[Deschler's Precedents, Volume 1, Chapters 1 - 6]
[Chapter 2.  Enrolling Members; Administering the Oath]
[Â§ 5. Administering the Oath]
[From the U.S. Government Publishing Office, www.gpo.gov]


[Page 112-127]
 
                               CHAPTER 2
 
               Enrolling Members; Administering the Oath
 
Sec. 5. Administering the Oath

    The Constitution requires, at article 6, clause 3, that every 
Senator and every Representative swear or affirm to uphold the 
Constitution of the United States. Since neither the form, nor the 
procedure of administration, nor the time of administration of the oath 
of office are specified by constitutional provisions, they are all 
regulated by statute. The form of the oath taken by Members-elect (the 
same oath taken by the Speaker and officers of the House)(5) 
has undergone revision

[[Page 113]]

since the first Congress,(6) and now reads as followings:
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 5. 2 USC Sec. 26 requires the oath of the Speaker and Clerk as well as 
        of Members. The form of the oath prescribed for an individual 
        elected or appointed to an office in the civil service or 
        uniformed service appears at 5 USC Sec. 3331. If a new Speaker 
        is elected after the organization of the House, and after he 
        has taken the oath of office as a Member, he nevertheless must 
        be administered the oath again as Speaker. See 1 Hinds' 
        Precedents Sec. 225.
 6. The first oath of office was worded, by the Act of June 1, 1789, 
        Ch. 1, 1 Stat. 23, as follows: ``I, A. B., do solemnly swear or 
        affirm (as the case may be) that I will support the 
        Constitution of the United States.'' National sentiment in the 
        wake of the Civil War lead to a new oath, under the Act of July 
        2, 1862, Ch. 128, 12 Stat. 502, which disqualified for a 
        congressional seat any person with a past record of disloyalty 
        to the United States (disloyalty was exhaustively defined 
        within the wording of that oath). Pursuant to the ratification 
        of the Fourteenth Amendment (whose clause 3 disqualified, among 
        others, past supporters of the Confederate cause, with a 
        provision for removal of such disqualification), Congress 
        provided in the Act of July 11, 1868, Ch. 129, 15 Stat. 85, for 
        a specific oath to be taken by those who ``participated in the 
        late rebellion'' but whose disability for membership in 
        Congress had been removed by an act of Congress. The 1868 act 
        contained the form of the oath that is used today. Finally, the 
        Act of May 13, 1884, Ch. 46, 23 Stat. 22, repealed all of the 
        lengthy and disqualifying 1862 oath and provided for the 1868 
        oath to be thenceforth applicable to all officers of the United 
        States government save the President. Further minor revisions, 
        now incorporated in 5 USC Sec. 3331, were added by the Act of 
        Sept. 6, 1966, Pub. L. 89-554, 80 Stat. 424.
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        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.

    Since appearing to be sworn is a mandatory step to bestow full 
membership on persons elected to Congress, there has been some debate 
on whether the requirement can be construed as a ``qualification'' for 
membership, with Congress determining whether that qualification has 
been met.(7) But

[[Page 114]]

no precedents grant to the taking of the oath the status of a 
constitutional qualification whereby the House becomes the judge of the 
willingness and sincerity of the Member taking it. The United States 
Code (2 USC) Sec. 25) provides that the oath be administered to the 
Speaker, and by him to the Members and Delegates present and to the 
Clerk, ``previous to entering on any other business. . . .'' Although 
that statute has been considered directory and not mandatory as to the 
general sequence of events at organization,(8) the oath is 
always administered first to the Speaker (immediately after his 
election) and then to the Members-elect.(9)
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 7. See Ch. 7, infra, wherein is discussed the limits on the power of 
        the House to exclude a Member-elect for disloyalty.
            For a recent general statement on the oath as bestowing 
        membership, see Sec. 2.1, supra. As to the responsibility of 
        governmental officials who have omitted to take the required 
        oath, one federal court stated that where such an official has 
        been elected or appointed and has discharged his duties, he 
        would be estopped to deny his right to the office if prosecuted 
        for an offense committed in the discharge of duties. ``[I]t is 
        not probable that a failure to take the oath would affect the 
        acts of one who is by the [United States] Senate actually 
        admitted to a seat therein, and who actually exercises the 
        functions of that office, or that it would constitute any 
        defense to a prosecution for a criminal offense . . . committed 
        during his incumbency of the office.'' U.S. v Dietrich, 126 F 
        676, 681, 682 (C.C. Neb. 1904) (dicta). In some Congresses, 
        Members have taken seats and discharged their functions without 
        taking the oath for months afterwards; see, for example, 1 
        Hinds' Precedents Sec. 185. In current practice, Members-elect 
        take the oath as soon as they appear. See Sec. Sec. 5.13-5.16, 
        infra.
 8. See Ch. 1, Sec. 7, supra, for the traditional sequence of events 
        based on the statutory language.
 9. See Ch. 1, Sec. 7.1, supra.
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    In contemporary practice, the Members are sworn in all at one time, 
after the Speaker directs them to rise for that purpose.(10) 
If a challenge is to be made to the right of a Member-elect to be 
sworn, it is made after the Speaker directs the Members (and the 
Delegates and the Resident Commissioner)(11) to rise to take 
the oath.(12) Where Members-elect are absent on opening day, 
the House may authorize the Speaker himself or a deputy to be appointed 
by him to administer the oath to such absentees away from the 
House.(13) After the Speaker, or the deputy appointed by 
him,(14)

[[Page 115]]

informs the House that the oath has been administered in 
absentia,(15) the House adopts a resolution accepting the 
administration of the oath to the missing Member-elect.(16) 
On occasion, the Speaker pro tempore may be authorized by the House to 
administer the oath when the Speaker is absent,(17) but this 
procedure is rarely followed because of the explicit statutory 
directive to the Speaker.(18) Where the Speaker's office 
becomes vacant during a Congress, the oath cannot be administered to 
Members-elect until after a new Speaker is elected.(19)
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10. See Sec. 5.1, infra, for the modern practice and for a discussion 
        of the former method of administering the oath by states.
11. Since the Resident Commissioner is elected for a four-year term, as 
        opposed to Members and Delegates, he rises to take the oath 
        only at the beginning of that term, and not at the convening of 
        the second Congress for which elected. See Sec. 5.4, infra.
12. See Sec. 6.1, infra.
13. See Sec. Sec. 5.8, 5.9, 5.11, infra. Although the statute directing 
        the administration of the oath to Members-elect only designates 
        the Speaker as the proper official, the House has decided that 
        it has constitutional power to authorize a ``Deputy'' to 
        administer the oath as well as to perform other functions of 
        the Speaker. See 1 Hinds' Precedents Sec. 170.
14. While the Speaker has discretion to select a deputy, by custom a 
        Member of the House is appointed, unless inexpedient, in which 
        case an official authorized to administer oaths is appointed. 1 
        Hinds' Precedents Sec. Sec. 14-16. See Sec. 5.11, infra (state 
        supreme court justice appointed).
15. See Sec. Sec. 5.8, 5.10, 5.12, infra.
16. See Sec. Sec. 5.8, 5.10, 5.12, infra.
17. See Sec. 5.2, infra.
18. Only on rare occasions has the oath been administered to Members-
        elect, in the Speaker's absence, by a Speaker pro tempore (see 
        Sec. 5.2, infra and 6 Cannon's Precedents Sec. 20).
19. See Sec. 5.3, infra.
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    On occasion, it is necessary to administer the oath individually to 
Members who are not present for the en masse swearing in ceremony; by 
statute, such Members-elect may not take their seats until they are 
sworn.(20) The administration of the oath to individual 
Members is a privileged matter, and takes precedence over other 
business.(1) Administering the oath is in order after the 
previous question is ordered on a pending question,(2) 
during debate on a resolution, (3~) and on a day when no 
other business is permitted.(4)
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20. 2 USC Sec. 25. For the procedure of administering the oath to 
        detained Members-elect, see Sec. Sec. 5.13, 5.14, infra.
 1. See House Rules and Manual Sec. 233 (comment) (1973). The right of 
        Members-elect to seats and questions incidental thereto, 
        including oath administration, are raised under the privilege 
        of the House itself and not as a matter of personal privilege. 
        See Cannon's Procedure in the House of Representatives, H. Doc. 
        No. 122, p. 284, 86th Cong. 1st Sess. (1959).
            The administration of the oath takes precedence over even 
        the privileged motion to adjourn (see 1 Hinds' Precedents 
        Sec. 622).
 2. See Sec. 5.17, infra.
 3. See Sec. 5.18, infra.
 4. See Sec. 5.19, infra (adjournment out of respect to deceased 
        Member).
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    In some instances, the House authorizes the administration of the 
oath by resolution, as where the right to be sworn has been challenged 
or where no credentials have been received for the Member-elect. Some 
such resolutions have included provisions collateral to the actual 
administration of the oath, such as condi

[[Page 116]]

tions of punishment(5) or conditions that the final right to 
the seat be referred to committee.(6)
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 5. See Sec. 5.7, infra.
 6. For resolutions relating to challenges and the right to seats, see 
        Sec. 6, infra.
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    In former times, there existed no documentary evidence of the fact 
that the oath had been administered to an individual Member-elect. A 
Member-elect might state that he had taken the oath, and his 
declaration would be the sole evidence thereof.(7) To remedy 
that situation, Congress has by law provided for official copies of the 
oath of office taken by a Member-elect, to be accorded conclusive 
evidentiary weight, and required that a record of all those subscribing 
to the oath be printed in both the Journal and in the Congressional 
Record.(8) The single aim of the enactment was to ``provide 
a way by which any Member of the House could establish by record 
evidence the fact that he took the oath of office and so became a 
Member.(9)
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 7. See, for example, the confusing situation created at the beginning 
        of the 79th Congress, when several Members who were absent for 
        the calling of the Clerk's roll were present for the swearing 
        in ceremonies (Sec. 5.20, infra). An early oath provision, the 
        Act of July 2, 1862, Ch. 128, 12 Stat. 502, required a signed 
        oath to be preserved in the House files, but the practice was 
        seldom followed (see 1 Hinds' Precedents Sec. 128). Currently, 
        5 USC Sec. 2906, enacted in 1966, specifically requires such 
        preservation by the House.
 8. For the form in which the oath administration is recorded in the 
        Journal and in the Record, see Sec. 5.21, infra. The 
        authorizing provision which Congress enacted in 1948 (Act of 
        Feh. 18, 1948, Ch. 53, 62 Stat. 20) appears as the second 
        paragraph of 2 USC Sec. 25.
 9. 2 U.S. Code Cong. Serv. p. 1048 (1948).
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    The only persons entitled to be administered the oath on opening 
day are those whose names appear on the Clerk's roll, with the 
exclusion of those whose right to take the oath is 
challenged;(10) as stated above, the House may add the names 
of those Members whose credentials have not appeared but about whose 
election there is no contest or question.(11) Members-elect 
entitled to take the oath may, however, decline or refuse to do so, by 
resigning before taking a seat in the House,(12) since 
membership in (Congress

[[Page 117]]

cannot be imposed on one without his consent.(13) A Member-
elect may be permitted to defer his taking of the oath, without 
declining his seat, until such time that he meets qualifications not 
theretofore met.(14) However, the House may determine a 
Member's seat vacant if he is not qualified at the time of 
convening.(15)
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10. The oath is administered to ``Members and Delegates present'' 
        previous to their taking their seats. 2 USC Sec. 25. U.S. 
        Const. art. VI, clause 3 requires the taking of the oath by 
        ``Representatives before mentioned.''
11. See Sec. 3.5, infra.
12. See 1 Hinds' Precedents Sec. Sec. 1230-35 for past instances of 
        declination to take the oath by resignation.
13. See U.S. v Dietrich, 126 F 676, 681 (C. C. Neb. 1904), holding, 
        inter alia, that a person elected a U.S. Senator is not a 
        ``Member of Congress'' until he has been accepted by the Senate 
        as a Member and until he has voluntarily assumed the duties of 
        his office, including the taking of the oath.
14. See Sec. 2.5, supra.
15. See 1 Hinds' Precedents Sec. 500.
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    A few notable distinctions may be drawn between the administration 
of the oath of office in the House and in the Senate. Under Senate 
practice, Senators-elect are sworn in four at a time, in alphabetical 
order and not by state.(16) And the Senate rarely authorizes 
the administration of the oath to an absent Senator-elect away from the 
Chamber.(17) In addition, there is no provision according 
evidentiary weight to certified copies of the oath of office taken by 
Senators-elect, nor is there any statutory provision directing the 
sequence of the administration of the oath in relation to other 
business. The United States Code merely provides that the oath of 
office shall be administered by the President of the Senate to each 
Senator-elect, previous to his taking his seat.(18)
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16. See Sec. 5.23, infra.
17. See Sec. 5.24, infra, for instances wherein the Secretary of the 
        Senate was authorized to administer the oath to a Senator-elect 
        in his home state.
18. 2 USC Sec. 21.                          -------------------
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Administering Officer; Time of Administration

Sec. 5.1 In contemporary practice, immediately following the election 
    of the Speaker of a new Congress, he swears in Members-elect all at 
    one time.

    On Jan. 5, 1937, the opening day of the 75th 
Congress,(1) after the election of Speaker William B. 
Bankhead, of Alabama, he made the following announcement:
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 1. 81 Cong. Rec. 12, 75th Cong. 1st Sess.
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        Some years ago a precedent which had theretofore existed of 
    having the oath administered to Members by States was discontinued 
    and a precedent set whereby all Members took the oath of office at 
    one and the same time. In order to avoid confusion the Chair thinks 
    it best to follow the latter precedent, and the Chair asks each 
    Member of the House and each Delegate to rise in his place while 
    the Chair administers the oath of office.

[[Page 118]]

    The practice preferred by Speaker Bankhead has been followed from 
the 71st Congress to the present.(2)
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 2. House Rules and Manual Sec. 230 (comment to U.S. Const. art. VI, 
        clause 3) (1973) The ``latter precedent'' referred to, 
        beginning the prevailing practice of swearing in Members and 
        Delegates all at one time, occurred on Apr. 15, 1929, as an 
        innovation by Speaker Nicholas Longworth (Ohio). 71 Cong. Rec. 
        25, 71st Cong. 1st Sess. (paraphrased at 6 Cannon's Precedents 
        Sec. 8).
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Sec. 5.2 The House has authorized, by unanimous consent, the Speaker 
    pro tempore to administer the oath of office to a Member-elect in 
    the absence of the Speaker.

    On Mar. 12, 1940,(3) the House authorized Speaker pro 
tempore Sam Rayburn, of Texas, who had been appointed for three 
legislative days by Speaker Bankhead on Mar. 11, to administer the oath 
of office to Mr. Robert K. Goodwin, of Iowa, in the absence of the 
Speaker, after the receipt of a certificate of election of Mr. 
Goodwin.(4)
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 3. 86 Cong. Rec. 2724, 76th Cong. 3d Sess.
 4. Apparently on only one other occasion has the oath been 
        administered to an individual Member-elect in the absence of 
        the Speaker by consent of the House (see 6 Cannon's Precedents 
        Sec. 20).
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Sec. 5.3 Where the Speaker dies during the term of a Congress, the oath 
    cannot be administered to Members-elect to fill vacancies until 
    after a new Speaker is elected.

    On Jan. 10, 1962,(5) the House convened for the second 
session after the Speaker, Sam Rayburn, of Texas, had died during the 
adjournment sine die. The House immediately proceeded to the election 
of Speaker John W. McCormack, of Massachusetts, who then administered 
the oath of office to several Representatives-elect to fill vacancies. 
The Members-elect had not been included on the roll to establish a 
quorum or to elect a Speaker.(6)
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 5. 108 Cong. Rec. 5-7, 87th Cong. 2d Sess.
 6. Where there exists a vacancy in the Speaker's office, there is no 
        official authorized to administer the oath to Members-elect. 
        See 2 USC Sec. 25 and 1 Hinds' Precedents Sec. 170.
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Administration to Resident Commissioner

Sec. 5.4 A Resident Commissioner elected to the House for a four year 
    term takes the oath of office only once, at the beginning of his 
    term of office.

    On Jan. 21, 1971,(7) the opening day of the 92d 
Congress, the Resi

[[Page 119]]

dent Commissioner from Puerto Rico, Mr. Jorge L. Cordova, did not arise 
to take the oath of office en masse with the Members-elect, as he had 
taken the oath at the beginning of his four-year term, with the 
commencement of the 91st Congress.(8)
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 7. 117 Cong Rec. 13, 92d Cong. 1st Sess.
 8. 115 Cong. Rec. 15, 91st Cong. 1st Sess.
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Resolutions Authorizing Oath Administration

Sec. 5.5 When a Member offers a resolution authorizing the Speaker to 
    administer the oath to a challenged Member before the adoption of 
    the rules, no amendments are in order unless the Member in control 
    yields for that purpose or the previous question is rejected.

    On Jan. 4, 1965,(9) Mr. Carl Albert, of Oklahoma, 
offered the following resolution:
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 9. 111 Cong. Rec. 20, 89th Cong. 1st Sess.
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        Resolved, That the Speaker is hereby authorized and directed to 
    administer the oath of office to the gentleman from New York, Mr. 
    Richard L. Ottinger.

    In response to two parliamentary inquiries by Mr. James C. 
Cleveland, of New Hampshire, Speaker John W. McCormack, of 
Massachusetts, ruled: the pending resolution was not subject to 
amendment unless Mr. Albert yielded for that purpose; and unless Mr. 
Albert yielded there would be no opportunity to discuss the merits of 
the case prior to the vote on the resolution.
    The previous question was ordered and the resolution was agreed to. 
Immediately after adoption of the resolution, the challenged Member 
appeared at the bar of the House and took the oath of 
office.(10)
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10. Under general parliamentary law, employed by the House before the 
        adoption of rules (applicable in this instance), the 40 minutes 
        debate permitted under Rule XXVII clause 3 [House Rules and 
        Manual Sec. 907 (1971)] after the ordering of the previous 
        question on a debatable proposition is not in order. See Ch.1 
        Sec. 9, supra.
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Sec. 5.6 An amendment providing for conditions of punishment is not 
    germane to a resolution authorizing the administration of the oath 
    of office to a Member-elect.

    On Jan. 3, 1969,(11) Speaker John W. McCormack, of 
Massachusetts, ruled not germane, to a resolution providing that the 
Speaker administer the oath of of

[[Page 120]]

fice to Mr. Adam Clayton Powell, Jr., of New York, an amendment adding 
several conditions of punishment predicated on acts committed in a 
prior Congress.
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11. 115 Cong. Rec. 23-25, 91st Cong. 1st Sess.
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Sec. 5.7 On one occasion, a Representative-elect was administered the 
    oath of office pursuant to a resolution authorizing the 
    administration of the oath, but providing for a fine to be deducted 
    on a monthly basis, reducing seniority to that of a new Member, and 
    specifying that the Representative-elect must take the oath by a 
    certain date or his seat would be declared vacant.

    On Jan. 3, 1969, Representative-elect Adam Clayton Powell, Jr., of 
New York, appeared in the well and was administered the oath of office 
as a Member of the 91st Congress,(~2) subsequent to the 
adoption by the House of a resolution authorizing such administration 
of the oath, but including other provisions as follows:
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12. 115 Cong. Rec. 33, 34, 91st Cong. 1st Sess.
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                                   H. Res. 2

        Resolved--
        (1) That the Speaker administer the oath of office to the said 
    Adam Clayton Powell, Member-elect from the Eighteenth District of 
    the State of New York.
        (2) That as punishment Adam Clayton Powell be and he hereby is 
    fined the sum of $25,000, said sum to be paid to the Clerk to be 
    disposed of by him according to law. The Sergeant-at-Arms of the 
    House is directed to deduct $1,150 per month from the salary 
    otherwise due the said Adam Clayton Powell, and pay the same to 
    said clerk until said $25,000 fine is fully paid.
        (3) That as further punishment the seniority of the said Adam 
    Clayton Powell in the House of Representatives commence as of the 
    date he takes the oath as a Member of the 91st Congress.
        (4) That if the said Adam Clayton Powell does not present 
    himself to take the oath of office on or before January 15, 1969, 
    the seat of the Eighteenth District of the State of New York shall 
    be deemed vacant and the Speaker shall notify the Governor of the 
    State of New York of the existing vacancy.

Administration to Absentees

Sec. 5.8 The Speaker informs the House of the fact that he has 
    administered the oath of office to an absent Member-elect pursuant 
    to an order of the House, whereupon a resolution is offered 
    accepting such oath.

    On Mar. 13, 1933,(13) Speaker Henry T. Rainey, of 
Illinois, informed the House that he had ad

[[Page 121]]

ministered the oath of office to absent Member-elect Wilburn 
Cartwright, of Oklahoma, as authorized by House Resolution 36. The 
House then adopted the following resolution:
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13. 77 Cong. Rec. 283, 73d Cong. 1st Sess.
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        Whereas Wilburn Cartwright, a Representative from the State of 
    Oklahoma, has been unable from sickness to appear in person to be 
    sworn as a Member of this House, but has sworn to and subscribed 
    the oath of office before the Speaker, authorized by resolution of 
    this House to administer the oath, and the said oath of office has 
    been presented in his behalf to the House, and there being no 
    contest or question as to his election: Therefore
        Resolved, That the said oath be accepted and received by the 
    House as the oath of office of the said Wilburn Cartwright as a 
    Member of this House.

Administration by Deputies

Sec. 5.9 When authorized by resolution to designate deputies to 
    administer the oath of office to absent Members-elect, the Speaker 
    usually appoints as deputies Members of the House from the home 
    states of the absentees.

    On Jan. 8, 1937,(14) Speaker William B. Bankhead, of 
Alabama, announced that pursuant to authorizing resolutions, he had 
appointed Mr. Schuyler O. Bland, of Virginia, to administer the oath of 
office to Mr. Andrew J. Montague, of Virginia, Mr. William J. Driver, 
of Arkansas, to administer the oath of office to Mr. William B. 
Cravens, of Arkansas, and Mr. Clarence F. Lea, of California, to 
administer the oath of office to Mr. Henry E. Stubbs, of California.
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14. 81 Cong. Rec. 133, 75th Cong. 1st Sess.
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Sec. 5.10 A Member designated by the Speaker to administer the oath of 
    office to an absent Member-elect informs the House when he has 
    performed that duty and offers a resolution accepting the oath.

    On Jan. 20, 1943,(15) Mr. Edward J. Hart, of New Jersey, 
made the following report to the House:
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15. 89 Cong. Rec. 245, 246, 78th Cong. 1st Sess.
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        Mr. Speaker,(16) in accordance with your designation 
    of me, pursuant to House Resolution 45, Seventy-eighth Congress, 
    adopted by the House of Representatives, to administer the oath of 
    office to Representative-elect Mary T. Norton, of the Thirteenth 
    District of New Jersey, I have the honor to report that on the 16th 
    day of January 1943, at Jersey City, N.J., I adminis

[[Page 122]]

    tered the oath of office to Mrs. Norton, form prescribed by section 
    1757 of the Revised Statutes of the United States, being the form 
    of oath administered to Members of the House of Representatives, to 
    which Mrs. Norton subscribed.
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16. Speaker Sam Rayburn (Tex.).
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    Mr. Hart then offered a resolution providing that the House accept 
the oath so administered to the absent Member-elect.

Sec. 5.11 The Speaker may designate officers of the state judiciary to 
    administer the oath to absent Members-elect.

    On Jan. 7, 1959,(17) the Clerk read the following 
statement of Speaker Sam Rayburn, of Texas:
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17. 105 Cong. Rec. 16, 86th Cong. 1st Sess.
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        Pursuant to the authority of House Resolution 11, 86th 
    Congress, the Chair appoints the Honorable Donald Stephen Taylor, 
    Justice of the Supreme Court of New York, Troy, N.Y., to administer 
    the oath of office to the Honorable Dean P. Taylor.

Sec. 5.12 A non-Member named by the Speaker to administer the oath of 
    office to an absent Member-elect informs the House when he has 
    performed that duty, whereupon the House adopts a resolution 
    receiving and accepting such oath.

    On Mar. 21, 1933,(18) there was laid before the House a 
communication from Judge Blanton Fortson, of the Western Judicial 
Circuit, Athens, Georgia, informing the House that he had administered 
the oath of office to Mr. Charles H. Brand, of Georgia, in Athens, 
Georgia, pursuant to House Resolution 37 and pursuant to the 
designation by Speaker Henry T. Rainey, of Illinois, of Judge Fortson 
to administer the oath to the absent Member-elect. The House then 
adopted the following resolution:
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18. 77 Cong. Rec. 660, 73d Cong. 1st Sess.
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        Whereas Charles H. Brand, a Representative from the State of 
    Georgia, from the tenth district thereof, has been unable from 
    sickness to appear in person to be sworn as a Member of this House, 
    but has sworn to and subscribed the oath of office before Judge 
    Blanton Fortson, authorized by resolution of this House to 
    administer the oath, and the said oath of office has been presented 
    in his behalf to the House, and there being no contest or question 
    as to his election: Therefore
        Resolved, That the said oath be accepted and received by the 
    House as the oath of office of the said Charles H. Brand as a 
    Member of this House.

Administration to Delayed Members

Sec. 5.13 Members arriving too late on opening day to take the oath en 
    masse are administered the oath as they appear at the bar of the 
    House for that purpose.

[[Page 123]]

    On Jan. 3, 1945,(19) Speaker Sam Rayburn, of Texas, made 
the following statement, on opening day, in relation to detained 
Members:
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19.  91 Cong. Rec. 14, 79th Cong. 1st Sess.
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        The Members who have not taken the oath of office will present 
    themselves in the well of the House and all others will clear the 
    well of the House.

Sec. 5.14 Members-elect who appear subsequent to the day other Members-
    elect are sworn in present themselves in the well of the House and 
    the Speaker administers the oath to them.

    On Jan. 13, 1953,(20) ten days after the opening of the 
83d Congress, two House Members-elect who had not yet taken the oath of 
office presented themselves in the well of the House and were 
administered the oath.
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20. 99 Cong. Rec. 368, 83d Cong. 1st Sess.
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Sec. 5.15 When a term of a Member began on Jan. 3, 1943, he did not 
    receive the oath of office until Sept. 14, 1943, due to illness.

    On Sept. 14, 1943,(1) Speaker Sam Rayburn, of Texas, 
administered the oath of office to Representative-elect Lawrence Lewis, 
of Colorado, whose term of office commenced with the beginning of the 
78th Congress on Jan. 3, 1943. Mr. Lewis was absent due to illness.
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 1. 89 Cong. Rec. 7549, 78th Cong. 1st Sess.
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Sec. 5.16 A Member announced, for the information of constituents, that 
    an absent Member-elect would be delayed in taking the oath because 
    of his duties as a naval officer overseas.

    On Jan. 4, 1945,(2) Mr. John Taber, of New York, made 
the following announcement:
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 2. 91 Cong. Rec. 34, 79th Cong. 1st Sess.
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        Mr. Speaker,(3) Henry J. Latham was elected to 
    Congress from the Third District of New York last November. He is a 
    lieutenant in the Navy, and was at that time, and is now, on duty 
    in the far Pacific. He will not be able to return to this country 
    to be sworn in until the month of February. I feel, in justice to 
    his constituents, that I should make this announcement at this 
    time.
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 3. Speaker Sam Rayburn (Tex.).
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Privilege of Oath Administration

Sec. 5.17 Administration of the oath of office to a Member-elect is a 
    matter of high privilege and is in order after the previous 
    question is

[[Page 124]]

    ordered on a pending question.

    On Oct. 3, 1969,(4) after the previous question had been 
ordered on a bill reported from the Committee of the Whole, Mr. Carl 
Albert, of Oklahoma, asked that a Member-elect be permitted to take the 
oath of office at that time. The request was granted, and Speaker John 
W. McCormack, of Massachusetts, administered the oath to Mr. Michael J. 
Harrington, Representative-elect from Massachusetts to fill a vacancy. 
Since Mr. Harrington's certificate of election had not yet arrived, the 
administration of the oath was authorized by unanimous consent.
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 4. 115 Cong. Rec. 28487, 91st Cong. 1st Sess.
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Sec. 5.18 On one occasion, debate on a resolution reported from the 
    Committee on Rules was interrupted to allow a new Member to take 
    the oath of office.

    On Dec. 24, 1963,(5) debate on a privileged resolution 
reported from the Committee on Rules and making in order a conference 
report was interrupted to allow Mr. James J. Pickle, of Texas, to take 
the oath of office.
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 5. 109 Cong. Rec. 25526, 88th Cong. 1st Sess.
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Sec. 5.19 Administration of the oath of office to a Member-elect was 
    the only business permitted on the day of the death of the Chairman 
    of the Committee on Appropriations.

    On May 12, 1964,(6) the day on which Mr. Clarence A. 
Cannon, of Missouri, passed away in the early morning hours, the only 
item of business permitted was the administration of the oath to Mr. 
William J. Green III, of Pennsylvania.
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 6. 110 Cong. Rec. 10695, 88th Cong. 2d Sess.
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Form; Record Evidence of Administration

Sec. 5.20 Where various Members, detained on opening day, were absent 
    for the roll call but were present for the swearing in of Members 
    en masse, the Speaker stated that he would accept the statement of 
    any Member declaring that he was present for the swearing-in 
    ceremony; this was permitted prior to the 1948 amendments to 2 USC 
    Sec. 25, establishing record evidence of swearing-in ceremonies.

    On Jan. 3, 1945, after Speaker Sam Rayburn, of Texas, had accepted 
the statements of several Members that they were present

[[Page 125]]

for the swearing-in ceremony, but were absent for the roll call due to 
late trains,(7) the Speaker made a statement on the subject 
pursuant to a parliamentary inquiry by Mr. Harold Knutson, of 
Minnesota:(8)
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 7. 91 Cong. Rec. 14, 79th Cong. lst Sess.
 8. 91 Cong. Rec. 16, 79th Cong. 1st Sess.
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        Mr. Knutson: Mr. Speaker, a number of Members were not in the 
    city at the time the roll call was had but were here in time to be 
    sworn in. What is their status?
        The Speaker: The Chair has sworn in quite a number of Members 
    since the roll was called.
        Mr. Knutson: They were sworn in but the Record does not show 
    that they were here.
        The Speaker: If any Member says he was here at the time of the 
    swearing in, the Chair will take his statement for it.

Sec. 5.21 The form of the oath and the record of subscription to the 
    oath of office, as specified by law, appear in the Congressional 
    Record and in the Journal of the House.

    In the 91st Congress, the record of the subscription to the oath by 
Members was printed in the Record of Feb. 18, 1969, as follows:

        The oath of office required by the sixth article of the 
    Constitution of the United States, and as provided by section 2 of 
    the act of May 13, 1884 (23 Stat. 22), to be administered to 
    Members and Delegates of the House of Representatives, the text of 
    which is carried in section 1757 of title XIX of the Revised 
    Statutes of the United States and being as follows:

            I, A B, 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.

has been subscribed to in person and filed in duplicate with the Clerk 
of the House of Representatives by each of the following Members and 
Resident Commissioner of the 91st Congress, pursuant to Public Law 412 
of the 80th Congress entitled ``An act to amend section 30 of the 
Revised Statutes of the United States'' (U.S.C., title 2, sec. 25), 
approved February 18, 1948. . . .(9)
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 9. 115 Cong. Rec. 3788, 91st Cong. 1st Sess., Feb. 18, 1969; H. Jour. 
        269, 91st Cong. 1st Sess. (1969).
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Sec. 5.22 Copies of the signed oath of office executed by House Members 
    cannot be mandated by the process of ordinary courts without the 
    permission of the House of Representatives.

[[Page 126]]

    On Jan. 9, 1959,(10) the House was informed by the Clerk 
of a subpoena from the United States District Court for the Middle 
District of Pennsylvania, in the case of United States v John P. 
Gilroy, Jr., et al., No. 12880, criminal, commanding the Clerk of the 
House to appear before the court with certified copies of the signed 
oaths of offices executed by a certain Congressman. In response, the 
House adopted a resolution stating that under the privilege of the 
House no evidence of a documentary character under the control and in 
the possession of the House of Representatives could be mandated by 
process of the ordinary courts without the permission of the House. The 
resolution further stated that the House would permit the production of 
certified copies of the oath of office, along with other papers, 
pursuant to a determination by the court upon the materiality and the 
relevancy of the papers and documents called for in the subpoena duces 
tecum.
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10. 105 Cong. Rec. 363, 86th Cong. 1st Sess.
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Senate Procedure

Sec. 5.23 In Senate practice, the oath of office is administered to 
    four Senators at a time in alphabetical order; each four Senators 
    are accompanied to the desk by four other Senators.

    On Jan. 3, 1953,(11) Vice President Alben W. Barkley, of 
Kentucky, announced as follows:
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11. 99 Cong. Rec. 7, 83d Cong. 1st Sess.
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        The Secretary will now call, alphabetically, and in groups of 
    four, the names of the Senators-elect who as their names are called 
    will advance to the desk and the oath of office will be 
    administered to them.

    The legislative clerk called the names of the first four Senators, 
who were escorted to the desk by four other Senators.

Sec. 5.24 Although the House regularly authorizes the administration of 
    the oath to absent Members-elect, the Senate has done so only on 
    rare occasions, one occurring since 1936.

    On many occasions, the House authorizes the administration of the 
oath at the beginning of a new Congress to absentees, either by the 
Speaker himself or through deputies.(12) The Senate, 
however, has provided such authorization on only two recorded 
occasions, the first on May 3, 1929,(13) and

[[Page 127]]

the second on Jan. 3, 1973, when the Secretary of the Senate was 
authorized by resolution to administer the oath of office to Senator-
elect Joseph R. Biden, of Delaware, absent because of a death in his 
family.(14)
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12. See Sec. Sec. 5.8, 5.9, and 5.11, supra. See also 6 Cannon's 
        Precedents Sec. Sec. 14-16.
13. 71 Cong. Rec. 833, 71st Cong. 1st Sess.
14. 119 Cong. Rec. 9, 93d Cong. 1st Sess.
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