[Deschler's Precedents, Volume 2, Chapters 7 - 9]
[Chapter 7.  The Members]
[C. Qualifications and Disqualifications]
[Â§ 10. Age, Citizenship, and Inhabitancy]
[From the U.S. Government Publishing Office, www.gpo.gov]


[Page 756-763]
 
                               CHAPTER 7
 
                              The Members
 
                C. QUALIFICATIONS AND DISQUALIFICATIONS
 
Sec. 10. Age, Citizenship, and Inhabitancy

    The Constitution requires that a Representative be at least 25 
years old, have a period of citizenship of at least seven years, and be 
an inhabitant of his state at the time of election.(19) 
Those three qualifications are unalterable by either the state 
legislature

[[Page 757]]

or by Congress itself, except by way of constitutional 
amendment.(20)
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19. Art. I, Sec. 2, clause 2. These requirements are the express 
        ``standing'' qualifications for a Representative, although 
        there are other prerequisites in the nature of qualifications 
        and disqualifications (see Sec. 9, supra).
20. See Powell v McCormack, 395 U.S. 486 (1969) and Burton v United 
        States, 202 U.S. 344 (1906). Cf. Bond v Floyd, 385 U.S. 116 
        (1966).
            The individual states cannot fashion more restrictive 
        inhabitancy requirements, such as residency in the 
        congressional district sought to be represented. Exon v 
        Tiemann, 279 F Supp 609 (Neb. 1968); State ex rel. Chavez v 
        Evans, 79 N.M. 578, 446 P. 2d 445 (1968); Hellman v Collier, 
        217 Md. 93, 141 A.2d 908 (1958).
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    The Constitution only sets a minimum age for 
membership.(1) No mandatory retirement age may be 
imposed,(2) although such proposals have been 
suggested.(3)
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 1. For a commentary on the rationale for a minimum age requirement, 
        see Story, Commentaries on the Constitution of the United 
        States, Sec. 616, Da Capo Press (N.Y. repub. 1970).
            Mr. John Y. Brown (Ky.) did not take the oath in the House 
        until the second session of the 36th Congress, because he did 
        not meet the age qualification until that time (see 1 Hinds' 
        Precedents Sec. 418 and Biographical Directory of the American 
        Congress, S. Doc. No. 8, 92d Cong. 1st Sess. p. 650 [1971]). 
        Even more unique was the case of Mr. William C. Claiborne 
        (Tenn.), who evidently took the oath with the 5th and 6th 
        Congresses while, respectively, only 22 and 24 years old (see 
        Biographical Directory of the American Congress, S. Doc. No. 8, 
        92d Cong. 1st Sess. p. 739 [1971]).
 2. See 5 USC Sec. 8335 (no mandatory retirement age for Congressmen).
 3. A mandatory retirement age would require either exclusion or 
        expulsion for a disqualification not mentioned in the 
        Constitution. Compare Powell v McCormack, 395 U.S. 486 (1969) 
        and Burton v U.S., 202 U.S. 344 (1906).
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    If a Member-elect is not of the required age, his name will not be 
entered on the roll of the House and he may not take the oath of office 
until he reaches the age of 25.(4) Likewise, the citizenship 
requirement of seven years need not be met until the time that a 
Member-elect presents himself to take the oath. The qualification of 
state inhabitancy must be met, however, at the time of election. That 
interpretation of article I was established in the 73d and 74th 
Congresses.(5) Both the Senate and the House concluded that 
a Member- or Senator-elect need not satisfy the age or citizenship 
requirements, or remove himself from an incompatible 
office,(6) until the time he presents himself to take the 
oath of office. The constitutional requirement of inhabitancy was 
construed to be applicable at the time of election.
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 4. See 1 Hinds' Precedents Sec. 418.
 5. See Sec. Sec. 10.1, 10.2, infra.
 6. For a detailed discussion of the right of a Member-elect to hold an 
        incompatible office, and to receive compensation both for such 
        an office and for his congressional seat, before he has taken 
        the oath, see Sec. 13, infra.
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    In order to attain citizenship and satisfy that qualification for

[[Page 758]]

membership, a Member-elect must either be born or naturalized in the 
United States.(7) And where a person has forfeited his 
rights as a citizen by reason of a felony conviction, his right to take 
a seat may be challenged.(8)
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 7. See U.S. Const. amend. 14, Sec. 1, for the definition of 
        citizenship.
            Aliens cannot stand for election to Congress. Narisiades v 
        Shaughnessy, 342 U.S. 580, rehearing denied, 343 U.S. 936 
        (1952).
            Generally, citizenship is assumed, and failure to produce 
        proof thereof has not acted as an impediment to holding office. 
        See 1 Hinds' Precedents Sec. Sec. 420, 424; 6 Cannon's 
        Precedents Sec. 184.
 8. See Sec. 10.3, infra.
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    The House generally presumes that a Member-elect has satisfied the 
requirements of the inhabitancy qualification.(9)
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 9. For a catalog of House decisions on inhabitancy, based on specific 
        facts, see House Rules and Manual Sec. 11 (comment to U.S. 
        Const. art. I, Sec. 2, clause 2) (1973) and USCA notes to U.S. 
        Const. art. I, Sec. 2, clause 2.
            For a catalog of analogous Senate decisions on inhabitancy, 
        see House Rules and Manual Sec. 35 (comment to U.S. Const. art. 
        I, Sec. 3, clause 3) (1973).
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                            Cross References
Age, citizenship, and inhabitancy qualifications of Delegates and 
    Resident Commissioners, see Sec. 3, supra.
Exclusiveness of the qualifications of age, citizenship, and 
    inhabitancy, see Sec. 9, supra.
Citizenship as affected by criminal conviction, see Sec. 11, infra.
Relationship of age, citizenship, and inhabitancy to credentials and 
    administration of oath, see Ch. 2, supra.

                         Collateral References
In general, see:
    House Rules and Manual Sec. Sec. 9-11 (comment to U.S. Const. art. 
        I, Sec. 2, clause 2) (1973).
    House Rules and Manual Sec. 35 (comment to U.S. Const. art. I, 
        Sec. 3, clause 3, qualifications of Senators) (1973).
Commentaries on the constitutional provisions, see:
    Schwartz, A Commentary on the Constitution of the United States, p. 
        97, McMillan Co. (N.Y. 1963).
    Story, Commentaries on the Constitution of the United States, 
        Sec. 616, Da Capo Press (N.Y. repub. 1970).
Time of meeting qualifications, see:
    S. Rept. No. 904, 74th Cong. 1st Sess., reprinted at 79 Cong. Rec. 
        9651-53, 74th Cong. 1st Sess., June 19, 
        1935.                          -------------------

Age and Citizenship

Sec. 10.1 A Member who has been a citizen for seven years when sworn, 
    although not when elected or upon commencement of his term, is 
    entitled to retain a seat, since the age and citizenship 
    qualifications of the Constitution need not be met until the time 
    membership actually commences.

[[Page 759]]

    In the 73d Congress, Representative-elect from Pennsylvania Henry 
Ellenbogen did not take the oath of office until the beginning of the 
second session on Jan. 3, 1934, although Congress had convened on Mar. 
4, 1933. Mr. Ellenbogen forestalled taking the oath since he had not 
attained the seven-year citizenship requirement of the Constitution 
either at the time of election, Nov. 8, 1932, or at the commencement of 
his term on Mar. 4.(10)
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10. At the time of election, Mr. Ellenbogen had been a citizen for six 
        years and five months; at the commencement of the term he had 
        been a citizen for six years and eight and a half months. See 
        S. Rept. No. 904, 74th Cong. 1st Sess., reprinted in 79 Cong. 
        Rec. 9651-53, June 19, 1935.
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    On Mar. 11, 1933,(11) the right of Mr. Ellenbogen to his 
seat was challenged by memorial based on his alleged failure to meet 
the citizenship qualification of the Constitution. His right to a seat 
was referred to committee, and the House adopted the following 
resolution on June 15, 1934:
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11. 77 Cong. Rec. 239, 73d Cong. 1st Sess.
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        Resolved, That when Henry Ellenboen on January 3, 1934, took 
    the oath of office as a Representative from the 33d Congressional 
    district of the State of Pennsylvania, he was duly qualified to 
    take such oath; and it be further
        Resolved, That said Henry Ellenbogen was duly elected as a 
    Representative from the 33d district of Pennsylvania, and is 
    entitled to retain his seat.

Sec. 10.2 As a Member-elect or Senator-elect does not become a Member 
    of Congress until he is sworn, he need not meet the age and citizen 
    requirements of the Constitution until he appears to take the oath 
    of office (Senate decision).

    On Jan. 3, 1935,(12) the opening day of the 74th 
Congress, the oath was not administered to Rush D. Holt, Senator-elect 
from West Virginia, who was absent. In subsequent proceedings in the 
Senate, a contestant to Mr. Holt's seat asked that the election be 
voided on the ground that Mr. Holt was not yet 30 years old when 
elected and that he therefore did not meet the qualification stated in 
article I, section 3, clause 3, of the United States Constitution. The 
right of Mr. Holt to the seat was referred to the Committee on 
Privileges and Elections.
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12. 79 Cong. Rec. 8, 74th Cong. 1st Sess.
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    On June 19, 1935,(13) the committee submitted its report 
to the Senate. The majority report pro

[[Page 760]]

posed that Mr. Holt be seated and sworn, since he met the age 
qualification when he ``presented himself to the Senate to take the 
oath and to assume the duties of the office.'' (14) The 
committee had concluded, based upon constitutional interpretation and 
upon precedents of the House and of the Senate, that the residency 
requirement of article I, section 3, clause 3, must be met at the time 
of election, but that the age and citizenship requirement need not be 
satisfied until an elected Member of Congress presents himself to take 
the oath.(15)
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13. 79 Cong. Rec. 9651-53, 74th Cong. 1st Sess.
14. 79 Cong. Rec. 9653, 74th Cong. 1st Sess. The report, No. 904, was 
        reprinted in the Record, id. at pp. 9651-53.
15. The age, citizenship, and residency qualifications for Members of 
        the House, at U.S. Const. art. I, Sec. 2, clause 2, have the 
        same phrasing as the Senate requirements (the only difference 
        being the number of years for age and citizenship), and are 
        therefore subject to the same constitutional interpretation. 
        See 1 Hinds' Precedents Sec. 418; cf. 1 Hinds' Precedents 
        Sec. Sec. 429, 499.
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    On June 21, 1935,(16) the Senate rejected a substitute 
amendment voiding Mr. Holt's election and adopted the original 
resolution, seating Mr. Holt and specifically referring to his 
satisfaction of the age requirement upon presenting himself to take the 
oath.
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16. 79 Cong. Rec. 9841, 9842, 74th Cong. 1st Sess.
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Sec. 10.3 Where the right to a seat of a Representative-elect was 
    challenged on the ground that he had forfeited his rights as a 
    citizen by reason of a felony conviction, the House authorized the 
    Speaker to administer the oath but referred the question of final 
    right to an election committee.

    On Mar. 10, 1933,(17) the right of Francis H. Shoemaker, 
of Minnesota, to be sworn in was challenged on the ground that he had 
been convicted of a felony, and that under the Minnesota state 
constitution any felony conviction resulted in the loss of citizenship, 
unless restored by the state legislature.(18)
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17. 77 Cong. Rec. 131-39, 73d Cong. 1st Sess.
18.  Id. at p. 134.
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    Since, however, Mr. Shoemaker had been convicted of a federal and 
not a state felony, and the conviction involved no moral turpitude, the 
House adopted a resolution authorizing Mr. Shoemaker to be sworn but 
referring the question of his final right to a seat to an elections 
committee: (19)
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19. Id. at pp. 137-39.
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        The Speaker: (20) The pending business is the 
    seating of Mr. Francis H.

[[Page 761]]

    Shoemaker, of Minnesota. Without objection, the Clerk will again 
    report the resolution offered by the gentleman from California [Mr. 
    Carter].
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20. Henry T. Rainey (Ill.).
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        The Clerk read as follows:
        Mr. Carter of California offers the following resolution:

            Whereas it is charged that Francis H. Shoemaker, a 
        Representative elect to the Seventy-third Congress from the 
        State of Minnesota, is ineligible to a seat in the House of 
        Representatives; and
            Whereas such charge is made through a Member of this House, 
        on his responsibility as such Member and on the basis, as he 
        asserts, of public records, statements, and papers evidencing 
        such ineligibility: Therefore
            Resolved, That the question of prima facie right of Francis 
        H. Shoemaker to be sworn in as Representative from the State of 
        Minnesota in the Seventy-third Congress, as well as of his 
        final right to a seat therein as such Representative, be 
        referred to the Committee on Elections No. 1, when elected, and 
        until such committee shall report upon and the House decide 
        such questions and right the said Francis H. Shoemaker shall 
        not be sworn in or be permitted to occupy a seat in the House, 
        and said committee shall have power to send for persons and 
        papers and examine witnesses on oath in relation to the subject 
        matter of this resolution. . . .

        The Clerk read as follows:
        Substitute resolution offered by Mr. Kvale:

            Resolved, That the Speaker is hereby authorized and 
        directed to administer the oath of office to the gentleman from 
        Minnesota, Mr. Francis H. Shoemaker;
            Resolved, That the question of the final right of Francis 
        H. Shoemaker to a seat in the Seventy-third Congress be 
        referred to the Committee on Elections No. 2, when elected, and 
        said committee shall have the power to send for persons and 
        papers and examine witnesses on oath in relation to the subject 
        matter of this resolution. . . .

        The Speaker: Under the unanimous-consent agreement, the 
    previous question is ordered.
        The question is on agreeing to the substitute resolution.
        The question was taken; and the Chair being in doubt, the House 
    divided and there were--ayes 230, noes 75.
        So the substitute resolution was agreed to.
        The Speaker: The question now recurs on the resolution as 
    amended by the substitute.
        Mr. [Paul J.] Kvale [of Minnesota]: Mr. Speaker, a 
    parliamentary inquiry.
        The Speaker: The gentleman will state it.
        Mr. Kvale: Mr. Speaker, at what stage would it be in order to 
    move to strike the preamble from the original resolution?
        The Speaker: Immediately after the vote on the resolution.
        The resolution, as amended, was agreed to.

        By unanimous consent, the preamble was stricken from the 
    resolution, and a motion to reconsider laid on the table.
        Hon. Francis H. Shoemaker, of the State of Minnesota, appeared 
    at the bar of the House and received the oath of office.

Inhabitancy

Sec. 10.4 In the 90th Congress, challenges to a seat were

[[Page 762]]

    based on the failure to satisfy the state inhabitancy qualification 
    but were not affirmed by the House, which excluded the Member-elect 
    on other grounds.

    On Mar. 1, 1967, the House excluded Adam C. Powell, Member-elect 
from New York, for prior misconduct as a Member of the 
House.(1) House Resolution No. 278, excluding Mr. 
Powell,(2) stated that Mr. Powell had met the constitutional 
qualifications of age, citizenship, and inhabitancy, although 
challenges had been made on Jan. 10, 1967, on Feb. 28, 1967, and on 
Mar. 1, 1967, to Mr. Powell's status as an inhabitant of the State of 
New York.
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 1. See Sec. 9.3, supra, for a synopsis of the proceedings.
 2. See 113 Cong. Rec. 4997 (original resolution) and 5020 (adopted 
        amendment), 90th Cong. 1st Sess., Mar. 1, 1967.
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    On Jan. 10, 1967, during debate on whether Mr. Powell should be 
seated, Mr. Samuel Stratton, of New York, arose to state:

        If a Representative-elect chooses to remain outside of his 
    State rather than comply with the duly constituted orders of the 
    courts of his own State, then I believe there is a very real 
    question of whether he is in fact still a resident of the State 
    which he purports to represent as the Constitution says he must 
    be.(3)
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 3. 113 Cong. Rec. 20, 90th Cong. 1st Sess. Congress has decided that a 
        Member must meet the inhabitancy requirement at the time of the 
        election, but need not satisfy the age and citizenship 
        requirements until appearing to be sworn. See Sec. Sec. 10.1, 
        10.2, supra.
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    On the same day, Mr. Theodore Kupferman, of New York, arose to 
state that he also doubted that Mr. Powell was a resident of New York, 
since he was absent during House proceedings on an issue important to 
the State of New York, and was in Bimini.(4)
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 4. Id. at p. 21.
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    On Feb. 28, 1967, shortly before the House considered Mr. Powell's 
right to a seat, Mr. Stratton stated that he intended to offer an 
amendment to the resolution granting Mr. Powell his seat, in order to 
demand that Mr. Powell subject himself to the New York State courts, to 
satisfy the inhabitancy requirement of the Constitution. Mr. Stratton 
quoted from a committee report of the 70th Congress:

        We think that a fair interpretation of the letter and the 
    spirit of this paragraph with respect to the word ``inhabitant'' is 
    that the framers intended that for a person to bring himself within 
    the scope of its meaning he must have and occupy a place of abode 
    within the particular State in which he claims inhabitancy, and 
    that he must have openly and avowedly by act and by word subjected 
    himself to the duties and responsibilities of a member of the body 
    politic of that particular State.(5)
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 5. 113 Cong. Rec. 4772, 90th Cong. 1st Sess. The report cited by Mr. 
        Stratton was submitted in the case of James Beck (see 6 
        Cannon's Precedents Sec. 174), wherein the House found to be an 
        inhabitant of Pennsylvania a Member who occupied an apartment 
        in Pennsylvania one or more times each week, and exercised his 
        civic rights there, although owning summer homes and residences 
        in other states.

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[[Page 763]]

    On Mar. 1, 1967, Mr. Fletcher Thompson, of Georgia, stated that he 
intended to offer an amendment stating that Mr. Powell was not entitled 
to a seat in the House since he had abandoned inhabitancy in New York 
prior to election.(6)
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 6. 113 Cong. Rec. 4993, 90th Cong. 1st Sess.
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    When the House excluded Mr. Powell, however, the resolution of 
exclusion admitted Mr. Powell's satisfaction of the inhabitancy 
qualification but excluded him on other grounds.(7)
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 7. H. Jour. 313, 314, 90th Cong. 1st Sess., Mar. 1, 1967. For Speaker 
        John W. McCormack's responses to parliamentary inquiries 
        related to the meaning of the adopted resolution and preamble 
        in regards to the inhabitancy qualification, see 113 Cong. Rec. 
        5038, 90th Cong. 1st Sess., Mar. 1, 1967.
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