[Deschler's Precedents, Volume 1, Chapters 1 - 6]
[Chapter 1.  Assembly of Congress]
[A. Meeting and Organization]
[Â§ 5. Clerk as Presiding Officer; Authority]
[From the U.S. Government Publishing Office, www.gpo.gov]


[Page 32-36]
 
                               CHAPTER 1
 
                          Assembly of Congress
 
                      A. MEETING AND ORGANIZATION
 
Sec. 5. Clerk as Presiding Officer; Authority

    On the opening day of the first session of a new Congress, the 
elected Clerk of the preceding Congress calls the House to order and 
presides until the election of a Speaker.(9) The main duties 
of the Clerk at the organization of the House are ascertaining a quorum 
through a call of the Clerk's roll, and presiding over the election of 
a Speaker.(10) In current practice, the organizational steps 
over which the Clerk presides consume only a small portion of opening 
day. The practice has not always been so, as Clerks have presided at 
some Congresses for a period of days and even weeks.(11)
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 9. 1 Hinds' Precedents Sec. Sec. 64-65.
10. For a description of the organizational steps over which the Clerk 
        presides, see Sec. 5.1, infra. See also 1 Hinds' Precedents 
        Sec. 81. For detail on the preparation of the Clerk's roll, see 
        Ch. 2, infra.
11. 1 Hinds' Precedents Sec. Sec. 65, 67, 70, 204. In those instances, 
        difficulties in the call of the roll and in the election of the 
        Speaker kept the Clerk in the chair for long periods of time.

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    The authority of the Clerk to preside at the assembly of a new 
Congress is derived from custom as well as statutory 
sources.(12) Unlike the Speaker, whose term ceases with the 
assembly of a new Congress, the Clerk continues in office by tradition 
until the election of new officers.(13) In early Congresses, 
the House provided by a special rule that the Clerk should continue in 
office until another should be chosen,(14) but later 
constructions determined that one House could not by rule bind its 
successor.(15) In requiring the Clerk of the preceding House 
to prepare the roll of Representatives-elect for the new Congress, 
Title 2 of the United States Code provides for the functioning of the 
Clerk beyond the term of office for which elected; similarly, the code 
provides for the Sergeant at Arms, and in his absence the Doorkeeper of 
the preceding House, to perform the Clerk's functions in the case of 
vacancy in his office.(16) The Code also enumerates duties 
of the Sergeant at Arms, under the direction of the Clerk of the 
preceding Congress, at the assembly of a new House.(17)
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12. See also Rule III clause 1, House Rules and Manual Sec. 637 (1973).
13. 1 Hinds' Precedents Sec. Sec. 187, 188, 235, 244.
14. 1 Hinds' Precedents Sec. Sec. 187, 235; 5 Hinds' Precedents 
        Sec. 6743.
15. 5 Hinds' Precedents Sec. 6747.
16. 2 USC Sec. 26. See also Sec. 5.2, infra.
17. See 2 USC Sec. 79. Like Rule III of the House Rules and Manual, 
        Sec. 637 (1973), Rule IV clause 1, Sec. 648, pertaining to the 
        Sergeant at Arms' duties pending the election of a Speaker, and 
        Rule V clause 1 Sec. 651, relating to the Doorkeepers' duties 
        pending the election, are not technically in effect at the time 
        those duties are performed.
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    At the beginning of early Congresses, the Clerk of the preceding 
House refused to decide many questions of order, referring them instead 
to the House.(18) Beginning in 1860, however, Rule III of 
the House rules(19) took on in substance its present form, 
authorizing the Clerk to decide questions of order subject to appeal; 
although not binding while the Clerk is presiding, the rule exerts 
persuasive effect on the construction of the Clerk's authority to 
decide points of order.(20) As pre
                         
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presiding officer, the Clerk has consistently refused to entertain 
propositions not consistent with the organization of the 
House;(1) he has refused, for example, to entertain 
protests,(2) and has declined to hear motions referring a 
subject to committee(3) or relating to contested election 
cases.(4)
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18. See 1 Hinds' Precedents Sec. Sec. 68-72.
19. Rule III clause 1, House Rules and Manual Sec. 637 (1973).
20. For the history and effect of the rule, see 1 Hinds' Precedents 
        Sec. 64. When coupled with the former provision that rules of 
        one House applied to the organization of its successor (5 
        Hinds' Precedents Sec. Sec. 6743-46), Rule III gave the Clerk 
        explicit authority to decide points of order (1 Hinds' 
        Precedents Sec. Sec. 76-77). In 1890, however, the theory that 
        one House could by rule bind its successor was overthrown (5 
        Hinds' Precedents Sec. 6747).
 1. See, in general, 1 Hinds' Precedents Sec. Sec. 68-80.
            As to the capacity of the House to transact general 
        legislative business while the Clerk is presiding and before 
        the election of a Speaker, the House has determined such 
        procedure to be foreclosed by the Act of 1789, Ch. 1, Sec. 2, 1 
        Stat. 23, as amended, 2 USC Sec. 25 (1948), requiring the 
        administration of the oath to the Speaker, Members, and the re-
        elected Clerk before the House enters into other business. See 
        1 Hinds' Precedents Sec. Sec. 6647-49 (rulings by the House 
        that the Clerk could receive a message from the President but 
        could not read it, as reading the message constituted 
        business). For other rulings on the requirement that 
        legislative business await the election of officers and the 
        swearing in of Members and of the Clerk, see 1 Hinds' 
        Precedents Sec. Sec. 130, 241, 243; contra (allowing business 
        before the election of the Clerk), 1 Hinds' Precedents 
        Sec. Sec. 242, 244, 245.
 2. 1 Hinds' Precedents Sec. 80.
 3.  1 Hinds' Precedents Sec. 78.
 4.  See 1 Hinds' Precedents Sec. 67. According to Alexander, History 
        of Procedure of the House of Representatives 14 (1916), the 
        Clerk of the House attempted in one instance (cited at 1 Hinds' 
        Precedents Sec. 67) to use his powers and duties at the opening 
        of the new Congress to determine which political party would 
        control the House of Representatives. In 1839, Clerk Hugh A. 
        Garland ``discovered that by omitting the names of contestants 
        from New Jersey the roll would stand 118 in favor of his own 
        party, a sufficient number to elect a Speaker. Accordingly, 
        when New Jersey was reached in the roll call, Garland cunningly 
        explained that as he had no authority to settle contests he 
        would complete the call and then submit the New Jersey matter 
        to the House for its decision.''
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    The House may, in lieu of having the Clerk preside, choose one of 
the Members-elect to preside as Chairman until the election of a 
Speaker.(5) This method has been taken by the House when 
organizational business was impeded by the refusal of the Clerk to 
entertain certain questions or motions.(6)
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 5. 1 Hinds' Precedents Sec. Sec. 66-67.
 6. See 1 Hinds' Precedents Sec. 67.
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    The Clerk may preside at the opening of a new session of an 
existing Congress, or even at the beginning of a daily meeting during a 
session, when the Speaker has died in office,(7) since the 
authority of the Speaker pro tempore
                         
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terminates upon the death of the Speaker.(8) If the Clerk 
presides in that situation, he first ascertains the presence of a 
quorum, and then proceeds immediately to the election of a 
Speaker.(9)
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 7. See 1 Hinds' Precedents Sec. 234.
 8. See Sec. Sec. 6.6, 6.7, infra.
 9. For the procedure of the election of the Speaker, both at a new 
        Congress and at a new session of the same Congress, see Sec. 6, 
        infra.
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Clerk as Presiding Officer; Organizational Procedure

Sec. 5.1 Following opening prayer and before the election of the 
    Speaker at the opening of a new Congress, the Clerk of the 
    preceding Congress takes the following organizational steps: 
    announces the receipt of credentials; causes the roll to be called 
    alphabetically by states to establish a quorum; announces the 
    establishment of a quorum; announces vacancies in the House 
    occurring since national elections.

    On Jan. 10, 1967,(10) the Clerk of the 89th Congress, 
Ralph R. Roberts, of Indiana, announced as follows after the House had 
been called to order and had heard prayer:
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10. 113 Cong. Rec. 11, 12, 90th Cong. 1st Sess.
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        Representatives-elect for the 90th Congress . . . this is the 
    day fixed for the meeting of the 90th Congress.
        As the law directs, the Clerk of the House has prepared the 
    official roll of the Representatives-elect.
        Credentials covering the 435 seats in the 90th Congress have 
    been received and are now on file with the Clerk of the 89th 
    Congress.
        The names of those persons whose credentials show they were 
    regularly elected in accordance with the laws of the several States 
    and of the United States will be called; and as the roll is called, 
    following the alphabetical order of the States, beginning with the 
    State of Alabama, Representatives-elect will answer to their names 
    to determine whether or not a quorum is present.
        The reading clerk will call the roll.
        The Clerk called the roll by States and the following 
    Representatives-elect answered to their names: . . .
        The Clerk: The roll call discloses that 434 Representatives-
    elect have answered to their names.
        A quorum is present.
        The Clerk will state that credentials are on file showing the 
    election of the Honorable Santiago Polanco-Abreu as Resident 
    Commissioner from the Commonwealth of Puerto Rico.
        The Clerk also wishes to announce there is a vacancy in the 
    Second District of Rhode Island occasioned by the recent death of 
    the Honorable John E. Fogarty.

Presiding Officer in Absence of Clerk

Sec. 5.2 In the absence of both the Clerk of the House and the Sergeant 
    at Arms, the Doorkeeper of the preceding Con
                         
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    gress calls the House to order on the opening day of a new 
    Congress.

    On Jan. 3, 1947,(11) the assembly date of the first 
session of the 80th Congress, following the death of the Clerk of the 
House and in the absence of the Sergeant at Arms, the Doorkeeper of the 
House of Representatives of the 79th Congress, Ralph R. Roberts, of 
Indiana, called the House to order and directed the call of the 
roll.(12)
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11. 93 Cong. Rec. 33, 80th Cong. 1st Sess.
12. 2 USC Sec. 26 appoints the Sergeant at Arms and in his absence the 
        Doorkeeper of the preceding House to assume the Clerk's 
        functions at the opening of Congress, if the Clerk's office 
        should become vacant between Congresses.
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