[Deschler's Precedents, Volume 1, Chapters 1 - 6]
[Chapter 2.  Enrolling Members; Administering the Oath]
[Â§ 1. In General]
[From the U.S. Government Publishing Office, www.gpo.gov]


[Page 85-87]
 
                               CHAPTER 2
 
               Enrolling Members; Administering the Oath
 
Sec. 1. In General


    Before a newly convened body of Representatives-elect can begin 
exercising all its constitutional functions as a legislative assembly, 
Members-elect must become full legal Members of the House, having 
satisfied all qualifications and having sworn to uphold the 
Constitution and to faithfully perform their duties.(1) The 
process through which Members-elect become Members consists of four 
steps: first, the presentation of individual credentials; second, the 
preparation of the Clerk's roll; third, the administration of the oath 
to duly qualified and elected Members; fourth, the resolution of 
challenges to the qualifications and elections of individual Members.
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 1. ``[T]he legal existence of a legislative body is dependent upon 
        compliance with the constitutional requirements regarding 
        membership.'' Sutherland, Statutory Construction Sec. 404 (3d 
        ed. 1943). That general statement of legislative law must be 
        qualified in its applicability to the House of Representatives, 
        since the House has sole jurisdiction over elections and 
        qualifications of Members-elect (U.S. Const. art. I, Sec. 5, 
        clause 1). If the House seats a Member, the courts will not 
        question the validity of legislative action in which the Member 
        participates, even lacking satisfaction of election and 
        qualification requirements. See Lyons v Woods, 153 U.S. 649 
        (1894).
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    This chapter covers the administration of those four steps of 
proceeding during the organization of a newly convened House of 
Representatives. The scope of the chapter is limited, however, to the 
basic procedure governing those orders of business; the reader is 
referred elsewhere for a discussion of the substantive issues related 
to credentials, election contests, and elections and election 
campaigns.(2) This chapter likewise does not concern itself 
with those general aspects of procedure and orders of business 
connected with organization.(3)
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 2. See Ch. 8, infra, for the form, validity, and grounds for 
        challenges of credentials. See Ch. 8, infra, for elections and 
        election campaigns, and Ch. 9, infra, for election contests.
 3. See Ch. 1, supra, for the orders of business at organization, and 
        for the procedure that is followed.
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    Some discussion of substantive law is necessarily included in this 
chapter, such as the rights and duties accruing to those persons 
elected to Congress but not yet

[[Page 86]]

seated and sworn by the House, since the status of those Members-elect 
is specifically related to the presentation of credentials, the 
preparation of the Clerk's roll, and the administration of the oath. 
Some mention is also made of the substantive state law which the Clerk 
must review in determining whether to enroll Members-elect.
    The preparation, transmission to the House, and custody of the 
credentials of Members-elect are discussed in this chapter, as are 
their use in preparing the Clerk's roll. The form of the Clerk's roll 
and its relationship to the regular roll of the House and to the 
administration of the oath receives analysis.
    The chapter covers the history and form of the oath of office, the 
procedure of its administration, the types of resolutions relating to 
the right to be sworn, and the related subject of challenges, including 
form, procedure, and preliminary House action.
    There are several points of substantive procedure which should be 
kept in mind in any discussion of the enrolling of Members and the 
administration of the oath. The first is that the enrolling and the 
swearing in of Members-elect are authorized and regulated by provisions 
of the U.S. Constitution and the United States Code.(4~) 
Therefore, the House and its officers follow an established procedure 
when undertaking those orders of business.
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 4. The principal provisions are: U.S. Const. art. VI, clause 3 
        (requirement of oath administration); U.S. Const. art. I, 
        Sec. 5, clause 1 (House sole judge of elections and 
        qualifications); 2 USC Sec. 25 (procedure of oath 
        administration and record evidence thereof); 2 USC Sec. 26 
        (preparation of Clerk's roll and regularity of credentials).
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    Second, the House is governed, as stated above,(5) by 
general parliamentary law during the period of organization and before 
the adoption of rules. Since the rules are not adopted until after the 
administration of the oath, en masse, to the membership-
elect,(6) most of the activities covered in this chapter 
take place while general parliamentary law, and not the body of 
standing rules, is in effect.
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 5. See, generally, Ch. 1, supra.
 6. For the priority of oath administration over the adoption of rules, 
        based on 2 USC Sec. 25, see Ch. 1,  7, supra.
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    Third, the order in which activities take place during the 
organization of the House is governed both by tradition and by 
statute.(7) The oath is administered to Mem

[[Page 87]]

bers directly after the Speaker has been elected and has been sworn, 
and before the completion of other organizational business or before 
the consideration of general legislative business.
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 7. For the sequence of organizational business, while the Speaker is 
        presiding at organization, see Ch. 1, Sec. 7, supra.
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    The fourth aspect of procedure related to this chapter is the 
functions of officers. The receipt of credentials by the House, and the 
preparation and calling of the Clerk's roll, are functions exercised by 
the Clerk of the preceding House.(8) The administration of 
the oath to Members and floor action taken on challenges are presided 
over by a newly-elected Speaker, whose scope of authority during the 
organizational period should be reviewed for a comprehensive 
understanding of how those orders of business are completed by the 
House.(9)
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 8. See 2 USC Sec. 26. For the authority and functions of the Clerk of 
        the preceding House at the organization of Congress, see Ch. 1, 
        Sec. 5, supra.
 9. For the Speaker's functions and authority after he has been elected 
        at the convening of a new Congress, see Ch. 1, Sec. 7, supra. 
        For his entertainment of motions during the organizational 
        period, see Ch. 1, Sec. 9, supra; for his rulings on action on 
        resolutions, including those relating to oath administration, 
        during organization, see Ch. 1, Sec. 12, supra.
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    The final area of substantive procedure relating to the enrollment 
of Members and to the administration of the oath is the delineation of 
authority between state and federal government. Since the House depends 
on the individual states for the administration of elections and the 
preparation of credentials, issues may be suggested in this chapter as 
to those powers reserved for the states and those granted to the House 
of Representatives under the U.S. Constitution. The reader is referred 
to other portions of this work for discussion of such 
issues.(10)
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10. See Ch. 8, infra, on elections and election campaigns, and Ch. 9, 
        infra, on election contests, which discuss the respective roles 
        of the state and federal governments.
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