Constitution, Jefferson's Manual, and the Rules of the House of Representatives, 105th Congress-Article II

[Constitution, Jefferson's Manual, and the Rules of the House of Representatives, 105th Congress]
[105th Congress]
[House Document 104-272]
[The United States Constitution]
[Pages 61-72]
[From the U.S. Government Printing Office, www.gpo.gov]

ARTICLE II.

Sec. 149. Terms of the President and
VicePresident.

Section 1. \1\ The executive Power shall be vested in a President of the
United States of America. He shall hold his Office during the Term of
four years, and together with the Vice President, chosen for the same
Term, be elected, as follows:

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ning of President Reagan's second term, with the
oath being given at the White House on January 20, 1985, followed by a
public ceremony on Monday, January 21, in the Rotunda of the Capitol.
The 22d amendment provides that no person shall be elected President
more than twice.

Sec. 150. Commencement of President's term of
office.

George Washington took the oath of office, as the first President on
April 30, 1789 (III, 1986). The two Houses of the First Congress found,
after examination by a joint committee, that by provisions made in the
Federal Constitution and by the Continental Congress, the term of the
President had, notwithstanding begun on March 4, 1789 (I, 3). The 20th
amendment, declared to have been ratified on February 6, 1933, provides
that Presidential terms shall end and successor terms shall begin at
noon on January 20. Thus, Franklin D. Roosevelt's first term began on
March 4, 1933, but ended at noon on January 20, 1937. Formerly, when
March 4 fell on Sunday, the public inauguration of the President
occurred at noon on March 5 (III, 1996; VI, 449). Following ratification
of the 20th amendment, the first time inauguration day fell on Sunday
was January 20, 1957, and Dwight David Eisenhower took the oath for his
second term in a private ceremony at the White House on that day
followed by a public inauguration ceremony on the steps of the East
Front of the Capitol on Monday, January 21, 1957. A similar scenario was
followed at the begin-

Sec. 151. Electors of President and VicePresident
and their qualifications.

\2\ Each State shall appoint, in such Manner as the
Legislature thereof may direct, a Number of Electors, equal to the whole
Number of Senators and Representatives to which the State may be
entitled in the Congress; but no Senator or Representative, or Person
holding an Office of Trust or Profit under the United States, shall be
appointed an Elector.

Sec. 152. Questions as to qualifications of
electors.

Questions of the qualifications of electors have arisen, and in one
instance certain ones were found disqualified, but as their number was
not sufficient to affect the result and as there was doubt as to what
tribunal should pass on the question the votes were counted (III, 1941).
In other cases there were objections, but the votes were counted (III,
1972-1974, 1979). In one instance an elector found to be disqualified
resigned both offices, whereupon he was made eligible to fill the
vacancy thus caused among electors (III, 1975).

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ber of Votes shall be the President, if such Number be a
majority of the whole Number of Electors
appointed: and if there be more than one who have such Majority, and
have an equal Number of Votes, then the House of Representatives shall
immediately chuse by Ballot one of them for President; and if no Person
have a Majority, then from the five highest on the List the said House
shall in like manner chuse the President. But in chusing the President,
the Votes shall be taken by States, the Representation from each State
having one Vote; A quorum for this purpose shall consist of a Member or
Members from two thirds of the States, and a Majority of all the States
shall be necessary to a Choice. In every Case, after the Choice of the
President, the Person having the greatest Number of Votes of the
Electors shall be the Vice President. But if there should remain two or
more who have equal Votes, the Senate shall chuse from them by Ballot
the Vice-President.]

Sec. 152a. Original provision for failure of
electoral college to choose, superseded by 12th amendment.

\3\ [The Electors
shall meet in their respective States and vote by Ballot for two
Persons, of whom one at least shall not be an Inhabitant of the same
State with themselves. And they shall make a List of all the Persons
voted for, and of the Number of Votes for each; which List they shall
sign and certify, and transmit sealed to the Seat of Government of the
United States, directed to the President of the Senate. The President of
the Senate shall, in the presence of the Senate and House of
Representatives, open all the Certificates, and the Votes shall then be
counted. The Person having the greatest Num-

<> \4\ The Congress may determine the Time of chusing
the Electors, and the Day on which they shall give their Votes; which
Day shall be the same throughout the United States.

This third clause of article II, section 1 was superseded by the 12th
amendment (see Sec. Sec. 219-223, infra).

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President of the Senate certificates of the appointment of the electors and
of their votes (III, 1915-1917; VI, 439; 3 U.S.C. 11).

The time for choosing electors has been fixed on ``the Tuesday next
after the first Monday in November, in every fourth year''; and the
electors in each State ``meet and give in their votes on the first
Monday after the second Wednesday in December next following their
appointment, at such place in each State as the legislature of such
State shall direct'' (III, 1914; VI, 438; 3 U.S.C. 1, 7). The statutes
also provide for transmitting to the

Sec. 154. Qualifications of President of the United
States.

\5\ No Person except a natural born Citizen, or a Citizen of the
United States, at the time of the Adoption of this Constitution, shall
be eligible to the Office of President; neither shall any Person be
eligible to that Office who shall not have attained to the Age of thirty
five Years, and been fourteen Years a Resident within the United
States.-

Sec. 155. Succession in case of removal, death,
resignation, or disability of President and VicePresident.

\6\ In Case of the
Removal of the President from Office, or of his Death, Resignation, or
Inability to discharge the Powers and Duties of the said Office, the
Same shall devolve on the Vice President, and the Congress may by Law
provide for the Case of Removal, Death, Resignation or Inability, both
of the President and Vice President, declaring what Officer shall then
act as President, and such Officer shall act accordingly, until the
Disability be removed, or a President shall be elected.

Sec. 156. Resignation of the President.

Amendment XXV
provides for filling a vacancy in the office of the Vice President and,
when the President is unable to perform the duties of his office, for
the Vice President to assume those powers and duties as Acting
President. During the 93d Congress, President Richard M. Nixon resigned
from office on August 9, 1974, by delivering a signed resignation to the
office of the Secretary of State, pursuant to 3 U.S.C. 20. Pursuant to
amendment XXV, Vice President Gerald R. Ford became President and the
House and Senate confirmed his nominee, Nelson A. Rockefeller, to become
Vice President (December 19, 1974, p. 41516).

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Congress has also provided for the performance of the duties of the
President in case of removal, death, resignation or inability, both of
the President and Vice President (3 U.S.C. 19).

Sec. 157. Compensation of President.

\7\ The President
shall, at stated Times, receive for his Services, a Compensation, which
shall neither be encreased nor diminished during the Period for which he
shall have been elected, and he shall not receive within that Period any
other Emolument from the United States, or any of them.

The compensation of the President is fixed at $200,000 per annum (3
U.S.C. 102). In addition the law provides an expense allowance of
$50,000 (3 U.S.C. 102; P.L. 91-1), and authorizes a travel allowance of
not to exceed $100,000 (3 U.S.C. 103).

Sec. 158. Oath of the President.

\8\ Before he enter on the
Execution of his Office, he shall take the following Oath or
Affirmation:--``I do solemnly swear (or affirm) that I will faithfully
execute the Office of President of the United States, and will to the
best of my Ability, preserve, protect and defend the Constitution of the
United States.''

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on the West Front, as scheduled, on January 21, 1985. Permission for such
use was authorized by S. Con. Res. 144, 98th Congress.

Sec. 159. Inauguration of the President.

The taking of this
oath, which is termed the inauguration, is made the occasion of certain
ceremonies which are arranged for by a joint committee of the two Houses
(III, 1998, 1999; VI, 451). For many years the oath was normally taken
at the east portico of the Capitol, although in earlier years it was
taken in the Senate Chamber or Hall of the House (III, 1986-1995). On
March 4, 1909, owing to inclemency of the weather, the President-elect
took the oath and delivered his inaugural address in the Senate Chamber
(VI, 447). And when Vice-President Fillmore succeeded to the vacancy in
the office of President, Congress being in session, he took the oath in
the Hall of the House in the presence of the Senate and House (III,
1997). In 1945 Franklin D. Roosevelt, who had been elected for his
fourth term as President, took the oath of office on the south portico
at the White House. On August 9, 1974, Gerald R. Ford, who as Vice
President succeeded to the Presidency following the resignation of
President Nixon on that day, was sworn in in the East Room of the White
House. The west front of the Capitol was first used for the inaugural
ceremony for Ronald W. Reagan, Jan. 20, 1981. Because of extreme cold,
the public administration of the oath was for the first time held in the
Rotunda of the Capitol, rather than

Sec. 160. The President the Commander in
Chief.

Section 2. \1\ The President shall be Commander in Chief of the Army and Navy of
the United States, and of the Militia of the several States, when called
into the actual Service of the United States; he may require
the <> Opinion,
in writing, of the principal Officer in each of the executive
Departments, upon any Subject relating to the Duties of their
respective <> Offices, and he shall have Power to grant Reprieves and
Pardons for Offences against the United States, except in Cases of
Impeachment.

Sec. 163. 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 article
I, section 8, clause 11 (Sec. 127, supra) and the power of the President
as Commander in Chief. For further discussion of the reports to Congress
required and the procedure for Congressional action provided under
Public Law 93-148, see Sec. 128, supra.

Sec. 164. Pardon of former President.

In 1974, President
Ford exercised his power under the last phrase of this clause by
pardoning former President Nixon for any crimes he might have committed
during a certain period in office (Proclamation 4311, September 8,
1974). The former President had resigned following an impeachment
inquiry in the House and the decision of the Committee on the Judiciary
to report to the House recommending his impeachment by the House (Aug.
20, 1974, p. 29219).

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Senate, shall appoint Ambassadors, <> other public Ministers and Consuls, Judges of
the Supreme Court, and all other Officers of the United States, whose
Appointments are not herein otherwise provided for, and which shall be
established by Law; but the Congress may by Law vest the Appointment of
such inferior Officers, as they think proper, in the President alone, in
the Courts of Law, or in the Heads of Departments.

Sec. 165. President makes treaties.

\2\ He shall have Power,
by and with the Advice and Consent of the Senate, to make Treaties,
provided two thirds of the Senators present concur; and he shall
nominate, and by and with the Advice and Consent of the

The power of the President to appoint diplomatic representatives to
foreign governments and to determine their rank is derived from the
Constitution and may not be circumscribed by statutory enactments (VII,
1248). In Buckley v. Valeo, 424 U.S. 1 (1976) the Supreme Court held
that any appointee exercising significant authority (not merely internal
delegable authorities within the Legislative Branch) pursuant to the
laws of the United States is an Officer of the United States and must
therefore be appointed pursuant to this clause, and that Congress cannot
by law vest such appointment authority in its own officers or require
that Presidential appointments be subject to confirmation by both
Houses.

Sec. 167. President's power to fill vacancies during
recess of the Senate.

\3\ The President shall have Power to fill up all
Vacancies that may happen during the Recess of the Senate, by granting
Commissions which shall expire at the End of their next Session.

Sec. 168. Messages from the President.

Section 3. He shall
from time to time give to the Congress Information of the State of the
Union, and recommend to their Consideration such Measures as he shall
judge necessary and expedient; * * *

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son. A message in writing is usually communicated to
both Houses on the same day, but an original document accompanying can
of course be sent to but one House (V, 6616, 6617). The President's
State of the Union message delivered in person to the 95th Congress,
second Session, together with separate hand-delivered written messages,
were referred on motion to the Union Calendar and ordered printed (Jan.
19, 1978, p. 152). In early years confidential messages were often sent
and considered in secret session of the House (V, 7251, 7252).
In the early years of the Government the President made a speech to
Congress on its assembling (V, 6629), but in 1801 President Jefferson
discontinued this practice and transmitted a message ``in writing.''
This precedent was followed until April 8, 1913, when the custom of
addressing Congress in person was resumed by President Wilson and, with
the exception of President Hoover (VIII, 3333) has been followed
generally by subsequent Presidents. Only messages of major importance
are delivered in per-

Sec. 169. Messages required by law.

By law (31 U.S.C. 1105),
the President is required to transmit the Budget to Congress on or after
the first Monday in January but not later than the first Monday in
February each year. In addition, he is required to submit a supplemental
budget summary by July 16 each year (31 U.S.C. 1106). Submission of the
Economic Report of the President is required within 10 days after the
submission of the January budget (15 U.S.C. 1022). The Congressional
Budget and Impoundment Control Act of 1974 (P.L. 93-344; 88 Stat. 297)
requires the transmittal to Congress by the President of amendments and
revisions related to the budget on or before April 10 and July 15 of
each year (sec. 601). In addition, the Act provides for the transmittal
of messages proposing rescissions and deferrals of budget authority
(sec. 1012-1014).

When the President has indicated that he will address Congress in
person a concurrent resolution is passed by both Houses arranging for a
joint session to receive the message. At the appointed hour the Members
of the Senate arrive and occupy the three front rows of the House. The
President of the Senate (the Vice President) sits to the right of the
Speaker, but in the absence of the Vice President, the President pro
tempore sits to the left of the Speaker (Nov. 27, 1963, p. 22838). The
Speaker presides.

* * * <> he may, on extraordinary Occasions, convene both
Houses, or either of them, and in Case of Disagreement between them,
with Respect to the

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Time of Adjournment, he may adjourn them to
such Time as he shall think proper; * * *

Sec. 170. Reception of messages from the
President.

The ceremony of receiving a message in writing is simple (V,
6591), and may occur during consideration of a question of privilege (V,
6640-6642) or before the organization of the House (V, 6647-6649) and in
the absence of a quorum (V, 6650; VIII, 3339; clause 6 of rule XV).
But, with the exception of vetoes, messages are regularly laid before
the House only at the time prescribed by the rule for the order of
business (V, 6635-6638) within the discretion of the Speaker (VIII,
3341). While a message of the President is always read in full the
latest rulings have not permitted the reading of the accompanying
documents to be demanded as a matter of right (V, 5267-5271; VII, 1108).
A concurrent resolution providing for a joint session to receive the
President's message was held to be of the highest privilege (VIII,
3335).

* * * <> he shall receive Ambassadors and other
public Ministers; he shall take Care That the Laws be faithfully
executed, and shall Commission all the officers of the United States.

In certain exigencies the President may convene Congress at a place
other than the seat of government (I, 2; 2 U.S.C. 27). Congress has
frequently been convened by the President (I, 10, 11; Nov. 17, 1947, p.
10578; July 26, 1948, p. 9362), and in one instance, when Congress had
provided by law for meeting, the President called it together on an
earlier day (I, 12). The Congress having adjourned on July 27, 1947, p.
10521, and on June 20, 1948, p. 9350, to a day certain, the President
called it together on an earlier date than that to which it adjourned
(Nov. 17, 1947, p. 10577, and July 26, 1948, p. 9362). There has been
some discussion as to whether or not there is a distinction between a
session called by the President and other sessions of Congress (I, 12,
footnote).

Sec. 173. Impeachment of civil officers.

Section 4. The
President, Vice President, and all civil Officers of the United States,
shall be removed from Office on Impeachment for, and Conviction of,
Treason, Bribery, or other high Crimes and Misdemeanors.

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vote held a Commissioner of the District of Columbia not to be a civil
officer subject to impeachment under the Constitution (VI, 548).

Sec. 174. As to the officers who may be impeached.

In the
Blount trial the managers contended that all citizens of the United
States were liable to impeachment, but this contention was not admitted
(III, 2315), and in the Bellknap trial both managers and counsel for
respondent agreed that a private citizen, apart from offense in an
office, might not be impeached (III, 2007). But resignation of the
office, does not prevent impeachment for crime or misdemeanor therein
(III, 2007, 2317, 2444, 2445, 2459, 2509). In Blount's case it was
decided that a Senator was not a civil officer within the meaning of the
impeachment provisions of the Constitution (III, 2310, 2316). Questions
have also arisen as to whether or not the Congressional Printer (III,
1785), or a vice-consul-general (III, 2515), might be impeached.
Proceedings for the impeachment of territorial judges have been taken in
several instances (III, 2486, 2487, 2488), although various opinions
have been given that such an officer is not impeachable (III, 2022,
2486, 2493). A committee of the House by majority

Sec. 175. Nature of impeachable offenses.

As to what are
impeachable offenses there has been much discussion (III, 2008, 2019,
2020, 2356,-2362, 2379-2381, 2405, 2406, 2410, 2498, 2510; VI, 455;
Impeachment of Richard M. Nixon, President of the United States,
Committee on the Judiciary, H. Rept. 93-1305, August 20, 1974, p. 29219;
Associate Justice William O. Douglas, Final Report by the Special
Subcommittee on H. Res. 920, Committee on the Judiciary, September 17,
1970). For a time the theory that indictable offenses only were
impeachable was stoutly maintained and as stoutly denied (III, 2356,
2360-2362, 2379-2381, 2405, 2406, 2410, 2416); but on the tenth and 11th
articles of the impeachment of the President (Andrew Johnson) the House
concluded to impeach for other than indictable offenses (III, 2418), and
in the Swayne trial the theory was definitely abandoned (III, 2019).
While there has not been definite concurrence in the claim of the
managers in the trial of the President that an impeachable offense is
any misbehavior that shows disqualification to hold and exercise the
office, whether moral, intellectual, or physical (III, 2015), yet the
House has impeached judges for improper personal habits (III, 2328,
2505), and in the impeachment of the President one of the articles
charged him with ``intemperate, inflammatory, and scandalous harangues''
in public addresses, tending to the harm of the Government (III, 2420).
There was no conviction under these charges except in the single case of
Judge Pickering, who was charged with intoxication on the bench (III,
2328-2341). As to the impeachment of judges for other delinquencies,
there has been much contention as to whether they may be impeached for
any breach of good behavior (III, 2011, 2016, 2497), or only for
judicial misconduct occurring in the actual administration of justice in
connection with the court (III, 2010, 2013, 2017). The intent of the
judge (III, 2014, 2382) as related to mistakes of the law, and the
relations of intent to conviction have been discussed at length (III,
2014, 2381, 2382, 2518, 2519). The statutes make nonresidence of a judge
an impeachable offense, and the House has taken steps to impeach for
this cause (III, 2476, 2512). There has, however, been some question as
to the power of Congress to make an impeachable offense (III, 2014,
2015, 2021, 2512). Usurpation of power has been examined several times
in its relations as a cause for impeachment (III, 2404, 2508, 2509,
2516, 2517). There has also been discussion as to whether or not there
is distinction between a misdemeanor and a high misdemeanor (III, 2270,
2367, 2492). Review of impeachments in Congress showing the nature of
charges upon which impeachments have been brought and judgments of the
Senate thereon (VI, 466).

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into scandal and disrepute and to destroy public confidence in his court and
in the judicial system (Impeachment by the House, March 2, 1936, p.
3091; Conviction by the Senate, April 17, 1936, p. 5606). Following his
conviction by the Senate, former Judge Ritter brought an action for back
salary, contending that the Senate had tried and convicted him for non-
impeachable offenses. The U.S. Court of Claims held that the Senate's
power to try impeachments was exclusive and not subject to judicial
review. Ritter v. United States, 84 Ct. Cls. 293 (1936), cert. denied,
300 U.S. 668 (1937).

Sec. 176. Later impeachment inquiries.

The articles of
impeachment adopted by the House in 1936 against Judge Ritter charged a
variety of judicial misconduct, including violations of criminal law;
the seventh and general article, upon which Judge Ritter was convicted
by the Senate, charged general misconduct to bring his court

In 1970, a special subcommittee of the Committee on the Judiciary
considered charges of impeachment against Associate Justice Douglas of
the Supreme Court. The subcommittee recommended against his impeachment
but concluded that a federal judge could be impeached (1) for judicial
conduct which is a serious dereliction from public duty and (2) for
nonjudicial conduct which is criminal in nature (Associate Justice
William O. Douglas, Final Report by the Special Subcommittee on H. Res.
920, Committee on the Judiciary, September 17, 1970).

In 1974, the Committee on the Judiciary investigated charges of
impeachment against President Nixon, and determined to recommend his
impeachment to the House. The President having resigned, the committee
reported to the House without submitting a resolution of impeachment,
and the House accepted the report by resolution (H. Res. 1333, August
20, 1974, p. 29361). The report of the committee included the text of
the three articles of impeachment adopted by the committee. The
committee had concluded that impeachable offenses need not be indictable
offenses and had impeached the President (1) for violating his oath of
office and his duty under the Constitution by preventing, obstructing,
and impeding the administration of justice; (2) for engaging in a course
of conduct violating the constitutional rights of citizens, impairing
the administration of justice, and contravening the laws governing
executive agencies; and (3) for failing to honor subpoenas issued by the
Committee on the Judiciary in the course of its impeachment inquiry
(Impeachment of Richard M. Nixon, President of the United States,
Committee on the Judiciary, H. Rept. 93-1305, Aug. 20, 1974, printed in
full in the Cong. Record, Aug. 22, 1974, p. 29219).

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the Senate, Judge Claiborne was convicted on three of the four articles
of impeachment and removed from office on October 9, 1986.
In 1986, for the first time since 1936, the House agreed to a
resolution impeaching a federal district judge. Judge Harry Claiborne
had been convicted of falsifying federal income tax returns. His final
appeal was denied by the Supreme Court in April, and he began serving
his prison sentence in May. Because he declined to resign, however,
Judge Claiborne was still receiving his judicial salary and, absent
impeachment, would resume the bench on his release from prison.
Consequently, a resolution of impeachment was introduced on June 3, and
on July 16, the Committee on the Judiciary reported to the House four
articles of impeachment against Judge Claiborne. On July 22, the
resolution was called up as a question of privilege and agreed to by a
recorded vote of 406 yeas, 0 nays. After trial in

In 1988, the House agreed to a resolution reported from the Committee
on the Judiciary and called up as a question of the privileges of the
House impeaching Federal district judge Alcee L. Hastings for high
crimes and misdemeanors specified in 17 articles of impeachment, some of
them addressing allegations on which the judge had been acquitted in a
federal criminal trial (H. Res. 499, 100th Cong., Aug. 3, 1988, p.
20206). No trial in the Senate was had before the adjournment of the
100th Congress. In the 101st Congress, the House reappointed managers to
conduct this impeachment in the Senate (Jan. 3, 1989, p. 84); the Senate
began its deliberations on March 15, 1989 (p. 4219); conviction and
removal from office occurred on October 20, 1989 (p. 25335). Also in the
101st Congress, the Senate convicted Federal district judge Walter L.
Nixon on two of the three impeachment charges brought against him (Nov.
3, 1989, p. 27101). For further discussion of the continuance of
impeachment proceedings in a succeeding Congress, see Sec. 620, infra.

For further discussion of impeachment proceedings, see Deschler's
Precedents, vol. 3, ch. 14.