[Constitution, Jefferson's Manual, and the Rules of the House of Representatives, 105th Congress]
[105th Congress]
[House Document 104-272]
[The United States Constitution]
[Pages 4-61]
[From the U.S. Government Publishing Office, www.gpo.gov]



[[Page 4]]
 

                               ARTICLE I.




Sec. 3. Legislative powers vested in 
Congress.

  Section 1. All  legislative Powers herein granted shall be vested in a 
Congress of the United States, which shall consist of a Senate and House 
of Representatives.



<>   Section 2. \1\ The House of Representatives shall be composed 
of Members chosen every second Year by the People of the several States, 
* * *.



Sec. 4. Power to 
investigate.

  The power to legislate includes the power to conduct inquiries and 
investigations. See Kilbourn v.   Thompson, 103 U.S. 168 (1881); McGrain v. Daugherty, 273 
U.S. 135 (1927); Watkins v. United States, 354 U.S. 178 (1957); 
Barenblatt v. United States, 360 U.S. 109 (1959). For the power of the 
House to punish for contempt in the course of investigations, see 
Sec. 293, infra.


  This clause requires election by the people and State authority may 
not determine a tie by lot (I, 775).

  The phrase ``by the people of the several States'' means that as 
nearly as practicable one person's vote in a congressional election is 
to be worth as much as another's. Wesberry v. Sanders, 376 U.S. 1 
(1964); Kirkpatrick v. Preisler, 385 U.S. 450 (1967). 2 U.S.C. 2a 
mandates apportionment of Representatives based upon population, and 2 
U.S.C. 2c requires the establishment by the States of single-Member 
congressional districts. For elections generally, see Deschler's 
Precedents, vol. 2, ch. 8.


[[Page 5]]

resolution fixing the daily hour of meeting at 12 
o'clock meridian or some other hour is agreed to at the beginning of 
each session.


Sec. 6. Term of a Congress.

  The term of a  Congress, before 
the ratification of the 20th amendment to the Constitution, began on the 
4th of March of the odd numbered years and extended through two years. 
This resulted from the action of the Continental Congress on September 
13, 1788, in declaring, on authority conferred by the Federal 
Convention, ``the first Wednesday in March next'' to be ``the time for 
commencing proceedings under the said Constitution.'' This date was the 
4th of March, 1789. And soon after the first Congress assembled a joint 
committee determined that the terms of Representatives and Senators of 
the first class commenced on that day, and must necessarily terminate 
with the 3d of March, 1791 (I, 3). Under the 20th amendment to the 
Constitution the terms of Representatives and Senators begin on the 3d 
of January of the odd-numbered years, regardless of when Congress 
actually convenes. By a practice having the force of common law, the 
House meets at 12 m. when no other hour is fixed (I. 4, 210). In the 
later practice a 


  Prior to adoption of the 20th amendment, the legislative day of March 
3 extended to 12 m. on March 4 (V, 6694-6697) and, unless earlier 
adjourned, the Speaker could at that time declare the House adjourned 
sine die, without motion or vote, even to the point of suspending a roll 
call then in progress (V, 6715-6718).


<> * * * and 
the Electors in each State shall have the Qualifications requisite for 
Electors of the most numerous Branch of the State Legislature.

  The Legislative Reorganization Act of 1970 (84 Stat. 1140) provides 
that unless Congress otherwise specifies the two Houses shall adjourn 
sine die not later than the last day in July. This requirement is not 
applicable, under the terms of that Act, where a state of war exists 
pursuant to a Congressional declaration or where, in an odd-numbered 
(non-election) year, the Congress has agreed to adjourn for the month 
preceding Labor Day. For more on this provision, see Sec. 947, infra.

  The House, in the decision of an election case, has rejected votes 
cast by persons not naturalized citizens of the United States, although 
they were entitled to vote under the statutes of a State (I, 811); but 
where an act of Congress had provided that a certain class of persons 
should be deprived of citizenship, a question arose over the proposed 
rejection of their votes in a State wherein citizenship in the United 
States was not a qualification of the elector (I, 451). In an 
exceptional case the House rejected votes cast by persons lately in 
armed resistance to the Government, although by the law of the State 
they were qualified voters (I, 448); but later, the House declined to 
find persons disqualified as voters because they had formerly borne arms 
against the Government (II, 879).



Sec. 8. Decisions of the Court.

  The power  of the States to 
set qualifications for electors is not unlimited, being subject to the 
15th, 19th, 24th, and 26th amendments, and to the equal protection 
clause of the United States Constitution. Carrington v. Rash, 380 U.S. 
89 (1965); Kramer v. Union Free School District, 395 U.S. 621 (1969).



<>   \2\ No 
Person shall be a Representative who shall not have attained to the Age 
of twenty five Years, * * *.

[[Page 6]]

  Congress has some power in setting qualifications for electors, as in 
protecting the right to vote and lowering the minimum age for electors 
in congressional elections. Katzenbach v. Morgan, 384 U.S. 641 (1966); 
Oregon v. Mitchell, 400 U.S. 112 (1970).


<> * * * 
and been seven Years a Citizen of the United States, * * *.

  A Member-elect not being of the required age, was not enrolled by the 
Clerk and he did not take the oath until he had reached the required age 
(I, 418).


<> * * * 
and who shall not, when elected, be an Inhabitant of that State in which 
he shall be chosen.

  Henry Ellenbogen, Pa., had not been a citizen for seven years when 
elected to the 73d Congress, nor when the term commenced on March 4, 
1933. He was sworn at the beginning of the second session on January 3, 
1934, when a citizen for seven and one-half years (see H. Rept. 1431 and 
H. Res. 370, 73d Cong.). A native of South Carolina who had been abroad 
during the Revolution and on his return had not resided in the country 
seven years, was held to be qualified as a citizen (I, 420). A woman who 
forfeited her citizenship through marriage to a foreign subject and 
later resumed it through naturalization less than seven years prior to 
her election, was held to fulfill the constitutional requirement as to 
citizenship and entitled to a seat in the House (VI, 184). A Member who 
had long been a resident of the country, but who could not produce 
either the record of the court nor his final naturalization papers, was 
nevertheless retained in his seat by the House (I, 424).


[[Page 7]]

bia for years as a newspaper correspondent and maintenance there of 
church membership were not considered to outweigh payment of poll and 
income taxes, ownership of real estate, and a record for consistent voting 
in the district from which elected (VI, 55), and in the same case excuse 
from jury duty in the District of Columbia on a plea of citizenship in 
the State from which elected and exercise of incidental rights of such 
citizenship, were accepted as evidence of inhabitancy (VI, 55).
  The meaning of the word ``inhabitant'' and its relation to citizenship 
has been discussed (I, 366, 434; VI, 174), and the House has held that a 
mere sojourner in a State was not qualified as an inhabitant (I, 369), 
but a contestant was found to be an actual inhabitant of the State 
although for sufficient reason his family resided in another State (II, 
1091). Residence abroad in the service of the Government does not 
destroy inhabitancy as understood under the Constitution (I, 433). One 
holding an office and residing with his family for a series of years in 
the District of Columbia exclusively was held disqualified to sit as a 
Member from the State of his citizenship (I, 434); and one who had his 
business and a residence in the District of Columbia and had no business 
or residence in Virginia was held ineligible to a seat from that State 
(I, 436). One who had a home in the District of Columbia, and had 
inhabited another home in Maryland a brief period before his election, 
but had never been a citizen of any other State, was held to be 
qualified (I, 432). Also a Member who had resided a portion of a year in 
the District of Columbia, but who had a home in the State of his 
citizenship and was actually living there at the time of the election, 
was held to be qualified (I, 435). In the Updike v. Ludlow case, 71st 
Congress, it was decided that residence in the District of Colum-



Sec. 12. Qualifications other than those 
specified by the Constitution.

  Whether Congress  may by law establish qualifications 
other than those prescribed by the Constitution has been the subject of 
much discussion (I, 449, 451, 457, 458, 478); but in a case wherein a 
statute declared a Senator convicted of a certain offense ``forever 
thereafter incapable of holding any office of honor, trust, or profit 
under the Government of the United States,'' the Supreme Court expressed 
the opinion that the final judgment of conviction did not operate, ipso 
facto, to vacate the seat or compel the Senate to expel or regard the 
Senator as expelled by force alone of the judgment (II, 1282). Whether 
the House or Senate alone may set up qualifications other than those of 
the Constitution has also been a subject often discussed (I, 414, 415, 
443, 457, 458, 469, 481, 484). The Senate has always declined to act on 
the supposition that it had such a power (I, 443, 483), and during the 
stress of civil war the House of Representatives declined to exercise 
the power, even under circumstances of great provocation (I, 449, 465). 
But later, in one instance, the House excluded a Member-elect on the 
principal argument that it might itself prescribe a qualification not 
specified in the Constitution (I, 477). The matter was extensively 
debated in the 90th Congress in connection with the consideration of 
resolutions relating to the seating of Representative-elect Adam C. 
Powell of New York (H. Res. 1, Jan. 10, 1967, p. 14; H. Res. 278, Mar. 
1, 1967, p. 4997).


  The exclusion of Mr. Powell was the subject of litigation reaching the 
Supreme Court of the United States. In Powell v. McCormack, 395 U.S. 486 
(1969), the Court found that the power of Congress to judge the 
qualifications of its Members was limited to an examination of the 
express qualifications stated in the Constitution.

  It has been decided by the House and Senate that no State may add to 
the qualifications prescribed by the Constitution (I, 414-416, 632); and 
the Supreme Court so ruled in U.S. Term Limits, Inc., v. Thorton, 63 
U.S.L.W. 4413 (1995). There, the Court held that States may not 
``change, add to, or diminish'' constitutional qualifications of 
Members, striking down a State statute prohibiting three-term incumbents 
from appearing on the general election ballot. For qualifications 
generally, see Deschler's Precedents, vol. 2, ch. 7, secs. 9-14.


[[Page 8]]

  For expulsion of seated Members, which requires a two-thirds vote 
rather than a majority vote, see article I, section 5, clause 2 
(Sec. 62, infra).




Sec. 13. Minority candidate not seated when 
returned Member is disqualified.

  Both Houses of  Congress have decided, when a Member-
elect is found to be disqualified, that the person receiving the next 
highest number of votes is not entitled to the seat (I, 323, 326, 450, 
463, 469; VI, 58, 59), even in a case wherein seasonable notice of the 
disqualification was given to the electors (I, 460). In the event of the 
death of a Member-elect, the candidate receiving the next highest number 
of votes is not entitled to the seat (VI, 152).





Sec. 14. The old provision for 
apportionment of Representatives and direct taxes.

  \3\ [Representatives and direct  Taxes shall be 
apportioned among the several States which may be included within this 
Union, according to their respective Numbers, which shall be determined 
by adding to the whole Number of free Persons, including those bound to 
Service for a Term of Years, and excluding Indians not taxed, three 
fifths of all other Persons.] * * *



* * * The actual <> Enumeration shall be made within three Years after the 
first Meeting of the Congress of the United States, and within every 
subsequent Term of ten Years, in such Manner as they shall by Law 
direct. The Number of Representatives shall not exceed one for every 
thirty Thousand, but each State shall have at Least one Representative; 
and until such enumeration shall be made, the State of New Hampshire 
shall be entitled to chuse three, Massachusetts eight, Rhode- Island and 
Providence Plantations one, Connecticut five, New York six, New Jersey 
four, Pennsylvania eight, Delaware one, Maryland 

[[Page 9]]

six, Virginia ten, North Carolina five, South Carolina five, and Georgia three.

  The part of this clause relating to the mode of apportionment of 
Representatives was changed after the Civil War by section 2 of the 14th 
amendment and as to taxes on incomes without apportionment, by the 16th 
amendment.

  The census has been taken decennially since 1790, and, with the 
exception of 1920, was followed each time by reapportionment. In the 
First Congress the House had 65 Members; increased after each census, 
except that of 1840, until 435 was reached in 1913 (VI, 39, 40). The Act 
of June 18, 1929 (46 Stat. 26), as amended by the Act of November 15, 
1941 (55 Stat. 761), provides for reapportionment of the existing number 
(435) among the States following each new census (VI, 41-43; see 2 
U.S.C. 2a). Membership was temporarily increased to 436, then to 437, 
upon admission of Alaska (72 Stat. 345) and Hawaii (73 Stat. 8), but 
returned to 435 on January 3, 1963, the effective date of the 
reapportionment under the 18th Decennial census.

  Under the later but not the earlier practice, bills relating to the 
census and apportionment are not privileged for consideration (I, 305-
308; VI, 48, VII, 889; Apr. 8, 1926, p. 7147).




Sec. 16. Decisions of the Court.

  Decisions  of the Supreme 
Court of the United States: Dred Scott v. Sandford, 19 Howard, 393; 
Veazie Bank v. Fenno, 8 Wall., 533; Scholey v. Rew, 23 Wall., 331; De 
Treville v. Smalls, 98 U.S. 517; Gibbons v. District of Columbia, 116 
U.S. 404; Pollock v. Farmers Loan & Trust Co. (Income Tax case), 157 
U.S. 429; Pollock v. Farmers' Loan & Trust Co. (Rehearing), 158 U.S. 
601; Thomas v. United States, 192 U.S. 363; Flint v. Stone Tracy Co., 
220 U.S. 107; Corporation Tax cases, 220 U.S. 107; Eisner v. Macomber, 
252 U.S. 189; New York Trust Co. v. Eisner, 256 U.S. 345.





Sec. 17. Writs for elections to vacancies 
in representation.

  \4\ When vacancies  happen in the Representation from any State, the 
Executive Authority thereof shall issue Writs of Election to fill such 
Vacancies.


  Vacancies are caused by death, resignation, declination, withdrawal, 
or by action of the House in declaring a vacancy as existing or causing 
one by expulsion.


[[Page 10]]

of votes may not receive the credentials (I, 323; VI 152). A Member whose 
seat was contested dying, the House did not admit a claimant with 
credentials until contestant's claim was settled (I, 326); where a 
contestant died after a report in his favor, the House unseated the 
returned Member and declared the seat vacant (II, 965), and in a later 
case the contestant having died, the committee did not recommend to the 
House a resolution it had agreed to declaring he had not been elected 
(VI, 112). In the 93d Congress, where two Members-elect had been 
passengers on a missing aircraft and were presumed dead, the Speaker lay 
before the House documentary evidence of the presumptive death of one 
Member-elect and the declaration of a vacancy by the Governor, as-well-
as evidence that the status of the other Member-elect had not been 
officially determined by State authority. The House then adopted a 
privileged resolution declaring vacant the seat of the latter Member-
elect to enable the Governor of that State to call a special election 
(Jan. 3, 1973, pp. 15-16). For further discussion, see Sec. 23, infra.


Sec. 18. Vacancy from death.

  It was long the  practice to 
notify the executive of the State when a vacancy was caused by the death 
of a Member during a session (II, 1198-1202); but since improvements in 
transportation have made it possible for deceased Members to be buried 
at their homes it has been the practice for State authorities to take 
cognizance of the vacancies without notice. When a Member dies while not 
in attendance on the House or during a recess the House is sufficiently 
informed of the vacancy by the credentials of his successor, when they 
set forth the fact of the death (I, 568). The death of a Member-elect 
creates a vacancy, although no certificate may have been awarded (I, 
323), and in such a case the candidate having the next highest number 



[[Page 11]]

ignation was not so treated (II, 1213). The Speaker 
having been elected Vice President and a Representative of the 
succeeding Congress at the same election, transmitted to the Governor of 
his State his resignation as a Member-elect (VI, 230, 453). A Member of 
the House having been nominated and confirmed as Vice President pursuant 
to the 25th amendment, submitted a letter of resignation as a 
Representative to the Governor of his State, and a copy of his letter of 
resignation was laid before the House by the Speaker following the 
completion of a Joint Meeting for his swearing-in as Vice President 
(Dec. 6, 1973, p. 39927). A sitting Member having been confirmed as 
Secretary of Defense, his letter of resignation was laid before the 
House prior to his taking the oath of that office (Mar. 20, 1989, p. 
4976).


Sec. 19. Vacancy from resignation.

  In recent practice  the 
Member frequently informs the House by letter that his resignation has 
been sent to the State executive (II, 1167-1176) and this is 
satisfactory evidence of the resignation (I, 567) but Members have 
resigned by letter to the House alone, it being presumed that the Member 
would also notify his Governor (VI, 226), and where a Member resigned by 
letter to the House the Speaker was authorized to notify the Governor 
(Nov. 27, 1944, p. 8450; July 12, 1957, p. 11536; Sept. 1, 1976, p. 
28887). Where a Member does not inform the House the State executive may 
do so (II, 1193, 1194; VI, 232). But sometimes the House learns of a 
Member's resignation only by means of the credentials of his successor 
(II, 1195, 1356). Where the fact of a Member's resignation has not 
appeared either from the credentials of his successor or otherwise, the 
Clerk has been ordered to make inquiry (II, 1209), or the House has 
ascertained the vacancy from information given by other Members (II, 
1208). It has been established that a Member or Senator may resign, 
appointing a future date for his resignation to take effect, and until 
the arrival of the date may participate in the proceedings (II, 1220-
1225, 1228, 1229; VI, 227, 228). In one case a Member who had resigned 
was not permitted by the House to withdraw the resignation (II, 1213), 
but the House permitted it later in another case (VI, 229). Acceptance 
of the resignation of a Member of the House is unnecessary (VI, 65, 
226), and the refusal of a Governor to accept a resignation cannot 
operate to continue membership in the House (VI, 65). Only in a single 
exceptional case has the House taken action in the direction of 
accepting a resignation (II, 1214). Sometimes Members who have resigned 
have been reelected to the same House and taken seats (II, 1210, 1212, 
1256; Jan. 28, 1965 and June 16, 1965, pp. 1452 and 13774; Jan. 6, 1983 
and Feb. 22, 1983, pp. 114 and 2575). A Member who has not taken his 
seat resigned (II, 1231). A letter of resignation is presented as 
privileged (II, 1167-1176); but a resolution to permit a Member to 
withdraw his res-




Sec. 20. Vacancy from declination.

  A Member who  has been 
elected to a seat may decline to accept it, and in such a case the House 
informed the executive of the State of the vacancy (II, 1234). The House 
has decided an election contest against a returned Member who had not 
appeared to claim the seat (I, 638). In one instance a Member-elect who 
had been convicted in the courts did not appear during the term (IV, 
4484, footnote).




Sec. 21. Vacancy by withdrawal.

  At the time  of the secession 
of several States, members of the House from those States withdrew (II, 
1218). In the Senate, in cases of such withdrawals, the Secretary was 
directed to omit the names of the Senators from the roll (II, 1219), and 
the act of withdrawal was held to create a vacancy which the legislature 
might recognize (I, 383).




Sec. 22. Vacancy by action of the House.

  Where the House,  by 
its action in a question of election or otherwise, creates a vacancy, 
the Speaker is directed to notify the Executive of the State (I, 502, 
709, 824; II, 1203-1205; Mar. 1, 1967, p. 5038; Jan. 3, 1973, pp. 15-16; 
Feb. 24, 1981, pp. 2916-18). A resolution as to such notification is 
presented as a question of privilege (III, 2589), as is a resolution 
declaring a vacancy where the Member-elect was unable to take the oath 
of office or to resign because of an incapacitating illness (Feb. 24, 
1981, pp. 2916-18).



[[Page 12]]

where the plane was lost, the House declared the seat vacant 
(H. Res. 1, 93d Cong., Jan. 3, 1973, pp. 15-16).


Sec. 23. Questions as to the existence of a 
vacancy.

  The House declines  to give prima facie effect to credentials, even though they 
be regular in form, until it has ascertained whether or not the seat is 
vacant (I, 322, 518, 565, 569), and a person returned as elected at a 
second election was unseated on ascertainment that another person had 
actually been chosen at the first election (I, 646). Where a Member was 
reelected to the House, although at the time of the election he had been 
unaccounted for for several weeks following the disappearance of the 
plane on which he was a passenger, the Governor of the State from which 
he was elected transmitted his certificate to the House in the regular 
fashion. When the Member-elect was still missing at the time the new 
Congress convened, and circumstances were such that other passengers on 
the missing plane had been presumed dead following judicial inquiries in 
the State 



<>   \5\ 
The House of Representatives shall chuse their Speaker and other 
Officers; * * *



Sec. 24. Functions of the state executive 
in filling vacancies.

  The term ``vacancy''  as occurring in this paragraph of the 
Constitution has been examined in relation to the functions of the State 
executive (I, 312, 518). A federal law empowers the States and 
Territories to provide by law the times of elections to fill vacancies 
(I, 516; 2 U.S.C. 8); but an election called by a governor in pursuance 
of constitutional authority was held valid although no state law 
prescribed time, place, or manner of such election (I, 517). Where two 
candidates had an equal number of votes, the governor did not issue 
credentials to either, but ordered a new election after they had waived 
their respective claims (I, 555). A candidate elected for the 104th 
Congress was ``appointed'' by the Governor to fill a vacancy for the 
remainder of the 103d Congress pursuant to a State law requiring the 
Governor to appoint the candidate who won the election to the 104th 
Congress. In that case the House authorized the Speaker to administer 
the oath to the Member-elect and referred the question of his final 
right to the seat in the 103d Congress to the Committee on House 
Administration (Nov. 29, 1994, p. ----).
<>   A 
Member elected to fill a vacancy serves no longer time than the 
remainder of the term of the Member whose place he fills (I, 3). For the 
compensation and allowances of such Members, see Sec. 87, infra.


  The officers of the House are the Speaker, who has always been one of 
its Members and whose term as Speaker must expire with his term as a 
Member; and the Clerk, Sergeant-at-Arms, Doorkeeper (abolished by the 
104th Congress, see Sec. 651d, infra), Postmaster (abolished during the 
102d Congress, see Sec. 654a, infra), Chief Administrative Officer, and 
Chaplain (I, 187), no one of whom has ever been chosen from the sitting 
membership of the House, and who continue in office until their 
successors are chosen and qualified (I, 187), in one case continuing 
through the entire Congress succeeding that in which they were elected 
(I, 244, 263). The House formerly provided by special rule that the 
Clerk should continue in office until another should be chosen (I, 187, 
188, 235, 244); and in later years the statutes have imposed on the 
Clerk, Sergeant-at-Arms, and former Doorkeeper duties which contemplate 
their continuance (I, 14, 15; 2 U.S.C. 75a-1, 83).


[[Page 13]]

quorum being present (I, 216; VI, 24; Jan. 7, 1997, p. ----). The Clerk appoints 
tellers for this election (I, 217). Ultimately, the House, and not the 
Clerk, decides by what method it shall elect the Speaker (I, 210). On 
two occasions, by special rules, Speakers were chosen by a plurality of 
votes; but in each case the House by majority vote adopted a resolution 
declaring the result (I, 221, 222). The House has declined to choose a 
Speaker by lot (I, 221).


Sec. 27. Election of a Speaker.

  The Speaker, who  was at 
first elected by ballot, has been chosen by viva voce vote by surname in 
response to a call of the roll since 1839 (I, 187). The Speaker is 
elected by a majority of Members-elect voting by surname, a 


  The motion to proceed to the election of a Speaker is privileged (I, 
212, 214; VIII, 3883), and debatable unless the previous question is 
ordered (I, 213). Relying on the Act of June 1, 1789 (2 U.S.C. 25), the 
Clerk recognized for nominations for Speaker as being of higher 
constitutional privilege than a resolution to postpone the election of a 
Speaker and instead provide for the election of a Speaker pro tempore 
pending the disposition of certain ethics charges against the nominee of 
the majority party (Jan. 7, 1997, p. ----). On several occasions the 
choice of a Speaker has been delayed for several weeks by contests (I, 
222; V, 5356, 6647, 6649; VI, 24). The contest over the election of a 
Speaker in 1923 was resolved after a procedure for the adoption of rules 
for the 68th Congress had been presented (VI, 24). In 1860 the voting 
for Speaker proceeded slowly, being interspersed with debate (I, 223), 
and in one instance the House asked candidates for Speaker to state 
their views before proceeding to election (I, 218).


[[Page 14]]

Speaker and, following the roll call, declared 
Representative Foley ``duly elected Speaker'' (p. 10801). When the 
Speaker resigns no action of the House excusing him from service is 
taken (I, 232). In one instance a Speaker resigned on the last day of 
the Congress, and the House elected a successor for the day (I, 225). 
Instance wherein the Speaker, following a vote upon an essential 
question indicating a change in the party control of the House, 
announced that under the circumstances it was incumbent upon the Speaker 
to resign or to recognize for a motion declaring vacant the office of 
Speaker (VI, 35).
<>   The effect of a law to regulate the action of the House in 
choosing its own officers has been discussed (IV, 3819), and such a law 
has been considered of doubtful validity (V, 6765, 6766) in theory and 
practice (I, 241, 242). The Legislative Reorganization Act of 1946 (2 
U.S.C. 75a-1) authorizes the Speaker to fill temporary vacancies in the 
offices of Clerk, Sergeant-at-Arms, Chief Administrative Officer, and 
Chaplain. For a history of the Speaker's exercise of such authority, see 
Sec. 635, infra;  and, for further information on the elections of 
officers, see Deschler's Precedents, vol. 1, ch. 6.


Sec. 28. Vacancies in the office of 
Speaker.

  The Speaker  having died during the recess of Congress, the Clerk at the 
next session called the House to order, ascertained the presence of a 
quorum, and then the House proceeded to elect a successor (I, 234; Jan. 
10, 1962, p. 5). Speaker Joseph W. Byrns having died during a session of 
Congress but not while the House was sitting, the Clerk on the following 
day called the House to order and his successor, Hon. William B. 
Bankhead, was elected by resolution (June 4, 1936, p. 9016). Speaker 
Bankhead also died during a session, on a day when the House was not 
meeting. The Clerk on the following day called the House to order and 
Hon. Sam Rayburn was elected by resolution (Sept. 16, 1940, p. 12231). 
Form of resolution offered on death of a Speaker (Sept. 16, 1940, p. 
12232; Jan. 10, 1962, p. 9) and a former Speaker (VIII, 3564; Mar. 7, 
1968, p. 5742). A resolution declaring vacant the office of Speaker is 
presented as a matter of high constitutional privilege (VI, 35). A 
proposition to elect a Speaker is in order at any time and presents a 
question of the highest privilege (VIII, 3383). Speakers have resigned 
by rising in their place and addressing the House (I, 231, 233), by 
calling a Member to the Chair and tendering the resignation verbally 
from the floor (I, 225), or by sending a letter which the Clerk reads to 
the House at the beginning of a new session (I, 232). In the 101st 
Congress, Speaker Wright took the floor on a question of personal 
privilege, to respond to charges made against him, and announced his 
intention to resign as Speaker ``on the election of my successor'' (May 
31, 1989, p. 10440). On June 6, 1989, Speaker Wright entertained 
nominations for 



<> * * * and 
[the House of Representatives] shall have the sole Power of Impeachment.



Sec. 30. Election of Clerk in relation to 
business.

  The office of  Clerk becoming vacant, it was held that the House would not 
be organized for business until a Clerk should be elected (I, 237); but 
in another instance some business intervened before a Clerk was elected 
(I, 239). At the time of organization, while the Clerk of the preceding 
House was yet officiating, and after the Speaker had been elected, the 
House proceeded to legislation and other business before electing a 
Clerk (I, 242, 244). But in one case it was held that the law of 1789 
(see 2 U.S.C. 25) bound the House to elect the Clerk before proceeding 
to business (I, 241).


  In 1868 the Senate ceased in its rules to describe the House, acting 
in an impeachment, as the ``grand inquest of the nation'' (III, 2126). 
See also art. II, sec. 4 (Sec. 173, infra); Deschler's Precedents, vol. 
3, ch. 14.



  A federal court having subpoenaed certain evidence gathered by a 
committee of the House in an impeachment inquiry, the House adopted a 
resolution granting such limited access to the evidence as would not 
infringe upon its sole power of impeachment (Aug. 22, 1974, p. 30047).


[[Page 15]]

islature thereof, for six Years; and each Senator 
shall have one Vote.]



Sec. 32. Numbers, terms, and votes 
of Senators.

  Section 3. \1\ [The Senate  of the United States shall be composed of two Senators 
from each State, chosen by the Leg-



  This provision has now been changed by the 17th amendment to the 
Constitution.




Sec. 33. Division of the Senate into 
classes.

  \2\ Immediately  after they shall be assembled in Consequence of the first 
Election, they shall be divided as equally as may be into three Classes. 
The Seats of the Senators of the first Class shall be vacated at the 
Expiration of the second Year, of the second Class at the Expiration of 
the fourth Year, and of the third Class at the Expiration of 
the <> sixth Year, 
so that one-third may be chosen every second Year; [and if Vacancies 
happen by Resignation,
or otherwise, during the Recess of the Legislature of any State, the 
Executive thereof may make temporary Appointments until the next Meeting 
of the Legislature, which shall then fill such Vacancies.]



  That part of the above paragraph in brackets was changed by the 17th 
amendment.




Sec. 35. Qualifications of Senators.

  \3\ No Person  shall be 
a Senator who shall not have attained to the Age of thirty Years, and 
been nine Years a Citizen of the United States, and who shall not, when 
elected, be an Inhabitant of that State for which he shall be chosen.



[[Page 16]]

being a citizen of the United States, had been an 
inhabitant of the State from which he was appointed for less than a year 
(I, 437). Also one who, while stationed in a State as an army officer 
had declared his intention of making his home in the State, was admitted 
by the Senate (I, 438). A Senator who at the time of his election was 
actually residing in the District of Columbia as an officeholder, but 
who voted in his old home and had no intent of making the District his 
domicile, was held to be qualified (I, 439).

  In 1794 the Senate decided that Albert Gallatin was disqualified, not 
having been a citizen nine years although he had served in the war of 
Independence and was a resident of the country when the Constitution was 
formed (I, 428); and in 1849 that James Shields was disqualified, not 
having been a citizen for the required time (I, 429). But in 1870 the 
Senate declined to examine as to H. R. Revels, a citizen under the 
recently adopted 14th amendment (I, 430). As to inhabitancy the Senate 
seated one who, 




Sec. 36. The Vice President and his 
vote.

  \4\ The Vice  President of the United States shall be President of the Senate, 
but shall have no Vote, unless they be equally divided.



<>   \5\ The Senate shall chuse their other Officers, and 
also a President pro tempore, in the Absence of the Vice President, or 
when he shall exercise the Office of President of the United States.-
  The right of the Vice President to vote has been construed to extend 
to questions relating to the organization of the Senate (V, 5975), as 
the election of officers of the Senate (V, 5972-5974), or a decision on 
the title of a claimant to a seat (V, 5976, 5977). The Senate has 
declined to make a rule relating to the vote of the Vice President (V, 
5974).




Sec. 38. Senate tries impeachment and convicts 
by twothirds vote.

  \6\ The Senate  shall have the sole Power to try all Impeachments. 
When sitting for that Purpose, they shall be on Oath or Affirmation. 
When the President of the United States is tried, the Chief Justice 
shall preside: And no Person shall be convicted without the Concurrence 
of two thirds of the Members present.



[[Page 17]]

  For the exclusive power of the Senate to try impeachments under the 
United States Constitution, see Ritter v. United States, 84 Ct. Cls. 293 
(1936), cert. denied, 300 U.S. 668 (1937). See also Mississippi v. 
Johnson, 71 U.S. (4 Wall.) 475 (1867) (dictum). For the 
nonjusticiability of a claim that Senate Rule XI violates the 
impeachment trial clause by delegating to a committee of 12 Senators the 
responsibility to receive evidence, hear testimony, and report to the 
Senate thereon, see Nixon v. United States, 113 S. Ct. 732 (1993).

  In 1868, after mature consideration, the Senate overruled the old view 
of its functions (III, 2057), and decided that it sat for impeachment 
trials as the Senate and not as a court (III, 2057), and eliminated from 
its rules all mention of itself as a ``high court of impeachment'' (III, 
2079, 2082).



Sec. 39. The presiding officer.

  An anxiety lest  the Chief 
Justice might have a vote in the approaching trial of the President 
seems to have prompted this action (III, 2057). There was examination of 
the question of the Chief Justice's power to vote (III, 2098); but the 
Senate declined to declare his incapacity to vote, and he did in fact 
give a casting vote on incidental questions (III, 2067). The Senate 
declined to require that the Chief Justice be sworn when about to 
preside (III, 2080); but the Chief Justice had the oath administered by 
an associate justice (III, 2422).


  In impeachments for officers other than the President of the United 
States the presiding officer of the Senate presides, whether he be Vice 
President, the regular President pro tempore (III, 2309, footnote, 2337, 
2394) or a special President pro tempore chosen to preside at the trial 
only (III, 2089, 2477).




Sec. 40. Oath and quorum.

  Senators elected after  the 
beginning of an impeachment trial are sworn as in the case of other 
Senators (III, 2375). The quorum of the Senate sitting for an 
impeachment trial is a quorum of the Senate itself, and not merely a 
quorum of the Senators sworn for the trial (III, 2063). The vote 
required for conviction is two-thirds of those Senators present and 
voting (Oct. 20, 1989, p. 25335). In 1868, when certain States were 
without representation, the Senate declined to question its competency 
to try an impeachment case (III, 2060). See S. Doc. 93-102, ``Procedure 
and Guidelines for Impeachment Trials in the United States Senate,'' for 
precedents relating to the conduct of Senate impeachments.





Sec. 41. Judgment in cases of 
impeachment.

  \7\ Judgment in  Cases of Impeachment shall not extend further than to 
removal from Office, and disqualification to hold and enjoy any Office 
of honor, Trust or Profit under the United States: but the Party 
convicted shall nevertheless be liable and subject to Indictment, Trial, 
Judgment and Punishment, according to Law.



[[Page 18]]

nounced (III, 2397). The question on removal and 
disqualification has been held divisible for the vote (III, 2397; VI, 
512).
  There has been discussion as to whether or not the Constitution 
requires both removal and disqualification on conviction (III, 2397); 
but in the case of Pickering, the Senate decreed only removal (III, 
2341). In the case of Humphreys, judgment of both removal and 
disqualification was pro-

  The question of judgment requires only a majority vote (VI, 512; Apr. 
17, 1936, p. 5606).


  In the Ritter case, it was first held that upon conviction of the 
respondent, judgment of removal required no vote, following 
automatically from conviction under article II, section 4 (Apr. 17, 
1936, p. 5607). In the 99th Congress, having tried to conviction the 
first impeachment case against a federal district judge since 1936, the 
Senate ordered his removal from office (Oct. 9, 1986, p. 29870). In the 
101st Congress, two other federal district judges were removed from 
office following their convictions in the Senate (Oct. 20, 1989, p. 
25335; Nov. 3, 1989, p. 27101).




Sec. 42. Times, places, and manner 
of elections of Representatives and Senators.

  Section 4. \1\ The Times,  Places and Manner of 
holding Elections for Senators and Representatives, shall be prescribed 
in each State by the Legislature thereof; but the Congress may at any 
time by Law make or alter such Regulations, except as to the places of 
chusing Senators.


  The relative powers of the Congress and the States under this graph 
have been the subject of much discussion (I, 311, 313, 507, footnote); 
but Congress has in fact fixed by law the time of elections (I, 508; VI, 
66; 2 U.S.C. 7), and has controlled the manner to the extent of 
prescribing a ballot or voting machine (II, 961; VI, 150; 2 U.S.C. 9). 
When a State delegated to a municipality the power to regulate the 
manner of holding an election, a question arose (II, 975). A question 
has arisen as to whether or not a State, in the absence of action by 
Congress, might make the time of election of Congressmen contingent on 
the time of the State election (I, 522). This paragraph gives Congress 
the power to protect the right to vote in primaries where they are an 
integral part of the election process. United States v. Classic, 313 
U.S. 299 (1941); United States v. Wurzbach, 280 U.S. 396 (1930). 
Congress may legislate under this paragraph to protect the exercise of 
the franchise in congressional elections. Ex parte Siebolt, 100 U.S. 371 
(1880); Ex parte Yarbrough, 110 U.S. 651 (1884).


[[Page 19]]

522). But the House held that where a legislature has been in existence 
a constitutional convention might not exercise the power (I, 363, 367). It 
has been argued generally that the legislature derives the power herein discussed from the Federal and not the State Constitution (II, 856, 947), 
and therefore that the State constitution might not in this respect control the State legislature (II, 1133). The House has sustained this view by its 
action (I, 525). But where the State constitution fixed a date for an election 
and the legislature had not acted, although it had the opportunity, the House 
held the election valid (II, 846).


Sec. 43. Functions of a State legislature in 
fixing time, etc., of elections.

  The meaning of  the word ``legislature'' in this 
clause of the Constitution has been the subject of discussion (II, 856), 
as to whether or not it means a constitutional convention as well as a 
legislature in the commonly accepted meaning of the word (I, 524). The 
House has sworn in Members chosen at an election the time, etc., of 
which was fixed by the schedule of a constitution adopted on that 
election day (I, 519, 520, 





Sec. 44. Decisions of the Court.

  Decisions  of the Supreme 
Court of the United States: Ex parte Siebold, 100 U.S. 371 (1880); Ex 
parte Clark, 100 U.S. 399 (1880); Ex parte Yarbrough, 110 U.S. 651 
(1884); In re Coy, 127 U.S. 731 (1888); Ohio v. Hildebrant, 241 U.S. 565 
(1916); United States v. Mosley, 238 U.S. 383 (1915); United States  v. 
Gradwell, 243 U.S. 476 (1917); Newberry v. United States, 256 U.S. 232 
(1921); Smiley v. Holme, 285 U.S. 355 (1932); United States v. Classic, 
313 U.S. 299 (1941); Smith v. Allwright, 321 U.S. 649 (1944); Roudebush 
v. Hartke, 405 U.S. 15 (1972); Buckley v. Valeo, 424 U.S. 1 (1976); and 
U.S. Term Limits, Inc., v. Thorton, 63 U.S.L.W. 4413 (1995). In Public 
Law 91-285, Congress lowered the minimum age of voters in all federal, 
state and local elections from 21 to 18 years. In Oregon v. Mitchell, 
400 U.S. 112 (1970), the Supreme Court upheld the power of Congress 
under article I, section 4 and under section 5 of the 14th amendment to 
the Constitution to fix the age of voters in federal elections, but held 
that the tenth amendment to the Constitution reserved to the States the 
power to establish voter age qualifications in State and local 
elections. The 26th amendment to the Constitution extended the right of 
persons 18 years of age or older to vote in elections held under State 
authority.





Sec. 45. Annual meeting of Congress.

  \2\ [The Congress  shall 
assemble at least once in every Year, and such Meeting shall be on the 
first Monday in December, unless they shall by Law appoint a different 
Day.]


  This provision of the Constitution has been superseded by the 20th 
amendment.


[[Page 20]]

appointed by law a day for the meeting (I, 4, 5, 10-12, footnote; see also 
Sec. 243, infra).

  In the later but not the earlier practice (I, 5), prior to the 20th 
amendment, the fact that Congress had met once within the year did not 
make uncertain the constitutional mandate to meet on the first Monday of 
December (I, 6, 9-11). Early Congresses, convened either by proclamation 
or law on a day earlier than the constitutional day, remained in 
continuous session to a time beyond that day (I, 6, 9-11). But in the 
later view an existing session ends with the day appointed by the 
Constitution for the regular annual session (II, 1160); see Sec. 84, 
infra. Congress has frequently 




Sec. 46. House the judge of elections, 
returns, and qualifications.

  Section 5. \1\ Each  House shall be the Judge of the 
Elections, Returns and Qualifications of its own Members, * * *.


  In judging the qualifications of its Members, the House may not add 
qualifications to those expressly stated in the United States 
Constitution. Powell v. McCormack, 395 U.S. 486 (1969). This phrase 
allows the House or Senate to deny the right to a seat without 
unlawfully depriving a State of its right to equal representation. Barry 
v. United States ex rel Cunningham, 279 U.S. 597 (1929). But a State may 
conduct a recount of votes without interfering with the authority of the 
House under this phrase. Roudebush v. Hartke, 405 U.S. 15 (1972). For 
discussion of the power of the House to judge elections, see Deschler's 
Precedents, vol. 2, ch. 8 (elections) and ch. 9 (election contests); for 
discussion of the power of the House to judge qualifications, see 
Deschler's Precedents, vol. 2, ch. 7.

  The House has the same authority to determine the right of a Delegate 
to his seat that it has in the case of a Member (I, 423). The House may 
not delegate the duty of judging its elections to another tribunal (I, 
608), and the courts of a State have nothing to do with it (II, 959). 
The House has once examined the relations of this power to the power to 
expel (I, 469).


[[Page 21]]



Sec. 47. Power of judging as related to State 
laws as to returns.

  As nearly all  the laws governing the elections of 
Representatives in Congress are State laws, questions have often arisen 
as to the relation of this power of judging to those laws (I, 637). The 
House decided very early that the certificate of a State executive 
issued in strict accordance with State law does not prevent examination 
of the votes by the House and a reversal of the return (I, 637). The 
House has also held that it is not confined to the conclusions of 
returns made up in strict conformity to State law, but may examine the 
votes and correct the returns (I, 774); and the fact that a State law 
gives canvassers the right to reject votes for fraud and irregularities 
does not preclude the House from going behind the returns (II, 887). The 
highest court in one State (Colorado) has ruled that it lacked 
jurisdiction to pass upon a candidate's allegations of irregularities in 
a primary election and that the House had exclusive jurisdiction to 
decide such questions and to declare the rightful nominee (Sept. 23, 
1970, p. 33320).




Sec. 48. Power of judging as related to 
State laws as to acts of the voter.

  When the question  concerns not the acts of returning 
officers, but the act of the voter in giving his vote, the House has 
found more difficulty in determining on the proper exercise of its 
constitutional power. While the House has always acted on the principle 
of giving expression to the intent of the voter (I, 575, 639, 641; II, 
1090), yet it has held that a mandatory State law, even though 
arbitrary, may cause the rejection of a ballot on which the intent of 
the voter is plain (II, 1009, 1056, 1077, 1078, 1091). See Deschler's 
Precedents, vol. 2, ch. 8, sec. 8.11, for discussion of distinction 
between directory state laws governing the conduct of election officials 
as to ballots, and mandatory laws regulating the conduct of voters.




Sec. 49. Power of House as related to 
constitutionality of State laws.

  Where the State  courts have upheld a State election 
law as constitutional the House does not ordinarily question the law 
(II, 856, 1071). But where there has been no such decision the House, in 
determining its election cases, has passed on the validity of State laws 
under State constitutions (II, 1011, 1134), and has acted on its 
decision that they were unconstitutional (II, 1075, 1126), but it is not 
the policy of the House to pass upon the validity of State election laws 
alleged to be in conflict with the State constitution (VI, 151).




Sec. 50. Effect of interpretation of State 
election laws by State courts.

  The courts of  a State have nothing to do directly 
with judging the elections, qualifications, and returns of 
Representatives in Congress (II, 959), but where the highest State court 
has interpreted the State law the House has concluded that it should 
generally be governed by this interpretation (I, 645, 731; II, 1041, 
1048), but does not consider itself bound by such interpretations (VI, 
58). The House is not bound, however, by a decision on an analogous but 
not the identical question in issue (II, 909); and where the alleged 
fraud of election judges was in issue, the acquittal of those judges in 
the courts was held not to be an adjudication binding on the House (II, 
1019). For a recent illustration of a protracted election dispute 
lasting four months see House Report 99-58, culminating in House 
Resolution 146 of the 99th Congress (May 1, 1985, p. 9998).




Sec. 51. Laws of Congress not binding on the 
House in its function of judging its elections.

  The statutes of  the United States 
provide specific methods for institution of a contest as to the title to 
a seat in the House (I, 678, 697-706) (2 U.S.C. 381 et seq.); but the 
House regards this law as not of absolute binding force, but rather a 
wholesome rule not to be departed from except for cause (I, 597, 719, 
825, 833), and it sometimes by resolution modifies the procedure 
prescribed by the law (I, 449, 600).



[[Page 22]]



Sec. 51a. Decisions of the Court.

  Decisions  of the Supreme 
Court of the United States: In re Loney, 134 U.S. 317 (1890); Reed v. 
County Commissioners, 277 U.S. 376 (1928); Barry v. United States ex 
rel. Cunningham, 279 U.S. 597 (1929); Roudebush v. Hartke, 405 U.S. 15 
(1972).





Sec. 52. The quorum.

  * * * and a  Majority of each [House] 
shall constitute a Quorum to do Business; but a smaller Number may 
adjourn from day to day, and may be authorized to compel the Attendance 
of absent Members, in such Manner, and under such Penalties as each 
House may provide.




Sec. 53. Interpretation of the Constitution 
as to number constituting a quorum.

  Out of conditions  arising between 1861 and 1891 the 
rule was established that a majority of the Members chosen and living 
constituted the quorum required by the Constitution (IV, 2885-2888); but 
later examination has resulted in a decision confirming in the House of 
Representatives the construction established in the Senate that a quorum 
consists of a majority of Senators duly chosen and sworn (I, 630; IV, 
2891-2894). So the decision of the House now is that after the House is 
once organized the quorum consists of a majority of those Members 
chosen, sworn, and living whose membership has not been terminated by 
resignation or by the action of the House (IV, 2889, 2890; VI, 638).



[[Page 23]]

2935-2949); also a line of rulings made under the old theory were overruled, 
and it was established that the point of no quorum might be made after 
the House had declined to verify a division by tellers or the yeas and 
nays (IV, 2918-2926).


Sec. 54. The theory of the quorum present; and 
the count by the Speaker.

  For many years  the quorum was determined only by noting the 
numbers of Members voting (IV, 2896, 2897), with the result that Members 
by refusing to vote could often break a quorum and obstruct the public 
business (II, 1034; IV, 2895, footnote; V, 5744). But in 1890 Mr. 
Speaker Reed directed the clerk to enter on the Journal as part of the 
record of a yea-and-nay vote names of Members present but not voting, 
thereby establishing a quorum of record (IV, 2895). This decision, 
afterwards sustained by the Supreme Court (IV, 2904; United States v. 
Ballin, 144 U.S. (1892)), established the principle that a quorum 
present made valid any action by the House, although an actual quorum 
might not vote (I, 216, footnote; IV, 2932). And thenceforth the point 
of order as to a quorum was required to be that no quorum was present 
and not that no quorum had voted (IV, 2917). At the time of the 
establishment of this principle the Speaker revived the count by the 
Chair as a method of determining the presence of a quorum at a time when 
no record vote was ordered (IV, 2909). The Speaker has permitted his 
count of a quorum to be verified by tellers (IV, 2888), but did not 
concede it as a right of the House to have tellers under the 
circumstances (IV, 2916; VI 647-651; VIII, 2369, 2436), claiming that 
the Chair might determine the presence of a quorum in such manner as he 
should deem accurate and suitable (IV, 2932). The Chair counts all 
members in sight, whether in the cloak rooms, or within the bar (IV, 
2970; VIII, 3120). Later, as the complement to the new view of the 
quorum, the early theory that the presence of a quorum was as necessary 
during debate or other business as on a vote was revived (IV, 




Sec. 55. Relations of the quorum to acts of the 
House.

  The absence of  a quorum having been disclosed, there must be a quorum of 
record before the House may proceed to business (IV, 2952, 2953; VI, 
624, 660, 662), and the point of no quorum may not be withdrawn even by 
unanimous consent after the absence of a quorum has been ascertained and 
announced by the Chair (IV, 2928-2931; VI, 657; Apr. 13, 1978, p. 10119; 
Sept. 25, 1984, p. 26778). But when an action has been completed, it is 
too late to make the point of order that a quorum was not present when 
it was done (IV, 2927; VI, 655). But where action requiring a quorum was 
taken in the ascertained absence of a quorum by ruling of a Speaker pro 
tempore, the Speaker on the next day ruled that the action was null and 
void (IV, 2964; see also VIII, 3161). But such absence of a quorum 
should appear from the Journal if a legislative act is to be vacated for 
such reason (IV, 2962), and where the assumption that a quorum was 
present when the House acted was uncontradicted by the Journal, it was 
held that this assumption might not be overthrown by expressions of 
opinion by Members individually (IV, 2961).



[[Page 24]]

  Major revisions in the House Rules concerning the necessity and 
establishment of a quorum have occurred in the 94th, 95th and 96th 
Congresses. Under the practice in the 93d Congress, for example, a point 
of no quorum would prevent the report of the Chairman of a Committee of 
the Whole (VI, 666); but in the 93d Congress clause 6 was added to rule 
XV to provide that after the presence of a quorum is once ascertained on 
any day, a point of no quorum may not be entertained after the Committee 
has risen and pending the report of the Chairman to the House (see 
Sec. 774c, infra). Clause 6 now specifically precludes a point of no 
quorum during the reception of any message from the President or the 
Senate, before or during the prayer, during the administration of oaths, 
during motions incidental to a call of the House, and (once a quorum has 
been established on that day) during special orders when no legislative 
business is pending. In the 95th Congress, the same clause of rule XV 
was further amended to provide that it is not in order to make or 
entertain a point of order that a quorum is not present unless the 
Speaker has put the pending motion or proposition to a vote, but the 
Speaker retains the right to recognize a Member to move a call of the 
House at any time. A point of order of no quorum during debate only in 
the House does not lie independently under this clause of the 
Constitution since clause 6(e) of rule XV is a proper exercise of the 
House's constitutional rulemaking authority which can be interpreted 
consistently with the requirement that a quorum be present to conduct 
business (as opposed to mere debate) (Sept. 8, 1977, p. 28114; Sept. 12, 
1977, pp. 28800-01).

  Before these recent changes to rule XV, a quorum was required at all 
times during the reading of the Journal (IV, 2732, 2733; VI, 625, 629) 
or messages from the President or the Senate (IV, 3522; VI 6600, 6650; 
VIII 3339); but the modern practice would require the presence of a 
quorum only when the question is put on a pending motion or proposition 
in the House such as on a motion incident to the reading, amendment, or 
approval of the Journal or on the referral or other disposition of other 
papers read to the House. A point of no quorum no longer lies during 
debate in the House. The practice in the Committee of the Whole is now 
governed by clause 2 of rule XXIII. No motion is in order on the failure 
of a quorum but the motions to adjourn and for a call of the House (IV, 
2950; VI 680) and the motion to adjourn has precedence over the motion 
for a call of the House (VIII, 2642). A call of the House is in order 
under the Constitution before the adoption of the rules (IV, 2981). 
Those present on a call of the House may prescribe a fine as a condition 
on which an arrested Member may be discharged (IV, 3013, 3014), but this 
is rarely done. A quorum is not required on motions incidental to a call 
of the House (IV, 2994; VI, 681; Oct. 8, 1940, p. 13403; and Oct. 8, 
1968, p. 30090). The House may adjourn sine die in the absence of a 
quorum where both Houses have already adopted a concurrent resolution 
providing for a sine die adjournment on that day (Oct. 18, 1972, p. 
37200).



Sec. 56. Relations of the quorum to organization 
of the House.

  At the time  of organization the two Houses inform one another of the 
appearance of the quorum in each, and the two Houses jointly inform the 
President (I, 198-203). A message from one House that its quorum has 
appeared is not delivered in the other until a quorum has appeared there 
also (I, 126). But at the beginning of a second session of a Congress 
the House proceeded to business, although a quorum had not appeared in 
the Senate (I, 126). At the beginning of a second session of a Congress 
unsworn Members-elect were taken into account in ascertaining the 
presence of a quorum (I, 175); however, at the beginning of the second 
session of the 87th Congress, the Clerk called the House to order, 
announced the death of Speaker Rayburn during the sine die adjournment, 
and did not call unsworn Members-elect or Members who had resigned 
during the hiatus to establish a quorum or elect a new Speaker (Jan. 10, 
1962, p. 5). In both Houses the oath has been administered to Members-
elect in the absence of a quorum (I, 174, 181, 182; VI, 22), although in 
one case the Speaker objected to such proceedings (II, 875). Prayer by 
the Chaplain is not business requiring the presence of a quorum and the 
Speaker declines to entertain a point of no quorum before prayer is 
offered (VI, 663; clause 6 of rule XV).



[[Page 25]]

<>   \2\ Each House may 
determine the Rules of its Proceedings, * * *



Sec. 57. Decisions of the Court.

  Decisions  of the Supreme 
Court of the United States: United States v. Ballin, 144 U.S. 1 (1892); 
Kilbourn v. Thompson, 103 U.S. 190 (1881); Burton v. United States, 202 
U.S. 344 (1906).




Sec. 59. Power to make rules not impaired by 
rules or law.

  The power of  each House of Representatives to make its own rules may 
not be impaired or controlled by the rules of a preceding House (I, 187, 
210; V, 6002, 6743-6747), or by a law passed by a prior Congress (I, 82, 
245; IV, 3298, 3579; V, 6765, 6766). The House in adopting its rules 
may, however, incorporate by reference as a part thereof all applicable 
provisions of law which constituted the rules of the House at the end of 
the preceding Congress (H. Res. 5, 95th Cong., Jan. 4, 1977, pp. 53-70) 
and has also incorporated provisions of concurrent resolutions which 
were intended to remain applicable under the Budget Act (H. Res. 5, 98th 
Cong., Jan. 3, 1983, p. 34). The ordinary rights and functions of the 
House under the Constitution are exercised in accordance with the rules 
(III, 2567), and under later decisions questions of so-called 
constitutional privilege should also be considered in accordance with 
the rules (VI, 48; VII, 889; Apr. 8, 1926, p. 7147). But a law passed by 
an existing Congress with the concurrence of the House has been 
recognized by that House as of binding force in matters of procedure (V, 
6767, 6768). In exercising its constitutional power to change its rules 
the House may confine itself within certain limitations (V, 6756; VIII, 
3376); but the attempt of the House to deprive the Speaker of his vote 
as a Member by a rule was successfully resisted (V, 5966, 5967). While a 
law of 1789 (see 2 U.S.C. 25) requires the election of a Clerk before 
the House proceeds to business yet the House has held that it may adopt 
rules before electing a clerk (I, 245). Although the Speaker ceases to 
be an officer of the House with the expiration of a Congress, the Clerk, 
by old usage, continues in a new Congress (I, 187, 188, 235, 244; see 2 
U.S.C. 26). In case of a vacancy in the office of Clerk, Sergeant-at-
Arms, Doorkeeper (abolished by the 104th Congress; see Sec. 651d, 
infra), Postmaster (abolished during the 102d Congress; see Sec. 654a, 
infra), Chaplain, or Chief Administrative Officer, the Speaker is 
authorized to make temporary appointments (2 U.S.C. 75a-1). The House 
has adopted a rule before election of a Speaker (I, 94, 95); but in 1839 
was deterred by the law of 1789 and the Constitution from adopting rules 
before the administration of the oath to Members-elect (I, 140). The 
earlier theory that an officer might be empowered to administer oaths by 
a rule of either House has been abandoned in later practice and the 
authority has been conferred by law (III, 1823, 1824, 2079, 2303, 2479; 
2 U.S.C. 191).



[[Page 26]]

assemblies, especially of the House of Representatives (V, 
6761-6763; Jan. 3, 1953, p. 24), but the provisions of the House's 
accustomed rules are not necessarily followed (V, 5509, 5604). Prior to 
the adoption of rules, the statutory enactments incorporated into the 
rules of the prior Congress as an exercise of the rule-making power do 
not control the proceedings of the new House until it adopts rules 
incorporating those provisions (Jan. 22, 1971, p. 132).


Sec. 60. Procedure in the House before the 
adoption of rules.

  Before the adoption  of rules the House is governed by general 
parliamentary law, but the Speakers have been inclined to give weight to 
the precedents of the House in modifying the usual constructions of that 
law (V, 6758-6760; VIII, 3384; Jan. 3, 1953, p. 24; Jan. 10, 1967, pp. 
14-15). The general parliamentary law as understood in the House is 
founded on Jefferson's Manual as modified by the practice of American 
legislative 


  Before the adoption of rules, it is in order for any Member who is 
recognized by the Chair to offer a proposition relating to the order of 
business without asking consent of the House (IV, 3060). Relying on the 
Act of June 1, 1789 (2 U.S.C. 25), the Clerk recognized for nominations 
for Speaker as being of higher constitutional privilege than a 
resolution to postpone the election of a Speaker and instead provide for 
the election of a Speaker pro tempore pending the disposition of certain 
ethics charges against the nominee of the majority party (Jan. 7, 1997, 
p. ----). The Speaker may recognize the Majority Leader to offer an 
initial resolution providing for the adoption of the rules as a question 
of privilege in its own right (IV, 3060; Deschler's Precedents, vol. 1, 
ch. 1, sec. 8; Jan. 5, 1993, p. ----), even prior to recognizing another 
Member to offer as a question of privilege another resolution calling 
into question the constitutionality of that resolution (Speaker Foley, 
Jan. 5, 1993, p. ----). The Speaker may also recognize a Member to offer 
for immediate consideration a special order providing for the 
consideration of a resolution adopting the rules (V, 5450; Jan. 4, 1995, 
p. ----). The resolution adopting rules for the 104th Congress included 
a special order of business for consideration of a bill to make certain 
laws applicable to the legislative branch (sec. 108, H. Res. 6, Jan. 4, 
1995, p. ----).

  During debate on the resolution adopting rules, any Member may make a 
point of order that a quorum is not present based upon general 
parliamentary precedents, since the provisions of clause 6(e) of rule XV 
prohibiting the Chair from entertaining such a point of order unless the 
question has been put on the pending proposition are not yet applicable 
(Jan. 15, 1979, p. 10). Before adoption of rules, under general 
parliamentary law as modified by usage and practice of the House, an 
amendment may be subject to the point of order that it is not germane to 
the proposition to which offered (Jan. 3, 1969, p. 23). Before adoption 
of rules, the Speaker may maintain decorum by directing a Member who has 
not been recognized in debate beyond an allotted time to be removed from 
the well and by directing the Sergeant-at-Arms to present the mace as 
the traditional symbol of order (Jan. 3, 1991, p. 58).


[[Page 27]]

p. ----). Such a motion to commit is not divisible, but if it is 
agreed to and more than one amendment is reported back pursuant thereto, 
then separate votes may be had on the reported amendments (Jan. 5, 1993, 
p. ----). The motion to refer has also been permitted upon the offering 
of a resolution adopting the rules, and prior to debate thereon, subject 
to the motion to lay on the table (Jan. 5, 1993, p. ----).
  The motion to commit is permitted after the previous question has been 
ordered on the resolution adopting the rules (V, 5604; Jan. 3, 1989, p. 
81; Jan. 3, 1991, p. 61) but is not debatable (Jan. 7, 1997, p. ----). 
It is the prerogative of the minority to offer a motion to commit even 
prior to the adoption of the rules, but at that point the proponent need 
not qualify as opposed to the resolution (Jan. 3, 1991, p. 61; Jan. 4, 
1995, 



Sec. 61. Joint rules.

  The two Houses  of Congress adopted in 
the early years of the Government joint rules to govern their procedure 
in matters requiring concurrent action; but in 1876 these joint rules 
were abrogated (IV, 3430; V, 6782-6787). The most useful of their 
provision continue to be observed in practice, however (IV, 3430; V, 
6592).





Sec. 61a. Decisions of the Court.

  Decisions  of the Supreme 
Court of the United States: United States v. Smith, 286 U.S. 6 (1932); 
Christoffel v. United States, 338 U.S. 84 (1949); United States v. 
Bryan, 339 U.S. 323 (1950); Yellin v. United States, 374 U.S. 109 
(1963); Powell v. McCormack, 395 U.S. 486 (1969).





Sec. 62. Punishment and expulsion of 
Members.

  * * * [Each House may]  punish its Members for disorderly Behaviour, and, with the 
Concurrence of two thirds, expel a Member.



[[Page 28]]

Members have been censured for personalities and other disorder in debate 
(II, 1251, 1253, 1254, 1259), assaults on the floor (II, 1665), for 
presenting a resolution alleged to be insulting to the House (II, 1246), 
and for corrupt acts (II, 1274, 1286). For abuse of the leave to print, 
the House censured a Member after a motion to expel him had failed (VI, 
236). In one instance Members were censured for acts before the election 
of the then existing House (II, 1286).


Sec. 63. Punishment by reprimand or 
censure.

  Among the  punishments that the House may impose under this provision, 
the rules of the Committee on Standards of Official Conduct outline the 
following: (1) expulsion from the House; (2) censure; (3) reprimand; (4) 
fine; (5) denial or limitation of any right, power, privilege, or 
immunity of the Member if not in violation of the Constitution; or (6) 
any other sanction determined by the Committee to be appropriate (Rule 
20(e), House Comm. on Standards of Official Conduct, 104th Cong.). In 
action for censure the House has discussed whether or not the principles 
of the procedure of the courts should be followed (II, 1255). In one 
instance, pending consideration of a resolution to censure a Member, the 
Speaker informed him that he should retire (II, 1366), but this is not 
usual, and Members, against whom resolutions have been pending have 
participated in debate either by consent (II, 1656) or without question 
as to consent (II, 1246, 1253). A Member against whom a resolution of 
censure was pending was asked by the Speaker if he desired to be heard 
(VI, 236). But after the House had voted censure and the Member has been 
brought to the bar by the Sergeant-at-Arms to be censured, it was held 
that he might not then be heard (II, 1259). A resolution of censure 
should not apply to more than one Member (II, 1240, 1621). Censure is 
inflicted by the Speaker (II, 1259) and the words are entered in the 
Journal (II, 1251, 1656; VI 236), but the Speaker may not pronounce 
censure except by order of the House (VI, 237). When Members have 
resigned pending proceedings for censure, the House has nevertheless 
adopted the resolutions of censure (II, 1239, 1273, 1275, 1656). 



[[Page 29]]

of the costs of the investigation by the Committee on Standards of Official 
Conduct (Jan. 21, 1997, p. ----).
  In the 94th Congress the House by adopting a report from the Committee 
on Standards of Official Conduct reprimanded a Member for failing to 
report certain financial holdings in violation of rule XLIV, the Code of 
Official Conduct, and for investing in stock in a Navy bank the 
establishment of which he was promoting, in violation of the Code of 
Ethics for Government Service (H. Res. 1421, July 29, 1976, pp. 24379-
82). (For the Code of Ethics for Government Service, see H. Con. Res. 
175, 85th Cong., 72 Stat. B12.) In the 95th Congress following an 
investigation by the Committee on Standards of Official Conduct into 
whether Members or employees had improperly accepted things of value 
from the Republic of Korea or representatives thereof, the House 
reprimanded three Members, one for falsely answering an unsworn 
questionnaire relative to such gifts and violating the Code of Official 
Conduct, one for failing to report as required by law the receipt of a 
campaign contribution and violating the Code of Official Conduct, and 
one for failing to report a campaign contribution, converting a campaign 
contribution to personal use, testifying falsely to the committee under 
oath, and violating the Code of Official Conduct (Oct. 13, 1978, pp. 
36984, 37009, 37017). In the 96th Congress two Members were censured by 
the House: (1) A Member who during a prior Congress both knowingly 
increased an office employee's salary for repayment of that Member's 
personal expenses and who was unjustly enriched by clerk-hire employees' 
payments of personal expenses later compensated by salary increases, was 
censured and ordered to repay the amount of the unjust enrichment with 
interest (July 31, 1979, p. 21592); (2) a Member was censured for 
receiving over a period of time sums of money from a person with a 
direct interest in legislation in violation of clause 4 of rule XLIII, 
and for transferring campaign funds into office and personal accounts 
(June 10, 1980, pp. 13801-20). In the 98th Congress the House adopted 
two resolutions (as amended in the House) censuring two Members for 
improper relationships with House pages in prior Congresses (July 20, 
1983, p. 20020 and p. 20030). In the 100th Congress the House adopted a 
resolution reprimanding a Member for ``ghost voting,'' improperly 
diverting government resources, and maintaining a ``ghost employee'' on 
his staff (Dec. 18, 1987, p. 36266). In the 101st Congress another was 
reprimanded for seeking dismissal of parking tickets received by a 
person with whom he had a personal relationship and not related to 
official business and for misstatements of fact in a memorandum relating 
to the criminal probation record of that person (July 26, 1990, 
p.19717). In the 105th Congress the House reprimanded the Speaker and 
ordered him to reimburse a portion 

  Debate on a resolution recommending a disciplinary sanction against a 
Member may not exceed the scope of the conduct of the accused Member 
(Dec. 18, 1987, p. 36271).



Sec. 64. Punishment by expulsion.

  The power of  expulsion has 
been the subject of much discussion (I, 469, 476, 481; II, 1264, 1265, 
1269; VI, 56, 398; see Powell v. McCormack, 395 U.S. 486 (1969)). In one 
case a Member-elect who had not taken the oath was expelled (II, 1262), 
and in another case the power to do this was discussed (I, 476). In one 
instance the Senate assumed to annul its action of expulsion (II, 1243). 
The Supreme Court has decided that a judgment of conviction under a 
disqualifying statute does not compel the Senate to expel (II, 1282; 
Burton v. United States, 202 U.S. 344 (1906)). The power of expulsion in 
its relation to offenses committed before the Members' election has been 
discussed (II, 1286), and in one case the Judiciary Committee of the 
House concluded that a Member might not be punished for an offense 
alleged to have been committed against a preceding Congress (II, 1283); 
but the House itself declined to express doubt as to its power to expel 
and proceeded to inflict censure (II, 1286). Both Houses have distrusted 
their power to punish in such cases (II, 1264, 1284, 1285, 1288, 1289; 
VI, 56, 238). However, the 96th Congress punished Members on two 
occasions for offenses committed during a prior Congress (H. Res. 378, 
July 31, 1979, p. 21592; H. Res. 660, June 10, 1980, pp. 13801-20). It 
has been held that the power of the House to expel one of its Members is 
unlimited; a matter purely of discretion to be exercised by a two-thirds 
vote, from which there is no appeal (VI, 78). The resignation of the 
accused Member has always caused a suspension of proceedings for 
expulsion (II, 1275, 1276, 1279; VI, 238).



[[Page 30]]

<>   A proposition to reprimand, censure, or expel a Member 
presents a question of privilege (II, 1254; III, 2648-2651; VI, 236; 
July 26, 1990, p. 19717); and, if reported by the Committee on Standards 
of Official Conduct (or a derivation thereof), may be called up at any 
time after the Committee has filed its report (Jan. 21, 1997, p. ----). 
An expulsion resolution when offered may be laid on the table (Oct. 1, 
1976, p. 35111) or referred to committee (Mar. 1, 1979, p. 3753) before 
the proponent is recognized to debate it. A proposition to censure is 
not germane to a proposition to expel (VI, 236). On Oct. 2, 1980, the 
House expelled a Member who had been found guilty of accepting money in 
exchange for a promise to perform certain legislative acts (H. Res. 794, 
96th Cong., pp. 28953-78).


Sec. 65. Procedure for expulsion.

  The House, in  a proceeding 
for expulsion, declined to give the Member a trial at the bar (II, 
1275); but the Senate has permitted a counsel to appear at its bar (II, 
1263), although it declined to grant a request for a specific statement 
of charges or compulsory process for witnesses (II, 1264). Members 
threatened with expulsion have been heard on their own behalf by consent 
(II, 1273, 1275), or as a matter of right (II, 1269, 1286). In general, 
there has been discussion as to whether or not the principles of the 
procedure of the courts should be followed (II, 1264). The Senate once 
expelled several Senators by a single resolution (II, 1266). Members and 
Senators have been expelled for treason (II, 1261), for high misdemeanor 
inconsistent with public duty (II, 1263), for friendship or association 
with enemies of the Government and absence from their seats (II, 1269, 
1270), and for bearing arms against the Government (II, 1267). In the 
96th Congress, the House expelled a Member who had been convicted of 
bribery (a felony) for accepting funds to perform official duties as a 
Member of Congress (H. Res. 794, Oct. 2, 1980, pp. 28953-78).


  A resolution providing that the House immediately proceed to consider 
whether a Member should be expelled presents a question of privilege 
(Speaker Clark, Dec. 9, 1913, pp. 584-86).




Sec. 67. Decisions of the Court.

  Decisions  of the Supreme 
Court of the United States: Anderson v. Dunn, 6 Wh. 204 (1821); Kilbourn 
v. Thompson, 103 U.S. 168 (1881); United States v. Ballin, 144 U.S. 1 
(1892); In re Chapman, 166 U.S. 661 (1897); Burton v. United States, 202 
U.S. 344 (1906); Powell v. McCormack, 395 U.S. 486 (1969).





Sec. 68. Each House to keep a journal.

  \3\ Each House  shall 
keep a Journal of its Proceedings, and from time to time publish the 
same, excepting such Parts as may in their Judgment require Secrecy; * * 
*




Sec. 69. The Journal the official 
record.

  The Journal and  not the Congressional Record is the official record of the 
proceedings of the House (IV, 2727). Its nature and functions have been 
the subject of extended discussions (IV, 2730, footnote). The House has 
fixed its title (IV, 2728). While it ought to be a correct transcript of 
the proceedings of the House, the House has not insisted on a strict 
chronological order of entries (IV, 2815). The Journal is dated as of 
the legislative and not the calendar day (IV, 2746).



[[Page 31]]



Sec. 70. Journal a record of proceedings 
and not of reasons.

  The Journal records  proceedings but not the reasons therefor (IV, 
2811) or the circumstances attending (IV, 2812), or the statements or 
opinions of Members (IV, 2817-2820). Exceptions to this rule are rare 
(IV, 2808, 2825). Protests have on rare occasions been admitted by the 
action of the House (IV, 2806, 2807), but the entry of a protest on the 
Journal may not be demanded by a Member as a matter of right (IV, 2798) 
and such demand does not present a question of privilege (IV, 2799). A 
motion not entertained is not entered on the Journal (IV, 2813, 2844-
46).




Sec. 71. House's absolute control of entries 
in the Journal.

  While the House  controls the Journal and may decide what are 
proceedings, even to the extent of omitting things actually done or 
recording things not done (IV, 2784; VI, 634), and while the Speaker has 
entertained a motion to amend the Journal so as to cause it to state 
what was not the fact, leaving it for the House to decide on the 
propriety of the act (IV, 2785), holding that he could not prevent a 
majority of the House from so amending the Journal as to undo an actual 
transaction (IV, 3091-93), in none of those rulings was an amendment 
permitted to correct the Journal which had the effect of collaterally 
changing the tabling of a motion to reconsider. In fact, under the 
precedents cited in Sec. 775, infra, under clause 1 of rule XVI it has 
been held not in order to amend or strike out a Journal entry setting 
forth a motion exactly as made (IV, 2783, 2789), and thus it was held 
not in order to amend the Journal by striking out a resolution actually 
offered (IV, 2789), but on one occasion the House vacated the Speaker's 
referral of an executive communication by amending the Journal of the 
preceding day (Mar. 19, 1990, p.4488). Only on rare instances has the 
House nullified proceedings by rescinding the records of them in the 
Journal (IV, 2787), the House and Senate usually insisting on the 
accuracy of its Journal (IV, 2783, 2786). In rare instances the House 
and Senate have rescinded or expunged entries in Journals of preceding 
Congresses (IV, 2730, footnote, 2792, 2793).




Sec. 72. Record of votes in the 
Journal.

  The Journal should  record the result of every vote and state in general terms 
the subject of it (IV, 2804); but the result of a vote is recorded in 
figures only when the yeas and nays are taken (IV, 2827), when the vote 
is recorded by electronic device or by clerks, under the provisions of 
clause 5 of rule I, or when a vote is taken by ballot, it having been 
determined in latest practice that the Journal should show not only the 
result but the state of the ballot or ballots (IV, 2832).




Sec. 73. Approval of the Journal.

  It is the  uniform practice 
of the House to approve its Journal for each legislative day (IV, 2731). 
Where Journals of more than one session remain unapproved, they are 
taken up for approval in chronological order (IV, 2771-2773). In 
ordinary practice the Journal is approved by the House without the 
formal putting of the motion to vote (IV, 2774).


  The former rule required the reading of the Journal on each 
legislative day. The reading could be dispensed with only by unanimous 
consent (VI, 625) or suspension of the rules (IV, 2747-2750) and had to 
be in full when demanded by any Member (IV, 2739-2741; VI, 627-628; Feb. 
22, 1950, p. 2152).


[[Page 32]]

the Speaker is authorized to announce his approval of 
the Journal which is deemed agreed to by the House, subject to the right 
of any Member to demand a vote on agreeing to the Speaker's approval 
(which if decided in the affirmative is not subject to the motion to 
reconsider). In the 98th Congress, the Speaker was given the authority 
to postpone a record vote on agreeing to his approval of the Journal to 
a later time on that legislative day (clause 5(b) of rule I; H. Res. 5, 
Jan. 3, 1983, p. 34). While the transaction of any business is not in 
order before approval of the Journal (VI, 2751; VI, 629, 637; Oct. 8, 
1968, p. 30096), approval of the Journal yields to the simple motion to 
adjourn (IV, 2757), administration of the oath (I, 171, 172), an 
arraignment of impeachment (VI, 469), and questions of the privileges of 
the House (II, 1630), and the Speaker may in his discretion recognize 
for a parliamentary inquiry before approval of the Journal (VI, 624). 
Under clause 1 of rule I, as amended in the 96th Congress, a point of 
order of no quorum is not in order before the Speaker announces his 
approval of the Journal. A point of order of no quorum is not in order 
during the reading of the Journal if a quorum has once been established 
on that day under clause 6(c)(1) of rule XV, and clause 6 of rule XV 
generally prohibits the making of points of order of no quorum unless 
the Speaker has put the question on the pending motion or proposition.
  The present form of the rule (clause 1 of rule I; see Sec. 621, infra) 
was drafted from section 127 of the Legislative Reorganization Act of 
1970 (84 Stat. 1140), incorporated into the standing rules in the 92d 
Congress (H. Res. 5, Jan. 22, 1971, p. 144), and was further amended in 
the 96th Congress (H. Res. 5, Jan. 15, 1979, pp. 7-16). Under the 
current practice, 



Sec. 74. Motions to amend the 
Journal.

  Under the practice  before clause 1 of rule I was adopted in its present form, 
the motion to amend the Journal took precedence over the motion to 
approve it (IV, 2760; VI, 633); but the motion to amend may not be 
admitted after the previous question is demanded on a motion to approve 
(IV, 2770; VI, 633; VIII, 2684). An expression of opinion as to a 
decision of the Chair was held not in order as an amendment to the 
Journal (IV, 2848). A proposed amendment to the Journal being tabled 
does not carry the Journal with it (V, 5435, 5436). While a proposed 
correction of the Journal may be recorded in the Journal, yet it is not 
in order to insert in full in this indirect way what has been denied 
insertion in the first instance (IV, 2782, 2804, 2805). The earlier 
practice was otherwise, however (IV, 2801-2803). The Journal of the last 
day of a session is not approved on the assembling of the next session, 
and is not ordinarily amended (IV, 2743, 2744). For further discussion 
of the composition and approval of the Journal, see Deschler's 
Precedents, vol. 1, ch. 5.





Sec. 74a. Decisions of the Court.

  Decisions  of the Supreme 
Court of the United States: Field v. Clark, 143 U.S. 649 (1892); United 
States v. Ballin, 144 U.S. 1 (1892).



[[Page 33]]



Sec. 75. Yeas and Nays entered on the 
Journal.

  * * * and the  Yeas and Nays of the Members of either House on any question 
shall, at the Desire of one fifth of those Present, be entered on the 
Journal.




Sec. 76. Conditions of ordering yeas and 
nays.

  The yeas and  nays may be ordered before the organization of the House (I, 91; 
V, 6012, 6013), but are not taken in Committee of the Whole (IV, 4722, 
4723). They are not necessarily taken on the passage of a resolution 
proposing an amendment to the Constitution (V, 7038, 7039; VIII, 3506), 
but are required to pass a bill over a veto (Sec. 104; VII, 1110). In 
the earlier practice of the House it was held that less than a quorum 
might not order the yeas and nays, but for many years the decisions have 
been uniformly the other way (V, 6016-6028). Neither is a quorum 
necessary on a motion to reconsider the vote whereby the yeas and nays 
are ordered (V, 5693). When a quorum fails on a yea and nay vote it is 
the duty of the Speaker and the House to take notice of that fact (IV, 
2953, 2963, 2988). If the House adjourns, the order for the yeas and 
nays remains effective whenever the bill again comes before the House 
(V, 6014, 6015; V, 740; VIII, 3108), and it has been held that the 
question of consideration might not intervene on a succeeding day before 
the second calling of the yeas and nays (V, 4949). However, when the 
call of the House is automatic under clause 4 of rule XV, the Speaker 
directs the roll to be called or the vote to be taken by electronic 
device without motion from the floor (VI, 678, 679, 694, 695); and 
should a quorum fail to vote and the House adjourn, proceedings under 
the automatic call are vacated and the question recurs de novo when the 
bill again comes before the House (Oct. 10, 1940, pp. 13534-35; Oct. 13, 
1962, pp. 23474-75; Oct. 19, 1966, p. 27641). While the Constitution and 
the rules of the House guarantee that votes taken by the yeas and nays 
be spread upon the Journal, neither requires that a Member's vote be 
announced to the public immediately during the vote (Sept. 19, 1985, p. 
24245).


  The yeas and nays may not be demanded until the Speaker has put the 
question in the form prescribed by clause 5 of rule I (Oct. 2, 1974, p. 
33623).


[[Page 34]]



Sec. 77. Demanding the yeas and nays.

  The yeas and  nays may 
be demanded while the Speaker is announcing the result of a division (V, 
6039), while a vote by tellers is being taken (V, 6038), and even after 
the announcement of the vote if the House has not passed to other 
business (V, 6040, 6041; VIII, 3110). But after the Speaker has 
announced the result of a division on a motion and is in the act of 
putting the question on another motion it is too late to demand the yeas 
and nays on the first motion (V, 6042). And it is not in order during 
the various processes of a division to repeat a demand for the yeas and 
nays which has once been refused by the House (V, 6029, 6030, 6031). The 
constitutional right of a Member to demand the yeas and nays may not be 
overruled as dilatory (V, 5737; VIII, 3107); but this constitutional 
right does not exist as to a vote to second a motion when such second is 
required by the rules (V, 6032-6036; VIII, 3109). The right to demand 
yeas and nays is not waived by the fact that the Member demanding them 
has just made the point of no quorum and caused the Chair to count the 
House (V, 6044).




Sec. 78. Yeas and nays ordered by onefifth.

  In passing on  a 
demand for the yeas and nays the Speaker need determine only whether 
one-fifth of those present sustain the demand (V, 6043; VIII, 3112, 
3115). In ascertaining whether one-fifth of those present support a 
demand for the yeas and nays the Speaker counts the entire number 
present and not merely those who rise to be counted (VIII, 3111, 3120). 
Such count is not subject to verification by appeal (Sept. 12, 1978, p. 
28984)), and a request for a rising vote of those opposed to the demand 
is not in order (VIII, 3112-3114). Where the Chair prolongs his count of 
the House in determining whether one-fifth have supported the demand for 
yeas and nays, he counts latecomers in support of the demand as well as 
for the number present (Sept. 24, 1990, p. 25521). After the House, on a 
vote by tellers, has refused to order the yeas and nays it is too late 
to demand the count of the negative on an original vote (V, 6045).




Sec. 79. Reconsideration of the vote ordering the 
yeas and nays.

  A motion to  reconsider the vote ordering the yeas and nays is in 
order (V, 6029; VIII, 2790), and the vote may be reconsidered by a 
majority. If the House votes to reconsider the yeas and nays may again 
be ordered by one-fifth (V, 5689-5691). But when the House, having 
reconsidered, again orders the yeas and nays, a second motion to 
reconsider may not be made (V, 6037). In one instance it was held that 
the yeas and nays might be demanded on a motion to reconsider the vote 
whereby the yeas and nays were ordered (V, 5689), but evidently there 
must be a limit to this process. The vote whereby the yeas and nays are 
refused may be reconsidered (V, 5692).




Sec. 80. Effect of an order of the yeas and 
nays.

  In the general  but not the universal practice debate has not been closed by the 
ordering of the yeas and nays until one Member has responded to the call 
(V, 6101-6105, 6160, 6161). A motion to adjourn may be admitted after 
the yeas and nays are ordered and before the roll call has begun (V, 
5366); and a motion to suspend the rules has been entertained after the 
yeas and nays have been demanded on another matter (V, 6835). 
Consideration of a conference report (V, 6457), and a motion to 
reconsider the vote by which the yeas and nays were ordered (V, 6029; 
VIII, 2790) may be admitted. A demand for tellers or for a division is 
not precluded or set aside by the fact that the yeas and nays are 
demanded and refused (V, 5998; VIII, 3103).





Sec. 81. Decisions of the Court.

  Decisions  of the Supreme 
Court of the United States: Field v. Clark, 143 U.S. 649 (1892); United 
States v. Ballin, 144 U.S. 1 (1892); Twin City Bank v. Nebeker, 167 U.S. 
196 (1897); Wilkes County v. Coler, 180 U.S. 506 (1901); Marshall v. 
Gordon, 243 U.S. 521 (1917).



[[Page 35]]

three days, nor to any other Place than that in 
which the two Houses shall be sitting.



Sec. 82. Adjournment for more than three 
days.

  \4\ Neither House,  during the Session of Congress shall, without the Consent of the 
other, adjourn for more than 


  The word ``Place'' in the above paragraph was construed to mean the 
seat of Government, and consent of the Senate is not required where the 
House orders its meetings to be held in another structure at the seat of 
Government (Speaker Rayburn, Aug. 17, 1949, pp. 11651, 11683).

  On November 22, 1940, p. 13715, the House of Representatives adopted a 
resolution providing that thereafter until otherwise ordered its 
meetings be held in the Caucus room of the new House Office Building. 
Likewise the Senate on the same day, p. 13709, provided that its 
meetings be held in the Chamber formerly occupied by the Supreme Court 
in the Capitol. The two Houses continued to hold their sessions in these 
rooms until the opening of the 77th Congress. These actions were 
necessitated because of the precarious condition of the roofs in the two 
Chambers. On June 28, 1949, p. 8571, and on September 1, 1950, p. 14140, 
the House provided that until otherwise ordered its meetings be held in 
the Caucus room of the new House Office Building, pending the remodeling 
of its Chamber. On June 29, 1949, p. 8584, and on Aug. 9, 1950, p. 
12106, the Senate provided that its meetings be held in the Chamber 
formerly occupied by the Supreme Court in the Capitol, pending 
remodeling of its Chamber. The House returned to its Chamber on January 
3, 1950, and again on January 1, 1951. The Senate returned to its 
Chamber on January 3, 1950, and again on January 3, 1951.


[[Page 36]]



Sec. 83. Adjournment of the House within the 
threeday limit.

  The House of  Representatives in adjourning for not ``more than 
three days'' must take into the count either the day of adjourning or 
the day of the meeting, and Sunday is not taken into account in making 
this computation (V, 6673, 6674). By special order, the House may 
provide for a session of the House on a Sunday, traditionally a ``dies 
non'' under the precedents of the House (Dec. 17, 1982, p. 31946; Dec. 
18, 1987, p. 36352; Nov. 17, 1989, p. 30029; Aug. 20, 1994, p. ----). 
The House has by standing order provided that it should meet on two days 
only of each week instead of daily (V, 6675). Before the election of 
Speaker, the House has adjourned for more than one day (I, 89, 221). The 
House has by unanimous consent agreed to an adjournment for less than 
three days but specified that it would continue in adjournment for ten 
days pursuant to a concurrent resolution already passed by the House if 
the Senate adopted the concurrent resolution before the third day of the 
House's adjournment (Nov. 20, 1987, p. 33054). The Committee on Rules 
has reported a rule authorizing the Speaker to declare the House in 
recesses subject to calls of the Chair during five discrete periods, 
each consistent with the Constitutional constraint that neither House 
(recess or) adjourn for more than three days without consent of the 
other House (Dec. 21, 1995, p. ----; Jan. 5, 1996, p. ----).



[[Page 37]]

of the House and Senate until 11:55 a.m. on January 3, 1992, or until 
recalled by their joint leaderships, with the proviso that when the second 
session convened at noon on January 3, 1992, the Senate and House would 
not conduct organizational or legislative business but would adjourn on 
that day until January 21 and 22, 1992, respectively, unless sooner recalled 
(H. Con. Res. 260, 102d Cong., Nov. 26, 1991, p. 35840); and that prohibition 
against the conduct of business was considered not to preclude recognition 
for one-minute speeches and special-order speeches by unanimous consent 
(Jan. 3, 1992, p. ----).


Sec. 84. Resolutions for adjournment of 
the two Houses.

  Congress is adjourned  for more than three days by a concurrent resolution 
(IV, 4031, footnote). When it adjourns in this way, but not to or beyond 
the day fixed by Constitution or law for the next regular session to 
begin, the session is not thereby necessarily terminated (V, 6676, 
6677). Until the 67th Congress neither House had ever adjourned for more 
than three days by itself with the consent of the other, but resolutions 
had been offered for the accomplishment of that end (V, 6702, 6703). On 
June 30, 1922, the House adjourned until August 15, 1922, with the 
consent of the Senate. Pursuant to a concurrent resolution (H. Con. Res. 
266) the Senate granted its consent to an adjournment sine die of the 
House on August 20, 1954, and the House granted its consent to the 
Senate to an adjournment sine die at any time prior to December 25, 
1954. The Senate acting under the authority of the aforementioned 
resolution adjourned sine die on December 2, 1954. The adjournment 
resolution in the second session of the 97th Congress provided for 
adjournment sine die of the House on December 20 or December 21 pursuant 
to a motion made by the Majority Leader or his designee, and granted the 
consent of the House to adjournment sine die of the Senate at any time 
prior to January 3, 1983, as determined by the Senate, and the consent 
of the House for adjournments or recesses of the Senate for periods of 
more than three days as determined by the Senate during such period (H. 
Con. Res. 438, Dec. 20, 1982, p. 32951). Another concurrent resolution 
in the 97th Congress provided for an adjournment of the Senate to a day 
certain and granted the consent of the Senate to an adjournment of the 
House for more than three days to a day certain, or to any day before 
that day as determined by the House (S. Con. Res. 102, May 27, 1982, pp. 
12504, 12505). On one occasion the two Houses provided for an 
adjournment to a certain day, with a provision that if there should be 
no quorum present on that day the session should terminate (V, 6686). 
The two Houses have adjourned to a certain day, with a provision that 
they may be reassembled by the Leadership if legislative expediency so 
required such reassembling (July 8, 1943, p. 7516; June 23, 1944, p. 
6667; Sept. 21, 1944, p. 8109; July 18, 1945, p. 7733; July 26, 1947, p. 
10521; June 20, 1948, p. 9348; Aug. 7, 1948, p. 10247), and in the 91st 
Congress, the two Houses agreed to a concurrent resolution adjourning 
both to dates certain but which also provided that the House was subject 
to recall by the Speaker if legislative expediency so warranted (July 
20, 1970, p. 24978). In the 93d Congress, first and second sessions, the 
two Houses agreed to concurrent resolutions adjourning the Congress sine 
die with a provision that the two Houses could be reassembled by the 
Leadership (Dec. 22, 1973, p. 43327; Dec. 20, 1974, p. 41815). Recall 
provisions were also included in the sine die adjournment resolutions 
for the first and second sessions of the 101st Congress (Nov. 21, 1989, 
p. 31156; Oct. 27, 1990, p. 36850) and the second session of the 104th 
Congress (Oct. 3, 1996, p. ----). In the first session of the 102d 
Congress, the two Houses agreed to a concurrent resolution providing for 
an adjournment 


  A concurrent resolution to provide for adjournment for more than three 
days is offered in the House as a matter of privilege (V, 6701-6706), 
and is not debatable (VIII, 3372-3374). The Legislative Reorganization 
Act of 1970 provides for a sine die adjournment, or (in an odd numbered 
year) an adjournment of slightly over a month (from that Friday in 
August which is at least 30 days before Labor Day to the Wednesday 
following Labor Day) unless the nation is in a state of war, declared by 
Congress (sec. 461(b); 84 Stat. 1140). Congress can, of course, waive, 
this requirement and make other determinations regarding its adjournment 
(see Sec. 948, infra).

  The requirement that resolutions providing for an adjournment sine die 
of either House may not be considered until Congress has completed 
action on the second concurrent resolution on the budget for the fiscal 
year in question, and on any reconciliation legislation required by such 
a resolution, contained in section 310(f) of the Congressional Budget 
Act of 1974 (P.L. 93-344), was repealed by the Balanced Budget and 
Emergency Deficit Control Act of 1985 (P.L. 99-177). That law amended 
sections 309 and 310 of the Congressional Budget Act to prohibit the 
consideration of concurrent resolutions during the month of July 
providing adjournments in excess of three days until the House has 
approved general annual appropriation bills within the jurisdictions of 
all the subcommittees on Appropriations for the ensuing fiscal year, and 
until the House has completed action on all reconciliation legislation 
for the ensuing fiscal year required to be reported by the concurrent 
resolution on the budget for that year (see Sec. 1007, infra).


 * * *

  A resolution providing for an adjournment sine die is not debatable 
(VIII, 3372-3374), though a Member may be recognized during its 
consideration under a reservation of objection to a unanimous-consent 
request that the resolution be agreed to (Oct. 27, 1990, p. 36850).


[[Page 38]]



Sec. 85. Compensation of 
Members.

  Section 6. \1\ The Senators and  Representatives shall receive a Compensation for their 
Services, to be ascertained by Law, and paid out of the Treasury of the 
United States.




Sec. 86. Salary and 
deductions.

  The 27th amendment to the Constitution addresses laws ``varying the 
compensation for the services of the Senators and Representatives (see 
Sec. 258, infra). The present rate of compensation of Representatives, 
the Resident Commissioner from  Puerto Rico, and Delegates is $133,600 per annum. The rate 
of compensation of the Speaker and the Vice President is $171,500 per 
annum (2 U.S.C. 31; 3 U.S.C. 104) with an additional $10,000 per annum 
to assist in defraying expenses (2 U.S.C. 31b; 3 U.S.C. 111). The 
Majority and Minority Leaders of the House receive $148,400 per annum (2 
U.S.C. 31). These rates of compensation are all (except for the expense 
allowances) subject to annual cost of living adjustments (2 U.S.C. 
31(2)). The present rate of compensation of Senators is that fixed by 
section 1101 of Public Law 101-194, as adjusted pursuant to 2 U.S.C. 
31(2).


  Under the Federal Salary Act of 1967 (2 U.S.C. 351-362), the Citizens' 
Commission on Public Service and Compensation (formerly the Commission 
on Executive, Legislative and Judicial Salaries) is authorized and 
directed to conduct quadrennial reviews of the rates of pay of specified 
government officials, including Members of Congress, and to report to 
the President the results of each review and its recommendations for 
adjustments in such rates. Not later than the first Monday after January 
3 of the calendar year following a report of the Commission, the 
President transmits to Congress his recommendations in light of such 
report (2 U.S.C. 358). The recommendations of the President take effect 
only after the enactment into law of a bill or joint resolution 
approving them in their entirety and an intervening general election of 
Representatives. A bill or joint resolution to approve such 
recommendations is privileged (see Sec. 1013, infra) if offered by the 
Majority Leader or his designee within 60 calendar days of the 
President's transmittal, and must undergo a recorded vote on passage (2 
U.S.C. 359).


[[Page 39]]

of that review to the President by December 15 of that year (2 U.S.C. 
357). Adjustments hereafter are to maintain equal levels of pay among 
the Speaker, the Vice President, and the Chief Justice; among the Majority 
and Minority Leaders, the President pro tempore of the Senate, and level 
I of the Executive Schedule; and among Representatives, Senators, certain 
judges, and level II of the Executive Schedule (2 U.S.C. 362).
  In 1985, the Salary Act was amended (P.L. 99-190, sec. 135) to require 
a salary commission report with respect to fiscal year 1987. The 
President transmitted his recommendations concerning that report in his 
fiscal year 1988 Budget message (Jan. 5, 1987, H. Doc. 100-11). When not 
disapproved by the Congress in accordance with the Salary Act (2 U.S.C. 
359), those recommendations took effect on March 1, 1987. On return to 
the normal quadrennial cycle, the President transmitted with his fiscal 
year 1990 Budget message recommendations concerning a salary commission 
report with respect to fiscal year 1989 (Jan. 9, 1989, H. Doc. 101-21). 
Those recommendations were disapproved by Public Law 101-1 (H. J. Res. 
129, 101st Cong., Feb. 7, 1989, p. 1708). In 1989, the Salary Act was 
amended (P.L. 101-194, sec. 701) to redesignate the Commission, refine 
the parameters for quadrennial adjustments, and provide for privileged 
consideration of legislation to approve adjustments recommended by the 
President. The quadrennial review contemplated by the statute did not 
occur in 1993. The next quadrennial review contemplated by the statute 
would be conducted in 1997 (2 U.S.C. 356), and the Commission is to 
report the results 

  The statutes also provides for deductions from the pay of Members and 
Delegates who are absent from the sessions of the House for reasons 
other than illness of themselves and families, or who retire before the 
end of the Congress (2 U.S.C. 39; IV, 3011, footnote). The law as to 
deductions has been held to apply only to Members who have taken the 
oath (II, 1154). Members and Delegates are paid monthly on certificate 
of the Speaker (2 U.S.C. 34, 35, 37, 57a). The Sergeant-at-Arms, or in 
case of his disability the Treasurer of the United States, disburses the 
pay of Members (31 U.S.C. 148). 4 U.S.C. 113 provides that the residence 
of a Member of Congress for purpose of imposing State income tax laws 
shall be the State from which elected and not the State or subdivision 
thereof in which the Member maintains an abode for the purpose of 
attending sessions of Congress.



Sec. 87. Questions as to 
compensation.

  Questions have arisen  frequently as to compensation of Members especially in 
cases of Members elected to fill vacancies (I, 500; II, 1155) and where 
there have been questions as to incompatible offices (I, 500) or titles 
seat (II, 1206). The Supreme Court has held that a Member chosen to fill 
a vacancy is entitled to salary only from the time that the compensation 
of his predecessor has ceased, Page v. United States, 127 U.S. 67 
(1888). See also 2 U.S.C. 37.




Sec. 88. Travel and Members' representational 
allowances.

  In the 92d  Congress, the provisions of H. Res. 457 of that Congress, 
authorizing the Committee on House Administration (now House Oversight) 
to adjust allowances of Members and committees without further action by 
the House, were enacted into permanent law (85 Stat. 636; 2 U.S.C. 57), 
but the 94th Congress enacted into permanent law H. Res. 1372 of that 
Congress, stripping the Committee of that authority and requiring House 
approval of the committee's recommendations, except in cases made 
necessary by price changes in materials and supplies, technological 
advances in office equipment, and cost of living increases (90 Stat. 
1448; 2 U.S.C. 57a). The Committee on House Administration (now House 
Oversight) retains authority under 2 U.S.C. 57 to independently adjust 
amounts within total allowances and to set terms and conditions of such 
allowances (Mar. 21, 1977, p. 8227; Apr. 21, 1983, p. 9339).



[[Page 40]]

Member's Washington and district offices, official expenses incurred 
by the Member, and the postage expenses of first, third, and fourth 
class frankable mail.
  In the 104th Congress the Committee on House Oversight promulgated an 
order abolishing separate allowances for Clerk Hire, Official Expenses, 
and Official Mail, in favor of a single ``Members' Representational 
Allowance'' (MRA). The MRA is provided for the employment of staff in 
the 

  Until January 1, 1988, the maximum salary for staff members was the 
rate of basic pay authorized for Level V of the Executive Schedule (by 
order of the Committee on House Administration, Mar. 21, 1977, p. 8227). 
Under section 311 of the Legislative Branch Appropriations Act, 1988, as 
contained in section 101(i) of Public Law 100-202 (2 U.S.C. 60a-2a), the 
maximum salary for staff members is set by pay order of the Speaker. A 
Member may not employ a relative on his MRA (5 U.S.C. 3110).

  Until the 103d Congress, a Member could employ a ``Lyndon Baines 
Johnson Congressional Intern'' for a maximum of two months at not to 
exceed $1,160 per month. Such internships were available for college 
students and secondary or postsecondary school teachers (H. Res. 420, 
93d Cong., Sept. 18, 1973, p. 30186). Any paid internship is now funded 
through the MRA.

  The statutes provide for continuation of the pay of clerical 
assistants to a Member upon his or her death or resignation, until a 
successor is elected to fill the vacancy, such clerical assistants to 
perform their duties under the direction of the Clerk of the House (2 
U.S.C. 92a-92d). Upon the explusion of a Member in the 96th Congress, 
the House by resolution extended those provisions to any termination of 
service by a Member during the term of office (H. Res. 804, Oct. 2, 
1980, p. 28978).

  For current information on the MRA and the method of its accounting 
and disbursement, see current U.S. House of Representatives 
Congressional Handbook, Committee on House Oversight.



Sec. 88a. Ban on Legislative Service 
Organizations.

  At its  organization the 104th Congress prohibited the 
establishment or continuation of any legislative service organization 
(as that term had been understood in the 103d Congress) and directed the 
Committee on House Oversight to take such steps as were necessary to 
ensure an orderly termination and accounting for funds of any 
legislative service organization in existence on January 3, 1995 (sec. 
222, H. Res. 6, Jan. 4, 1995, p. ----).




Sec. 89. Leadership staff allowances.

  Separate from the  MRA 
specified above, the leaders of the House (the Speaker, Majority Leader, 
Minority Leader, Majority Whip and Minority Whip) are entitled to office 
staffing allowances consisting of certain statutory positions as well as 
lump-sum appropriations authorized by section 473 (84 Stat. 1140). The 
portion of these allowances for leadership office personnel may be 
adjusted by the Clerk of the House in certain situations when the 
President effects a pay adjustment for certain classes of federal 
employees under the Federal Pay Comparability Act of 1970 (P.L. 91-656; 
84 Stat. 1946).



[[Page 41]]

parable levels in the Senate and in the other branches of government. 
For the text of section 311(d), see Sec. 1013(13), infra.



Sec. 89a. Speaker's ``pay orders.''

  Under  section 311(d) of 
the Legislative Branch Appropriations Act, 1988 [2 U.S.C. 60a-2a], the 
Speaker may issue ``pay orders'' that adjust pay levels for officers and 
employees of the House to maintain certain relationships with com-





Sec. 90. Privilege of Members from 
arrest.

  * * * They [the  Senators and Representatives] shall in all Cases, except 
Treason, Felony, and Breach of the Peace, be privileged from Arrest 
during their attendance at the Session of their respective Houses, and 
in going to and returning from the same; * * *



<>   * * * and for any Speech or Debate in either House, they 
[the Senators and Representatives] shall not be questioned in any other 
place.

[[Page 42]]



Sec. 91. Assertions of privilege of 
Members by the House.

  The word ``felony''  in this provision has been interpreted not to 
refer to a delinquency in a matter of debt (III, 2676), and ``treason, 
felony, and breach of the peace'' have been construed to mean all 
indictable crimes (III, 2673). The Supreme Court has held that the 
privilege does not apply to arrest in any criminal case. Williamson v. 
United States, 207 U.S. 425 (1908). The courts have discussed and 
sustained the privilege of the Member in going to and returning from the 
session (III, 2674); and where a person assaulted a Member on his way to 
the House, although at a place distant therefrom, the House arrested him 
on warrant of the Speaker, arraigned him at the bar and committed him 
(II, 1626, 1628). Other assaults under these circumstances have been 
treated as breaches of privilege (II, 1645). Where a Member had been 
arrested and detained under mesne process in a civil suit during a 
recess of Congress, the House decided that he was entitled to discharge 
on the assembling of Congress, and liberated him and restored him to his 
seat by the hands of its own officer (III, 2676). Service of process is 
distinguished from arrest in civil cases and related historical data are 
collected in Long v. Ansell, 293 U.S. 76 (1934), where the Supreme Court 
held that the clause was applicable only to arrests in civil suits, now 
largely obsolete but common at the time of the adoption of the United 
States Constitution. Rule L, infra, was added in the 97th Congress to 
provide a standing procedure governing subpoenas to Members, officers, 
and employees directing their appearance as witnesses relating to the 
official functions of the House, or for the production of House 
documents.




Sec. 93. Scope of the privilege.

  This privilege as  to ``any 
speech or debate'' applies generally to ``things done in a session of 
the House by one of its Members in relation to the business before it.'' 
Kilbourn v. Thompson, 103 U.S. 168 (1881), cited at III, 2675. See also 
II, 1655 and Sec. Sec. 301-302, infra, for provisions in Jefferson's 
Manual on the privilege; and Deschler's Precedents, vol. 2, ch. 7. The 
clause precludes judicial inquiry into the motivation, preparation, or 
content of a Member's speech on the floor and prevents such a speech 
from being made the basis for a criminal conspiracy charge against the 
Member. United States v. Johnson, 383 U.S. 169 (1966). The Supreme Court 
held in United States v. Helstoski, 442 U.S. 447 (1979), that under the 
Speech or Debate Clause, neither evidence of nor references to 
legislative acts of a Member of Congress may be introduced by the 
Government in a prosecution under the official bribery statute. But the 
Supreme Court has limited the scope of legislative activity which is 
protected under the clause by upholding grand jury inquiry into the 
possession and nonlegislative use of classified documents by a Member. 
Gravel v. United States, 408 U.S. 606 (1972). The Court has also 
sustained the validity of an indictment of a Member for accepting an 
illegal bribe to perform legislative acts. United States v. Brewster, 
408 U.S. 501 (1972). Nor does the clause protect transmittal of 
allegedly defamatory material issued in press releases and newsletters 
by a Senator, as neither was essential to the deliberative process of 
the Senate. Hutchinson v. Proxmire, 443 U.S. 111 (1979). A complaint 
against an officer of the House relating to the dismissal of an official 
reporter of debates has been held nonjusticiable on the basis that her 
duties were directly related to the due functioning of the legislative 
process. Browning v. Clerk, 789 F.2d 923 (D.C. Cir. 1986), cert. den. 
479 U.S. 996 (1986).


  Legislative employees acting under orders of the House are not 
necessarily protected under the clause from judicial inquiry into the 
constitutionality of their actions. Powell v. McCormack, 395 U.S. 486 
(1969); Kilbourn v. Thompson, 103 U.S. 165 (1880); Dombrowski v. 
Eastland, 387 U.S. 82 (1967). But see Gravel v. United States, 408 U.S. 
606 (1972), where the Supreme Court held that the aide of a Senator was 
protected under the clause when performing legislative acts which would 
have been protected under the clause if performed by the Senator 
himself. There is no distinction between the Members of a Senate 
subcommittee and its chief counsel insofar as complete immunity under 
the Speech and Debate Clause is provided for the issuance of a subpoena 
pursuant to legitimate legislative inquiry. Eastland v. U.S. 
Servicemen's Fund, 421 U.S. 491 (1975). See also Doe v. McMillan, 412 
U.S. 306 (1973) (relating to the dissemination of a congressional 
report) for the immunity under this clause of Members of the House and 
their staffs, and for the common-law immunity of the Public Printer and 
Superintendent of Documents.


[[Page 43]]

293 U.S. 76 (1934); Methodist Federation for Social 
Action v. Eastland, 141 F. Supp. 729 (1956). For inquiry into a Member's 
use of the franking privilege, see Hoellen v. Annunzio, 468 F.2d 522 
(1972), cert. denied, 412 U.S. 953 (1973); Schiaffo v. Helstoski, 350 F. 
Supp. 1076 (1972), rev'd 492 F.2d 413 (1974). For inquiry into the 
printing of committee reports, see Doe v. McMillan, 412 U.S. 306 (1973); 
Hentoff v. Ichord, 318 F. Supp. 1175 (1970).
  For federal court decisions on the applicability of the clause to 
unofficial circulation of reprints from the Congressional Record, see 
McGovern v. Martz, 182 F. Supp. 343 (1960); Long v. Ansell, 69 F.2d 386 
(1934), aff'd, 



Sec. 94. Action by the House.

  For assaulting a  Member for 
words spoken in debate, Samuel Houston, not a Member, was arrested, 
tried, and censured by the House (II, 1616-1619). Where Members have 
assaulted other Members for words spoken in debate (II, 1656), or 
proceeded by duel (II, 1644), or demanded explanation in a hostile 
manner (II, 1644), the House has considered the cases as of privilege. A 
communication addressed to the House by an official in an Executive 
Department calling in question words uttered by a Member in debate was 
criticized as a breach of privilege and withdrawn (III, 2684). An 
explanation having been demanded of a Member by a person not a Member 
for a question asked of the latter when a witness before the House, the 
matter was considered but not pressed as a breach of privilege (III, 
2681). A letter from a person supposed to have been assailed by a Member 
in debate, asking properly and without menace if the speech was 
correctly reported, was held to involve no question of privilege (III, 
2682). Unless it be clear that a Member has been questioned for words 
spoken in debate, the House declines to act (II, 1620; III, 2680).


  For assaulting a Member, Charles C. Glover was arrested, arraigned at 
the bar of the House, and censured by the Speaker by direction of the 
House, although the provocation of the assault was words spoken in 
debate in the previous Congress (VI, 333).




Sec. 95. Decisions of the Court.

  Decisions  of the Supreme 
Court of the United States: Kilbourn v. Thompson, 103 U.S. 168 (1881); 
Tenney v. Brandhove, 341 U.S. 367 (1951); United States v. Johnson, 383 
U.S. 169 (1966); Dombrowski v. Eastland, 387 U.S. 82 (1967); Powell v. 
McCormack, 395 U.S. 486 (1969); Gravel v. United States, 408 U.S. 606 
(1972); United States v. Brewster, 408 U.S. 501 (1972); United States v. 
Helstoski, 442 U.S. 477 (1979); Hutchinson v. Proxmire, 443 U.S. 111 
(1979).



[[Page 44]]



Sec. 96. Restriction on appointment of 
Members to office.

  \2\ No Senator or  Representative shall, during the Time for which he 
was elected, be appointed to any Civil Office under the Authority of the 
United States, which shall have been created, or the Emoluments whereof 
shall have been encreased during such time; *  *  *.



<>   
*  *  * and no Person holding any Office under the United States, shall 
be a Member of either House during his Continuance in Office.

  In a few cases questions have arisen under this paragraph (I, 506, 
footnote; and see 42 Op. Att'y Gen. 36 (1969); see also Deschler's 
Precedents, vol. 2, ch. 7).

  The meaning of the word ``office'' as used in this paragraph has been 
discussed (I, 185, 417, 478, 493; II, 993; VI, 60, 64), as has also the 
general subject of incompatible offices (I, 563).


[[Page 45]]



Sec. 98. As to what are incompatible 
offices.

  The Judiciary Committee  has concluded that members of commissions created by law to 
investigate and report, but having no legislative, executive, or 
judicial powers, and visitors to academies, regents, directors, and 
trustees of public institutions, appointed under the law by the Speaker, 
are not officers within the meaning of the Constitution (I, 493). 
Membership on joint committees created by the statute is not an office 
in the contemplation of the Constitutional provision prohibiting Members 
of Congress from holding simultaneously other offices under the United 
States (VII, 2164). A Member of either House is eligible to appointment 
to any office not forbidden him by law, the duties of which are not 
incompatible with those of a Member (VI, 63) and the question as to 
whether a Member may be appointed to the Board of Managers of the 
Soldiers' Home and become local manager of one of the Homes, is a matter 
for the decision of Congress itself (VI, 63). The House has also 
distinguished between the performance of paid services for the Executive 
(I, 495), like temporary service as assistant United States attorney 
(II, 993), and the acceptance of an incompatible office. The House has 
declined to hold that a contractor under the Government is 
constitutionally disqualified to serve as a Member (I, 496). But the 
House, or its committees, have found disqualified a Member who was 
appointed a militia officer in the District of Columbia (I, 486) and in 
various States (VI, 60), and Members who have accepted commissions in 
the Army (I, 491, 492, 494). But the Judiciary Committee has expressed 
the opinion that persons on the retired list of the Army do not hold 
office under the United States in the constitutional sense (I, 494). A 
Member-elect has continued to act as governor of a State after the 
assembling of the Congress to which he was elected (I, 503), but the 
duties of a Member of the House and the Governor of a State are 
absolutely inconsistent and may not be simultaneously discharged by the 
same Member (VI, 65).




Sec. 99. Appointment of Memberselect to 
offices under the United States.

  The House decided  that the status of a Member-elect was 
not affected by the constitutional requirement (I, 499), the theory 
being advanced that the status of the Member-elect is distinguished from 
the status of the Member who has qualified (I, 184). And a Member-elect, 
who continued in an office after his election but resigned before taking 
his seat, was held entitled to the seat (I, 497, 498). But when a 
Member-elect held an incompatible office after the meeting of Congress 
he was held to have disqualified himself (I, 492). In other words, the 
Member-elect may defer until the meeting of Congress his choice between 
the seat and an incompatible office (I, 492). As early as 1874 the 
Attorney General opined that a Member-elect is not officially a Member 
of the House, and thus may hold any office until sworn (14 Op. Att'y 
Gen. 408 (1874)).




Sec. 100. Relation of contestants to 
incompatible offices.

  The House has  manifestly leaned to the idea that a contestant 
holding an incompatible office need not make his election until the 
House has declared him entitled to the seat (I, 505). Although a 
contestant had accepted and held a State office in violation of the 
state constitution, if he were really elected a Congressman, the House 
did not treat his contest as abated (II, 1003). Where a Member had been 
appointed to an incompatible office a contestant not found to be elected 
was not admitted to fill the vacancy (I, 807).




Sec. 101. Procedure of the House when 
incompatible offices are accepted.

  Where a Member  has accepted an incompatible 
office, the House has assumed or declared the seat vacant (I, 501, 502; 
VI, 65). In the cases of Baker and Yell, the Elections Committee 
concluded that the acceptance of a commission as an officer of 
volunteers in the national army vacated the seat of a Member (I, 488), 
and in another similar case the Member was held to have forfeited his 
right to a seat (I, 490). The House has seated a person bearing regular 
credentials on ascertaining that his predecessor in the same Congress 
had accepted a military office (I, 572). But usually the House by 
resolution formally declares the seat vacant (I, 488, 492). A Member-
elect may defer until the meeting of Congress his choice between the 
seat and an incompatible office (I, 492). But when he retains the 
incompatible office and does not qualify, a vacancy has been held to 
exist (I, 500). A resolution excluding a Member who has accepted an 
incompatible office may be agreed to by a majority vote (I, 490). A 
Member charged with acceptance of an incompatible office was heard in 
his own behalf during the debate (I, 486).



[[Page 46]]

  Where it was held in federal court that a Member of Congress may not 
hold a commission in the Armed Forces Reserve under this clause, the 
U.S. Supreme Court reversed on other grounds, the plaintiff's lack of 
standing to maintain the suit. Reservists Committee to Stop the War v. 
Laird, 323 F. Supp. 833 (1971), aff'd, 595 F.2d 1075 (1972), rev'd on 
other grounds, 418 U.S. 208 (1974).




Sec. 102. Bills raising revenue to 
originate in the House.

  Section 7. \1\ All Bills  for raising Revenue shall originate in the 
House of Representatives; but the Senate may propose or concur with 
Amendments as on other Bills.



[[Page 47]]

passed bill providing for the sale of Conrail and containing provisions relating to the tax treatment of the sale, notwithstanding inclusion in that 
bill of a ``disclaimer'' section requiring all revenue provisions therein to 
be contained in separate legislation originating in the House (Sept. 25, 
1986, p. 26202); a Senate passed bill prohibiting the importation of 
commodities subject to tariff (July 30, 1987, p. 21582); a Senate-passed 
bill banning all imports from Iran, a tariff measure as affecting 
revenue from dutiable imports (June 16, 1988, p. 14780); a Senate-passed 
bill dealing with the tax treatment of income derived from the exercise 
of Indian treaty fishing rights (June 21, 1988, p. 15425); a Senate bill 
creating a tax-exempt government corporation (June 15, 1989, p. 12167); 
a Senate-passed bill addressing the tax treatment of police-corps 
scholarships and the regulation of firearms under the Internal Revenue 
Code (Oct. 22, 1991, p. ----); a Senate-passed bill including certain 
import sanctions in an export administration statute (Oct. 31, 1991, p. 
29284); a Senate-passed bill requiring the President to impose sanctions 
including import restrictions against countries that fail to eliminate 
largescale driftnet fishing (Feb. 25, 1992, p. ----); a Senate-passed 
bill proposing to regulate toxic substances by prohibiting the import of 
products containing more than specified level of lead (July 21, 1994, p. 
----); and a Senate amendment to a general appropriation bill proposing 
a user fee raising revenue to finance broader activities of the agency 
imposing the levy, thereby raising general revenue (Aug. 12, 1994, p. --
--).
  This provision has been the subject of much discussion (II, 1488, 
1494). In the earlier days the practice was not always correct (II, 
1484); but in later years the House has insisted on its prerogative and 
the Senate has often shown reluctance to infringe thereon (II, 1482, 
1483, 1493). In several instances, however, the subject has been matter 
of contention, conference (II, 1487, 1488), and final disagreement (II, 
1485, 1487, 1488). Sometimes, however, when the House has questioned an 
invasion of prerogative, the Senate has receded (II, 1486, 1493). The 
disagreements have been especially vigorous over the right of the Senate 
to concur with amendments (II, 1489), and while the Senate has 
acquiesced in the sole right of the House to originate revenue bills, it 
has at the same time held to a broad power of amendment (II, 1497-1499). 
The House has frequently challenged the Senate on this point (II, 1481, 
1491, 1496; Sept. 14, 1965, p. 23632). When the House has conceived that 
its prerogative has been invaded, it has ordered the bill or Senate 
amendment to be returned to the Senate (II, 1480-1499; VI, 315, 317; 
Mar. 30, 1937, p. 2930; July 2, 1960, p. 15818; Oct. 10, 1962, p. 23014; 
May 20, 1965, p. 11149; June 20, 1968, p. 22127; Nov. 8, 1979, p. 31518; 
May 17, 1983, p. 12486; Oct. 1, 1985, p. 25418; Sept. 25, 1986, p. 
26202; July 30, 1987, p. 21582; June 16, 1988, p. 14780; June 21, 1988, 
p. 15425; Sept. 23, 1988, p. 25094; Sept. 28, 1988, p. 26415; Oct. 21, 
1988, pp. 33110-11; June 15, 1989, p. 12167; Nov. 9, 1989, p. 28271; 
Oct. 22, 1991, p. 27087; Oct. 31, 1991, p. 29284; Feb. 25, 1992, p. ----
; July 21, 1994, p. ----; Aug. 12, 1994, p. ----; Oct. 7, 1994, p. ----; 
Mar. 21, 1996, p. ----; Apr. 16, 1996, p. ----; Sept. 27, 1996, p. ----; 
Sept. 28, 1996, p. ----), or declined to proceed further with it (II, 
1485). A bill raising revenue incidentally was held not to infringe upon 
the Constitutional prerogative of the House to originate revenue 
legislation (VI, 315). Discussion of differentiation between bills for 
the purpose of raising revenue and bills which incidentally raise 
revenue (VI, 315). A question relating to the invasion of the 
Constitutional prerogatives of the House by a Senate amendment may be 
raised at any time when the House is in possession of the papers, but 
not otherwise; thus, the question has been presented pending the motion 
to call up a conference report on the bill (June 20, 1968, Deschler's 
Precedents, vol. 3, ch. 13, sec. 14.2; Aug. 19, 1982, p. 22127), but has 
been held nonprivileged with respect to a bill already presented to the 
President (Apr. 6, 1995, p. ----). On January 16, 1924, p. 1027, the 
Senate decided that a bill proposing a gasoline tax in the District of 
Columbia should not originate in the Senate (VI, 316). Among the 
measures the House has returned to the Senate: a Senate 

  Clause 5(b) of rule XXI, added in the 98th Congress, prohibits 
consideration of any amendment, including any Senate amendment, 
proposing a tax or tariff measure during consideration of a bill or 
joint resolution reported by a committee not having that jurisdiction 
(H. Res. 5, Jan. 3, 1983, p. 34).

  For discussion as to the prerogatives of the House under this clause, 
and discussion of the prerogatives of the House to originate 
appropriation bills, see Deschler's Precedents, vol. 3, ch. 13.




Sec. 103. Decisions of the Court.

  Decisions  of the Supreme 
Court of the United States: Field v. Clark, 143 U.S. 649 (1892); Twin 
City Bank v. Nebeker, 167 U.S. 196 (1897); Millard v. Roberts, 202 U.S. 
429 (1906); Rainey v. United States, 232 U.S. 310 (1914); Flint v. Stone 
Tracy Co., 220 U.S. 107 (1911).



[[Page 48]]

nated, who shall enter the Objections at large on their 
Journal, and proceed to reconsider it. If after such Reconsideration two 
thirds of that House shall agree to pass the Bill, it shall be sent, 
together with the Objections, to the other House, by which it shall 
likewise be reconsidered, and if approved by two thirds of that House, 
it shall become a Law. But in all such Cases the Votes of both Houses 
shall be determined by Yeas and Nays, and the Names of the Persons 
voting for and against the Bill shall be entered on the Journal of each 
House respectively. * * *.



Sec. 104. Approval and disapproval of bills by 
the President.

  \2\ Every Bill  which shall have passed the House of Representatives 
and the Senate, shall, before it become a Law, be presented to the 
President of the United States; If he approve he shall sign it, but if 
not he shall return it, with his Objections to that House in which it 
shall have origi-



[[Page 49]]

House discussed the act of President Jackson in writing above his signature 
of approval a memorandum of his construction of the bill (IV, 3492). But 
where the President has accompanied his message announcing the approval 
with a statement of his reasons there has been no question in the House 
(IV, 3491). The statutes require that bills signed by the President 
shall be received by the Archivist of the United States and deposited in 
his office (1 U.S.C. 106a). Formerly these bills were received by the 
Secretary of State (IV, 3485) and deposited in his office (IV, 3429).


Sec. 105. The act of approval.

  Under the usual  practice, 
bills are considered to have been ``presented to the President'' at the 
time they are delivered to the White House. In 1959, bills delivered to 
the White House while the President was abroad were ``held for 
presentation to the President upon his return to the United States'' by 
the White House. The United States Court of Claims held, in Eber Bros. 
Wine and Liquor Corp. v. United States, 337 F.2d 624 (1964), cert. 
denied, 380 U.S. 950 (1965), that where the President had determined, 
with the informal acquiescence of leaders of Congress, that bills from 
the Congress were to be received at the White House only for 
presentation to him upon his return to the United States and the bill 
delivered to the White House was so stamped, the presidential veto of 
the bill more than 10 days after delivery to the White House but less 
than 10 days after his return to the country was timely. The second 
session of the 89th Congress adjourned sine die while President Johnson 
was on an Asian tour and receipts for bills delivered to the White House 
during that time were marked in like manner. The approval of a bill by 
the President of the United States is valid only with his signature (IV, 
3490). Prior to the adoption of the 20th amendment to the Constitution, 
at the close of a Congress, when the two Houses prolonged their sessions 
into the forenoon of March 4, the approvals were dated on the prior 
legislative day, as the legislative portion of March 4 belonged to the 
term of the new Congress. In one instance, however, bills signed on the 
forenoon of March 4 were dated as of that day with the hour and minute 
of approval given with the date (IV, 3489). The 20th amendment to the 
Constitution changed the date of meeting of the Congress to January 3d. 
The act of President Tyler in filing with a bill an exposition of his 
reasons for signing it was examined and severely criticized by a 
committee of the House (IV, 3492); and in 1842 a committee of the 




Sec. 106. Notice of approval sent by 
message.

  Notice of the  signature of a bill by the President is sent by message to 
the House in which it originated (VII, 1089) and that House informs the 
other (IV, 3429). But this notice is not necessary to the validity of 
the act (IV, 3495). Sometimes, at the close of a Congress the President 
informs the House of such bills as he has approved and of such as he has 
allowed to fail (IV, 3499-3502). In one instance he communicated his 
omission to sign a bill through the committee appointed to notify him 
that Congress was about to adjourn (IV, 3504). A bill that had not 
actually passed having been signed by the President, he disregarded it 
and a new bill was passed (IV, 3498). Messages of the President giving 
notice of bills approved are entered in the Journal and published in the 
Congressional Record (V, 6593).




Sec. 107. Disapproval (or veto) of 
bills.

  A message withholding  approval of a bill, called a veto message, is sent to the House 
in which the bill originated; but it has been held that such a message 
may not be returned to the President on his request after it has been 
laid before the Senate (IV, 3521). Instance where a veto message which 
had not been laid before the House was returned to the President on his 
request (Aug. 1, 1946, p. 10651). A vetoed bill received in the House by 
way of the Senate is considered as if received directly from the 
President and supersedes the regular order of business (IV, 3537; VII, 
1109). A veto message may not be read in the absence of a quorum, even 
though the House be about to adjourn sine die (IV, 3522; VII, 1094); but 
the message may be read and acted on at the next session of the same 
Congress (IV, 3522). When the President has been prevented by 
adjournment from returning a bill with his objections he has sometimes 
at the next session communicated his reasons for not approving (V, 6618-
6620).


  Although the ordinary form of a return veto is a message under seal 
returning the enrollment with a statement of the President's objections, 
an enrolled House bill returned to the Clerk during the August recess 
with a ``memorandum of disapproval'' setting forth the objections of the 
President was considered as a return veto (Sept. 11, 1991, p. 22643).


[[Page 50]]

it has been held that the constitutional mandate that ``the House 
shall proceed to consider'' means that the House shall immediately 
proceed to consider it under the rules of the House, such that the 
ordinary motions under the rules of the House (e.g., to refer or to 
postpone to a day certain) are in order (IV, 3542-3550; VII, 1100, 1105, 
1113; Speaker Wright, Aug. 3, 1988, p. 20280) and (for the stated 
examples) debatable under the hour rule (VIII, 2740). Although under 
clause 4 of rule XVI, and under the precedents the motion for the 
previous question takes precedence over motions to postpone or to refer 
when a question is under debate, where the Speaker has laid before the 
House a veto message from the President but has not yet stated the 
question to be on overriding the veto, that question is not ``under 
debate'' and the motion for the previous question does not take 
precedence (Speaker Wright, Aug. 3, 1988; Procedure, ch. 24, sec. 15.8). 
A resolution asserting that to recognize for a motion to refer a veto 
message before stating the question on overriding the veto would 
interfere with the constitutional prerogative of the House to proceed to 
that question, and directing the Speaker to state the question on 
overriding the veto as pending before recognizing for a motion to refer, 
did not give rise to a question of the privileges of the House (Speaker 
Wright, Aug. 3, 1988, p. 20281). A motion to refer a vetoed bill, either 
with or without the message, has been held allowable within the 
constitutional mandate that the House ``shall proceed to reconsider'' 
(IV, 3550; VII, 1104, 1105, 1108, 1114), and in the 101st Congress, a 
veto pending as unfinished business was referred with instructions to 
consider and report promptly (Jan. 24, 1990, p. 421). But while the 
ordinary motion to refer may be applied to a vetoed bill, it is not in 
order to move to recommit it pending the demand for the previous 
question or after it is ordered (IV, 3551; VII, 1102). When a veto 
message is before the House for consideration de novo or as unfinished 
business, a motion to refer the message to committee takes precedence 
over the question of passing the bill, the objections of the President 
to the contrary notwithstanding (Procedure, ch. 24, sec. 15.8; Oct. 25, 
1983, p. 29188), but the motion to refer may be laid on the table (Oct. 
25, 1983, p. 29188). A vetoed bill having been rejected by the House, 
the message was referred (IV, 3552; VII, 1103). Committees to which 
vetoed bills have been referred have sometimes neglected to report (IV, 
3523, 3550, footnotes; VII, 1108, 1114).


Sec. 108. Consideration of a vetoed bill in the 
House.

  It is the  usual but not invariable rule that a bill returned with the 
objections of the President shall be voted on at once (IV, 3534-3536) 
and when laid before the House the question on the passage is considered 
as pending and no motion from the floor is required (VII, 1097-1099), 
but 



[[Page 51]]

  A vetoed bill may be laid on the table (IV, 3549; VII, 1105), but it 
is still highly privileged and a motion to take it from the table is in 
order at any time (IV, 3550; V, 5439). Also a motion to discharge a 
committee from the consideration of such a bill is privileged (IV, 3532; 
Aug. 4, 1988, p. 20365; Sept. 19, 1996, p. ----) and (in the modern 
practice) is debatable (Mar. 7, 1990, p. 3620) but is subject to the 
motion to lay on the table (Sept. 7, 1965, pp. 22958-59; Aug. 4, 1988, 
p. 20365). When the motion to discharge is agreed to, the veto message 
is pending as unfinished business (Mar. 7, 1990, p. 3621). While a 
vetoed bill is always privileged, the same is not true of a bill 
reported in lieu of it (IV, 3531; VII, 1103).



Sec. 109. Action on a vetoed bill.

  If two-thirds of  the 
House to which a bill is returned with the President's objections agree 
to pass it, and then two-thirds of the other House also agree, it 
becomes a law (IV, 3520). The yeas and nays are required to pass a bill 
over the President's veto (art. I, sec. 7; IV, 2726, 3520; VII, 1110). 
The two-thirds vote required to pass the bill is two-thirds of the 
Members present and voting and not two-thirds of the total membership of 
the House (IV, 3537, 3538; Missouri Pac. Ry. Co. v. Kansas, 248 U.S. 276 
(1919)). Only Members voting should be considered in determining whether 
two-thirds voted in the affirmative (VII, 1111). The motion to 
reconsider may not be applied to the vote on reconsideration of a bill 
returned with the objections of the President (V, 5644; VIII, 2778).


  It is the practice for one House to inform the other by message of its 
decision that a bill returned with the objections of the President shall 
not pass (IV, 3539-3541). A bill passed notwithstanding the objections 
of the President is sent by the presiding officer of the House which 
last acts on it to the Archivist, who receives it and deposits it in his 
office (1 U.S.C. 106a). Formerly these bills were sent to the Secretary 
of State (IV, 3524) and deposited in his office (IV, 3485).



Sec. 110. Errors in bills sent to the 
President.

  A bill incorrectly  enrolled has been recalled from the President, who erased 
his signature (IV, 3506). Bills sent to the President but not yet signed 
by him are sometimes recalled by concurrent resolution of the two Houses 
(IV, 3507-3509; VII, 1091; Sept. 4, 1962, p. 18405; May 6, 1974, p. 
13076), and amended; but this proceeding is regarded as irregular (IV, 
3510-3518). When the two Houses of Congress request the President by 
concurrent resolution to return an enrolled bill delivered to him and 
the President honors the request, the ten-day period under this clause 
runs anew from the time the bill is re-enrolled and is again presented 
to the President. Thus, in the 93d Congress the President returned on 
May 7, 1974 a bill pursuant to the request of Congress (H. Con. Res. 
485, May 6, 1974, p. 13076). The bill was again enrolled, presented to 
the President on May 7, and marked ``received May 7'' at the White 
House. An error in an enrolled bill that has gone to the President may 
also be corrected by a joint resolution (IV, 3519; VII, 1092). In the 
99th Congress, two enrollments of a continuing appropriation bill for FY 
1987 were presented to and signed by the President, the second 
correcting an omission in the first (see P.L. 99-500 and 99-591).



[[Page 52]]



Sec. 110a. Decisions of the Court.

  Decisions  of the Supreme 
Court of the United States: La Abra Silver Mining Co. v. United States, 
175 U.S. 423 (1899); Gardner v. Collector, 73 U.S. (6 Wall.) 499 (1868); 
Matthews v. Zane, 20 U.S. (7 Wheat.) 164 (1822); Lapeyre v. United 
States, 84 U.S. (17 Wall.) 191 (1873); Missouri Pacific Railway Co. v. 
Kansas, 248 U.S. 276 (1919); Edwards v. United States, 286 U.S. 482 
(1932); Wright v. United States, 302 U.S. 583 (1938).





Sec. 111. Bills which become laws without the 
President's approval.

  * * * If any  Bill shall not be returned by the President 
within ten Days (Sundays excepted) after it shall have been presented to 
him, the Same shall be a Law, in like Manner as if he had signed it, 
unless the Congress by their Adjournment prevent its Return, in which 
Case it shall not be a Law.


  A bill signed by the President within ten days (Sunday excepted) after 
it has been presented to him becomes a law even though such signing 
takes place when Congress is not in session, whether during the period 
of an adjournment to a day certain or after the final adjournment of a 
session. Presidents currently sign bills after sine die adjournment but 
within ten days after their receipt. President Truman signed several 
bills passed in the 81st Congress after the convening of the 82d 
Congress but within ten days (P.L. 910-921; 64 Stat. 1221-1257); and 
President Reagan approved bills passed in the 97th Congress which were 
presented after the convening of the 98th Congress (P.L. 97-419 et 
seq.). It was formerly contended that the President might not approve 
bills during a recess (IV, 3493, 3494), and in one instance, in 1864, 
when the President signed a bill after final adjournment of Congress but 
within ten days grave doubts were raised and an adverse report was made 
by a House committee (IV, 3497). Later opinions of the Attorney General 
have been to the effect that the President has the power to approve 
bills within ten days after they have been presented to him during the 
period of an adjournment to a day certain (IV, 3496) and after an 
adjournment sine die (VII, 1088). The Supreme Court has held valid as 
laws bills signed by the President within ten days during a recess for a 
specified time (La Abra Silver Mining Co. v. United States, 175 U.S. 451 
(1899); IV, 3495) and also those signed after an adjournment sine die 
(Edwards v. United States, 286 U.S. 482 (1932)).


[[Page 53]]



Sec. 112. The pocket veto.

  A bill which  is passed by both 
Houses of Congress during the first regular session of a Congress and 
presented to the President less than ten days (Sundays excepted) before 
the sine die adjournment of that session, but is neither signed by the 
President, nor returned by him to the House in which it originated, does 
not become a law (``The Pocket Veto Case,'' 279 U.S. 655 (1929); VII, 
1115). President Truman during an adjournment to a day certain pocket 
vetoed several bills passed by the 81st Congress and also, after the 
convening of the 82d Congress, pocket vetoed one bill passed in the 81st 
Congress. The Supreme Court has held that the adjournment of the House 
of origin for not exceeding three days while the other branch of the 
Congress remained in session, did not prevent a return of the vetoed 
bill to the House of origin (Wright v. United States, 302 U.S. 583 
(1938)).




Sec. 113. Effect of adjournment to a day 
certain.

  Doubt has existed  as to whether a bill which remains with the President ten 
days without his signature, Congress meanwhile before the tenth day 
having adjourned to a day certain, becomes a law (IV, 3483, 3496; VII, 
1115); an opinion of the Attorney General in 1943 stated that under such 
circumstances a bill not signed by the President did not become a law 
(40 Op. Att'y Gen. 274 (1943)). However, more recently, where a Member 
of the Senate challenged in federal court the effectiveness of such a 
pocket veto, a United States Court of Appeals held that a Senate bill 
could not be pocket-vetoed by the President during an ``intrasession'' 
adjournment of Congress to a day certain for more than three days, where 
the Secretary of the Senate had been authorized to receive Presidential 
messages during such adjournment. Kennedy v. Sampson, 511 F.2d 430 (D.C. 
Cir., 1974). See also Kennedy v. Jones, 412 F. Supp. 353 (D.D.C. 1976). 
Following a consent decree in this case, it was announced that President 
Ford would utilize a ``return'' veto, subject to override, in 
intersession and intrasession adjournments where authority exists for 
the appropriate House to receive such messages notwithstanding the 
adjournment.


  In the 101st Congress, when President Bush returned an enrolled bill 
during the intersession adjournment, not by way of message under seal 
but with a ``memorandum of disapproval'' setting forth his objections, 
the House treated it as a return veto subject to override under article 
I, section 7 (Jan. 23, 1990, p. 4). Similarly, in the 102d Congress, an 
enrolled House bill returned to the Clerk during the August recess, not 
by way of message under seal but with a ``memorandum of disapproval'' 
setting forth the objections of the President, was considered as a 
return veto (Sept. 11, 1991, p. 22643). Also in the 102d Congress, 
President Bush purported on December 20, 1991, to pocket veto a bill (S. 
1176) that was presented to him on December 9, 1991, notwithstanding 
that the Congress was in an intrasession adjournment (from Nov. 27, 
1991, until 11:55 a.m., Jan. 3, 1992) rather than an adjournment sine 
die (see Jan. 21, 1992, p. ----); and during debate on a subsequent bill 
(S. 2184) purporting to repeal the provisions of S. 1176 and to enact 
instead provisions acceding to the objections of the President, the 
Speaker inserted remarks on the pocket veto in light of modern 
Congressional practice concerning the receipt of messages and 
communications during recesses and adjournments (Mar. 3, 1992, p. ----).


[[Page 54]]

36246; veto override, Nov. 20, 1974, p. 36621). Subsequently, on November 
21, 1974, the Senate also voted to override the veto (p. 36882) and pursuant 
to 1 U.S.C. 106a the Enrolling Clerk of the Senate forwarded the bill to 
the Archives for publication as a public law. The Administrator of General 
Services at the Archives (now Archivist), upon instructions from the 
Department of Justice, declined to promulgate the bill as public law on the 
day received. The question as to the efficacy of the Congressional action in 
passing the bill over the President's veto was mooted when the House and 
Senate passed on November 26, 1974 (pp. 37406, 37603), an identical bill 
which was signed into law on December 7, 1974 (P.L. 93-516). As part of 
the concurrent resolution providing for the sine die adjournment of the 
first session of the 101st Congress, the Congress reaffirmed its position 
that an intersession adjournment did not prevent the return of a bill where 
the Clerk and the Secretary of the Senate were authorized to receive 
messages during the adjournment (H. Con. Res. 239, Nov. 21, 1989, p. 
31156). For the views of the Speaker, the Minority Leader, and the 
Attorney General concerning pocket veto authority during an intrasession 
adjournment, see correspondence inserted in the Record (Jan. 23, 1990, 
p. 3); and for discussions of the constitutionality of intersession or 
intrasession pocket vetoes see Kennedy, ``Congress, The President, and 
The Pocket Veto,'' 63 Va. L. Rev. 355 (1977), and Hearing, Subcommittee 
on Legislative Process, Committee on Rules, on H.R. 849, 101st Congress.
  In the 93d Congress, the President returned a House bill without his 
signature to the Clerk of the House, who had been authorized to receive 
messages from the President during an adjournment to a day certain, and 
the President asserted in his veto message that he had ``pocket vetoed'' 
the bill during the adjournment of the House to a day certain. The House 
regarded the President's return of the bill without his signature as a 
veto within the meaning of article I, section 7 of the Constitution and 
proceeded to reconsider and to pass the bill over the President's veto, 
after postponing consideration to a subsequent day (motion to postpone, 
Nov. 18, 1974, p. 




Sec. 114. Decisions of the Court.

  Decisions  of the Supreme 
Court of the United States: La Abra Silver Mining Co. v. United States, 
175 U.S. 423 (1899); Wilkes County v. Coler, 180 U.S. 506; the Pocket 
Veto Case, 279 U.S. 655 (1929); Edwards v. United States, 286 U.S. 482 
(1932); Wright v. United States, 302 U.S. 583 (1938); Burke v. Barnes, 
479 U.S. 361 (1987) (vacating and remanding as moot the decision sub 
nom. Barnes v. Kline, 759 F.2d 21 (D.C. Cir. 1984)).



[[Page 55]]



Sec. 115. As to presentation of orders and 
resolutions for approval.

  \3\ Every Order,  Resolution, or Vote to which the Concurrence 
of the Senate and House of Representatives may be necessary (except on a 
question of Adjournment) shall be presented to the President of the 
United States; and before the Same shall take Effect, shall be approved 
by him, or being disapproved by him, shall be repassed by two thirds of 
the Senate and House of Representatives, according to the Rules and 
Limitations prescribed in the Case of a Bill.


  It has been settled conclusively that a joint resolution proposing an 
amendment to the Constitution should not be presented to the President 
for his approval (V, 7040; Hollingsworth v. Virginia, 3 U.S. [3 Dall.] 
378 (1798) ). Such joint resolutions, after passage by both Houses, are 
presented to the Archivist (1 U.S.C. 106b). Although the requirement of 
the Constitution seems specific, the practice of Congress has been to 
present to the President for approval only such concurrent resolutions 
as are legislative in effect (IV, 3483, 3484) which is not within the 
scope of the modern form of concurrent resolutions. See section 192, 
infra, for a discussion of Presidential approval of a joint resolution 
extending the period for State ratification of a constitutional 
amendment already submitted to the States. For discussion of 
``Congressional Disapproval'' provisions contained in public laws, see 
Sec. 1013, infra.




Sec. 116. Decisions of the Court.

  Decisions  of the Supreme 
Court of the United States: Field v. Clark, 143 U.S. 649 (1892); United 
States v. Ballin, 144 U.S. 1 (1892); Fourteen Diamond Rings v. United 
States, 183 U.S. 176 (1901); INS v. Chadha, 103 S.Ct. 2764 (1983); 
Consumer's Union, Inc. v. FTC, 103 S.Ct. 3556 (1983); Consumer Energy 
Council of America v. FERC, 103 S.Ct. 3556 (1983).




Sec. 117. The revenue power.

  Section 8. The Congress  shall 
have Power \1\ To lay and collect Taxes, Duties, Imposts and Excises, to 
pay the Debts and provide for the common Defence and general Welfare of 
the United States; but all Duties, Imposts and Excises shall be uniform 
throughout the United States;
<>   \2\ To borrow Money on the 
credit of the United States:




Sec. 119. Power over commerce.

  \3\ To regulate  Commerce with 
foreign Nations, and among the several States, and with the Indian 
Tribes;



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Sec. 120. Naturalization and bankruptcy.

  \4\ To establish  an 
uniform Rule of Naturalization, and uniform Laws on the subject of 
Bankruptcies throughout the United States;
<>   \5\ To coin Money, 
regulate the Value thereof, and of foreign Coin, and fix the Standard of 
Weights and Measures;




Sec. 122. Counterfeiting.

  \6\ To provide  for the Punishment 
of counterfeiting the Securities and current Coin of the United States;-
-
<>   \7\ To establish Post 
Offices and Post Roads;





Sec. 124. Patents and copyrights.

  \8\ To promote  the 
Progress of Science and useful Arts, by securing for limited Times to 
Authors and Inventors the exclusive Right to their respective Writings 
and Discoveries;
<>   \9\ To constitute Tribunals 
inferior to the supreme Court;
<>   \10\ 
To define and punish Piracies and Felonies committed on the high Seas, 
and Offenses against the Law of Nations;
<>   \11\ 
To declare War, grant Letters of Marque and Reprisal, and make Rules 
concerning Captures on Land and Water;



[[Page 57]]



Sec. 128. War powers of Congress and the 
President.

  In the 93d  Congress, the Congress passed over the President's veto 
Public Law 93-148, relating to the power of Congress to declare war 
under this clause and the power of the President as Commander in Chief 
under article II, section 2, clause 1 (Sec. 178, infra). The law 
requires that the President report to Congress on the introduction of 
United States Armed Forces in the absence of a declaration of war. The 
President must terminate use of the Armed Forces unless Congress, within 
sixty calendar days after a report is submitted or is required to be 
submitted, (1) declares war or authorizes use of the Armed Forces; (2) 
extends by law the sixty-day period; or (3) is physically unable to meet 
as result of armed attack. The Act also provided that Congress could 
adopt a concurrent resolution requiring the removal of Armed Forces 
engaged in foreign hostilities, a provision which should be read in 
light of INS v. Chadha, 462 U.S. 919 (1983). Sections 6 and 7 of the Act 
provide congressional procedures for joint resolutions, bills, and 
concurrent resolutions introduced pursuant to the provisions of the Act 
(see Sec. 1013(2), infra). For further discussion of that Act, and war 
powers generally, see Deschler's Precedents, vol. 3, ch. 13.




Sec. 129. Raising and support of armies.

  \12\ To raise  and 
support Armies, but no Appropriation of Money to that Use shall be for a 
longer Term than two Years;
<>   \13\ To provide and 
maintain a Navy;
<>   \14\ To make Rules for the 
Government and Regulation of the land and naval Forces;




Sec. 132. Calling out the militia.

  \15\ To provide  for 
calling forth the Militia to execute the Laws of the Union, suppress 
Insurrections and repel Invasions;




Sec. 133. Power over militia.

  \16\ To provide  for 
organizing, arming, and disciplining, the Militia, and for governing 
such Part of them as may be employed in the Service of the United 
States, reserving to the States respectively, the Appointment of the 
Officers, and the Authority of training the Militia according to the 
discipline prescribed by Congress;



[[Page 58]]



Sec. 134. Power over territory of the United 
States.

  \17\ To exercise  exclusive Legislation in all Cases whatsoever, over such 
District (not exceeding ten Miles square) as may, by Cession of 
particular States, and the Acceptance of Congress, become the Seat of 
the Government of the United States, and to exercise like Authority over 
all Places purchased by the Consent of the Legislature of the State in 
which the Same shall be, for the Erection of Forts, Magazines, Arsenals, 
dock-Yards, and other needful Buildings;--And



-  \18\ To make <> all Laws 
which shall be necessary and proper for carrying into Execution the 
foregoing Powers, and all other Powers vested by this Constitution in 
the Government of the United States, or in any Department or Officer 
thereof.



Sec. 135. Congressional authority over 
the District of Columbia.

  Congress has provided  by law that ``all that part of the territory 
of the United States included within the present limits of the District 
of Columbia shall be the permanent seat of government of the United 
States'' (4 U.S.C. 71). Pursuant to its authority under this clause, 
Congress provided in 1970 for the people of the District of Columbia to 
be represented in the House of Representatives by a Delegate and for a 
Commission to report to the Congress on the organization of the 
government of the District of Columbia (P.L. 91-405; 84 Stat. 845). For 
the powers and duties of the Delegate from the District of Columbia, see 
rule XII (Sec. 740, infra) and Deschler's Precedents, vol. 2, ch. 7, 
sec. 3. In 1973, Congress passed the District of Columbia Self-
Government and Governmental Reorganization Act, which reorganized the 
governmental structure of the District, provided a charter for local 
government subject to acceptance by a majority of the registered 
qualified voters of the District, delegated certain legislative powers 
to the District, and implemented certain recommendations of the 
Commission on the Organization of the Government of the District of 
Columbia (P.L. 93-198; 87 Stat. 774). Section 604 of that Act provides 
for Congressional action on certain district matters by providing a 
procedure for approval and disapproval of certain actions by the 
District of Columbia Council. The section, as amended by Public Law 98-
473, permits a highly privileged motion to discharge a joint resolution 
of approval or disapproval which has not been reported by the committee 
to which referred within twenty calendar days after its introduction 
(see Sec. 1013(5), infra).



[[Page 59]]



Sec. 137. Migration or importation of 
persons.

  Section 9. \1\ The  Migration or Importation of such Persons as any of the States 
now existing shall think proper to admit, shall not be prohibited by the 
Congress prior to the Year one thousand eight hundred and eight, but a 
Tax or duty may be imposed on such Importation, not exceeding ten 
dollars for each Person.




Sec. 138. Writ of habeas corpus.

  \2\ The Privilege of  the 
Writ of Habeas Corpus shall not be suspended, unless when in Cases of 
Rebellion or Invasion the public Safety may require it.
<>   \3\ No 
Bill of Attainder or ex post facto Law shall be passed.





Sec. 140. Capitation and direct 
taxes.

  \4\ [No Capitation,  or other direct, tax shall be laid, unless in Proportion to the 
Census or Enumeration herein before directed to be taken.]




Sec. 141. Export duties.

  This provision was changed in 1913 by the 16th amendment to the 
Constitution.
   \5\ No Tax or Duty shall be laid on 
Articles exported from any State.




Sec. 142. Freedom of commerce.

  \6\ No Preference  shall be 
given by any Regulation of Commerce or Revenue to the Ports of one State 
over those of another: nor shall Vessels bound to, or from, one State, 
be obliged to enter, clear, or pay Duties in another.




Sec. 143. Appropriations and accounting of public 
money.

  \7\ No Money  shall be drawn from the Treasury, but in Consequence of 
Appropriations made by Law; and a regular Statement and Account of the 
Receipts and Expenditures of all public Money shall be published from 
time to time.



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Emolument, Office, or Title, of any kind whatever, 
from any King, Prince, or foreign State.



Sec. 144. Titles of nobility and gifts from 
foreign states.

  \8\ No Title of  Nobility shall be granted by the United States: And no 
Person holding any Office of Profit or Trust under them, shall, without 
the Consent of the Congress, accept of any present, 




Sec. 145. Foreign gifts and 
decorations.

  Consent has been  granted to officers and employees of the government, 
under enumerated conditions, to accept certain gifts and decorations 
from foreign governments (see 5 U.S.C. 7342). The adoption of this act 
largely has obviated the practice of passing private bills to permit the 
officer or employee to retain the award. However, where the Speaker (who 
was one of the officers empowered by an earlier law to approve retention 
of decorations by Members of the House) was himself tendered an award 
from a foreign government, a private law (Private Law 91-244) was 
enacted to permit him to accept and wear the award so that he would not 
be in the position of reviewing his own application under the provisions 
of the law.


  Public Law 95-105 amended the Foreign Gifts and Decorations Act (now 5 
U.S.C. 7342) to designate the Committee on Standards of Official Conduct 
of the House of Representatives as the ``employing agency'' for the 
House with respect to foreign gifts and decorations received by Members 
and employees; under that statute the Committee may approve the 
acceptance of foreign decorations and has promulgated regulations to 
carry out the Act with respect to Members and employees (Jan. 23, 1978, 
pp. 452-53), and disposes of foreign gifts which may not be retained by 
the donee.

  Opinions of Attorneys General:


  Gifts from Foreign Prince, 24 Op. Att'y Gen. 117 (1902); Foreign 
Diplomatic Commission, 13 Op. Att'y Gen. 538 (1871); Marshal of Florida, 
6 Op. Att'y Gen. 409 (1854).



Sec. 146. States not to make treaties, coin 
money, pass ex post facto laws, impair contracts, etc.

  Section 10. \1\ No  State shall 
enter into any Treaty, Alliance, or Confederation; grant Letters of 
Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing 
but gold and silver Coin a Tender in Payment of Debts; pass any Bill of 
Attainder, ex post facto Law, or Law impairing the Obligation of 
Contracts, or grant any Title of Nobility.



[[Page 61]]

and Imposts, laid by any State on Imports or Exports, shall be for the 
Use of the Treasury of the United States; and all such Laws shall be 
subject to the Revision and Controul of the Congress.


Sec. 147. States not to lay imposts or 
duties.

  \2\ No State  shall, without the Consent of the Congress, lay any Imposts or 
Duties on Imports or Exports, except what may be absolutely necessary 
for executing it's inspection Laws: and the net Produce of all Duties 







Sec. 148. States not to lay tonnage taxes, make 
compacts, or go to war.

  \3\ No State  shall, without the Consent of Congress, lay 
any Duty of Tonnage, keep Troops, or Ships of War in time of Peace, 
enter into any Agreement or Compact with another State, or with a 
foreign Power, or engage in War, unless actually invaded, or in such 
imminent Danger as will not admit of delay.