[Constitution, Jefferson's Manual, and the Rules of the House of Representatives, 118th Congress]
[118th Congress]
[House Document 117-161]
[The United States Constitution]
[Pages 88-92]
[From the U.S. Government Publishing Office, www.gpo.gov]


[[Page 88]]

                               ARTICLE VI.



Sec. 194. Validity of debts and engagements.

  \1\All  Debts 
contracted and Engagements entered into, before the Adoption of this 
Constitution, shall be as valid against the United States under this 
Constitution, as under the Confederation.




Sec. 195. Constitution, laws, and treaties the supreme 
law of the land.

  \2\This  Constitution, and the Laws of the United States which 
shall be made in Pursuance thereof; and all Treaties made, or which 
shall be made, under the Authority of the United States, shall be the 
supreme Law of the Land; and the Judges in every State shall be bound 
thereby, any Thing in the Constitution or Laws of any State to the 
Contrary notwithstanding.





Sec. 196. Oaths of public officers; and prohibition of 
religious tests.

  \3\The  Senators and Representatives before mentioned, and 
the Members of the several State Legislatures, and all executive and 
judicial Officers, both of the United States and of the several States, 
shall be bound by Oath or Affirmation, to support this Constitution; but 
no religious Test shall ever be required as a Qualification to any 
Office or public Trust under the United States.




Sec. 197. Form of oath.

  The  form of the oath is prescribed 
by statute (5 U.S.C. 3331; I, 128): ``I, AB, do solemnly swear (or 
affirm) that I will support and defend the Constitution of the United 
States against all enemies, foreign and domestic; that I will bear true 
faith and allegiance to the same; that I take this obligation freely, 
without any mental reservation or purpose of evasion, and that I will 
well and faithfully discharge the duties of the office on which I am 
about to enter. So help me God.''




Sec. 198. Administration of oath at organization.

  The  Act of 
June 1, 1789 (2 U.S.C. 25), provides that on the organization of the 
House and previous to entering on any other business the oath shall be 
administered by any Member (generally the Member with longest continuous 
service) (I, 131; VI, 6) to the Speaker and by the Speaker to the other 
Members and the Clerk (I, 130). The Act has at times been considered in 
the House as directory merely (I, 118, 242, 243, 245; VI, 6); but at 
other times has been observed carefully (I, 118, 140). The Act was cited 
by the Clerk in recognizing 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 (Precedents (Wickham), ch. 1, 
Sec. 4.1).


  Previously it was the custom to administer the oath by State 
delegations, but beginning with the 71st Congress Members-elect have 
been sworn in en masse (VI, 8). The Clerk supplies printed copies of the 
oath to Members and Delegates who have taken the oath in accordance with 
law, which shall be subscribed by the Members and Delegates and 
delivered to the Clerk to be recorded in the Journal and Congressional 
Record as conclusive proof of the fact that the signer duly took the 
oath in accordance with law (2 U.S.C. 25). See Deschler, ch. 2. Where 
two Members-elect participated in various House and committee business 
before taking the oath of office, the House adopted a resolution (1) 
correcting the results of record votes to remove mention of them, and 
(2) ratifying the following activities involving one or both of them: 
election to and participation in standing committee; introduction and 
numbering of measures; submission of items to the Congressional Record; 
co-sponsorship of measures; and non-voting participation in floor 
proceedings (Precedents (Wickham), ch. 5, Sec. 18.21). During an ongoing 
public health emergency the Speaker announced that the oath would be 
administered to Members-elect in small, pre-arranged groups in order to 
adhere to restrictions on the number of persons permitted in the House 
chamber consistent with guidance from the Office of Attending Physician 
(Jan. 3, 2021, p. _).



Sec. 199. Functions of the Speaker in administering the 
oath.

  The  Speaker possesses no arbitrary power in the administration of 
the oath (I, 134), and when objection is made the question must be 
decided by the House and not by the Chair (I, 519, 520). An objection 
prevents the Speaker from administering the oath of his own authority, 
even though the credentials be regular in form (I, 135-138). The Speaker 
has frequently declined to administer the oath in cases wherein the 
House has, by its action, indicated that the Speaker should not do so 
(I, 139, 140). And in case of doubt the Speaker has waited the 
instruction of the House (I, 396; VI, 11). There has been discussion as 
to the competency of a Speaker pro tempore to administer the oath (I, 
170), and in the absence of the Speaker a Member-elect waited until the 
Speaker could be present (I, 179), but in 1920 a Speaker pro tempore 
whose designation by the Speaker had been approved by the House, 
administered the oath (VI, 20). The House may authorize the Speaker to 
administer the oath away from the House (I, 169), or may, in such a 
case, authorize another than the Speaker to administer the oath (I, 170; 
VI, 14). For forms used in this procedure, see VI, 14. On one occasion, 
the Speaker requested that guests in the gallery rise with the Members 
during the administration of the oath of office to a Member-elect 
(Precedents (Wickham), ch. 4, Sec. 4.9).




Sec. 200. Administration of the oath as related 
to the quorum.

  Members-elect  have been sworn at the beginning of a second session 
before the ascertainment of a quorum (I, 176-178), but when the Clerk 
called the second session of the 87th Congress to order, Members-elect 
were not sworn before ascertainment of a quorum and election of Speaker 
McCormack to succeed Speaker Rayburn, who had died during the 
adjournment sine die (Jan. 10, 1962, p. 5). Members-elect have also been 
sworn where a roll call or other ascertainment has shown the absence of 
a quorum (I, 178, 181, 182; VI, 21) but in one instance, however, the 
Speaker declined to administer the oath under such circumstances (II, 
875).




Sec. 201. Privilege of administration of the 
oath.

  A  proposition to administer the oath is a matter of high privilege 
(VI, 14). It has been administered during a call of the roll and during 
an electronic vote on a motion to agree to rules at the time of 
organization (I, 173; VI, 22; Precedents (Wickham), ch. 2, Sec. 3.20) 
and during an electronic vote taken during House deliberations 
interlocutory to an ongoing joint session to count the electoral votes 
(Precedents (Wickham), ch. 2, Sec. 3.21). It also has been administered 
before the reading of the Journal (I, 172), in the absence of a quorum 
(VI, 22), on Calendar Wednesday (VI, 22), before a pending motion to 
amend the Journal (I, 171), and after the previous question has been 
ordered on a bill reported back to the House from the Committee of the 
Whole (Oct. 3, 1969, p. 28487) or pending engrossment and third reading 
(Precedents (Wickham), ch. 2, Sec. 3.19). A division being demanded on a 
resolution seating several claimants, the oath may be administered to 
each as soon as his case is decided (I, 623). If a Member-elect whose 
right to a seat has been determined by the House is present to take the 
oath, the right to be sworn is complete and cannot be deferred even by a 
motion to adjourn (I, 622), but the Speaker has entertained the motion 
to adjourn after adoption of a seating resolution but before the Member-
elect was present in the Chamber to take the oath (Precedents (Wickham), 
ch. 2, Sec. 3.17).




Sec. 202. Challenge of the right to take the oath.

  The  right 
of a Member-elect to take the oath is sometimes challenged, usually at 
the time of organization of the House. The challenge may be made by a 
Member-elect who has not yet taken the oath (I, 141). The Member 
challenging does so on his responsibility as a Member or on the strength 
of documents (I, 448) or on both (I, 443, 474). And where an objection 
was sustained neither by affidavit nor on the responsibility of the 
Member objecting, the House declined to entertain it (I, 455).




Sec. 203. Consideration of an objection to the taking of 
the oath.

  It  has been held, although not uniformly, that in cases in 
which the right of a Member-elect to take the oath is challenged, the 
Speaker may direct the Member to abstain temporarily (I, 143-146, 474; 
VI, 9, 174; VIII, 3386). The Member so challenged is not thereby 
deprived of any right (I, 155). Similarly, the seating of a Member-elect 
does not prejudice a pending contest, brought under the Federal 
Contested Elections Act (2 U.S.C. 381-396), over final right to the seat 
(Jan. 7, 1997, p. 120; Precedents (Wickham), ch. 2, Sec. 2.3). When 
several are challenged and abstain, the question is first taken on the 
Member-elect first required to abstain (I, 147, 148), but when a Member-
elect challenged the right of all Members-elect from six states to take 
the oath, the House adopted a privileged resolution authorizing and 
directing the Speaker to administer the oath to all Members-elect prior 
to the administration of the oath to Members-elect en masse (Jan. 3, 
2021, p. _). In 1861 it was held that the House might direct contested 
names to be passed over until the other Members-elect had been sworn in 
(I, 154). Motions and debate are in order on the questions involved in a 
challenge, and in a few cases other business has intervened by unanimous 
consent (I, 149, 150). By unanimous consent the consideration of a 
challenge is sometimes deferred until after the completion of the 
organization (I, 474), and by unanimous consent also the House has 
sometimes proceeded to legislative business pending consideration of the 
right of a Member to be sworn (I, 151, 152).




Sec. 204. Relation of credentials to the right to 
take the oath.

  Although  the House has emphasized the impropriety of swearing a 
Member without credentials (I, 162-168), yet it has been done in cases 
in which the credentials are delayed or lost and there is no doubt of 
the election (I, 85, 176-178; VI, 12, 13), or in which the governor of a 
State has declined to give credentials to a person whose election was 
undoubted and uncontested (I, 553). A certificate of election in due 
form having been filed, the Clerk placed the name of the Member-elect on 
the roll, although he was subsequently advised that a State Supreme 
Court had issued a writ restraining the Secretary of State from issuing 
such certificate (Jan. 3, 1949, p. 8). If the prima facie right is 
contested the Speaker declines to administer the oath (I, 550), but the 
House admits on a prima facie showing, and without regard to final 
right, a Member-elect from a recognized constituency whose credentials 
are in due form and whose qualifications are unquestioned (I, 528-534). 
If the status of the constituency is in doubt, the House usually defers 
the oath (I, 361, 386, 448, 461). In the 99th Congress, the House 
declined to give prima facie effect to a certificate of election, the 
results of the election being in doubt, and referred the issue of 
initial as well as final right to the Committee on House Administration 
(Precedents (Wickham), ch. 2, Sec. 4.1). After a recount of the votes 
was conducted by that committee, the House on its recommendation 
declared the candidate without the certificate entitled to the seat 
(Precedents (Wickham), ch. 2, Sec. 3.8). The House also may defer the 
oath when a question of qualifications arises (I, 474), but it may 
investigate qualifications after the oath is taken (I, 156-159, 420, 
462, 481), and after investigation unseat the Member by majority vote 
(I, 428). On one occasion when a Member-elect's credentials were in due 
form but there was a question as to whether the Member-elect held an 
incompatible office, the House resolved the matter by adopting a 
privileged resolution authorizing and directing the Speaker to 
administer the oath to the Member-elect (Precedents (Smith), ch. 7, 
Sec. 4.3; see Sec. 98, supra). For an insertion by the Speaker, in 
concurrence with the Minority Leader, on this matter and relevant 
precedents, see Precedents (Smith), ch. 7, Sec. 4,3.




Sec. 205. Sanity, loyalty, and incapacity as related 
to the oath.

  Questions  of sanity (I, 441) and loyalty (I, 448) seem to pertain 
to competency to take the oath as a question of qualifications, although 
there has been not a little debate on this subject (I, 479). In one case 
a Member-elect who had not taken the oath was excluded from the House 
because of disloyalty, in which the resolution of exclusion and the 
committee report thereon concluded that he was ineligible to take a seat 
as a Representative under the express provisions of section 3 of the 
14th amendment (VI, 56-59). This action by the House was cited in the 
Supreme Court decision of Powell v. McCormack, 395 U.S. 486, 545 fn. 83 
(1969), which denied the power of the House to exclude Members-elect by 
a majority vote for other than failure to meet the express 
qualifications stated in the Constitution. In Bond v. Floyd, 385 U.S. 
116 (1966), the Supreme Court held that the exclusion by a State 
legislature of a member-elect of that body was unconstitutional, where 
the legislature had asserted the power to judge the sincerity with which 
the Member-elect could take the oath to support the Constitution of the 
United States. In the 97th Congress, the House declared vacant by 
majority vote the seat of a Member-elect unable to take the oath because 
of illness, in which the medical prognosis showed no likelihood of 
improvement to permit the Member-elect to take the oath or assume the 
duties of a Representative (Precedents (Smith), ch. 7, Sec. 6.8).



[[Page 92]]



Sec. 206. Decisions of the Court.

  Decisions  of the Supreme 
Court of the United States: McCulloch v. Maryland, 17 U.S. (4 Wheat.) 
316 (1819); Ex parte Garland, 71 U.S. (4 Wall.) 333 (1867); Davis v. 
Beason, 133 U.S. 333 (1890); Mormon Church  v. United States, 136 U.S. 1 
(1890).