[Constitution, Jefferson's Manual, and the Rules of the House of Representatives, 110th Congress]
[110th Congress]
[House Document 109-157]
[The United States Constitution]
[Pages 4-65]
[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, ch. 8.


[[Page 5]]

resolution fixing the daily hour of meeting at noon 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. 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 noon when no other hour is fixed (I, 4, 210). In the 
later practice a


  Before adoption of the 20th amendment, the legislative day of March 3 
extended to noon 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 
(nonelection) year, the Congress has agreed to adjourn for the month 
preceding Labor Day. For more on this provision, see Sec. 1105, 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 before 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, ch. 7, Sec. Sec. 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 reasonable 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; Franklin v. 
Massachusetts, 505 U.S. 788 (1992); Utah v. Evans, 536 U.S. 452 (2002).





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.



[[Page 10]]

  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. When a vacancy occurs, or when a new Member is sworn, 
the Speaker announces the resulting adjustment in the whole number of 
the House pursuant to clause 5(d) of rule XX (see Sec. 1024b, infra). 
Clause 5(c) of rule XX permits the House to operate with a provisional 
number of the House where the House is without a quorum due to 
catastrophic circumstances (see Sec. 1024a, infra). In extraordinary 
circumstances, section 8 of title 2, United States Code, prescribes 
special election rules to expedite the filling of vacancies in 
representation of the House.



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 of 
votes may not receive the credentials (I, 323; VI 152). A Member whose 
seat was contested having died, 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, when two Members-elect were passengers 
on a missing aircraft and were presumed dead, the Speaker laid 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, p. 15). For further discussion, see Sec. 23, infra.




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). However, Members have 
resigned by letter to the House alone, it being presumed that the Member 
would also notify his Governor (VI, 226). 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). The House has, on occasion, learned 
of a Member's resignation 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).



[[Page 11]]

2001, p. 23006; Jan. 27, 2003, pp. 1750, 1751). It has been possible 
even for a Member to resign a seat in the House to be effective on a 
date following the anticipated date of a special election that might 
fill the vacancy thereby created (Deschler, ch. 8, Sec. 9.3). However, 
the State concerned must be willing to treat the prospective resignation 
as a Constitutional predicate for the issuance of a writ of election to 
fill a vacancy. For examples of resignation letters indicating that the 
Executive of the State took cognizance of a prospective resignation, 
see, January 8, 1952, (p. 14) (New York); July 9, 1991, (p. 17301) 
(Virginia); June 5, 2001, (p. 9882) (Florida), and Jan. 27, 2003, (p. 
1751) (Texas). When the Governor of Oklahoma received a prospective 
resignation from one of its Members, the State provided by statute 
(enrolled Senate Bill Number 7X) for the holding of a special election 
before the effective date of the resignation (Feb. 28, 2002, p. 2245)).
  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; Dec. 15, 1997, p. 26709; June 5, 2001, 
p. 9882; Nov. 27,

  For the State to take cognizance of a prospective resignation, it must 
have assurances that there is no possibility of withdrawal (or 
modification). In one case a Member who had resigned was not permitted 
by the House to withdraw the resignation (II, 1213). However, the House 
has allowed withdrawal in the case of defective resignation; that is, 
where the Member had not actually transmitted the letter of resignation 
(VI, 229), or had transmitted it to an improper state official (Oct. 9, 
1997, p. 22020). A Member may include in a letter of prospective 
resignation a statement of intention that the resignation be 
``irrevocable'' in order to allay any concern about the prospect of 
withdrawal (June 5, 2001, p. 9882).

  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, 13774; Jan. 6, 1983 and 
Feb. 22, 1983, pp. 114, 2575). A Member who has not taken his seat 
resigned (II, 1231).


[[Page 12]]

  A letter of resignation is presented as privileged (II, 1167-1176); 
but a resolution to permit a Member to withdraw his resignation 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 as 
Vice President (Dec. 6, 1973, p. 39927). A Member of the House having 
been confirmed as Secretary of Defense, a copy of his letter of 
resignation was laid before the House before his taking the oath of that 
office (Mar. 20, 1989, p. 4976).



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). On November 7, 1998, less than a week after his re-
election as Representative from the 6th district of Georgia, Speaker 
Gingrich announced that he would not be a candidate for Speaker in the 
106th Congress and that he would resign his seat as a Member of the 
106th Congress. Although the letter of ``withdrawal'' was tendered on 
November 22, the Governor did not attempt to call a special election 
until after the term began on January 3, 1999 (Jan. 6, 1999, p. 42).




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 that 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, p. 15; 
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 a 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 13]]



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 where the plane was lost, the House declared the seat vacant 
(H. Res. 1, 93d Cong., Jan. 3, 1973, p. 15). In the 108th Congress the 
House codified in clause 5 of rule XX its practice of accounting for 
vacancies (sec. 2(l), H. Res. 5, Jan. 7, 2003, p. 7).



<>   \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, pp. 29585, 29586). For a discussion of a 
State election to fill a prospective vacancy of the House, see Sec. 19.
<>   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, 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 the officers 
continued through the entire Congress succeeding that in which they were 
elected (I, 244, 263). Former officers include Doorkeeper (abolished by 
the 104th Congress, see Sec. 663a, infra) and Postmaster (abolished 
during the 102d Congress, see Sec. 668, infra). The House formerly 
provided by special rule that the Clerk should continue in office until 
another should be chosen (I, 187, 188, 235, 244). Currently, certain 
statutes impose on the officers duties that contemplate their 
continuance (I, 14, 15; 2 U.S.C. 75a-1, 83).


[[Page 14]]

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 viva voce 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 quorum being 
present (I, 216; VI, 24; Jan. 7, 1997, p. 117). The Clerk appoints 
tellers for this election (I, 217). Ultimately, the House, and not the 
Clerk, decides


  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. 115). 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).



Sec. 28. Vacancies in the Office of 
Speaker.

  A proposition  to elect a Speaker is in order at any time a vacancy exists 
and presents a question of the highest privilege (VIII, 3383). Upon a 
vacancy in the Office of Speaker, the House elects a new Speaker either 
viva voce following nominations (in the case where a Speaker has died 
between sessions of Congress or resigned) or by resolution (in the case 
where a Speaker has died during a session of Congress). For example, in 
the case where the Speaker had died between sessions 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 
viva voce following nominations (I, 234; Jan. 10, 1962, p. 5). In a case 
where the Speaker 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 the Speaker's successor was elected by resolution (June 4, 
1936, p. 9016; Sept. 16, 1940, p. 12231). In a case where the Speaker 
resigned ``on the election of my successor'' (May 31, 1989, p. 10440), 
he entertained nominations for Speaker and, following the roll call, 
declared the winner of the election ``duly elected Speaker'' (June 6, 
1989, p. 10801). In one instance a Speaker resigned on the last day of 
the Congress, and the House unanimously adopted a motion to elect a 
successor for the day (I, 225).



[[Page 15]]

floor (I, 225), by tendering the resignation during recognition under a 
question of personal privilege (May 31, 1989, p. 10440), or by sending a 
letter that the Clerk reads to the House at the beginning of a new 
session (I, 232). When the Speaker resigns no action of the House 
excusing him from service is taken (I, 232). 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). 
In the 108th Congress the House adopted clause 8(b)(3) of rule I, under 
which the Speaker is required to deliver to the Clerk a list of Members 
in the order in which each shall act as Speaker pro tempore in the case 
of a vacancy in the Office of Speaker (sec. 2(a), H. Res. 5, Jan. 7, 
2003, p. 7). The Speaker delivered to the Clerk the first such letter on 
February 10, 2003 (Mar. 13, 2003, p. 6118).
<>   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. 640, infra;  and, for further information on the elections of 
officers, see Deschler, ch. 6.
  Form of resolution offered on death of a Speaker (Sept. 16, 1940, p. 
12232; Jan. 10, 1962, p. 9) and of a former Speaker (VIII, 3564; Mar. 7, 
1968, p. 5742; H. Res. 328, Jan. 25, 1994, p. 89; H. Res. 418, Feb. 8, 
2000, p. 834). A resolution declaring vacant the Office of Speaker is 
presented as a matter of high constitutional privilege (VI, 35). 
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


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

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, ch. 14.


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

    It has 
been held that the Act of June 1, 1789 (2 U.S.C. 25) bound the House to 
elect a Clerk before proceeding to business (I, 237, 241). In some 
instances the House has proceeded to legislation and other busines 
before electing a Clerk (I, 242, 244). When a vacancy arises in the 
office of Clerk during a session, business has intervened before the 
election of a new Clerk (I, 239).


  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 16]]

prompted by a communication from an independent counsel, see Sec. 176, 
infra.

  Until the law expired on June 30, 1999, an independent counsel was 
required to advise the House of any substantial and credible information 
that may constitute grounds for impeachment of an officer under his 
investigation (28 U.S.C. 595(c)). For a description of impeachment 
proceedings




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



  This provision was changed by the 17th amendment.




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.



[[Page 17]]




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.



  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, 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).




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).


-  \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

[[Page 18]]

without the Concurrence of two thirds of the Members present.

  In the 107th Congress the Senate elected two Presidents of the Senate 
pro tempore for different periods when the majority of the Senate 
shifted after inauguration of the Vice President (S. Res. 3, Jan. 3, 
2001, p. 7).


  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, 506 U.S. 224 (1993). For a 
discussion of Senate impeachment procedures, see Sec. Sec. 608-20, 
infra.




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.



  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 pronounced (III, 2397). 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). For a 
further discussion of judgments in cases of impeachment, see Sec. 619, 
infra.


[[Page 19]]

any time by Law make or alter such Regulations, except as to the places 
of chusing Senators.



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


  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. Wurzbach, 280 
U.S. 396 (1930); United States v. Classic, 313 U.S. 299 (1941). 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).



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, 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). Title III of the Legislative Branch 
Appropriations Act, 2006, amended Federal election law to require States 
to hold special elections for the House within 49 days after a vacancy 
is announced by the Speaker in the extraordinary circumstance that 
vacancies in representation from the States exceed 100 (P.L. 109-55; 2 
U.S.C. 8).



[[Page 20]]

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); Storer v. Brown, 415 U.S. 724 
(1974); Buckley v. Valeo, 424 U.S. 1 (1976); U.S. Term Limits, Inc., v. 
Thorton, 514 U.S. 779 (1995); and Foster v. Love, 522 U.S. 67 (1997). 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. 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





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 has been superseded by the 20th amendment.


  In the later but not the earlier practice (I, 5), before 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 appointed by law a day for the meeting 
(I, 4, 5, 10-12, footnote; see also Sec. 243, infra).




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, * * *.



[[Page 21]]

ch. 9 (election contests); for discussion of the power of the House to 
judge qualifications, see Deschler, ch. 7.
  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, 
ch. 8 (elections) and

  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).



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, 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.



[[Page 22]]



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. 381-396); 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).





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.



[[Page 23]]

5(d) of rule XX, when a vacancy occurs or when a new Member is sworn, 
the Speaker announces the resulting adjustment in the whole number of 
the House (see Sec. 1024b, infra). Under clause 5(c) of rule XX, the 
House may establish a provisional number of the House where, due to 
catastrophic circumstances, a quorum fails to appear (sec. 2(h), H. Res. 
5, Jan. 4, 2005, p. ----; see Sec. 1024a, infra).


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). 
Under clause




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

  For many years  a quorum was determined only by noting the 
number 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). However, in 1890 
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, which 
was upheld by the Supreme Court (IV, 2904; United States v. Ballin, 144 
U.S. 1 (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). 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 has not conceded 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, 2935-2949). Also, a line of rulings made 
under the old theory was 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). For a 
discussion of the Ballin decision and the Chair's count to determine a 
quorum, see House Practice, ch. 43, Sec. 5.



[[Page 24]]

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).


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


  Major revisions in the House rules concerning the necessity and 
establishment of a quorum 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 7 of rule XX 
(formerly clause 6 of rule XV) was adopted to provide that after the 
presence of a quorum is once ascertained on any day, a point of no 
quorum could not be entertained after the Committee had risen and 
pending the report of the Chairman to the House (see Sec. 1027, infra). 
Clause 7 of rule XX now specifically precludes a point of no quorum 
unless a question has been put to a vote. However, the Speaker retains 
the right to recognize a Member to move a call of the House at any time 
(but may, under clause 7(c) of rule XX recognize for a call of the House 
after the previous question has been ordered only when the Speaker 
determines by actual count that a quorum is not present). A point of 
order of no quorum during debate only in the House does not lie 
independently under this clause of the Constitution because clause 7 of 
rule XX (formerly clause 6 of rule XV) is a proper exercise of the 
House's constitutional rulemaking authority that 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, p. 28800).


[[Page 25]]

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).
  Before these changes to rule XX (formerly 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 6 of rule XVIII. 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).



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 7 of rule XX).



<>   \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: Kilbourn v. Thompson, 103 U.S. 190 (1881); 
United States v. Ballin, 144 U.S. 1 (1892); Burton v. United States, 202 
U.S. 344 (1906).



[[Page 26]]

were codified in clause 3 of rule XI (sec. 2(h), H. Res. 5, Jan. 7, 
2003, p. 7). 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 the Act of June 1, 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. 663a, 
infra), Postmaster (abolished during the 102d Congress; see Sec. 668, 
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 Act of June 1, 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).


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 that 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 that were 
intended to remain applicable under the Budget Act (H. Res. 5, 107th 
Cong., Jan. 3, 2001, p. 25). The House twice reaffirmed free-standing 
directives to the Committee on Standards of Official Conduct contained 
in a simple House resolution (H. Res. 168, 105th Cong., p. 19317, 
reaffirmed for the 106th Congress by sec. 2(c), H. Res. 5, Jan. 6, 1999, 
p. 47, and reaffirmed for the 107th Congress with an exception by sec. 
3(a), H. Res. 5, Jan. 3, 2001, p. 24; see Sec. 806, infra). In the 108th 
Congress those free-standing directives




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 Speakers have been inclined to give weight to the 
rules and precedents of the House in modifying the usual constructions 
of that law (V, 5604, 6758-6760; VIII, 3384; Jan. 3, 1953, p. 24; Jan. 
10, 1967, p. 14). The general parliamentary law as understood in the 
House is founded on Jefferson's Manual as modified by the practice of 
American legislative 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). 
Before the adoption of rules, the statutory enactments incorporated into 
the rules of the prior Congress as an exercise of the rulemaking power 
do not control the proceedings of the new House until it adopts rules 
incorporating those provisions (Jan. 22, 1971, p. 132).



[[Page 27]]

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. 115). 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, ch. 1, Sec. 8), even before 
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. 49). The Speaker also may 
recognize a Member to offer for immediate consideration a special order 
providing for the consideration of a resolution adopting the rules 
(Speaker Gingrich, H. Res. 5, Jan. 4, 1995, p. 447; H. Res. 5, Jan. 4, 
2007, p. ----). The resolution adopting rules for a Congress has 
included a special order of business for consideration of specified 
legislation (sec. 108, H. Res. 6, Jan. 4, 1995, p. 463; sec. 3, H. Res. 
5, Jan. 6, 1999, p. 76). The Speaker held as not cognizable a point of 
order that a resolution adopting the Rules of the House contained a 
provision that the House had no constitutional authority to adopt, 
stating that the House decides such issues by way of the question of 
consideration or disposition of the resolution (Speaker Hastert, Jan. 4, 
2005, p. ----).
  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

  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 7 of rule XX 
(formerly 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 28]]

  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. 139). It 
is the prerogative of the minority to offer a motion to commit even 
before 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, p. 457). 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. 98). The motion to refer has also been permitted upon the offering of 
a resolution adopting the rules, and before debate thereon, subject to 
the motion to lay on the table (Jan. 5, 1993, p. 52).



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 continued 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.




Sec. 63. Punishment and expulsion, 
generally.

  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 
24, Committee on Standards of Official Conduct, 110th Cong.). Under rule 
10 of the rules of the Committee on Standards of Official Conduct, a 
statement of alleged violation must be proven by clear and convincing 
evidence.



[[Page 29]]

to the Member who was the subject of the resolution (July 24, 2002, p. 
14310). The manager of the resolution has the right to close debate, not 
the Member who is the subject of the resolution (July 24, 2002, p. 
14313). Where the manager of a resolution has divided his hour three 
ways, the Chair announced that the order of closing speeches would be as 
follows: The minority manager of the resolution, the subject of the 
resolution, and the manager of the resolution (July 24, 2002, p. 14314). 
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).
  In action for censure or expulsion, the House has discussed whether or 
not the principles of the procedure of the courts should be followed 
(II, 1255, 1264). 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). 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. Members or 
Senators, against whom resolutions have been pending, have participated 
in debate either by consent to make a personal explanation (II, 1656) or 
without question as to consent (II, 1246, 1253, 1269, 1286). A Member 
against whom a resolution of censure was pending was asked by the 
Speaker if he desired to be heard (VI, 236). However, 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). In the modern practice, the manager of the resolution 
proposing the punishment (who controls the entire hour) yields a portion 
of his time to the accused (Oct. 2, 1980, p. 28966; July 24, 2002, p. 
14309). In the latter case, the House extended debate on the resolution 
for a specified period and yielded that entire time

  A resolution recommending reprimand, censure, or expulsion of a Member 
presents a question of privilege (II, 1254; III, 2648-2651; VI, 236; 
Dec. 9, 1913, pp. 584-86; July 26, 1990, p. 19717; May 22, 2007, p. ----
). If reported by the Committee on Standards of Official Conduct (or a 
derivation thereof), the resolution may be called up at any time after 
the committee has filed its report (Jan. 21, 1997, p. 393). Before 
debate, an expulsion resolution is subject to the motion to lay on the 
table (Oct. 1, 1976, p. 35111), to postpone to a date certain (Oct. 2, 
1980, p. 28953; July 24, 2002, p. 14300), or to refer to committee (Mar. 
1, 1979, p. 3753). A proposition to censure is not germane to a 
proposition to expel (VI, 236).

  The Senate once expelled several Senators by a single resolution (II, 
1266); however, the House has refused to censure more than one Member by 
a single resolution (II, 1240, 1621).


[[Page 30]]

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 of the costs of the 
investigation by the Committee on Standards of Official Conduct (Jan. 
21, 1997, p. 393).


Sec. 64. Punishment by reprimand.

  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 XXVI (formerly rule XLIV) 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 
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




Sec. 65. Punishment by censure.

  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). 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). In the 96th Congress two Members were censured by the 
House as follows: (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 3 of rule 
XXIII (formerly 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), each censuring a Member for an improper relationship with a 
House page in a prior Congress (July 20, 1983, p. 20020 and p. 20030).



[[Page 31]]

service; and (5) filing false income tax returns (July 24, 2002, p. 
14319). Three Senators were expelled for their association with the 
Confederates during the Civil War (II, 1268-1270).


Sec. 66. Punishment by expulsion.

  Five  Members have been 
expelled in the history of the House. Among those, three were expelled 
for various offenses related to their service for the Confederacy in the 
Civil War: John B. Clark of Missouri (a Member-elect) (II, 1262, July 
13, 1861); Henry C. Burnett of Kentucky (II, 1261, Dec. 3, 1861); and 
John W. Reid of Missouri (II, 1261, Dec. 6, 1861). Michael J. Myers of 
Pennsylvania was expelled after being convicted in a Federal court of 
bribery and conspiracy in accepting funds to perform official duties 
(Oct. 2, 1980, p. 28978). James A. Traficant of Ohio was expelled after 
being convicted in a Federal court for crimes including (1) trading 
official acts and influence for things of value; (2) demanding and 
accepting salary kickbacks from his congressional employees; (3) 
influencing a congressional employee to destroy evidence and to provide 
false testimony to a Federal grand jury; (4) receiving personal labor 
and the services of his congressional employees while they were being 
paid by the taxpayers to perform public


  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, 1264, 
1284, 1285, 1286, 1288, 1289; VI, 56, 238). 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). In addition, 
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). Following the expulsion of a Member, the Clerk notifies 
the Governor of the relevant state of the action of the House (July 24, 
2002, p. 14319).




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; * * 
*



[[Page 32]]

(IV, 2815). The Journal is dated as of the legislative and not the 
calendar day (IV, 2746).


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




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.

  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). While the Speaker has entertained motions 
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 such act (IV, 
2785), and 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 that had the effect of collaterally changing the tabling of a 
motion to reconsider. In fact, under the precedents cited in Sec. 902, 
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, 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).



[[Page 33]]



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).

  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, 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 (H. Res. 5, Jan. 3, 
1983, p. 34). While the transaction of any business is not in order 
before approval of the Journal (IV, 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. Clause 7 of rule XX generally prohibits the making of 
points of order of no quorum unless the Speaker has put the question on 
the pending motion or proposition.


[[Page 34]]



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, 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).





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; VI, 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, 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, p. 23474; 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 6 of rule I (formerly clause 
5) (Oct. 2, 1974, p. 33623).


[[Page 35]]

the Chair announces the result of the voice vote (Nov. 22, 1991, p. 
34075; Sep. 21, 2005, p. ----). 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 that 
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. 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) and if the Member seeking the yeas 
and nays is on his feet and seeking recognition for that purpose when




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; Mar. 8, 2006, p. ----), 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).



[[Page 36]]

not precluded or set aside by the fact that the yeas and nays are 
demanded and refused (V, 5998; VIII, 3103).


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

  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





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).





Sec. 82. Adjournment for more than three 
days or to another place.

  \4\ Neither House,  during the Session of Congress shall, 
without the Consent of the other, adjourn for more than three days, nor 
to any other Place than that in which the two Houses shall be sitting.




Sec. 82a. Adjournment to another 
place.

  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). Under 
clause 12(d) of rule I, the Speaker may convene the House in a place 
within the District of Columbia, other than the Hall of the House, 
whenever, in his opinion, the public interest shall warrant it 
(Sec. 639, infra). In recent practice the two Houses have granted joint 
leadership (or their designees) authority for an entire Congress to 
assemble the Congress at a place outside the District of Columbia 
whenever the public interest shall warrant it (H. Con. Res. 1, Feb. 13, 
2003, p. 4080; H. Con. Res. 1, Jan. 4, 2005, p. ---- (not adopted by the 
Senate); H. Con. Res. 1, Jan. 4, 2007, p. ----). The Speaker executes by 
letter his designation under such resolution (e.g., Mar. 13, 2003, p. 
6123; Jan. 20, 2005, p. ----). After September 11, 2001, recall 
authority carried in adjournment resolutions has allowed reassembly at 
such place as may be designated (see Sec. 84, infra). The President may 
convene Congress at places outside the seat of Government during 
hazardous circumstances (2 U.S.C. 27; Deschler, ch. 1, Sec. 4).



[[Page 37]]

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.
  On November 22, 1940, p. 13715, the House 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 by 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

  There has been no occasion for the convening of a session of Congress 
outside the seat of Government. However, the Congress has engaged in 
ceremonial functions outside the seat of Government, which were 
authorized by concurrent resolution (H. Con. Res. 131, May 28, 1987, p. 
14031; H. Con. Res. 96, Apr. 18, 1989, p. 6834; H. Con. Res. 448, July 
25, 2002, p. 14645).-



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). 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. 23367). 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 10 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 adjourn 
(or recess) for more than three days without consent of the other House 
(Dec. 21, 1995, p. 38141; Jan. 5, 1996, p. 357). Under clause 12(c) of 
rule I, during any recess or adjournment of not more than three days, if 
the Speaker is notified by the Sergeant-at-Arms of an imminent 
impairment of the place of reconvening, then he may, in consultation 
with the Minority Leader, postpone the time for reconvening within the 
three-day limit prescribed by the Constitution. In the alternative, the 
Speaker, under the same conditions, may reconvene the House before the 
time previously appointed solely to declare the House in recess within 
that three-day limit (see Sec. 639, infra).



[[Page 38]]

consenting to such adjournment sine die at any time before a specified 
date (Nov. 19, 1919, p. 8810).


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). At the close of the first session of the 66th Congress, the two 
Houses adjourned sine die under authority granted each House by simple 
resolutions


  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). In the 
modern practice it is common for a concurrent resolution to provide for 
a one-House adjournment or to provide for each House to adjourn for 
different time periods. For example: (1) the House adjourned until 
August 15, 1922, with the consent of the Senate (June 29, 1922, p. 
10439); (2) the two Houses provided for an adjournment sine die of the 
House on August 20, 1954, and of the Senate at any time before December 
25, 1954 (H. Con. Res. 266); (3) the two Houses provided for an 
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 of the 
Senate at any time before January 3, 1983, as determined by the Senate, 
and 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); (4) the two Houses provided for an 
adjournment of the Senate to a day certain and 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); (5) the two Houses provided for an adjournment to a day certain, 
with a provision that if there should be no quorum present on that day 
the session should terminate (V, 6686).

  A concurrent resolution adjourning both Houses for more than three 
days, or sine die, normally includes joint leadership authority to 
reassemble the Members whenever the public interest shall warrant it 
(see, e.g., 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; Dec. 22, 1973, p. 43327; Dec. 20, 
1974, p. 41815; Nov. 21, 1989, 101st Cong., p. 31156; Oct. 3, 1996, 
104th Cong., p. 12275; Nov. 13, 1997, 105th Cong., p. 26538; Dec. 15, 
2000, 106th Cong., p. 27019). Pursuant to such recall authority: (1) the 
Speaker and the Majority Leader of the Senate notified Members of the 
House to reassemble, the Senate already being in session (Mar. 20, 2005, 
p. ----, pursuant to H. Con. Res. 103, 109th Cong., Mar. 17, 2005, p. --
--); (2) the Speaker and the Majority Leader of the Senate notified 
Members of both Houses to reassemble (Sept. 2, 2005, p. ----, pursuant 
to H. Con. Res. 225, 109th Cong., July 28, 2005, p. ----).


[[Page 39]]

House Concurrent Resolution 1 (e.g., Mar. 13, 2003, p. 6123; Jan. 20, 
2005, p. ----). The Speaker also executes by letter his designation of 
another Member to utilize reassembly authority under a joint resolution 
changing the convening date of the next session (H. J. Res. 80, 108th 
Cong., Dec. 15, 2003, p. ----).
  After September 11, 2001, such recall authority has allowed reassembly 
at such place as may be designated (see, e.g., S. Con. Res. 160, Nov. 
22, 2002, p. 23512; H. Con. Res. 531, Dec. 9, 2004, p. ----). More 
recently, such recall authority permitted recall by designees of the 
Speaker and the Majority Leader of the Senate (see, e.g., S. Con. Res. 
132, July 26, 2002, p. 15138). The Speaker executes by letter his 
designation under a concurrent resolution of adjournment, as well as his 
designation under

  On occasion an adjournment resolution has provided for one-House 
recall (see, e.g., July 20, 1970, 91st Cong., p. 24978). Joint 
leadership and House only recall provisions were included in the sine 
die adjournment resolution for the second session of the 105th Congress 
(H. Con. Res. 353, Oct. 20, 1998, p. 27348), and the Speaker exercised 
his recall authority under that resolution to reassemble the House (Dec. 
17, 1998, p. 27802).

  When the Senate is out of session for not more than three days, the 
Senate Majority and Minority Leaders may modify an order for the time or 
place of convening when, in their opinion, such action is warranted by 
intervening circumstances (S. Res. 296, 108th Cong., Feb. 3, 2004, p. --
--). Pursuant to such authority, during an adjournment of the Senate for 
not more than three days, the Senate convened earlier than previously 
ordered to adopt a House concurrent resolution providing for an 
adjournment of the two Houses (H. Con. Res. 103, Mar. 17, 2005, p. ----
), section 2 of which enabled a recall of the House (Mar. 20, 2005, p. 
----).

  A resolution adopted in the first session of the 106th Congress 
provided for an adjournment to a date certain, unless the House sooner 
received a specified message from the Senate, in which case it would 
stand adjourned sine die (H. Con. Res. 235, Nov. 18, 1999, p. 30734). It 
has become the common practice for the House, by unanimous consent 
adopted after originating an adjournment resolution, to fix a time to 
which it would adjourn within three days unless the House were sooner to 
receive a message from the Senate transmitting its adoption of the 
adjournment resolution, in which case the House would stand adjourned 
pursuant to that resolution (see, e.g., Nov. 3, 2000, p. 25993; Mar. 20, 
2002, p. 3726).


[[Page 40]]

referred) (Jan. 24, 2000, p. 48). The House has passed a joint 
resolution appointing a day for the convening of a second session of a 
Congress and provided for possible earlier assembly by joint-leadership 
recall (see, e.g., H. J. Res. 80, 107th Cong., Dec. 20, 2001, p. 27597; 
H. J. Res. 80, 108th Cong., Nov. 21, 2003, p. ----).
  A concurrent resolution providing for the sine die adjournment of the 
first session may contain a proviso that when the second session 
convenes the Senate or House may not conduct organizational or 
legislative business but shall adjourn on that day until a date certain, 
unless sooner recalled (H. Con. Res. 232, 96th Cong., Dec. 20, 1979, p. 
37317; H. Con. Res. 260, 102d Cong., Nov. 26, 1991, p. 35840; H. Con. 
Res. 235, 106th Cong., Nov. 18, 1999, p. 30734). The prohibition on the 
conduct of such business may be applied to the House by simple 
resolution and may vest the Speaker with the authority to dispense with 
such business over a period of time (H. Res. 619, as amended by H. Res. 
640, 109th Cong., Dec. 16, 2005, p. ----, Dec. 18, 2005, p. ----). Such 
a prohibition does not preclude recognition for one-minute speeches and 
special-order speeches by unanimous consent (Jan. 3, 1992, pp. 2, 9) or 
the introduction and numbering of bills and resolutions (which would not 
be noted in the Congressional Record or referred by the Speaker until 
the next legislative day, when executive communications, petitions, and 
memorials also would be numbered and

  A concurrent resolution to provide for adjournment for more than three 
days or an adjournment sine die is offered in the House as a matter of 
privilege (V, 6701-6706), and is not debatable (VIII, 3372-3374), though 
a Member may be recognized under a reservation of objection to a 
unanimous-consent request that the resolution be agreed to (Oct. 27, 
1990, p. 36850). 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 may, of course, waive this requirement and make other 
determinations regarding its adjournment (see Sec. 1106, 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 providing adjournments for more 
than three calendar days during the month of July in excess of three 
days until the House has approved 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. 1127, infra).




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.



[[Page 41]]

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).
  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, Delegates, the Speaker, the 
Majority and Minority Leaders of the House, and the Vice President is 
established by law (2 U.S.C. 31; 3 U.S.C. 104) with an additional amount 
per annum to assist in defraying expenses (2 U.S.C. 31b; 3 U.S.C. 111). 
These rates



Sec. 86. Salary and deductions.

  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. The 
enactment of those recommendations is governed by the Federal Salary Act 
(see Sec. 1130(12), infra).


  The statute 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 law also 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 (4 U.S.C. 113).



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 claims 
to a 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.




[[Page 42]]





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 to adjust allowances 
of Members and committees without further action by the House, were 
enacted into permanent law (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 (2 U.S.C. 57a). The Committee on 
House Administration retains authority under 2 U.S.C. 57 to 
independently adjust amounts under certain conditions outlined in 2 
U.S.C. 57a (Mar. 21, 1977, p. 8227; Apr. 21, 1983, p. 9339). The text of 
those statutes follow:


    ``Sec. 57. Adjustment of House of Representatives allowances by 


                    Committee on House Administration

  ``(a) In general.--Subject to the provision of law specified in 
subsection (b) of this section, the Committee on House Administration of 
the House of Representatives may, by order of the Committee, fix and 
adjust the amounts, terms, and conditions of, and other matters relating 
to, allowances of the House of Representatives within the following 
categories:

          ``(1) For Members of the House of Representatives, the 

        Members' Representational Allowance, including all aspects of 

        the Official Mail Allowance within the jurisdiction of the 

        Committee under section 59(e) of this title.

          ``(2) For committees, the Speaker, the Majority and Minority 

        Leaders, the Clerk, the Sergeant at Arms, and the Chief 

        Administrative Officer, allowances for official mail (including 

        all aspects of the Official Mail Allowance within the 

        jurisdiction of the Committee under section 59e of this title), 

        stationery, and telephone and telegraph and other 

        communications.

  ``(b) Provision specified.--The provision of law referred to in 
subsection (a) of this section is section 57a of this title.


  ``(c) Member of the House of Representatives defined.--As used in this 
section, the term `Member of the House of Representatives' means a 
Representative in, or a Delegate or Resident Commissioner to, the 
Congress.''

  ``Sec. 57a. Limitation on allowance authority of Committee on House 


                             Administration.

  ``(a) In general.--An order under the provision of law specified in 
subsection (c) of this section may fix or adjust the allowances of the 
House of Representatives only by reason of--

          ``(1) a change in the price of materials, services, or office 

        space;

          ``(2) a technological change or other improvement in office 

        equipment; or

          ``(3) an increase under section 5303 of title 5 in rates of 

        pay under the General Schedule.

  ``(b) Resolution requirement.--In the case of reasons other than the 
reasons specified in paragraph (1), (2), or (3) of subsection (a) of 
this section, the fixing and adjustment of the allowances of the House 
of Representatives in the categories described in the provision of law 
specified in subsection (c) of this section may be carried out only by 
resolution of the House of Representatives.


  ``(c) Provision specified.--The provision of law referred to in 
subsections (a) and (b) of this section is section 57 of this title.''


[[Page 43]]

Allowance'' (MRA), which was ultimately enacted into law (2 U.S.C. 57b). 
The MRA is provided for the employment of staff in the 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 Administration 
promulgated an order abolishing separate allowances for Clerk Hire, 
Official Expenses, and Official Mail, in favor of a single ``Members' 
Representational

  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). The Code of 
Official Conduct also precludes certain hiring practices of Members (see 
Sec. 1095, infra).

  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, and such clerical assistants 
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 Administration.



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 Administration 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. 477).



[[Page 44]]

for certain classes of Federal employees under the Federal Pay 
Comparability Act of 1970 (P.L. 91-656; 84 Stat. 1946).


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 of the 
Legislative Reorganization Act of 1970 (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





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 comparable 
levels in the Senate and in the other branches of government. For the 
text of section 311(d), see Sec. 1130, infra.





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; * * *




[[Page 45]]


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



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 VIII (formerly rule L) 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, 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 that 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 where the prosecution established a prima facie case 
without relying on the Member's constitutionally-protected legislative 
speech. 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). For a discussion 
of waivers of the Speech and Debate clause, see Sec. 301, infra.



[[Page 46]]

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.
  Legislative employees acting under orders of the House are not 
necessarily protected under the clause from judicial inquiry into the 
constitutionality of their actions. Kilbourn v. Thompson, 103 U.S. 165 
(1880); Dombrowski v. Eastland, 387 U.S. 82 (1967); Powell v. McCormack, 
395 U.S. 486 (1969). 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 that 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

  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, 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).



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).



[[Page 47]]




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).





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, 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 48]]

tinued 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. 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 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 con




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). 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). However, when a 
Member-elect held an incompatible office after the meeting of Congress 
and his taking of the oath, he was held to have disqualified himself (I, 
492). In other words, the Member-elect may defer until the meeting of 
Congress and his taking of the oath, 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 and his taking of the oath 
of office 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 49]]

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).

  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,




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 50]]

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-passed 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. 27087); 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 large-scale 
driftnet fishing (Feb. 25, 1992, p. 3377); a Senate amendment to a 
general appropriation bill prohibiting funds for the Internal Revenue 
Service to enforce a requirement to use undyed diesel fuel for use in 
recreational boats (July 14, 1994, p. 16593); 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. 
17280); 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. 
21656); a Senate-passed bill proposing to repeal a fee on electricity 
generated by nuclear energy that otherwise would raise revenue (Mar. 5, 
1998, p. 2618); a Senate-passed bill proposing new import restrictions 
on products containing any substance derived from rhinoceroses or tigers 
(Oct. 15, 1998, p. 26483); Senate-passed bills proposing an amendment to 
the criminal code that would make it unlawful to import certain assault 
weapons (Oct. 22, 1991, p. 27087) or to import large capacity ammunition 
feeding devices (July 15, 1999, p. 16317); Senate-passed bills 
prescribing the tax treatment of certain benefits to members of the 
Armed Forces (Nov. 18, 1999, p. 30732) or of public-sector retirement 
plans (Nov. 18, 1999, p. 30734); a Senate-passed bill proposing to 
create a new basis for applying import restrictions on bear viscera or 
products derived therefrom (Oct. 24, 2000, p. 24149); a Senate amendment 
proposing to enact by reference a Senate bill providing for a ban on 
(dutiable) imports of diamonds from certain countries (Sept. 20, 2001, 
p. 17454). The House laid on the table a resolution asserting that a 
conference report (on which the House was acting first) accompanying a 
House bill originated provisions in derogation of the constitutional 
prerogative of the House and resolving that such bill be recommitted to 
conference (July 27, 2000, p. 16565).
  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 perceived an 
invasion of its prerogative, 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. 3377; July 
14, 1994, p. 16593; July 21, 1994, p. 17280; July 21, 1994, p. 17281; 
Aug. 12, 1994, pp. 7642, 7643; Oct. 7, 1994, p. 29136, 29137; Mar. 21, 
1996, p. 5950; Apr. 16, 1996, pp. 7642, 7643; Sept. 27, 1996, p. 25542; 
Sept. 28, 1996, p. 25931; Mar. 5, 1998, p. 2618; Oct. 15, 1998, p. 
26483; July 15, 1999, p. 16317; Nov. 18, 1999, p. 30732; Oct. 24, 2000, 
p. 24149; Sept. 20, 2001, p. 17454), or declined to proceed further with 
it (II, 1485). Among the measures the House has returned to the Senate: 
a Senate-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


[[Page 51]]

1968, Deschler, 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. 10700). 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).
  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 that 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,

  Clause 5(a) of rule XXI 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 (Sec. 1066, infra).

  For a discussion of the prerogatives of the House under this clause, 
and discussion of the prerogatives of the House to originate 
appropriation bills, see Deschler, ch. 13. For a discussion of the 
prerogatives of the House with respect to treaties affecting revenue, 
see Sec. 597, infra. For examples of Senate messages requesting the 
return of Senate measures that intruded on the Constitutional 
prerogative of the House to originate revenue measures, see Sec. 565, 
infra.




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); Flint v. Stone Tracy Co., 220 
U.S. 107 (1911); Millard v. Roberts, 202 U.S. 429 (1906); Rainey v. 
United States, 232 U.S. 310 (1914); United States v. Munoz-Flores, 495 
U.S. 385 (1990).



[[Page 52]]

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 originated, 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




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). Before 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 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).



[[Page 53]]

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. 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




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). In one instance a veto message that 
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 54]]

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 possible,  although not invariable, 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 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


  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. 23815) 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, p. 22958; 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).



[[Page 55]]

pass (IV, 3539-3541). A bill passed notwithstanding the objections of 
the President is sent by the presiding officer of the House that 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).
  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



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). In 
Clinton v.  City of New York, 524 U.S. 417 (1998), the Supreme Court 
held that the cancellation procedures of the Line Item Veto Act violated 
the presentment clause of article I, section 7 of the Constitution. For 
a discussion of the operation of the Act during the period of its 
effectiveness, see Sec. 1130, infra.





Sec. 110a. Decisions of the Court.

  Decisions  of the Supreme 
Court of the United States: Matthews v. Zane, 20 U.S. (7 Wheat.) 164 
(1822); Gardner v. Collector, 73 U.S. (6 Wall.) 499 (1868); Lapeyre v. 
United States, 84 U.S. (17 Wall.) 191 (1873); La Abra Silver Mining Co. 
v. United States, 175 U.S. 423 (1899); 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); Clinton v. City of 
New York, 524 U.S. 417 (1998).




[[Page 56]]




Sec. 111. Bills that 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 10 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 10 days after their receipt. President Truman signed several 
bills passed in the 81st Congress after the convening of the 82d 
Congress but within 10 days (P.L. 910-921; 64 Stat. 1221-1257); and 
President Reagan approved bills passed in the 97th Congress that were 
presented after the convening of the 98th Congress. 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 10 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 
10 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 10 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)).



Sec. 112. The pocket veto.

  A bill that  is passed by both 
Houses of Congress during the first regular session of a Congress and 
presented to the President less than 10 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).



[[Page 57]]

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.


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

  Doubt has existed  as to whether a bill that remains with the President 10 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


  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. 23, 1992 [Daily Digest]); 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. 4081).


[[Page 58]]

regarded the President's actual 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 the bill over the President's objections 
(Jan. 23, 1990, p. 3; Sept. 6, 2000, p. 17156; Nov. 13, 2000, p. 26022).
  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. 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 that was signed 
into law on December 7, 1974 (P.L. 93-516). On similar occasions, when 
the President has asserted a ``pocket veto,'' the House has

  As part of the concurrent resolution providing for the sine die 
adjournments of the first sessions of the 101st Congress and 105th 
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; S. Con. Res. 68, 
Nov. 13, 1997, p. 26538). 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 
Congressional Record (Jan. 23, 1990, p. 3; Sept. 19, 2000, p. 18594; 
Nov. 13, 2000, p. 26022); 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.




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 (1901); 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)).





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.



[[Page 59]]

tion 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), something not within the scope 
of the modern form of concurrent resolutions.
  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 Constitu

  For discussion of Presidential approval of a joint resolution 
extending the period for State ratification of a constitutional 
amendment already submitted to the States, see Sec. 192, infra. For 
discussion of ``Statutory Legislative Procedures'' contained in public 
laws, see Sec. 1130, 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, 462 U.S. 919 (1983); Process 
Gas Consumer's Group v. Consumer Energy Council of America 463 U.S. 1216 
(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;




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;



[[Page 60]]

<>   \7\ To establish Post 
Offices and Post Roads;


Sec. 122. Counterfeiting.

  \6\ To provide  for the Punishment 
of counterfeiting the Securities and current Coin of the United States;-
-





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 61]]




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 
60 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 60-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 that 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. 1130, infra). For further discussion of that Act, and war powers 
generally, see Deschler, 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 62]]




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 III (Sec. 675, infra) and Deschler, 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 that 
has not been reported by the committee to which referred within 20 
calendar days after its introduction (see Sec. 1130, infra).



[[Page 63]]



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.
   \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.




[[Page 64]]




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




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, p. 452), and 
disposes of foreign gifts that 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 65]]

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 
and Imposts, laid by any State on Imports or Exports, shall be for the 
Use of the Treasury of the







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.