[Deschler's Precedents, Volume 2, Chapters 7 - 9]
[Chapter 7. The Members]
[C. Qualifications and Disqualifications]
[§ 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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