[House Practice: A Guide to the Rules, Precedents and Procedures of the House]
[Chapter 33. Oaths]
[From the U.S. Government Publishing Office, www.gpo.gov]
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
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. Clause 1 of rule II 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, such individual
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. Where two unsworn Members
participated in more than mere organizational business, the House
later ratified (by simple resolution) certain actions after the
administration of the oath to Members-elect en masse. 112-1, Jan. 7,
2011, p __. 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, pp 235-37.
In the early practice of the House, it was the custom to
administer the oath by State delegations. Beginning with the 71st
Congress, however,
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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 has been challenged may be asked to stand aside.
Manual Sec. 203. 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 to
the results of the 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,
including faxes and electronic scans, 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 one's consent. 2 Hinds Sec. Sec. 1230-1234. A Member-
elect may be permitted to defer taking the oath, without declining the
seat, until such time as questions regarding the requisite
qualifications are resolved. Deschler Ch 2 Sec. 5. However, where a
Member-elect fails to appear to take the oath, the House may
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provide by resolution that, if such Member-elect 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 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 the Speaker, may be authorized
by resolution to administer the oath of office to a Member-elect
absent because of illness or because of some illness in the family.
Deschler Ch 2 Sec. Sec. 5.8-5.12. The resolution may authorize the
administration of the oath at some
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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. 4, 1997, p 1381). The deputy
so designated reports thereon to the House, which report may take the
form of a letter. 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 been sworn is no bar to such
individual's right to invoke this procedure. 1 Hinds Sec. 141.
Challenging parties must base the challenge either on their 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. See
generally Election of Members. See also Manual Sec. Sec. 202-203.
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 the final right
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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.
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. In response to
parliamentary inquiries, the Chair informed the House that a notice of
contest had been filed with the Clerk. 105-1, Jan. 7, 1997, p 120;
110-1, Jan. 4, 2007, p 5.
As to the procedure to be followed in contested elections, see
Election Contests and Disputes.
Sec. 4 . Oath Relating to Classified Information
Clause 13 of rule XXIII, 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 Ethics 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.