[House Practice: A Guide to the Rules, Precedents and Procedures of the House] [Chapter 33. Oaths] [From the U.S. Government Printing Office, www.gpo.gov] [[Page 631]] CHAPTER 33 - OATHS HOUSE PRACTICE Sec. 1. In General; Administering the Oath of Office Sec. 2. Absent Members and the Oath; Use of Deputies Sec. 3. Challenging the Right To Be Sworn Sec. 4. Oath Relating to Classified Information Research References U.S. Const. art. I, Sec. 5; art. VI, cl. 3 1 Hinds Sec. Sec. 6-22 6 Cannon Sec. Sec. 127-185 Deschler Ch 2 Sec. Sec. 5, 6 Manual Sec. Sec. 197-206 Sec. 1 . In General; Administering the Oath of Office Generally The Constitution requires that every Senator and every Representative swear or affirm to support the Constitution of the United States. U.S. Const. art. VI, cl. 3. Rule II clause 1 carries the same requirement for elected officers. For administration of the oath to officers, see Officers and Offices. The form of the oath and the procedure for its administration are regulated by statute. 2 USC Sec. 25. Form of oath, see 5 USC Sec. 3331 and Manual Sec. 197. Until a Member-elect has subscribed to the oath, he does not enjoy all the rights and prerogatives of a Member of Congress. Deschler Ch 2 Sec. 2.1. Members who have not taken the oath are not entitled to vote or to introduce bills. Manual Sec. 300; 8 Cannon Sec. 3122. However, unsworn Members have participated at the beginning of a session in organizational business, such as the election of the Speaker. 1 Hinds Sec. 224. Although a Member has been named to a committee before taking the oath, under the modern practice the election of such a Member to a standing committee may be made effective only upon being sworn. 4 Hinds Sec. 4483; 106-1, H. Res. 6, Jan. 6, 1999, p ____. In the early practice of the House, it was the custom to administer the oath by State delegations. Beginning with the 71st Congress, however, Members-elect have been sworn in en masse. 6 Cannon Sec. 8. Under this practice the Speaker administers the oath of office to all Members-elect at one time on opening day, although a Member- elect whose right to take the oath [[Page 632]] has been challenged may be asked to stand aside. Manual Sec. 202. A Member-elect who does not take the oath of office on opening day may appear later in the well, in response to the Speaker's invitation, and take the oath. Deschler Ch 2 Sec. 5.14. The Speaker also administers the oath to Delegates-elect, the Resident Commissioner from Puerto Rico, and Members-elect elected to fill vacancies. Deschler Ch 2 Sec. Sec. 3.6, 5. Credentials as Basis for Taking the Oath Although the Clerk will not as a general rule enroll Members-elect who appear without certificates of election, the House itself may authorize, by unanimous consent, the administration of the oath to Members-elect who appear without appropriate formal credentials. 1 Hinds Sec. Sec. 162-168, 553-564; Deschler Ch 2 Sec. 3.5. For example, a Member-elect may be sworn on the basis of letters or telegrams from the executive department of the State of representation, attesting as to his due election. Deschler Ch 2 Sec. Sec. 3.1-3.4. The House may authorize the administration of the oath where credentials have not yet arrived, pursuant to a statement by another Member-elect or a State official that the election in issue is neither contested nor questioned. Deschler Ch 2 Sec. 3. Unofficial State communications declaring the results of the election may be laid before the House before the unanimous-consent request for the administration of the oath. Deschler Ch 2 Sec. 3.4. Authorization by Resolution The administration of the oath may be authorized by resolution after a challenge to the right to be sworn has been made. Such resolutions have included provisions collateral to the actual administration of the oath, such as a condition that the final right to the seat be referred to the Committee on House Administration. Deschler Ch 2 Sec. 5. Failure or Refusal to Take the Oath Members-elect entitled to take the oath may decline it by resigning before taking a seat, because membership cannot be imposed on one without his consent. 2 Hinds Sec. Sec. 1230-1234. A Member- elect may be permitted to defer his taking of the oath, without declining his seat, until such time as questions regarding his qualifications are resolved. Deschler Ch 2 Sec. 5. However, where a Member-elect fails to appear to take the oath, the House may provide by resolution that, if he fails to appear to take the oath by a certain date, the seat will be declared vacant. Deschler Ch 2 Sec. 5.7. In the 97th Congress, the House, by majority vote, declared vacant a seat where the Member-elect was unable to take the oath because of an incapacitating illness. In that case, the medical prognosis showed no likelihood [[Page 633]] of improvement. The constitutional basis for the declaration of the vacancy by majority vote was not expressly stated in the resolution. Nevertheless, the power of the House under article I, section 5 of the Constitution to judge the qualifications of its Members by majority vote has been justified by the Supreme Court. In Powell v. McCormack, 395 U.S. 486, 520 (1969), the Court stated in a footnote that in addition to age, citizenship, and inhabitancy, the article VI requirement for taking the oath could be argued to be a qualification. Precedence The administration of the oath is a matter of high privilege. Manual Sec. 201. The oath may be administered before the reading of the Journal and takes precedence of a motion to amend the Journal. 1 Hinds Sec. 171. It has been held in order to administer the oath in the absence of a quorum, during a roll call, and on Calendar Wednesday. Manual Sec. Sec. 200, 201; 1 Hinds Sec. 174; 6 Cannon Sec. 22. The administration of the oath is in order even after the previous question has been ordered on a pending matter. Deschler Ch 2 Sec. 5.17. Debate on a resolution reported from the Committee on Rules may be interrupted to allow a new Member to take the oath of office. Deschler Ch 2 Sec. 5.18. The Act of June 1, 1789, 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) to the Speaker and by the Speaker to the other Members and Clerk (when elected). Manual Sec. 198; 2 USC Sec. 25; 1 Hinds Sec. Sec. 130, 131; 6 Cannon Sec. 6. 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. Manual Sec. 198. Sec. 2 . Absent Members and the Oath; Use of Deputies The Speaker, or a deputy named by him, may be authorized by resolution to administer the oath of office to a Member-elect absent because of his illness or because of some illness in his family. Deschler Ch 2 Sec. Sec. 5.8-5.12. The resolution may authorize the administration of the oath at some location other than the House. 1 Hinds Sec. 170; 6 Cannon Sec. 14. Persons who may be designated by the Speaker to administer the oath to an absent Member-elect include another Member (Deschler Ch 2 Sec. 5.10), a State or county judge (Deschler Ch 2 Sec. 5.11), or a Federal district court judge (105-1, Feb. [[Page 634]] 4, 1997, p 1381). The deputy so designated reports thereon to the House, which report may take the form of a letter from the deputy designated by the Speaker. Deschler Ch 2 Sec. Sec. 5.8, 5.10, 5.12. Sec. 3 . Challenging the Right To Be Sworn Generally Any Member-elect may challenge the right of any other Member-elect to be sworn when the Speaker directs the Members-elect to rise to take the oath of office. Manual Sec. 202; Deschler Ch 2 Sec. 6. The fact that the challenging party has not himself been sworn is no bar to his right to invoke this procedure. 1 Hinds Sec. 141. He must base his challenge either on his own responsibility as a Member-elect or on specified facts or documents. Deschler Ch 2 Sec. 6.2. Such challenges are generally directed at a single Member-elect, but in several instances the challenge has been directed against an entire State delegation. 1 Hinds Sec. Sec. 457, 460-462; Deschler Ch 2 Sec. 6.4. The authority to challenge the right of a Member-elect to be sworn is based on the Constitution, which designates the House as the sole judge of the elections, returns, and qualifications of Members. U.S. Const. art. I, Sec. 5, cl. 1. Generally, see Election of Members. Procedure When a challenge is proposed, the Speaker asks the challenged Member not to rise to take the oath with the rest of the membership en masse. The House, and not the Speaker, determines the action to be taken in such cases. Manual Sec. 199; Deschler Ch 2 Sec. 6.1. Debate on the right of the Member-elect to be sworn is not in order until after the remaining Members have been sworn. Deschler Ch 2 Sec. 6.3. The pendency of a challenge does not preclude the entertainment of other business before the House, and all other organizational business may be completed before a challenge is resolved. 1 Hinds Sec. 474; Deschler Ch 2 Sec. 6. Several courses of action are open to the House in disposing of a challenge. First, the House may simply seat a Member by authorizing the administration of the oath pursuant to a resolution determining the right to the seat. Deschler Ch 2 Sec. 6.5. Second, the House may by resolution authorize the administration of the oath based on the Member-elect's prima facie right to the seat, but at the same time refer the determination of his final right to committee. 1 Hinds Sec. Sec. 528-534. Finally, the House may by resolution refer the prima facie as well as the final right to the seat to committee, without authorizing the administration of the oath. Deschler Ch 2 Sec. Sec. 6.6, 6.7. [[Page 635]] Resolutions relating to the right of a challenged Member-elect to be sworn are privileged. Manual Sec. 201. The resolution is open to amendment where the House has not ordered the previous question thereon. Deschler Ch 23 Sec. 22.4. The challenged Member-elect may, by unanimous consent, be permitted to participate in debate on the resolution. Deschler Ch 2 Sec. 2.5. The time for debate on the resolution may be extended by unanimous consent. Deschler-Brown Ch 29 Sec. 26.33. The seating of a Member-elect does not prejudice a contest pending under the Federal Contested Elections Act over final right to the seat. 2 USC Sec. Sec. 381-396; Manual Sec. 203. As to the procedure to be followed in contested elections, see Election Contests and Disputes. Sec. 4 . Oath Relating to Classified Information Rule XXIII clause 13, the Code of Official Conduct, prescribes an oath to be executed by all Members, officers, and employees of the House before they obtain access to classified information: I do solemnly swear (or affirm) that I will not disclose any classified information received in the course of my service with the House of Representatives, except as authorized by the House of Representatives or in accordance with its rules. Manual Sec. 1095. The Committee on Standards of Official Conduct has interpreted this clause as applying to classified information provided by ``any person,'' not merely to data furnished by the House or by the executive branch. Memorandum for All Members, Officers and Employees, July 12, 1995.