and Operations. 1066
Office of Attending Physician..................................... 1066
Office of Architect of the Capitol................................ 1066
House Democracy Partnership....................................... 1066
Tom Lantos Human Rights Commission................................ 1066
Office of Congressional Ethics.................................... 1067
Early organization of the House................................... 1069
Miscellaneous Provisions of Congressional Budget Laws
Congressional Budget Act of 1974.................................. 1075
Budget Enforcement Act of 1990.................................... 1157
Statutory Pay-As-You-Go Act of 2010............................... 1161
Legislative Procedures Enacted in Law
Measures privileged for consideration in House.................... 1165
Index
Index............................................................. 1361
[
[[Page [xv]]]
GENERAL ORDER OF BUSINESS
Rule XIV
First. Prayer by Chaplain.
Second. Approval of Journal.
Third. The Pledge of Allegiance to the Flag.
Fourth. Correction of reference of public bills.
Fifth. Disposal of business on Speaker's table.
Sixth. Unfinished business.
Seventh. The morning hour for the consideration of bills.
Eighth. Motions to go into Committee of the Whole.
Ninth. Orders of the day.
SPECIAL ORDER OF BUSINESS
Mondays
Every Monday:
Motions to suspend rules. Rule XV, clause 1.
Tuesdays
First Tuesday:
Private Calendar. Rule XV, clause 5. Individual private bills
considered on first Tuesday of each month.
Every Tuesday:
Motions to suspend rules. Rule XV, clause 1.
Wednesdays
Call of Committees under Calendar Wednesday. Rule XV, clause 6.
Every Wednesday:
Motions to suspend rules. Rule XV, clause 1.
[[Page [1]]]
========================================================================
CONSTITUTION
========================================================================
[[Page [3]]]
__________
We the People <> of the United States, in
Order to form a more perfect Union, establish Justice, insure domestic
Tranquility, provide for the common defence, promote the general
Welfare, and secure the Blessings of Liberty to ourselves and our
Posterity, do ordain and establish this Constitution for the United
States of America.
The First Continental <> Congress met in Philadelphia in September, 1774 and
adopted the Declaration and Resolves of the First Continental Congress,
embodying rights and principles later to be incorporated into the
Constitution of the United States. The Second Continental Congress
adopted in November, 1777 the Articles of Confederation, which the
States approved in July, 1778. Upon recommendation of the Continental
Congress, a convention of State representatives met in May, 1787 to
revise the Articles of Confederation and reported to the Continental
Congress in September a new Constitution, which the Congress submitted
to the States for ratification. Nine States, as required by the
Constitution for its establishment, had ratified by June 21, 1788, and
eleven States had ratified by July 26, 1788. The Continental Congress
adopted a resolution on September 13, 1788, putting the new Constitution
into effect; the First Congress of the United States convened on March
4, 1789, and George Washington was inaugurated as the first President on
April 30, 1789.
[[Page [4]]]
ARTICLE I.
Section 1. All <> 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. <> Thompson, 103 U.S. 168 (1880); 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). The Chair cannot
unilaterally grant a request for an investigation (Jan. 12, 2017, p. _).
For the power of the House to punish for contempt in the course of
investigations, see Sec. 293, infra.
<> 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, 394 U.S. 526 (1969). 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 <> Congress, before
ratification of the 20th amendment to the Constitution, began on the 4th
of March of 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 March 4, 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
[[Page [5]]]
no other hour is fixed (I, 4, 210). In the later practice a resolution
fixing the daily hour of meeting 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, if a state of war exists
pursuant to a congressional declaration or if, 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. 1106, infra.
<> * * * 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 <> 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).
<> \2\No
Person shall be a Representative who shall not have attained
to the Age of twenty five Years, * * *
[[Page [6]]]
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).
<> * * *
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).
<> * * *
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
[[Page [7]]]
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 <> 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). In Powell v. McCormack, 395 U.S. 486 (1969), the
Supreme 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. Thornton, 514
U.S. 779 (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).
[[Page [8]]]
Both Houses of <> 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 <> 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 <> 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
[[Page [9]]]
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 <> of the Supreme
Court of the United States: Dred Scott v. Sandford, 60 U.S. (19 How.)
393 (1857); Veazie Bank v. Fenno, 75 U.S. (8 Wall.) 533 (1869); Scholey
v. Rew, 90 U.S. (23 Wall.) 331 (1874); De Treville v. Smalls, 98 U.S.
517 (1878); Gibbons v. District of Columbia, 116 U.S. 404 (1886);
Pollock v. Farmers Loan & Trust Co. (Income Tax case), 157 U.S. 429
(1895); Pollock v. Farmers' Loan & Trust Co. (Rehearing), 158 U.S. 601
(1895); Thomas v. United States, 192 U.S. 363 (1904); Flint v. Stone
Tracy Co. (Corporation Tax cases), 220 U.S. 107 (1911); Eisner v.
Macomber, 252 U.S. 189 (1920); New York Trust Co. v. Eisner, 256 U.S.
345 (1921); Franklin v. Massachusetts, 505 U.S. 788 (1992); Utah v.
Evans, 536 U.S. 452 (2002).
\4\When vacancies <> 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 if 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.
[[Page [10]]]
It was long the <> 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 it is now the practice
for State authorities to take cognizance of the vacancies without
notice. When a Member dies while not in attendance in the House or
during a recess, the House is sufficiently informed of the vacancy by
the credentials of the 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). The Clerk announces any vacancy created by
the death of a Member-elect following the call of the roll at the
beginning of a Congress (Jan. 3, 2021, p. _). 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 <> the
Member informs the House by letter that a resignation has been sent to
the State executive (II, 1167-1176) and this is satisfactory evidence of
the resignation (I, 567). Both a letter to the Speaker and a copy of the
letter to the State executive are laid before the House. However,
Members have resigned by letter to the House alone, it being presumed
that the Member would also notify the 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). If a Member does not inform the House, the State
executive may do so (II, 1193, 1194; VI, 232). The House has learned of
a Member's resignation by means of the credentials of the successor (II,
1195, 1356). Where the fact of a Member's resignation has not appeared
either from the credentials of the 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 select a future
date for a resignation to take effect and, until the arrival of that
date, participate in the proceedings (II, 1220-1225, 1228, 1229; VI,
227, 228;
[[Page [11]]]
Dec. 15, 1997, p. 26709; June 5, 2001, p. 9882; Nov. 27, 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 State
executive 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 January 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, in
which 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 from 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-elect may resign
before taking the oath (II, 1230-1232).
A letter of resignation is presented as privileged (II, 1167-1176);
but a resolution to permit a Member to withdraw a 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).
[[Page [12]]]
A Member who <> 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 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). A Member has notified the Speaker
and the Governor in one Congress of an intention not to take a seat in
the next Congress (Jan. 6, 2009, pp. 2, 3; Jan. 3, 2013, p. 21; Jan. 3,
2013, p. 21; Jan. 6, 2015, p. 29).
At the time <> 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).
If 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 in which a Member-elect was unable to take the oath
of office or to decline the office because of an incapacitating illness
(Feb. 24, 1981, pp. 2916-18).
A vacancy exists <> where the Clerk does not receive a certificate of election
from a State and there is no election contest or any person seeking to
be sworn as a Member, and the Clerk announces such lack of certification
when announcing the official roll of Members immediately prior to the
call of the roll at the beginning of a Congress (Jan. 3, 2019, p. _;
Jan. 3, 2021, p. _). On opening day of the 116th Congress the Clerk
announced that no certificate of election had been received from the
state of North Carolina with respect to its Ninth Congressional District
and therefore only 434 certificates of election had been received (Jan.
3, 2019, p. _). No election contest was filed and no person sought to
take the oath of office. Soon thereafter, the state ordered a special
election for the district and a letter from the state board of elections
informing the Clerk of the dates of such election was laid before the
House (Mar. 14, 2019, p. _). On the opening day of the 117th Congress
the Clerk announced that no certificate of election had been received
from the state of New York with respect to its Twenty-Second
[[Page [13]]]
Congressional District and therefore only 434 certificates of election
had been received (Jan. 3, 2021, p. _). Soon thereafter, the state of
New York certified the election results for its Twenty-Second
Congressional District and the Member-elect appeared in the Chamber to
take the oath of office (Feb. 11, 2021, p. _).
The House declines <> 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).
The term ``vacancy'' <> 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 the 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 (Precedents (Wickham), ch. 2, Sec. 3.9). For a discussion
of a State election to fill a prospective vacancy of the House, see
Sec. 19, supra.
<> 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.
[[Page [14]]]
<> \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 the 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. 663b, 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. 5602).
The Speaker, who <> 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). Because the House is
composed of Members elected by the people of the several States, and
because the House elects its Speaker, the Delegates-elect and the
Resident Commissioner from Puerto Rico are not constitutionally
qualified to vote in the House for Speaker (Precedents (Wickham), ch. 1,
Sec. 4.2; Jan. 3, 2017, p. _). The Clerk appoints tellers for this
election (I, 217). Ultimately, the House, and not the Clerk, decides 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, 3383), 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
[[Page [15]]]
candidates for Speaker to state their views before proceeding to
election (I, 218).
A proposition <> to elect a Speaker is in order at any time a vacancy exists
and presents a question of the highest privilege (VIII, 3383). 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). A resolution declaring vacant the
Office of Speaker is presented as a matter of high constitutional
privilege (VI, 35), but in the 116th Congress the House adopted clause
2(a)(3) of rule IX, providing that such a resolution only constitutes a
question of the privileges of the House if offered by direction of a
party caucus or conference (sec. 102(e), H. Res. 6, Jan. 3, 2019, p. _).
Upon a vacancy in the Office of Speaker, the House elects a new Speaker
either viva voce following nominations (in the case in which a Speaker
has died between sessions of Congress or resigned) or by resolution (in
the case in which a Speaker has died during a session of Congress). For
example, in the case in which 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 in which 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).
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; H. Res. 383, Oct. 22, 2013, p. 16056; H. Res. 254, May 12,
2015, pp. 6455, 6492).
Speakers have resigned by addressing the House (I, 231, 233;
Precedents (Wickham), ch. 6, Sec. 1.2), by calling a Member to the Chair
and tendering the resignation verbally from the floor (I, 225), by
tendering the resignation during recognition under a question of
personal privilege (Precedents (Wickham), ch. 6, Sec. 7.4), or by
sending a letter that the Clerk reads to the House at the beginning of a
new session (I, 232). In cases in which a Speaker resigned ``on the
election of my successor'' (May 31, 1989, p. 10440; Precedents
(Wickham), ch. 6, Sec. 1.2), he entertained nominations for Speaker and,
following the roll call, declared the winner of the election ``duly
elected Speaker'' (Precedents (Wickham), ch. 1, Sec. 4.6; Precedents
(Wickham), ch. 6, Sec. 1.2). 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). 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
[[Page [16]]]
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).
<> 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. 5501) 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.
<> It has
been held that the Act of June 1, 1789 (2 U.S.C. 25) binds the House to
elect a Clerk before proceeding to business (I, 237, 241; contrast, 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).
* * * <> 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
investigation (28 U.S.C. 595(c)). For a description of impeachment
proceedings prompted by a communication from an independent counsel, see
Sec. 176, infra.
Section 3. \1\[The Senate <> of the United States shall be composed of two Senators
from each State, chosen by the Leg
[[Page [17]]]
islature thereof, for six Years; and each Senator shall have one Vote.]
This provision was changed by the 17th amendment.
\2\Immediately <> 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 <> 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 <> 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.
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
[[Page [18]]]
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 <> 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), the
election of officers of the Senate (V, 5972-5974), the title of a
claimant to a seat (V, 5976, 5977), or the confirmation of a Cabinet
nominee (Feb. 6, 2017, p. _). The Senate has declined to make a rule
relating to the vote of the Vice President (V, 5974).
<> \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 <> 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 without the Concurrence
of two thirds of the Members present.
For the exclusive power of the Senate to try impeachment under the
United States Constitution, see Ritter v. United States, 84 Ct. Cl. 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
[[Page [19]]]
that a Senate impeachment 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 <> 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). In the
111th Congress, a Federal district judge was removed from office
following his conviction in the Senate (Dec. 8, 2010, p. 19349). For a
further discussion of judgments in cases of impeachment, see Sec. 619,
infra.
Section 4. \1\The Times, <> 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 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
paragraph have been the subject of much discussion (I, 311, 313, 507,
footnote); but
[[Page [20]]]
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 Members of Congress contingent on the time of
the State election (I, 522). This paragraph gives Congress the power to
protect the right to vote in primaries in which 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 <> 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 <> 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 U.S. 232
(1921); Smiley v. Holm, 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-
[[Page [21]]]
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 10th 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 <> 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 <> 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 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 a 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),
[[Page [22]]]
and the courts of a State have no role in such matters (II, 959). The
House has once examined the relations of this power to the power to
expel (I, 469).
As nearly all <> 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 <> concerns not the acts of returning
officers, but the act of the voter in voting, the House has found more
difficulty in determining the proper exercise of its constitutional
power. Although the House has always acted on the principle of giving
expression to the intent of the voter (I, 575, 639, 641; II, 1090), 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 <> courts have upheld a State election
law as constitutional the House does not ordinarily question the law
(II, 856, 1071). But if 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).
The courts of <> a State do not have a direct role in
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), especially
by a decision on an analo
[[Page [23]]]
gous 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 an illustration of a protracted election dispute
lasting four months see House Report 99-58, culminating in House
Resolution 146 of the 99th Congress (Precedents (Wickham), ch. 2,
Sec. 3.8).
The statutes of <> 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), which the
House regards as not of absolute binding force, but rather a prudent
rule not to be departed from except for cause (I, 597, 719, 825, 833).
It sometimes by resolution modifies the procedure prescribed by the law
(I, 449, 600).
Decisions <> 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 <> 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 <> 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 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. 43; see Sec. 1024a, infra).
[[Page [24]]]
For many years <> 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. In the 116th and 117th
Congresses the House adopted a provision, effective during a designated
public health emergency, to count for the purpose of establishing a
quorum all Members voting or recording their presence by proxy (sec.
3(b), H. Res. 965, May 15, 2020, p. _; sec. 3(s), H. Res. 8, Jan. 4,
2021, p. _).
The absence of <> 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 pro
tempore, the Speaker on the next day ruled that the action was null
[[Page [25]]]
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 chair 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
chair to the House. 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, pp.
28123, 28124; Precedents (Wickham), ch. 5, Sec. 3.1).
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);
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. 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; Oct. 8, 1968, p.
30090). Adjournment sine die is in order notwithstanding the absence of
a quorum if both Houses
[[Page [26]]]
have already adopted a concurrent resolution providing for an
adjournment sine die on that day (Oct. 18, 1972, p. 37200).
At the time <> 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 adjournment sine die,
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 <> of the Supreme
Court of the United States: Kilbourn v. Thompson, 103 U.S. 190 (1880);
United States v. Ballin, 144 U.S. 1 (1892); Burton v. United States, 202
U.S. 344 (1906).
<> \2\Each House may
determine the Rules of its Proceedings, * * *
The power of <> 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 (e.g., H. Res. 5, 95th Cong., Jan. 4, 1977, p.
53) and has also incorporated provisions of concurrent resolutions that
were intended to remain applicable under the Budget Act (e.g., H. Res.
5, 107th Cong., Jan. 3, 2001, p. 25). 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
[[Page [27]]]
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 a vote as a Member by a rule was successfully
resisted (V, 5966, 5967). Although the Act of June 1, 1789 (see 2 U.S.C.
25) requires the election of a Clerk before the House proceeds to
business, 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).
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 <> 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 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, Precedents (Wickham), ch. 1, Sec. 6.9). 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 (Precedents (Wickham), ch. 1, Sec. 6.10; Precedents
[[Page [28]]]
(Wickham), ch. 5, Sec. 5.2). 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; secs. 506-510, H. Res. 6, Jan. 4,
2007, p. 30; sec. 5, H. Res. 5, Jan. 6, 2009, p. 10; sec. 5(b), H. Res.
5, Jan. 3, 2017, p. _), as has a special order providing for the
consideration of the resolution adopting the rules (Jan. 3, 2019, p. _).
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, Precedents (Wickham), ch. 1, Sec. 6.8).
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, because 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 (Precedents (Wickham),
ch. 5, Sec. 5.3). 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 (Precedents (Wickham), ch. 1, Sec. 6.5).
The motion to commit is permitted after the previous question has been
ordered on the resolution adopting the rules (V, 5604; Precedents
(Wickham), ch. 5, Sec. 5.5; Jan. 3, 1991, p. 61; Precedents (Wickham),
ch. 1, Sec. 6.4) 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 motions to refer and postpone have 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 (e.g., Precedents (Wickham),
ch. 5, Sec. 5.9; Jan. 4, 2021, p. _).
The two Houses <> 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).
[[Page [29]]]
Decisions <> 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] <> punish its Members for disorderly Behaviour, and, with the
Concurrence of two thirds, expel a Member.
Among the <> punishments that the House may impose under this provision,
the rules of the Committee on Ethics 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 under the Constitution the House of Representatives may impose
such denial or limitation; or (6) any other sanction determined by the
Committee to be appropriate (rule 24, Committee on Ethics, 115th Cong.).
Under rule 10 of the rules of that committee, 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 to censure and the Member had 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 the time to the accused (Oct. 2, 1980, p. 28966; July 24, 2002, p.
14309; Dec. 2, 2010, p. 18721).
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.
13525; Oct. 23, 2007, p. 27966; July 31, 2008, pp. 17463, 17464; Jan.
16, 2019, p. _), as does one disapproving of the behavior of a Member
inside (Sept. 15, 2009, p. 21662; Mar. 18, 2010, pp. 3847, 3848) or
outside (Dec. 20, 2011,
[[Page [30]]]
p. 21435; Sept. 25, 2019, p. _; Sept. 27, 2019, p. _; Oct. 21, 2019, p.
_) the Chamber. If reported by the Committee on Ethics (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; Dec. 2, 2010, p.
18721). 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 <> the 94th Congress the
House by adopting a report from the Committee on Standards of Official
Conduct (now Ethics) 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 (now Ethics) 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 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 (now Ethics) (Jan. 21, 1997, p. 393). In the 112th Congress the
House by adopting a report from the Committee on Ethics reprimanded a
Member for using official resources of the House for unofficial purposes
and compelling staff to perform campaign work, and imposed a fine (Aug.
2, 2012, pp. 13191, 13194, 13195). In the 116th Congress the House by
adopting a report from the Committee on Ethics reprimanded a Member for
the misuse of campaign funds for personal purposes, and imposed a fine
(July 31, 2020, p. _).
[[Page [31]]]
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).
In the 111th Congress, after the House defeated an amendment to instead
punish by reprimand, a Member was censured for using official resources
to solicit funds for an educational center, failing to file complete
financial disclosure forms, accepting the benefits of a rent-stabilized
residence in a manner creating an appearance of impropriety, and failing
to pay taxes on certain property, and was ordered to pay restitution for
such unpaid taxes (Dec. 2, 2010, pp. 18729-30).
Five <> 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 for 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
[[Page [32]]]
employees while they were being paid by the taxpayers to perform public
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 Committee on
the Judiciary 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).
In the 117th <> Congress the House adopted an unreported resolution
(referred to the Committee on Ethics and considered pursuant to a
special order of business reported by the Committee on Rules) removing a
Member from committee assignments based on such Member's conduct (H.
Res. 72, Feb. 4, 2021, p. _).
Decisions <> of the Supreme
Court of the United States: Anderson v. Dunn, 19 U.S. (6 Wheat.) 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 <> shall
keep a Journal of its Proceedings, and from time to time publish the
same, excepting such
[[Page [33]]]
Parts as may in their Judgment require Secrecy; * * *
The Journal and <> 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). Although it ought to be a correct transcript
of proceedings, the House has not insisted on a strict chronological
order of entries (IV, 2815). The Journal is dated as of the legislative
and not the calendar day (IV, 2746).
The Journal records <> 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-
2846).
The House <> 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). Although 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,
3091-3093), 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 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 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 (Precedents
(Wickham), ch. 5, Sec. 14.1). Only on rare occasions 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 <> 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
[[Page [34]]]
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 <> uniform practice
of the House to approve its Journal for each legislative day (IV, 2731).
If Journals of more than one session remain unapproved, they are taken
up for approval in chronological order (IV, 2771-2773; Precedents
(Wickham), ch. 5, Sec. 12.6).
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 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 the approval of the Journal to
a later time on that legislative day (H. Res. 5, Jan. 3, 1983, p. 34).
Although 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 has discretion to 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 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 matter.
Under the practice <> 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). Although a proposed
correction of the Journal may be recorded in the Journal, 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
[[Page [35]]]
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.
Decisions <> 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 <> 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 <> nays may be ordered before the organization of the House (I, 91;
V, 6012, 6013), but are not taken in the 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, 13535; Oct. 13, 1962, p. 23474; Oct. 19,
1966, p. 27641). Although 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 (Precedents (Wickham), ch. 5,
Sec. 10.3).
[[Page [36]]]
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 <> 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 actively seeking recognition for that purpose when the Chair
announces the result of the voice vote (Nov. 22, 1991, p. 34075; Sept.
21, 2005, p. 20856). 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). A
demand for the yeas and nays is not timely when further proceedings have
been postponed on a measure pursuant to clause 8 of rule XX (Dec. 19,
2018, p. _).-
In passing on <> 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 wish to be counted (VIII, 3111, 3120).
Such count is not subject to verification by appeal (Sept. 12, 1978, p.
28984; Mar. 8, 2006, p. 2954; Aug. 3, 2007, p. 22745; Mar. 18, 2010, p.
3842), a request for a count of those opposed to the demand is not in
order (VIII, 3112-3114), and the Speaker may refuse to entertain a
parliamentary inquiry regarding the number of Members counted by the
Chair (Aug. 3, 2007, p. 22745). If the Chair prolongs the count of the
House in determining whether one-fifth have supported the demand for
yeas and nays, the Speaker 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 <> 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
[[Page [37]]]
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 <> 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 not precluded or set aside by the fact
that the yeas and nays are demanded and refused (V, 5998; VIII, 3103).
Decisions <> 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, <> 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 <> the above paragraph was construed to mean the seat of
Government, and consent of the Senate is not required if 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, if,
in the opinion of the Speaker, the public interest shall warrant it
(Sec. 639, infra). The two Houses once 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 warranted it (H. Con. Res. 1, Feb. 13, 2003, p. 4080). The
Speaker executed by letter his designation under that authority (Mar.
13, 2003, p. 6123). The House, but not the Senate, re-adopted similar
concurrent resolutions in succeeding Congresses (e.g., H. Con. Res. 1,
Jan. 4, 2005, p. 68; H. Con. Res. 1, Jan. 4, 2007, p. 42; H. Con. Res.
1, Jan. 6, 2009, p. 22; H. Con. Res. 1, Jan. 5, 2011, p. 103). After
September 11, 2001, recall authority carried in adjournment resolutions
has allowed
[[Page [38]]]
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 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
commemorative or 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 <> 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, but not Sundays (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 (e.g., Dec. 17, 1982, p. 31946; 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 not more than three days but
specified that it would continue in adjournment pursuant to a concurrent
resolution adopted by the House if it received a message of the Senate's
adoption of the concurrent resolution before the time of the House's
reconvening (e.g., 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 multiple 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
(Precedents (Wickham), ch. 1, Sec. 2.9; Jan. 5, 1996, p. 357).
[[Page [39]]]
Clause 12(e) of <> rule I provides certain authorities for
reconvening or postponing the time for reconvening during any recess or
adjournment of not more than three days when warranted by the public
interest (see Sec. 639, infra), and the Speaker has reconvened the House
before the time previously appointed pursuant to such authority (Dec. 3,
2018, p. _). The House had previously provided such authority by
standing order (H. Res. 479, 112th Cong., Dec. 6, 2011, p. 18998; H.
Res. 66, Feb. 14, 2013, p. 1405) and on one occasion convened earlier
than previously ordered (Precedents (Wickham), ch. 1, Sec. 11.12). The
Senate has adopted similar authority, applicable also to the place of
convening, which may be exercised by the Senate Majority and Minority
Leaders when warranted by intervening circumstances (S. Res. 296, 108th
Cong., Feb. 3, 2004, p. 731). 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. 5143), section 2 of which enabled a recall of the
House (Mar. 20, 2005, p. 5446).
Congress enables an <> adjournment 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 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 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; Aug. 20, 1954, p. 15554); (3) the two Houses
provided for an adjournment sine die of the House on December 20 or
December 21, 1982, pursuant to a motion made by the Majority Leader or a
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
[[Page [40]]]
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 authority to reassemble the Members
whenever the public interest shall warrant it, either separately (see,
e.g., Dec. 26, 2013, p. 19517) or jointly (see, e.g., July 8, 1943, p.
7516; July 26, 1947, p. 10521; Dec. 20, 1974, p. 41815; Nov. 21, 1989,
p. 31156; Oct. 3, 1996, p. 12275; Dec. 15, 2000, p. 27019). Similarly, a
concurrent resolution adjourning one House typically provides for recall
of that House (see, e.g., Sept. 28, 2016, p. _).
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. 5446, pursuant to H.
Con. Res. 103, Mar. 17, 2005, p. 5143; Precedents (Wickham), ch. 1,
Sec. 11.10); (2) the Speaker and the Majority Leader of the Senate
notified Members of both Houses to reassemble (Sept. 2, 2005, p. 19424,
pursuant to H. Con. Res. 225, July 28, 2005, p. 18356; Precedents
(Wickham), ch. 1, Sec. 11.13).
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 recall authority under that resolution to reassemble the House
(Dec. 17, 1998, p. 27802). One-House recall authority, with provision to
again adjourn for more than three days, was included in two
complementary one-House adjournment resolutions of the 111th Congress
(H. Con. Res. 307, H. Con. Res. 308, July 29, 2010, p. 14604) and the
Speaker (Precedents (Wickham), ch. 1, Sec. 11.11) and Majority Leader of
the Senate (Aug. 12, 2010, p. 15504) each exercised recall authority
under the respective adjournment resolution.
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. 7, 2004, p. 25708). 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 the
designation under a concurrent resolution of adjournment (e.g., Mar. 13,
2003, p. 6123). Such letter was expanded in the 114th Congress to
account for the increased use of separate recall authority and for new
designation authority in clause 12(f) of rule I (Precedents (Wickham),
ch. 1, Sec. 11.8). The Speaker also executes by letter the designation
of another Member to utilize reassembly authority under a joint
resolution changing the convening date of the next session (H. J. Res.
80, Dec. 15, 2003, p. 32411).
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). A
simple
[[Page [41]]]
resolution adopted in the first session of the 111th Congress provided
for a series of adjournments of not more than three days, unless the
House sooner received: (1) a specified message from the Senate, (2)
confirmation that the President had approved a certain bill, and (3) a
message that the Senate had concurred in an adjournment resolution, in
which case it would stand adjourned pursuant to such adjournment
resolution (H. Res. 976, Dec. 16, 2009, p. 32039). 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 adjournment sine die 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, Dec. 20, 1979, p. 37317; H.
Con. Res. 260, Nov. 26, 1991, p. 35840; H. Con. Res. 235, 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
(e.g., Precedents (Wickham), ch. 1, Sec. 2.10). Such a prohibition does
not preclude recognition for one-minute speeches and special-order
speeches by unanimous consent (Precedents (Wickham), ch. 1, Sec. 2.8) 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 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., Precedents
(Wickham), ch. 1, Sec. 2.3; H. J. Res. 80, Nov. 21, 2003, pp. 30856,
30857).
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
an adjournment sine die, 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).
[[Page [42]]]
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 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 <> 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. 4501; 3 U.S.C. 104) with an additional
amount per annum to assist in defraying expenses for the Speaker and
Vice President (2 U.S.C. 5121; 3 U.S.C. 111). These rates of
compensation are all (except for the expense allowances) subject to
annual cost of living adjustments (2 U.S.C. 4501(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. 4501(2).
Under <> 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
[[Page [43]]]
the Congress (2 U.S.C. 5306; 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. 5301, 5302, 5304). 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). The pension of a Member may be
forfeited upon conviction involving abuse of the public trust (5 U.S.C.
8312, 8411).
Questions have arisen <> frequently as to compensation of Members especially in
cases of Members elected to fill vacancies (I, 500; II, 1155) and in
which 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 the predecessor has ceased. Page v. United States,
127 U.S. 67 (1888); see also 2 U.S.C. 5304.
In the 92d <> 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. 4313), 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. 4314). The Committee
on House Administration retains authority under 2 U.S.C. 4313 to
independently adjust amounts under certain conditions outlined in 2
U.S.C. 4314 (Mar. 21, 1977, p. 8227; Apr. 21, 1983, p. 9339). The text
of those statutes follow:
``Sec. 4313. 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
official mail within the jurisdiction of the Committee under
section 503 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 official
[[Page [44]]]
mail within the jurisdiction of the Committee under section 503
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 503 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. 4314. 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 4313 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 Allowance'' (MRA), which was ultimately enacted into
law (2 U.S.C. 5341). 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. 4532), the
maximum salary for staff members is set by pay order of the Speaker. A
Member may not employ a relative on an 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
[[Page [45]]]
exceed $1,160 per month. Such internships were available for college
students and secondary or postsecondary school teachers (H. Res. 420,
Sept. 18, 1973, p. 30186; 2 U.S.C. 5322). In the 115th Congress there
was established a separate allowance available to Members for the
compensation of interns (2 U.S.C. 5322a).
The statutes provide for continuation of the pay of clerical
assistants to a Member upon 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. 5323-
5329). Upon the expulsion 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 Members'
Congressional Handbook, Committee on House Administration.
At its <> 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). The 114th through 117th
Congresses authorized the payment of salaries and expenses by certain
Congressional Member Organizations that had registered with the
Committee on House Administration during the previous Congress (sec.
3(p), H. Res. 5, Jan. 6, 2015, p. 37; (sec. 3(n), H. Res. 5, Jan. 3,
2017, p. _; sec. 103(p), H. Res. 6, Jan. 3, 2019, p. _; sec. 3(o), H.
Res. 8, Jan. 4, 2021, p. _).
Separate from the <> 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 for certain classes of Federal employees under the
Federal Pay Comparability Act of 1970 (P.L. 91-656; 84 Stat. 1946).
Under <> section 311(d) of
the Legislative Branch Appropriations Act, 1988 (2 U.S.C. 4532), 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(12), infra.
[[Page [46]]]
* * * They [the <> 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'' <> 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 had him
imprisoned (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), in
which 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.
<> * * * 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 <> 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 (1880), cited at III, 2675. See also
II, 1655 and Sec. Sec. 301, 302, infra, for provisions in Jefferson's
Manual
[[Page [47]]]
on the privilege; and Deschler, ch. 7. Moreover, it applies to all acts
within the ``legislative sphere,'' which includes matters that are ``an
integral part of the deliberative and communicative processes by which
Members participate in committee and House proceedings with respect to
the consideration or passage or rejection of proposed legislation or
with respect to other matters which the Constitution places within the
jurisdiction of either House.'' Gravel v. United States, 408 U.S. 606,
624, 625 (1972). 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 in
which 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, because neither was essential to the
deliberative process of the Senate. Hutchinson v. Proxmire, 443 U.S. 111
(1979). For a discussion of waivers of the Speech or 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), in which 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 or Debate 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 (now
the Director of the Government Publishing Office) 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.
[[Page [48]]]
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 <> 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 is 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 <> of the Supreme
Court of the United States: Kilbourn v. Thompson, 103 U.S. 168 (1880);
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); Doe v. McMillan,
412 U.S. 306 (1973); Eastland v. United States Serviceman's Fund, 421
U.S. 491 (1975); United States v. Helstoski, 442 U.S. 477 (1979);
Hutchinson v. Proxmire, 443 U.S. 111 (1979); Helstoski v. Meanor, 442
U.S. 500 (1979).
\2\No Senator or <> 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
[[Page [49]]]
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;
P.L. 110-455 (emoluments of Secretary of State); P.L. 111-1 (emoluments
of Secretary of the Interior).
<> * * * 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 Committee on the Judiciary <> 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 Committee on the Judiciary 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 continued 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 adopted a privileged resolution
authorizing and directing the Speak
[[Page [50]]]
er to administer the oath of office to a Member-elect then serving as
president of a city council (H. Res. 1161, Nov. 29, 2018, p. _). For an
insertion by the Speaker, in concurrence with the Minority Leader, on
this case and relevant precedents, see Dec. 6, 2018, p. _.-
The House decided <> 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 <> manifestly subscribed to the idea that a
contestant holding an incompatible office need not make an election
until the House has declared the contestant 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 Member,
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 <> 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 the taking of the oath
of office the 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 [51]]]
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 <> 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 a
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 although
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;
Sept. 23, 2010, pp. 16379, 16380; Dec. 12, 2012, p. 16984), 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 dealing with the tax
treatment of income
[[Page [52]]]
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 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);
Senate-passed bills prescribing the tax treatment of certain benefits to
members of the Armed Forces (Nov. 18, 1999, p. 30732), of public-sector
retirement plans (Nov. 18, 1999, p. 30734), or of a military retirement
fund (June 25, 2015, p. 10498); a Senate-passed bill prohibiting the
importation of commodities subject to tariff (July 30, 1987, p. 21582);
a Senate-passed bill banning all imports from Iran, a tariff measure as
affecting revenue from dutiable imports (June 16, 1988, p. 14780); 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-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-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); 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); 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 amendment to a
general appropriation bill proposing to increase two fees to finance
general government operations (Sept. 23, 2010, pp. 16379, 16380); 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).
The House has adopted a resolution recommitting a House bill to
conference upon determining that a conference report (on which the House
was acting first) accompanying such bill originated provisions in
derogation of the constitutional prerogative of the House (July 24,
2018, p. _), but has laid on the table a similar resolution (July 27,
2000, p. 16565). The House has also laid on the table a resolution that
Senate amendments, including those subsequently agreed to in a
conference report (on which the House was acting first), originated
provisions in derogation of the con
[[Page [53]]]
stitutional prerogative of the House and resolving that such bill and
Senate amendments be returned to the Senate (July 28, 1982, p. 18375;
Aug. 19, 1982, p. 22127).
The House, by adopting one resolution, has returned multiple measures
to the Senate (Sept. 23, 2010, pp. 16379, 16380; Dec. 12, 2012, p.
16984).
A bill raising revenue incidentally was held not to infringe upon the
constitutional prerogative of the House to originate revenue legislation
(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, 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). 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 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 a discussion of how the House exercises its
origination clause responsibilities by a former chair of the Committee
on Ways and Means, see Dec. 12, 2014, p. 18729. For examples of Senate
messages requesting the return of Senate revenue measures, see Sec. 565,
infra.
Decisions <> 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 <> 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
[[Page [54]]]
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
Persons voting for and against the Bill shall be entered on the Journal
of each House respectively. * * *
Under the usual <> 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 (which changed the
date of meeting of Congress to January 3), 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, because 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 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 memo
[[Page [55]]]
randum of his construction of the bill (IV, 3492). But if 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 <> 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 have been approved and of such as
have been allowed 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 <> 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 after the absence of a quorum has
been ascertained, 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).
For enrollments returned with ``memoranda of disapproval,'' see
Sec. 113, infra.
It is possible, <> 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 reconsider'' 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)
[[Page [56]]]
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). The House may by unanimous consent (e.g., August
17, 1978, pp. 26802, 26803) or special order of business (Jan. 7, 2016,
p. 133; Dec. 21, 2020, p. _) postpone consideration of a vetoed bill, or
any motion related to its disposition, in advance of its receipt by the
House, and such a special order of business may supersede an earlier
unanimous-consent request in order to further postpone consideration
(May 27, 2020, p. _). When consideration of a veto message is postponed
to a date certain it has the status of unfinished business on that day,
such that the House may proceed to its consideration without motion from
the floor (e.g., May 9, 1996, p. 10807; Nov. 6, 2007, pp. 29822, 29823).
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, if 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 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 although 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 (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,
[[Page [57]]]
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). Although 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 <> 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 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 <> 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 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
[[Page [58]]]
operation of the Act during the period of its effectiveness, see
Sec. 1130(6b), infra.
Decisions <> 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 <> 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.
A bill signed by the President within 10 days (Sunday excepted) after
it has been presented 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
(IV, 3486). A President may sign a bill after adjournment sine die but
within 10 days after its receipt. For example, President Truman, after
the convening of the 82d Congress, approved bills passed and presented
in the 81st Congress (e.g., P.L. 81-910); President Reagan, after the
convening of the 98th Congress, approved bills passed and presented in
the 97th Congress (e.g., P.L. 97-414); and President Obama, after the
convening of the 113th Congress, approved bills passed and presented in
the 112th Congress (e.g., P.L. 112-241). 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 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)).
[[Page [59]]]
A bill that <> 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 adjournment sine die of that session, but is neither signed by the
President, nor returned to the House in which it originated, does not
become a law (``The Pocket Veto Case,'' 279 U.S. 655 (1929); VII, 1115).
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). 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.
Doubt has existed <> 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 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, 110th, and 111th Congresses, when the President returned
an enrolled bill during an 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; Jan. 15, 2008,
pp. 11, 12; Jan. 12, 2010, p. 7). For similar treatment by the Senate in
the 114th Congress, including holding the veto message at the desk, see
January 11, 2016, pp. 253, 254. Similarly, in the 102d, 106th, and 111th
Congresses, an enrolled House bill returned to the Clerk during an
intrasession 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;
Sept. 6, 2000, p. 17156; Nov. 13, 2000, p. 26022; Nov. 15, 2010, p.
17521). 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
[[Page [60]]]
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).
As part of the concurrent resolution providing for the adjournments
sine die 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; Oct. 2, 2008, pp. 23874, 23875; May 26, 2010,
pp. 9473, 9474); 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 <> 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
[[Page [61]]]
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, <> 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 Constitution seems specific, the practice of early Congresses was to
present to the President for approval only such concurrent resolutions
as were legislative in effect (IV, 3483, 3484).
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.
Decisions <> 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 <> 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;
[[Page [62]]]
<> \2\To borrow Money on the
credit of the United States:
\3\To regulate <> Commerce with
foreign Nations, and among the several States, and with the Indian
Tribes;
\4\To establish <> an
uniform Rule of Naturalization, and uniform Laws on the subject of
Bankruptcies throughout the United States;
<> \5\To coin Money,
regulate the Value thereof, and of foreign Coin, and fix the Standard of
Weights and Measures;
\6\To provide <> for the Punishment
of counterfeiting the Securities and current Coin of the United States;-
-
<> \7\To establish Post
Offices and Post Roads;
\8\To promote <> 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;
<> \9\To constitute Tribunals
inferior to the supreme Court;
<> \10\To define and punish Piracies and Felonies committed on
the high Seas, and Offenses against the Law of Nations;
<> \11\To declare War, grant Letters of Marque and Reprisal,
and make Rules concerning Captures on Land and Water;
[[Page [63]]]
The 93d <> 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. 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(2), infra). For further
discussion of that Act, and war powers generally, see Deschler, ch. 13.
\12\To raise <> and
support Armies, but no Appropriation of Money to that Use shall be for a
longer Term than two Years;
<> \13\To provide and
maintain a Navy;
<> \14\To make Rules for the
Government and Regulation of the land and naval Forces;
\15\To provide <> for
calling forth the Militia to execute the Laws of the Union, suppress
Insurrections and repel Invasions;
\16\To provide <> 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 train
[[Page [64]]]
ing the Militia according to the discipline prescribed by Congress;
\17\To exercise <> 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
Congress has provided <> 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(5), infra).
[[Page [65]]]
Decisions <> of the Supreme
Court of the United States: Hepburn v. Ellzey, 6 U.S. 445 (1805);
National Mutual Insurance Co. of D.C. v. Tidewater Transfer Co, 337 U.S.
582 (1945).
- \18\To make <> 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 <> 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.
\2\The Privilege of <> the
Writ of Habeas Corpus shall not be suspended, unless when in Cases of
Rebellion or Invasion the public Safety may require it.
<> \3\No
Bill of Attainder or ex post facto Law shall be passed.
\4\[No Capitation, <> 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.
<> \5\No Tax or Duty shall be laid on
Articles exported from any State.
[[Page [66]]]
\6\No Preference <> 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 <> 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 <> 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.
Consent has been <> 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
(now Ethics) 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.
[[Page [67]]]
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 <> 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 <> 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 United States; and all such Laws shall be
subject to the Revision and Controul of the Congress.
\3\No State <> 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.
[[Page [68]]]
ARTICLE II.
Section 1. \1\The <> executive Power shall be vested in a President of the
United States of America. He shall hold his Office during the Term of
four years, and together with the Vice President, chosen for the same
Term, be elected, as follows:
George <> Washington took the oath of office as the first President on
April 30, 1789 (III, 1986). The two Houses of the First Congress found,
after examination by a joint committee, that by provisions made in the
Federal Constitution and by the Continental Congress, the term of the
President had, notwithstanding, begun on March 4, 1789 (I, 3). The 20th
amendment, declared to have been ratified on February 6, 1933, provides
that Presidential terms shall end and successor terms shall begin at
noon on January 20. Thus, Franklin D. Roosevelt's first term began on
March 4, 1933, but ended at noon on January 20, 1937. Formerly, when
March 4 fell on Sunday, the public inauguration of the President
occurred at noon on March 5 (III, 1996; VI, 449). Following ratification
of the 20th amendment, the first time inauguration day fell on Sunday
was January 20, 1957, and President Eisenhower took the oath for his
second term in a private ceremony at the White House on that day
followed by a public inauguration ceremony on the steps of the East
Front of the Capitol on Monday, January 21, 1957. A similar scenario was
followed at the beginning of the second terms of President Reagan and
President Obama, with the oath being given at the White House on Sunday
(1985 and 2013), followed by a public ceremony on Monday in the Rotunda
(1985) or the East Front of the Capitol (2013). The 22d amendment
provides that no person shall be elected President more than twice.
\2\Each <> State shall appoint, in such Manner as the
Legislature thereof may direct, a Number of Electors, equal to the whole
Number of Senators and Representatives to which the State may be
entitled in the Congress; but no Senator or Representative, or Person
holding an Office of Trust or Profit under the United States, shall be
appointed an Elector.
[[Page [69]]]
Questions <> of the qualifications of electors have arisen, and in one
instance certain ones were found disqualified, but because their number
was not sufficient to affect the result and there was doubt as to what
tribunal should pass on the question the votes were counted (III, 1941).
In other cases there were objections, but the votes were counted (III,
1972-1974, 1979). In one instance an elector found to be disqualified
resigned both offices, whereupon he was made eligible to fill the
vacancy thus caused among electors (III, 1975).
\3\[The <> Electors shall meet in their respective States and
vote by Ballot for two Persons, of whom one at least shall not be an
Inhabitant of the same State with themselves. And they shall make a List
of all the Persons voted for, and of the Number of Votes for each; which
List they shall sign and certify, and transmit sealed to the Seat of
Government of the United States, directed to the President of the
Senate. The President of the Senate shall, in the presence of the Senate
and House of Representatives, open all the Certificates, and the Votes
shall then be counted. The Person having the greatest Number of Votes
shall be the President, if such Number be a majority of the whole Number
of Electors appointed: and if there be more than one who have such
Majority, and have an equal Number of Votes, then the House of
Representatives shall immediately chuse by Ballot one of them for
President; and if no Person have a Majority, then from the five highest
on the List the said House shall in like manner chuse the President. But
in chusing the President, the Votes shall be taken by States, the
Representation from each State having one Vote; A quorum for this pur
[[Page [70]]]
pose shall consist of a Member or Members from two thirds of the States,
and a Majority of all the States shall be necessary to a Choice. In
every Case, after the Choice of the President, the Person having the
greatest Number of Votes of the Electors shall be the Vice President.
But if there should remain two or more who have equal Votes, the Senate
shall chuse from them by Ballot the Vice-President.]
This third clause of article II, section 1 was superseded by the 12th
amendment (see Sec. Sec. 219-223, infra).
<> \4\The Congress may determine the Time of chusing the
Electors, and the Day on which they shall give their Votes; which Day
shall be the same throughout the United States.
The time for choosing electors has been fixed on ``the Tuesday next
after the first Monday in November, in every fourth year''; and the
electors in each State ``meet and give in their votes on the first
Monday after the second Wednesday in December next following their
appointment, at such place in each State as the legislature of such
State shall direct'' (III, 1914; VI, 438; 3 U.S.C. 1, 7). The statute
also provides for transmitting to the President of the Senate
certificates of the appointment of the electors and of their votes (III,
1915-1917; VI, 439; 3 U.S.C. 11).
\5\No <> Person except a natural born Citizen, or a Citizen of the
United States, at the time of the Adoption of this Constitution, shall
be eligible to the Office of President; neither shall any Person be
eligible to that Office who shall not have attained to the Age of thirty
five Years, and been fourteen Years a Resident within the United States.
[[Page [71]]]
\6\In <> Case of
the Removal of the President from Office, or of his Death, Resignation,
or Inability to discharge the Powers and Duties of the said Office, the
Same shall devolve on the Vice President, and the Congress may by Law
provide for the Case of Removal, Death, Resignation or Inability, both
of the President and Vice President, declaring what Officer shall then
act as President, and such Officer shall act accordingly, until the
Disability be removed, or a President shall be elected.
The <> 25th amendment
provides for filling a vacancy in the Office of the Vice President and,
when the President is unable to perform the duties of his office, for
the Vice President to assume those powers and duties as Acting
President. During the 93d Congress, President Richard M. Nixon resigned
from office on August 9, 1974, by delivering a signed resignation to the
Office of the Secretary of State, pursuant to 3 U.S.C. 20. Pursuant to
the 25th amendment, Vice President Gerald R. Ford became President and
the House and Senate confirmed his nominee, Nelson A. Rockefeller, to
become Vice President (December 19, 1974, p. 41516).
Congress also has provided for the performance of the duties of the
President in case of removal, death, resignation or inability, both of
the President and Vice President (3 U.S.C. 19).
\7\The <> President shall,
at stated Times, receive for his Services, a Compensation, which shall
neither be encreased nor diminished during the Period for which he shall
have been elected, and he shall not receive within that Period any other
Emolument from the United States, or any of them.
The compensation of the President is established by law (3 U.S.C.
102). In addition, the law provides an expense allowance (3 U.S.C. 102)
and a travel allowance (3 U.S.C. 103).
[[Page [72]]]
\8\Before <> he enter on the
Execution of his Office, he shall take the following Oath or
Affirmation:--``I do solemnly swear (or affirm) that I will faithfully
execute the Office of President of the United States, and will to the
best of my Ability, preserve, protect and defend the Constitution of the
United States.''
The <> taking of this
oath, which is termed the inauguration, is made the occasion of certain
ceremonies that are arranged for by a joint committee of the two Houses
(III, 1998, 1999; VI, 451). For many years the oath was normally taken
at the east portico of the Capitol, although in earlier years it was
taken in the Senate Chamber or Hall of the House (III, 1986-1995). On
March 4, 1909, owing to inclement weather, the President-elect took the
oath and delivered his inaugural address in the Senate Chamber (VI,
447). And when Vice President Fillmore succeeded to the vacancy in the
Office of President, Congress being in session, he took the oath in the
Hall of the House in the presence of the Senate and House (III, 1997).
In 1945 Franklin D. Roosevelt, who had been elected for his fourth term
as President, took the oath of office on the south portico at the White
House. On August 9, 1974, Gerald R. Ford, who as Vice President
succeeded to the Presidency following the resignation of President Nixon
on that day, was sworn in in the East Room of the White House. The West
Front of the Capitol was first used for the inaugural ceremony for
Ronald W. Reagan, Jan. 20, 1981. Because of extreme cold, the public
administration of the oath was for the first time held in the Rotunda of
the Capitol, rather than on the West Front, as scheduled, on January 21,
1985. Permission for such use is authorized by concurrent resolution
(see, e.g., Oct. 9, 1984, p. 30926).
Section 2. \1\The <> President shall be Commander in Chief of the Army and Navy of
the United States, and of the Militia of the several States, when called
into the actual Service of the United States; he may require
the <> Opinion,
in writing, of the principal Officer in each of the executive
Departments, upon any Subject relating to the Duties of their re
[[Page [73]]]
spective <> Offices, and he shall have Power to grant Reprieves and
Pardons for Offences against the United States, except in Cases of
Impeachment.
The <> 93d
Congress passed over the President's veto Public Law 93-148, relating to
the power of Congress to declare war under article I, section 8, clause
11 (Sec. 127, supra) and the power of the President as Commander in
Chief under this clause. For further discussion of the reports to
Congress required and the procedure for congressional action provided
under Public Law 93-148, see Sec. 128, supra.
In <> 1974, President
Ford exercised his power under the last phrase of this clause by
pardoning former President Nixon for any crimes he might have committed
during a certain period in office (Proclamation 4311, September 8,
1974). President Nixon had resigned on August 9, 1974, following the
decision of the Committee on the Judiciary to report to the House a
recommendation of impeachment (H. Rept. 93-1305, Aug. 20, 1974, p.
29219).
\2\He <> shall have Power,
by and with the Advice and Consent of the Senate, to make Treaties,
provided two thirds of the Senators present concur; and he shall
nominate, and by and with the Advice and Consent of the Senate, shall
appoint Ambassadors, <> other public Ministers and Consuls, Judges of the Supreme
Court, and all other Officers of the United States, whose Appointments
are not herein otherwise provided for, and which shall be established by
Law; but the Congress may by Law vest the Appointment of such inferior
Officers, as they think proper, in the President alone, in the Courts of
Law, or in the Heads of Departments.
The power of the President to appoint diplomatic representatives to
foreign governments and to determine their rank is derived from the
Constitution and may not be circumscribed by statutory enactments (VII,
1248). In Buckley v. Valeo, 424 U.S. 1 (1976), the Supreme Court held
that any
[[Page [74]]]
appointee exercising significant authority (not merely internal
delegable authorities within the legislative branch) pursuant to the
laws of the United States is an Officer of the United States and must
therefore be appointed pursuant to this clause, and that Congress cannot
by law vest such appointment authority in its own officers or require
that Presidential appointments be subject to confirmation by both
Houses. For a discussion of the role of the House with respect to
treaties affecting revenue, see Sec. 597, infra.
\3\The <> President shall have Power to fill up all
Vacancies that may happen during the Recess of the Senate, by granting
Commissions which shall expire at the End of their next Session.
Decision <> of the Supreme
Court of the United States: National Labor Relations Bd. v. Noel
Canning, 573 U.S. 513 (2014).
Section 3. <> He shall
from time to time give to the Congress Information of the State of the
Union, and recommend to their Consideration such Measures as he shall
judge necessary and expedient; * * *
In the early years of the Government the President made a speech to
Congress on its assembling (V, 6629), but in 1801 President Jefferson
discontinued this practice and transmitted a message in writing. This
protocol was followed until April 8, 1913, when the custom of addressing
Congress in person was resumed by President Wilson and, with the
exception of President Hoover (VIII, 3333) has been followed generally
by subsequent Presidents. A message in writing is usually communicated
to both Houses on the same day, but an accompanying document can be sent
to but one House (V, 6616, 6617). The President's State of the Union
message is referred on motion to the Union Calendar and ordered printed
(e.g., Jan. 15, 1975, p. 177). This motion may also refer a separate
hand-delivered written message from the President (e.g., Jan. 19, 1978,
p. 152). In response to a series of inquiries regarding the potential
destruction of such written message, the Chair affirmed that such
message is part of the proceedings of the House and is used by the House
for archival and printing purposes (Feb. 5, 2020, p. _). A resolution
disapproving of the Speaker's conduct relating to the handling of such
message constitutes a question of the privileges of the House (Feb. 6,
2020, p. _). In early years confidential messages
[[Page [75]]]
were often sent and considered in secret session of the House (V, 7251,
7252).
By <> law (31 U.S.C. 1105),
the President is required to transmit the budget to Congress on or after
the first Monday in January but not later than the first Monday in
February each year. In addition, the President is required to submit a
supplemental budget summary by July 16 each year (31 U.S.C. 1106).
Submission of the Economic Report of the President is required within 10
days after the submission of the budget (15 U.S.C. 1022). The
Congressional Budget and Impoundment Control Act of 1974 (2 U.S.C. 601)
requires the transmittal to Congress by the President of amendments and
revisions related to the budget on or before April 10 and July 15 of
each year. In addition, the Act provides for the transmittal of messages
proposing rescissions and deferrals of budget authority (2 U.S.C. 683,
684).
When the President has expressed desire to address Congress in person
a concurrent resolution is adopted by both Houses arranging for a joint
session to receive the message. The Speaker presides and the President
of the Senate (the Vice President) sits to the right of the Speaker, but
in the absence of the Vice President, the President pro tempore sits to
the left of the Speaker (Nov. 27, 1963, p. 22838).
The <> ceremony of receiving a message in writing is simple (V,
6591), and may occur during consideration of a question of privilege (V,
6640-6642) or before the organization of the House (V, 6647-6649) and in
the absence of a quorum (V, 6650; VIII, 3339; clause 7 of rule XX).
But, with the exception of vetoes, messages are regularly laid before
the House only at the time prescribed by the rule for the order of
business (V, 6635-6638) within the discretion of the Speaker (VIII,
3341). Although a message of the President is always read, the latest
rulings have not permitted the reading of the accompanying documents to
be demanded as a matter of right (V, 5267-5271; VII, 1108). A concurrent
resolution providing for a joint session to receive the President's
message was held to be of the highest privilege (VIII, 3335).
* * * <> he may, on extraordinary Occasions, convene both
Houses, or either of them, and in Case of Disagreement between them,
with Respect to the Time of Adjournment, he may adjourn them to such
Time as he shall think proper; * * *
In certain exigencies the President may convene Congress at a place
other than the seat of government (I, 2; 2 U.S.C. 27). Congress has on
occasion been convened by the President (I, 10, 11; Nov. 17, 1947, p.
10578; July 26, 1948, p. 9362), and in one instance, when Congress had
provided
[[Page [76]]]
by law for meeting, the President called it together on an earlier day
(I, 12). The Congress having adjourned on July 27, 1947, p. 10521, and
on June 20, 1948, p. 9350, to a day certain, the President called it
together on an earlier date than that to which it adjourned (Nov. 17,
1947, p. 10577; July 26, 1948, p. 9362). There has been some discussion
as to whether or not there is a distinction between a session called by
the President and other sessions of Congress (I, 12, footnote).
* * * <> he shall receive Ambassadors and other
public Ministers; he shall take Care That the Laws be faithfully
executed, and shall Commission all the officers of the United States.
Section 4. <> The
President, Vice President, and all civil Officers of the United States,
shall be removed from Office on Impeachment for, and Conviction of,
Treason, Bribery, or other high Crimes and Misdemeanors.
In <> the
Blount trial the managers contended that all citizens of the United
States were liable to impeachment, but this contention was not admitted
(III, 2315), and in the Belknap trial both managers and counsel for
respondent agreed that a private citizen, apart from offense in an
office, might not be impeached (III, 2007). But resignation of the
office does not prevent impeachment for crime or misdemeanor therein
(III, 2007, 2317, 2444, 2445, 2459, 2509). In Blount's case it was
decided that a Senator was not a civil officer within the meaning of the
impeachment provisions of the Constitution (III, 2310, 2316). Questions
have also arisen as to whether or not the Congressional Printer (III,
1785), or a vice consul-general (III, 2515), might be impeached.
Proceedings for the impeachment of territorial judges have been taken in
several instances (III, 2486, 2487, 2488), although various opinions
have been given that such an officer is not impeachable (III, 2022,
2486, 2493). A committee of the House by majority vote held a
Commissioner of the District of Columbia not to be a civil officer
subject to impeachment under the Constitution (VI, 548). An independent
counsel appointed under 28 U.S.C. 593 (a statute currently ineffective
under 28 U.S.C. 599) may be impeached under 28 U.S.C. 596(a), and a
resolution impeaching such an independent counsel constitutes a question
of the privileges of the House under rule IX (Sept. 23, 1998, p. 21560).
A resolution impeaching the United States Ambassador to the United
Nations (July 13, 1978, p. 20606) or the Commissioner of the Internal
Revenue
[[Page [77]]]
Service (Dec. 6, 2016, p. _) constitutes a question of the privileges of
the House under rule IX.
As <> to what are
impeachable offenses there has been much discussion (III, 2008, 2019,
2020, 2356, 2362, 2379-2381, 2405, 2406, 2410, 2498, 2510; VI, 455;
Impeachment of Richard M. Nixon, President of the United States,
Committee on the Judiciary, H. Rept. 93-1305, Aug. 20, 1974, p. 29219;
Associate Justice William O. Douglas, Final Report by the Special
Subcommittee on H. Res. 920, Committee on the Judiciary, Sept. 17, 1970;
Impeachment of William Jefferson Clinton, President of the United
States, H. Rept. 105-830, Dec. 16, 1998; Impeachment of Donald J. Trump,
President of the United States, H. Rept. 116-346, Dec. 15, 2019). For a
time the theory that indictable offenses only were impeachable was
stoutly maintained and as stoutly denied (III, 2356, 2360-2362, 2379-
2381, 2405, 2406, 2410, 2416); but on the 10th and 11th articles of the
impeachment of President Andrew Johnson the House concluded to impeach
for other than indictable offenses (III, 2418), and in the Swayne trial
the theory was definitely abandoned (III, 2019). Although there has not
been definite concurrence in the claim of the managers in the trial of
the President that an impeachable offense is any misbehavior that shows
disqualification to hold and exercise the office, whether moral,
intellectual, or physical (III, 2015), the House has impeached judges
for improper personal habits (III, 2328, 2505), and in the impeachment
of President Johnson one of the articles charged him with ``intemperate,
inflammatory, and scandalous harangues'' in public addresses, tending to
harm the Government (III, 2420). There was no conviction under these
charges except in the single case of Judge Pickering, who was charged
with intoxication on the bench (III, 2328-2341). As to the impeachment
of judges for other delinquencies, there has been much contention as to
whether they may be impeached for any breach of good behavior (III,
2011, 2016, 2497), or only for judicial misconduct occurring in the
actual administration of justice in connection with the court (III,
2010, 2013, 2017). The intent of the judge (III, 2014, 2382) as related
to mistakes of the law, and the relations of intent to conviction have
been discussed at length (III, 2014, 2381, 2382, 2518, 2519). The
statutes make nonresidence of a judge an impeachable offense, and the
House has taken steps to impeach for this cause (III, 2476, 2512). There
has, however, been some question as to the power of Congress to make an
impeachable offense (III, 2014, 2015, 2021, 2512). Usurpation of power
has been examined several times as a cause for impeachment (III, 2404,
2508, 2509, 2516, 2517). There also has been discussion as to whether or
not there is distinction between a misdemeanor and a high misdemeanor
(III, 2270, 2367, 2492). Review of impeachments in Congress showing the
nature of charges upon which impeachments have been brought and
judgments of the Senate thereon (VI, 466). Reports accompanying
resolutions to impeach Presidents Clinton and Trump, and the debate in
the House thereon, as well as debate in the House during the
[[Page [78]]]
second impeachment of President Trump, included discussion of the nature
of an impeachable offense (H. Rept. 105-830; Dec. 18, 1998, p. 27828; H.
Rept. 116-346, Dec. 15, 2019, p. _; Jan. 13, 2021, p. _). Of the four
articles of impeachment of President Clinton reported by the Committee
on the Judiciary ((1) perjury in grand jury, (2) perjury in a civil
deposition, (3) obstruction of justice, and (4) improper responses to
written questions from the Committee on the Judiciary), only the first
and third were adopted by the House (Dec. 19, 1998, p. 28110).
The <> articles of
impeachment adopted by the House in 1936 against Judge Ritter charged a
variety of judicial misconduct, including violations of criminal law.
The seventh and general article, upon which Judge Ritter was convicted
by the Senate, charged general misconduct to bring his court into
scandal and disrepute and to destroy public confidence in his court and
in the judicial system (Impeachment by the House, Mar. 2, 1936, p. 3091;
Conviction by the Senate, Apr. 17, 1936, p. 5606). Following his
conviction by the Senate, former Judge Ritter brought an action for back
salary, contending that the Senate had tried and convicted him for
nonimpeachable offenses. The U.S. Court of Claims held that the Senate's
power to try impeachments was exclusive and not subject to judicial
review. Ritter v. United States, 84 Ct. Cls. 293 (1936), cert. denied,
300 U.S. 668 (1937).
In 1970 a special subcommittee of the Committee on the Judiciary
considered charges of impeachment against Associate Justice Douglas of
the Supreme Court. The subcommittee recommended against his impeachment
but concluded that a Federal judge could be impeached (1) for judicial
conduct that is a serious dereliction from public duty and (2) for
nonjudicial conduct that is criminal in nature (Associate Justice
William O. Douglas, Final Report by the Special Subcommittee on H. Res.
920, Committee on the Judiciary, September 17, 1970).
In 1974 the Committee on the Judiciary investigated charges of
impeachment against President Nixon (Feb. 6, 1974, p. 2349), and
determined to recommend his impeachment to the House. The President
having resigned, the committee reported to the House without submitting
a resolution of impeachment, and the House accepted the report by
resolution (Aug. 20, 1974, p. 29361). The report of the committee
included the text of the three articles of impeachment adopted by the
committee. The committee had concluded that impeachable offenses need
not be indictable offenses and recommended impeachment of the President:
(1) for violating his oath of office and his duty under the Constitution
by preventing, obstructing, and impeding the administration of justice;
(2) for engaging in a course of conduct violating the constitutional
rights of citizens, impairing the administration of justice, and
contravening the laws governing executive agencies; and (3) for failing
to honor subpoenas issued by the Committee on the Judiciary in the
course of its impeachment inquiry (Impeachment of Richard M. Nixon,
President of the United States, Committee on the Judiciary,
[[Page [79]]]
H. Rept. 93-1305, Aug. 20, 1974, printed in full in the Cong. Record,
Aug. 22, 1974, p. 29219).
In 1986, for the first time since 1936, the House agreed to a
resolution impeaching a Federal district judge. Judge Harry Claiborne
had been convicted of falsifying Federal income tax returns. His final
appeal was denied by the Supreme Court in April, and he began serving
his prison sentence in May. Because he declined to resign, however,
Judge Claiborne was still receiving his judicial salary and, absent
impeachment, would resume the bench on his release from prison.
Consequently, a resolution of impeachment was introduced on June 3, and
on July 16, the Committee on the Judiciary reported to the House four
articles of impeachment against Judge Claiborne. On July 22, the
resolution was called up as a question of privilege and agreed to by a
recorded vote of 406 yeas, 0 nays. After trial in the Senate, Judge
Claiborne was convicted on three of the four articles of impeachment and
removed from office on October 9, 1986.
In 1988, the House agreed to a resolution reported from the Committee
on the Judiciary and called up as a question of the privileges of the
House impeaching Federal district judge Alcee L. Hastings for high
crimes and misdemeanors specified in 17 articles of impeachment, some of
them addressing allegations on which the judge had been acquitted in a
Federal criminal trial (Aug. 3, 1988, p. 20206). No trial in the Senate
was had before the adjournment of the 100th Congress. In the 101st
Congress, the House reappointed managers to conduct this impeachment in
the Senate (Jan. 3, 1989, p. 84); the Senate began its deliberations on
March 15, 1989 (p. 4219); conviction and removal from office occurred on
October 20, 1989 (p. 25335). Also in the 101st Congress, the Senate
convicted Federal district judge Walter L. Nixon on two of the three
impeachment charges brought against him (Nov. 3, 1989, p. 27101). For
further discussion of the continuance of impeachment proceedings in a
succeeding Congress, see Sec. 620, infra.
In 1998 the House agreed to a privileged resolution reported from the
Committee on Rules, referring to the Committee on the Judiciary a
communication from an independent counsel transmitting under 28 U.S.C.
595(c) evidence of possible impeachable offenses by President Clinton,
and restricting access to the communication and to meetings and hearings
thereon (Sept. 11, 1998, p. 20020). Later, the House adopted a
privileged resolution reported from the Committee on the Judiciary
authorizing an impeachment inquiry by that committee and investing it
with special investigative authorities to facilitate the inquiry (Oct.
8, 1998, p. 24679). The Committee on the Judiciary filed with the House
a privileged report accompanying a resolution containing four articles
of impeachment against President Clinton that alleged: (1) the President
gave perjurious, false, and misleading testimony to a grand jury; (2)
the President gave perjurious, false, and misleading testimony in a
Federal civil action; (3) the President prevented, obstructed, and
impeded the administration of justice relating to a Federal civil
action; and (4) the President abused his office, impaired
[[Page [80]]]
the administration of justice, and contravened the authority of the
legislative branch by his response to 81 written questions submitted by
the Committee on the Judiciary (Dec. 17, 1998, p. 27819). The chair of
the Committee on the Judiciary called up the resolution on December 18,
1998 (p. 27828).
In 2008, the House agreed to an unreported resolution authorizing an
impeachment inquiry of Federal district Judge G. Thomas Porteous by the
Committee on the Judiciary and investing it with special investigative
authorities to facilitate the inquiry (Sept. 17, 2008, p. 19517), which
was continued in the next Congress (Precedents (Wickham), ch. 1,
Sec. 8.1). In 2010, the House adopted a resolution reported from the
committee and called up as a question of the privileges of the House
impeaching the judge for high crimes and misdemeanors specified in 4
articles of impeachment (Mar. 11, 2010, p. 3147).
In 2009, the House agreed to a resolution reported from the Committee
on the Judiciary and called up as a question of the privileges of the
House impeaching Federal district judge Samuel B. Kent for high crimes
and misdemeanors specified in 4 articles of impeachment, some of them
addressing allegations on which the judge had been convicted in a
Federal criminal trial (June 19, 2009, p. 15747).
In 2019, the House agreed to a privileged resolution reported from the
Committee on Rules directing the Permanent Select Committee on
Intelligence and the Committees on Financial Services, Foreign Affairs,
the Judiciary, Oversight and Reform, and Ways and Means to ``continue
their ongoing investigations as part of the existing . . . inquiry into
whether sufficient grounds exist for the House of Representatives to
exercise its Constitutional power to impeach Donald J. Trump'' (H. Res.
660, Oct. 31, 2019, p. _). The resolution directed further ongoing
investigation by all listed committees and established a two-phase
public committee procedure, beginning with the Permanent Select
Committee on Intelligence and concluding in the Committee on the
Judiciary. The Permanent Select Committee on Intelligence adopted a
report detailing its findings and transmitted such report to the
Committee on the Judiciary and to the House (H. Rept. 116-335, Dec. 9,
2019, p. _). The Committee on the Judiciary subsequently filed with the
House a privileged report accompanying a resolution containing two
articles of impeachment against President Trump that alleged: (1) the
President used the powers of his office to solicit and pressure a
foreign government, Ukraine, to investigate his domestic political rival
and interfere in the upcoming United State Presidential election; and
(2) the President categorically obstructed the Congressional impeachment
inquiry into his conduct (H. Rept. 116-346, Dec. 15, 2019, p. _). Upon
the adoption of a special order of business, the House proceeded to the
immediate consideration of the impeachment resolution (Dec. 18, 2019, p.
_).
A resolution offered from the floor to permit the Delegate of the
District of Columbia to vote on the articles of impeachment was held not
to con
[[Page [81]]]
stitute a question of the privileges of the House under rule IX (Dec.
18, 1998, p. 27825). To a privileged resolution of impeachment, an
amendment proposing instead censure, which is not privileged, was held
not germane (Dec. 19, 1998, p. 28100).
For further discussion of impeachment proceedings, see Sec. Sec. 601-
620, infra; Sec. 31, supra, and Deschler, ch. 14.
ARTICLE III.
Section 1. <> The judicial Power of the United States, shall be vested
in one supreme Court, and in such inferior Courts as the Congress may
from time to time ordain and establish. The Judges, both of the supreme
and inferior Courts, shall hold their Offices during good Behaviour, and
shall, at stated Times, receive for their Services, a Compensation,
which shall not be diminished during their Continuance in Office.
Section 2. \1\The <> judicial Power shall extend to all Cases, in Law and Equity,
arising under this Constitution, the Laws of the United States, and
Treaties made, or which shall be made, under their Authority;--to all
Cases affecting Ambassadors, other public Ministers and Consuls;--to all
Cases of admiralty and maritime Jurisdiction;--to Controversies to which
the United States shall be a Party;--to Controversies between two or
more States;--between a State and Citizens of another State;--between
Citizens of different States;--between Citizens of the same State
claiming Lands under Grants of different States, and between a State, or
the Citizens thereof, and foreign States, Citizens or Subjects.
[[Page [82]]]
Decisions <> of the Supreme Court involving legislative standing to bring
cases in Federal court include Coleman v. Miller, 307 U.S. 433 (1939);
Goldwater v. Carter, 444 U.S. 996 (1979); Allen v. Wright, 468 U.S. 737
(1984); Whitmore v. Arkansas, 495 U.S. 149 (1990); and, most recently,
Raines v. Byrd, 521 U.S. 811 (1997), holding that Member plaintiffs must
have alleged a ``personal stake'' in having an actual injury redressed,
rather than an ``institutional injury'' that is ``abstract and widely
dispersed.'' See also the 11th amendment (Sec. 218, infra).
\2\In <> all Cases affecting Ambassadors, other public Ministers
and Consuls, and those in which a State shall be Party, the supreme
Court shall have original Jurisdiction. In all the other Cases before
mentioned, the supreme Court shall have appellate Jurisdiction, both as
to Law and Fact, with such Exceptions, and under such Regulations as the
Congress shall make.
\3\The <> Trial of
all Crimes, except in Cases of Impeachment, shall be by Jury; and such
Trial shall be held in the State where the said Crimes shall have been
committed; but when not committed within any State, the Trial shall be
at such Place or Places as the Congress may by Law have directed.
Section 3. \1\Treason <> against the United States, shall consist only in levying War
against them, or in adhering to their Enemies, giving them Aid and
Comfort. No Person shall be convicted of Treason unless on the Testimony
of two Witnesses to the same overt Act, or on Confession in open Court.
\2\The <> Congress shall have
Power to declare the Punishment of Treason, but no Attainder of Treason
shall work Cor
[[Page [83]]]
ruption of Blood, or Forfeiture except during the Life of the Person
Attainted.
ARTICLE IV.
Section 1. <> Full Faith and Credit shall be given
in each State to the Public Acts, Records, and judicial Proceedings of
every other State. And the Congress may by general Laws prescribe the
Manner in which such Acts, Records and Proceedings shall be proved, and
the Effect thereof.
<> Section 2.
\1\The Citizens of each State shall be entitled to all Privileges and
Immunities of Citizens in the several States.
\2\A <> Person charged in any State with Treason, Felony, or other
Crime, who shall flee from Justice, and be found in another State, shall
on Demand of the executive Authority of the State from which he fled, be
delivered up, to be removed to the State having Jurisdiction of the
Crime.
\3\No <> Person
held to Service or Labour in one State, under the Laws thereof, escaping
into another, shall, in Consequence of any Law or Regulation therein, be
discharged from such Service or Labour, but shall be delivered up on
Claim of the Party to whom such Service or Labour may be due.
[[Page [84]]]
Section 3. \1\New <> States may be admitted by the Congress into this Union; but no
new State shall be formed or erected within the Jurisdiction of any
other State; nor any State be formed by the Junction of two or more
States, or Parts of States, without the Consent of the Legislatures of
the States concerned as well as of the Congress.
\2\The <> Congress shall have Power to dispose of and make
all needful Rules and Regulations respecting the Territory or other
Property belonging to
the United States; and nothing in this Constitution shall be so
construed as to Prejudice any Claims of the United States, or of any
particular State.
The Court of Appeals for the District of Columbia Circuit has held
that the property clause does not prohibit the transfer of United States
property to foreign nations through self-executing treaties. Edwards v.
Carter, 580 F.2d 1055 (1978), cert. denied, 436 U.S. 907 (1978).
Section 4. The <> United
States shall guarantee to every State in this Union a Republican Form of
Government, and shall protect each of them against Invasion; and on
Application of the Legislature, or of the Executive (when the
Legislature cannot be convened) against domestic violence.
[[Page [85]]]
ARTICLE V.
The <> Congress,
whenever two thirds of both Houses shall deem it necessary, shall
propose Amendments to this Constitution, or, on the Application of the
Legislatures of two thirds of the several States, shall call a
Convention for proposing Amendments, which, in either Case, shall be
valid to all Intents and Purposes, as Part of this Constitution, when
ratified by the Legislatures of three fourths of the several States, or
by Conventions in three fourths thereof, as the one or the other Mode of
Ratification may be proposed by the Congress; Provided that no Amendment
which may be made prior to the Year One thousand eight hundred and eight
shall in any Manner affect the first and fourth Clauses in the Ninth
Section of the first Article; and that no State, without its Consent,
shall be deprived of its equal Suffrage in the Senate.
Amendments <> to the Constitution are proposed in the form of joint
resolutions, which have their several readings and are enrolled and
signed by the presiding officers of the two Houses (V, 7029, footnote),
but are not presented to the President for his approval (V, 7040; see
discussion under Sec. 115, supra; Hollingsworth v. Virginia, 3 U.S. (3
Dall.) 378 (1798)). They are filed with the Archivist who, under the law
(1 U.S.C. 106b; 1 U.S.C. 112), has the responsibility for the
certification and publication of such amendments, once they are ratified
by the States. Under the earlier procedure, the two Houses sometimes
requested the President to transmit to the States certain proposed
amendments (V, 7041, 7043), but a concurrent resolution to that end was
without privilege (VIII, 3508). The President notified Congress by
message of the promulgation of the ratification of a constitutional
amendment (V, 7044). The House in the 114th through 117th Congresses
required that petitions from state legislatures purporting to call for
constitutional conventions or to rescind such calls be made publicly
available (sec. 3(c), H. Res. 5, Jan. 6, 2015, p. 35; sec. 3(d), H. Res.
[[Page [86]]]
5, Jan. 3, 2017, p. _; sec. 103(b), H. Res. 6, Jan. 3, 2019, p. _; sec.
3(m), H. Res. 8, Jan. 4, 2021, p. _).-
The <> vote required on a joint resolution proposing an amendment
to the Constitution is two-thirds of those voting, a quorum being
present, and not two-thirds of the entire membership (V, 7027, 7028;
VIII, 3503). The majority required to pass a constitutional amendment,
like the majority required to pass a bill over the President's veto
(VII, 1111) and the majority required to adopt a motion to suspend the
rules (Dec. 16, 1981, pp. 31850, 31851, 31855, 31856), is two-thirds of
those Members voting either in the affirmative or negative, a quorum
being present, and Members who only indicate that they are ``present''
are not counted in this computation (Nov. 15, 1983, p. 32685). The
requirement of the two-thirds vote applies to the vote on final passage
and not to amendments (V, 7031, 7032; VIII, 3504), or prior stages (V,
7029, 7030), but is required if the House votes on agreeing to Senate
amendments (V, 7033, 7034; VIII, 3505), or on agreeing to a conference
report (V, 7036). One House having, by a two-thirds vote, passed in
amended form a proposed constitutional amendment from the other House,
and then having by a majority vote receded from its amendment, the
constitutional amendment was held not to be passed (V, 7035).
In the 95th Congress, both the House and Senate passed by a majority
vote House Joint Resolution 638, extending the time period for
ratification by the States of the Equal Rights Amendment, where House
Joint Resolution 208 of the 92d Congress, proposing the amendment, had
provided for a seven-year ratification period. The House determined, by
laying on the table by a record vote a privileged resolution asserting
that a vote of two-thirds of the Members present and voting was required
to pass a joint resolution extending the ratification period for a
constitutional amendment already submitted to the States, that only a
majority vote was required on such a measure (H.J. Res. 638; Speaker
O'Neill, Aug. 15, 1978, p. 26203).
The joint resolution extending the ratification period for the Equal
Rights Amendment was delivered to the President, who signed it although
expressing doubt as to the necessity for his doing so (Presidential
Documents, Oct. 19, 1978). When sent to the Archivist, the joint
resolution was not assigned a public law number, but the Archivist
notified the States of the action of the Congress in extending the
ratification period. For a judicial decision voiding this extension, see
Idaho v. Freeman, 529 F.Supp. 1107 (D.C.D. Idaho, 1981), judgment stayed
sub nom. National Organization of Women v. Idaho, 455 U.S. 918 (1982),
vacated and remanded to dismiss, 459 U.S. 809 (1982).
In the 116th Congress, the House passed by a majority vote House Joint
Resolution 79, eliminating the deadline for ratification by the States
of the Equal Rights Amendment (Feb. 13, 2020, p. _), following adoption
of a resolution (by special order of business) affirming that the proper
threshold to adopt such joint resolution was a majority vote (H. Res.
842,
[[Page [87]]]
Feb. 11, 2020, p. _). In response to a point of order regarding the
proper vote threshold prior to the question on final passage of the
joint resolution, the Chair ruled that a majority vote threshold was
required pursuant to the terms of House Resolution 842 and declined to
entertain an appeal from such ruling because the terms of that
resolution were unambiguous (Feb. 13, 2020, p. _). The House adopted a
similar resolution (by special order of business) setting a majority
threshold for the vote on final passage of House Joint Resolution 17 in
the 117th Congress (H. Res. 232, Mar. 16, 2021, p. _)
The yeas and nays are not required to pass a joint resolution
proposing to amend the Constitution (V, 7038-7039; VIII, 3506).
Question has arisen as to the power of a State to recall, or rescind,
its assent to a constitutional amendment (V, 7042; footnotes to
Sec. Sec. 225, 234, infra) but has not been the subject of a final
judicial determination (see Idaho v. Freeman, 529 F.Supp. 1107 (D.
Idaho, 1981), judgment stayed sub nom. National Organization of Women v.
Idaho, 455 U.S. 918 (1982), vacated and remanded to dismiss, 459 U.S.
809 (1982)).
Decisions <> of the Supreme
Court of the United States: National Prohibition Cases, 253 U.S. 350
(1920); Hawke v. Smith, 253 U.S. 221 (1920); Dillon v. Gloss, 256 U.S.
368 (1921); Leser v. Garnett, 258 U.S. 130 (1922); Coleman v. Miller,
307 U.S. 433 (1939); Chandler v. Wise, 307 U.S. 474 (1939).
ARTICLE VI.
\1\All <> 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 <> 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.
[[Page [88]]]
\3\The <> 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,
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 <> 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 <> 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 (Precedents (Wickham), ch. 1, Sec. 4.1).
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. Where
two Members-elect participated in various House and committee business
before taking the oath of office, the House adopted a resolution (1)
correcting the results of record votes to remove mention of them, and
(2) ratifying the following activities involving one or both of them:
election to and participation in standing
[[Page [89]]]
committee; introduction and numbering of measures; submission of items
to the Congressional Record; co-sponsorship of measures; and non-voting
participation in floor proceedings (Precedents (Wickham), ch. 5,
Sec. 18.21). During an ongoing public health emergency the Speaker
announced that the oath would be administered to Members-elect in small,
pre-arranged groups in order to adhere to restrictions on the number of
persons permitted in the House chamber consistent with guidance from the
Office of Attending Physician (Jan. 3, 2021, p. _).
The <> 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 the Speaker should not do so
(I, 139, 140). And in case of doubt the Speaker has waited the
instruction of the House (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 could 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 (VI, 20). The House may authorize the Speaker to
administer the oath 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. On one occasion,
the Speaker requested that guests in the gallery rise with the Members
during the administration of the oath of office to a Member-elect
(Precedents (Wickham), ch. 4, Sec. 4.9).
Members-elect <> 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
adjournment sine die (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 <> proposition to administer the oath 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; Precedents (Wickham), ch. 2, Sec. 3.20)
and during an electronic vote taken during House deliberations
interlocutory to an ongoing joint session to count the electoral votes
(Precedents (Wickham), ch. 2, Sec. 3.21). It also has been administered
before the reading of the Journal (I, 172),
[[Page [90]]]
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) or pending
engrossment and third reading (Precedents (Wickham), ch. 2, Sec. 3.19).
A division being demanded on a resolution seating several claimants, the
oath may be administered to each as soon as his case is decided (I,
623). If a Member-elect whose right to a seat has been determined by the
House is present to take the oath, the 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 (Precedents (Wickham), ch. 2, Sec. 3.17).
The <> right
of a Member-elect to take the oath is sometimes challenged, usually at
the time of organization of the House. The challenge may be made by a
Member-elect who has not yet taken the oath (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 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 <> has been held, although not uniformly, that in cases in
which the right of a Member-elect to take the oath is challenged, the
Speaker may direct the Member to abstain 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; Precedents (Wickham), ch. 2, Sec. 2.3). When
several are challenged and abstain, the question is first taken on the
Member-elect first required to abstain (I, 147, 148), but when a Member-
elect challenged the right of all Members-elect from six states to take
the oath, the House adopted a privileged resolution authorizing and
directing the Speaker to administer the oath to all Members-elect prior
to the administration of the oath to Members-elect en masse (Jan. 3,
2021, p. _). 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).
[[Page [91]]]
Although <> the House has emphasized the impropriety of swearing a
Member without credentials (I, 162-168), yet it has been done in cases
in which the credentials are delayed or lost and there is no doubt of
the election (I, 85, 176-178; VI, 12, 13), or in which 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). If the prima facie right is
contested the Speaker declines to administer the oath (I, 550), but the
House admits on a 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
(Precedents (Wickham), ch. 2, Sec. 4.1). 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
(Precedents (Wickham), ch. 2, Sec. 3.8). The House also may defer the
oath when a question of qualifications arises (I, 474), but it may
investigate qualifications after the oath is taken (I, 156-159, 420,
462, 481), and after investigation unseat the Member by majority vote
(I, 428). On one occasion when a Member-elect's credentials were in due
form but there was a question as to whether the Member-elect held an
incompatible office, the House resolved the matter by adopting a
privileged resolution authorizing and directing the Speaker to
administer the oath to the Member-elect (H. Res. 1161, Nov. 29, 2018, p.
_; see Sec. 98, supra). For an insertion by the Speaker, in concurrence
with the Minority Leader, on this matter and relevant precedents, see
Dec. 6, 2018, p. _.
Questions <> 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, in which 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
(1969), 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
[[Page [92]]]
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, in which 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 <> 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).
ARTICLE VII.
The <> Ratification
of the Conventions of nine States, shall be sufficient for the
Establishment of this Constitution between the States so ratifying the
Same.
Done in Convention by the Unanimous Consent of the States present the
Seventeenth Day of September in the Year of our Lord one thousand
seven hundred and Eighty seven and of the Independence of the United
States of America the Twelfth In Witness whereof We have hereunto
subscribed our Names,
Go WASHINGTON--Presidt.
and Deputy from Virginia.
[Signed also by the deputies of twelve States.]
New Hampshire.
John Langdon, Nicholas Gilman.
Massachusetts.
Nathaniel Gorham, Rufus King.
[[Page [93]]]
Connecticut.
Wm. Saml. Johnson, Roger Sherman.
New York.
Alexander Hamilton.
New Jersey.
Wil: Livingston, Wm. Paterson,
David Brearley, Jona: Dayton.
Pennsylvania.
B Franklin, Thomas Mifflin,
RobT. Morris, Geo. Clymer,
Thos. FitzSimons, Jared Ingersoll,
James Wilson, Gouv Morris.
Delaware.
Geo. Read, Gunning Bedford jun,
John Dickinson, Richard Bassett.
Jaco Broom,
Maryland.
James McHenry, Dan of ST Thos. Jenifer.
Danl Carroll,
Virginia.
John Blair, James Madison Jr.
North Carolina.
Wm. Blount, Rich'D. Dobbs Spaight.
Hu Williamson,
South Carolina.
J. Rutledge, Charles Cotesworth Pinckney,
Charles Pinckney, Pierce Butler.
Georgia.
William Few, Abr Baldwin.
Attest: William Jackson, Secretary.
[[Page [94]]]
articles in addition to, and amendment of, the constitution of the
united states of america, proposed by congress, and ratified by the
several states pursuant to the fifth article of the original
constitution\1\
---------------------------------------------------------------------------
\1\The first 10 amendments to the Constitution of the
United States were proposed to the legislatures of the several States by
the First Congress on September 25, 1789 (this date and the date
succeeding amendments were proposed is the date of final congressional
action--signature by the presiding officer of the Senate--as is shown in
the Senate Journals). They were ratified by the following States, on the
dates shown, and the notifications by the governors thereof of
ratification were communicated by the President to Congress: New Jersey,
November 20, 1789; Maryland, December 19, 1789; North Carolina, December
22, 1789; South Carolina, January 19, 1790; New Hampshire, January 25,
1790; Delaware, January 28, 1790; New York, February 27, 1790;
Pennsylvania, March 10, 1790; Rhode Island, June 7, 1790; Vermont,
November 3, 1791; Virginia, December 15, 1791. Ratification was
completed on December 15, 1791. The amendments were subsequently
ratified by Massachusetts, March 2, 1939; Georgia, March 18, 1939;
Connecticut, April 19, 1939.
AMENDMENT I.
Congress <> shall make no law respecting an establishment of
religion, or prohibiting the free exercise thereof; or abridging the
freedom of speech, or of the press; or the right of the people peaceably
to assemble, and to petition the Government for a redress of grievances.
AMENDMENT II.
A <> well regulated Militia
being necessary to the security of a free State, the right of the people
to keep and bear arms, shall not be infringed.
[[Page [95]]]
AMENDMENT III.
No <> soldier
shall, in time of peace be quartered in any house, without the consent
of the Owner, nor in time of war, but in a manner to be prescribed by
law.
AMENDMENT IV.
The <> right of the people to be secure in their persons, houses,
papers, and effects, against unreasonable searches and seizures, shall
not be violated, and no Warrants shall issue, but upon probable cause,
supported by Oath or affirmation, and particularly describing the place
to be searched, and the persons or things to be seized.
AMENDMENT V.
No <> person shall be held to answer for a capital, or otherwise
infamous crime, unless on a presentment or indictment of a Grand Jury,
except in cases arising in the land or naval forces, or in the Militia,
when in actual service in time of War or public danger; nor shall any
person be subject for the same offence to be twice put in jeopardy of
life or limb; nor shall be compelled in any Criminal Case to be a
witness against himself; nor be deprived of life, liberty, or property,
without due process of law; nor shall private property be taken for
public use, without just compensation.
[[Page [96]]]
AMENDMENT VI.
In <> all criminal prosecutions, the accused shall
enjoy the right to a speedy and public trial, by an impartial jury of
the State and district wherein the crime shall have been committed,
which district shall have been previously ascertained by law, and to be
informed of the nature and cause of the accusation; to be confronted
with the witnesses against him; to have compulsory process for obtaining
witnesses in his favor, and to have the Assistance of Counsel for his
defence.
AMENDMENT VII.
In <> suits at
common law, where the value in Controversy shall exceed twenty dollars,
the right of trial by jury shall be preserved, and no fact tried by a
jury shall be otherwise re-examined in any Court of the United States,
than according to the rules of the common law.
AMENDMENT VIII.
<> Excessive bail shall not be required, nor excessive fines
imposed, nor cruel and unusual punishments inflicted.
AMENDMENT IX.
<> The enumeration in
the Constitution, of certain rights, shall not be
[[Page [97]]]
construed to deny or disparage others retained by the people.
AMENDMENT X.
The <> powers not
delegated to the United States by the Constitution, nor prohibited by it
to the States, are reserved to the States respectively, or to the
people.
AMENDMENT XI.\2\
The <> Judicial power
of the United States shall not be construed to extend to any suit in law
or equity, commenced or prosecuted against one of the United States by
Citizens of another State, or by Citizens or Subjects of any Foreign
State.
---------------------------------------------------------------------------
\2\The 11th amendment to the Constitution of the United
States was proposed to the legislatures of the several States by the
Third Congress on March 11, 1794; and was declared in a message from the
President to Congress dated the 8th of January, 1798, to have been
ratified by the legislatures of three-fourths of the States. The dates
of ratification were: New York, March 27, 1794; Rhode Island, March 31,
1794; Connecticut, May 8, 1794; New Hampshire, June 16, 1794;
Massachusetts, June 26, 1794; Vermont, October 28, 1794; Virginia,
November 18, 1794; Georgia, November 29, 1794; Kentucky, December 7,
1794; Maryland, December 26, 1794; Delaware, January 23, 1795; North
Carolina, February 7, 1795. Ratification was completed on February 7,
1795. The amendment was subsequently ratified by South Carolina,
December 4, 1797. New Jersey and Pennsylvania did not take action on the
amendment.
---------------------------------------------------------------------------
[[Page [98]]]
AMENDMENT XII.\3\
The <> Electors shall meet in their respective states,
and vote by ballot for President and Vice-President, one of whom, at
least, shall not be an inhabitant of the same state with themselves;
they shall name in their ballots the person voted for as President, and
in distinct ballots the person voted for as Vice-President, and they
shall make distinct lists of all persons voted for as President, and of
all persons voted for as Vice-President, and the number of votes for
each, which lists they shall sign and certify, and transmit sealed to
the seat of the government of the United States, directed to the
President of the Senate;--The President of the Senate shall, in presence
of the Senate and House of Representatives, open all the certificates
and the votes shall then be counted;-- * * *
---------------------------------------------------------------------------
\3\See article II, section 1 of the Constitution. The 12th
amendment to the Constitution was proposed to the legislatures of the
several States by the Eighth Congress on December 12, 1803, in lieu of
the original third paragraph of the first section of the second article,
and was declared in a proclamation of the Secretary of State, dated the
25th of September, 1804, to have been ratified by the legislatures of
three-fourths of the States. The dates of ratification were: North
Carolina, December 21, 1803; Maryland, December 24, 1803; Kentucky,
December 27, 1803; Ohio, December 30, 1803; Virginia, December 31, 1803;
Pennsylvania, January 5, 1804; Vermont, January 30, 1804; New York,
February 10, 1804; New Jersey, February 22, 1804; Rhode Island, March
12, 1804; South Carolina, May 15, 1804; Georgia, May 19, 1804; New
Hampshire, June 15, 1804. Ratification was completed on June 15, 1804.
The amendment was subsequently ratified by Tennessee, July 27, 1804. The
amendment was rejected by Delaware, January 18, 1804; Massachusetts,
February 3, 1804; and by Connecticut at its session begun May 10, 1804.
[[Page [99]]]
---------------------------------------------------------------------------
The <> electoral count occurs in
a joint session of the two Houses in the Hall of the House (III, 1819)
at 1 p.m. on the sixth day of January succeeding every meeting of
electors (3 U.S.C. 15). The Vice President, as President of the Senate
(or the President pro tempore in the Vice President's absence), presides
over the joint session (3 U.S.C. 15). The date of the count has been
changed by law as follows: Monday, January 7, 1957 (P.L. 84-436);
Monday, January 7, 1985 (P.L. 98-456); Wednesday, January 4, 1989 (P.L.
100-646); Thursday, January 9, 1997 (P.L. 104-296); Thursday, January 8,
2009 (P.L. 110-430); Friday, January 4, 2013 (P.L. 112-228).
Sections 15-18 of title 3, United States Code, prescribe in detail the
procedure for the count. Nevertheless, the two Houses traditionally
adopt a concurrent resolution providing for the meeting in joint session
to count the vote, for the appointment of tellers, and for the
declaration of the state of the vote (III, 1961; Deschler, ch. 10,
Sec. 2.1). Under the law governing the proceedings, the two Houses
divide to consider an objection to the counting of any electoral vote or
``other question arising in the matter'' (3 U.S.C. 15-18; Jan. 6, 1969,
pp. 145-47; Jan. 6, 2001, p. 101; Jan. 6, 2005, pp. 198, 199; Jan. 6,
2017, p. _; Jan. 6, 2021, p. _), but only when in writing and signed by
both a Member and a Senator (Jan. 6, 2001, p. 101; Jan. 6, 2005, p. 198;
Jan. 6, 2017, p. _; Jan. 6, 2021, p. _). Examples of an ``other question
arising in the matter'' include: (1) an objection for lack of a quorum
(Jan. 6, 2001, p. 101); (2) a motion that either House withdraw from the
joint session (Jan. 6, 2001, p. 101); and (3) an appeal from a ruling by
the presiding officer (Jan. 6, 2001, p. 101). Such questions and
objections are not debatable in the joint session (3 U.S.C. 18; Jan. 6,
2001, p. 101; Jan. 6, 2017, p. _; Jan. 6, 2021, p. _). When the two
Houses have divided, a motion in the House to lay the objection on the
table is not in order (Jan. 6, 1969; pp. 169-72), but the Chair may
declare the House in an emergency recess pursuant to clause 12(b) of
rule I (Jan. 6, 2021, p. _). A Vice President-elect, as Speaker of the
House or as a sitting Vice President, has participated in the ceremonies
(e.g., VI, 446; Jan. 6, 2005, p. 197). See Deschler, ch. 10 for further
discussion. When addressing a controversy over the election of President
and Vice President in the State of Florida, the Supreme Court indicated
its view of a section of the statute (3 U.S.C. 5) addressing a
determination of controversy as to the appointment of electors. Bush v.
Palm Beach County Canvassing Bd. (531 U.S. 70 (2000)). Ultimately, the
Supreme Court found that the Florida Supreme Court violated the Equal
Protection Clause of the 14th amendment by ordering certain counties to
conduct manual recounts of the votes for President and Vice President
without establishing standards for those recounts. Bush v. Gore (531
U.S. 98 (2000)).
[[Page [100]]]
* * * The <