[House Practice: A Guide to the Rules, Precedents and Procedures of the House]
[Chapter 33. Oaths]
[From the U.S. Government Publishing Office, www.gpo.gov]
[[Page 631]]
CHAPTER 33 - OATHS
HOUSE PRACTICE
Sec. 1. In General; Administering the Oath of Office
Sec. 2. Absent Members and the Oath; Use of Deputies
Sec. 3. Challenging the Right To Be Sworn
Sec. 4. Oath Relating to Classified Information
Research References
U.S. Const. art. I, Sec. 5; art. VI, cl. 3
1 Hinds Sec. Sec. 6-22
6 Cannon Sec. Sec. 127-185
Deschler Ch 2 Sec. Sec. 5, 6
Manual Sec. Sec. 197-206
Sec. 1 . In General; Administering the Oath of Office
Generally
The Constitution requires that every Senator and every
Representative swear or affirm to support the Constitution of the
United States. U.S. Const. art. VI, cl. 3. Rule II clause 1 carries
the same requirement for elected officers. For administration of the
oath to officers, see Officers and Offices. The form of the oath and
the procedure for its administration are regulated by statute. 2 USC
Sec. 25. Form of oath, see 5 USC Sec. 3331 and Manual Sec. 197.
Until a Member-elect has subscribed to the oath, he does not enjoy
all the rights and prerogatives of a Member of Congress. Deschler Ch 2
Sec. 2.1. Members who have not taken the oath are not entitled to vote
or to introduce bills. Manual Sec. 300; 8 Cannon Sec. 3122. However,
unsworn Members have participated at the beginning of a session in
organizational business, such as the election of the Speaker. 1 Hinds
Sec. 224. Although a Member has been named to a committee before
taking the oath, under the modern practice the election of such a
Member to a standing committee may be made effective only upon being
sworn. 4 Hinds Sec. 4483; 106-1, H. Res. 6, Jan. 6, 1999, p ____.
In the early practice of the House, it was the custom to
administer the oath by State delegations. Beginning with the 71st
Congress, however, Members-elect have been sworn in en masse. 6 Cannon
Sec. 8. Under this practice the Speaker administers the oath of office
to all Members-elect at one time on opening day, although a Member-
elect whose right to take the oath
[[Page 632]]
has been challenged may be asked to stand aside. Manual Sec. 202. A
Member-elect who does not take the oath of office on opening day may
appear later in the well, in response to the Speaker's invitation, and
take the oath. Deschler Ch 2 Sec. 5.14. The Speaker also administers
the oath to Delegates-elect, the Resident Commissioner from Puerto
Rico, and Members-elect elected to fill vacancies. Deschler Ch 2
Sec. Sec. 3.6, 5.
Credentials as Basis for Taking the Oath
Although the Clerk will not as a general rule enroll Members-elect
who appear without certificates of election, the House itself may
authorize, by unanimous consent, the administration of the oath to
Members-elect who appear without appropriate formal credentials. 1
Hinds Sec. Sec. 162-168, 553-564; Deschler Ch 2 Sec. 3.5. For example,
a Member-elect may be sworn on the basis of letters or telegrams from
the executive department of the State of representation, attesting as
to his due election. Deschler Ch 2 Sec. Sec. 3.1-3.4. The House may
authorize the administration of the oath where credentials have not
yet arrived, pursuant to a statement by another Member-elect or a
State official that the election in issue is neither contested nor
questioned. Deschler Ch 2 Sec. 3. Unofficial State communications
declaring the results of the election may be laid before the House
before the unanimous-consent request for the administration of the
oath. Deschler Ch 2 Sec. 3.4.
Authorization by Resolution
The administration of the oath may be authorized by resolution
after a challenge to the right to be sworn has been made. Such
resolutions have included provisions collateral to the actual
administration of the oath, such as a condition that the final right
to the seat be referred to the Committee on House Administration.
Deschler Ch 2 Sec. 5.
Failure or Refusal to Take the Oath
Members-elect entitled to take the oath may decline it by
resigning before taking a seat, because membership cannot be imposed
on one without his consent. 2 Hinds Sec. Sec. 1230-1234. A Member-
elect may be permitted to defer his taking of the oath, without
declining his seat, until such time as questions regarding his
qualifications are resolved. Deschler Ch 2 Sec. 5. However, where a
Member-elect fails to appear to take the oath, the House may provide
by resolution that, if he fails to appear to take the oath by a
certain date, the seat will be declared vacant. Deschler Ch 2
Sec. 5.7.
In the 97th Congress, the House, by majority vote, declared vacant
a seat where the Member-elect was unable to take the oath because of
an incapacitating illness. In that case, the medical prognosis showed
no likelihood
[[Page 633]]
of improvement. The constitutional basis for the declaration of the
vacancy by majority vote was not expressly stated in the resolution.
Nevertheless, the power of the House under article I, section 5 of the
Constitution to judge the qualifications of its Members by majority
vote has been justified by the Supreme Court. In Powell v. McCormack,
395 U.S. 486, 520 (1969), the Court stated in a footnote that in
addition to age, citizenship, and inhabitancy, the article VI
requirement for taking the oath could be argued to be a qualification.
Precedence
The administration of the oath is a matter of high privilege.
Manual Sec. 201. The oath may be administered before the reading of
the Journal and takes precedence of a motion to amend the Journal. 1
Hinds Sec. 171. It has been held in order to administer the oath in
the absence of a quorum, during a roll call, and on Calendar
Wednesday. Manual Sec. Sec. 200, 201; 1 Hinds Sec. 174; 6 Cannon
Sec. 22. The administration of the oath is in order even after the
previous question has been ordered on a pending matter. Deschler Ch 2
Sec. 5.17. Debate on a resolution reported from the Committee on Rules
may be interrupted to allow a new Member to take the oath of office.
Deschler Ch 2 Sec. 5.18.
The Act of June 1, 1789, 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) to the Speaker and by the Speaker to the other
Members and Clerk (when elected). Manual Sec. 198; 2 USC Sec. 25; 1
Hinds Sec. Sec. 130, 131; 6 Cannon Sec. 6. 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. Manual Sec. 198.
Sec. 2 . Absent Members and the Oath; Use of Deputies
The Speaker, or a deputy named by him, may be authorized by
resolution to administer the oath of office to a Member-elect absent
because of his illness or because of some illness in his family.
Deschler Ch 2 Sec. Sec. 5.8-5.12. The resolution may authorize the
administration of the oath at some location other than the House. 1
Hinds Sec. 170; 6 Cannon Sec. 14. Persons who may be designated by the
Speaker to administer the oath to an absent Member-elect include
another Member (Deschler Ch 2 Sec. 5.10), a State or county judge
(Deschler Ch 2 Sec. 5.11), or a Federal district court judge (105-1,
Feb.
[[Page 634]]
4, 1997, p 1381). The deputy so designated reports thereon to the
House, which report may take the form of a letter from the deputy
designated by the Speaker. Deschler Ch 2 Sec. Sec. 5.8, 5.10, 5.12.
Sec. 3 . Challenging the Right To Be Sworn
Generally
Any Member-elect may challenge the right of any other Member-elect
to be sworn when the Speaker directs the Members-elect to rise to take
the oath of office. Manual Sec. 202; Deschler Ch 2 Sec. 6. The fact
that the challenging party has not himself been sworn is no bar to his
right to invoke this procedure. 1 Hinds Sec. 141. He must base his
challenge either on his own responsibility as a Member-elect or on
specified facts or documents. Deschler Ch 2 Sec. 6.2. Such challenges
are generally directed at a single Member-elect, but in several
instances the challenge has been directed against an entire State
delegation. 1 Hinds Sec. Sec. 457, 460-462; Deschler Ch 2 Sec. 6.4.
The authority to challenge the right of a Member-elect to be sworn is
based on the Constitution, which designates the House as the sole
judge of the elections, returns, and qualifications of Members. U.S.
Const. art. I, Sec. 5, cl. 1. Generally, see Election of Members.
Procedure
When a challenge is proposed, the Speaker asks the challenged
Member not to rise to take the oath with the rest of the membership en
masse. The House, and not the Speaker, determines the action to be
taken in such cases. Manual Sec. 199; Deschler Ch 2 Sec. 6.1. Debate
on the right of the Member-elect to be sworn is not in order until
after the remaining Members have been sworn. Deschler Ch 2 Sec. 6.3.
The pendency of a challenge does not preclude the entertainment of
other business before the House, and all other organizational business
may be completed before a challenge is resolved. 1 Hinds Sec. 474;
Deschler Ch 2 Sec. 6.
Several courses of action are open to the House in disposing of a
challenge. First, the House may simply seat a Member by authorizing
the administration of the oath pursuant to a resolution determining
the right to the seat. Deschler Ch 2 Sec. 6.5. Second, the House may
by resolution authorize the administration of the oath based on the
Member-elect's prima facie right to the seat, but at the same time
refer the determination of his final right to committee. 1 Hinds
Sec. Sec. 528-534. Finally, the House may by resolution refer the
prima facie as well as the final right to the seat to committee,
without authorizing the administration of the oath. Deschler Ch 2
Sec. Sec. 6.6, 6.7.
[[Page 635]]
Resolutions relating to the right of a challenged Member-elect to
be sworn are privileged. Manual Sec. 201. The resolution is open to
amendment where the House has not ordered the previous question
thereon. Deschler Ch 23 Sec. 22.4. The challenged Member-elect may, by
unanimous consent, be permitted to participate in debate on the
resolution. Deschler Ch 2 Sec. 2.5. The time for debate on the
resolution may be extended by unanimous consent. Deschler-Brown Ch 29
Sec. 26.33.
The seating of a Member-elect does not prejudice a contest pending
under the Federal Contested Elections Act over final right to the
seat. 2 USC Sec. Sec. 381-396; Manual Sec. 203.
As to the procedure to be followed in contested elections, see
Election Contests and Disputes.
Sec. 4 . Oath Relating to Classified Information
Rule XXIII clause 13, the Code of Official Conduct, prescribes an
oath to be executed by all Members, officers, and employees of the
House before they obtain access to classified information:
I do solemnly swear (or affirm) that I will not disclose any
classified information received in the course of my service with the
House of Representatives, except as authorized by the House of
Representatives or in accordance with its rules. Manual Sec. 1095.
The Committee on Standards of Official Conduct has interpreted
this clause as applying to classified information provided by ``any
person,'' not merely to data furnished by the House or by the
executive branch. Memorandum for All Members, Officers and Employees,
July 12, 1995.