Constitution, Jefferson's Manual and Rules of the House — House Document No. 116–177
Summary
House Document No. 116–177, the Constitution, Jefferson's Manual, and Rules of the House of Representatives of the United States for the One Hundred Seventeenth Congress, by Jason A. Smith, Parliamentarian, printed by the Government Publishing Office in 2021. House Resolution 1233, dated November 20, 2020, resolves that a revised edition of the Rules and Manual be printed as a House document. The preface states that the rules for the One Hundred Seventeenth Congress were adopted on January 4, 2021, when the House agreed to House Resolution 8, and lists changes it made, including to the jurisdiction of the Committee on Armed Services to include the Space Force and Marine Corps.
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Cite this document
“Constitution, Jefferson's Manual and Rules of the House — House Document No. 116–177.”
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116th Congress, 2d Session - - - - - - - - House Document No. 116–177
CONSTITUTION
JEFFERSON’S MANUAL
AND
RULES OF THE HOUSE OF
REPRESENTATIVES
OF THE UNITED STATES
ONE HUNDRED SEVENTEENTH CONGRESS
JASON A. SMITH
PARLIAMENTARIAN
U.S. GOVERNMENT PUBLISHING OFFICE
44–700 WASHINGTON : 2021
For sale by the Superintendent of Documents, U.S. Government Publishing Office
Washington, DC 20402
congress.#13
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HOUSE RESOLUTION 1233
IN THE HOUSE OF REPRESENTATIVES, U.S.,
November 20, 2020.
Resolved, That a revised edition of the Rules and Man-
ual of the House of Representatives for the One Hundred
Seventeenth Congress be printed as a House document,
and that three thousand additional copies shall be printed
and bound for the use of the House of Representatives, of
which nine hundred eighty copies shall be bound in leath-
er with thumb index and delivered as may be directed by
the Parliamentarian of the House.
Attest:
CHERYL L. JOHNSON,
Clerk.
(III)
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PREFACE
The House Rules and Manual contains the fundamental
source material for parliamentary procedure used in the
House of Representatives: the Constitution of the United
States; applicable provisions of Jefferson’s Manual; Rules
of the House (as of the date of this preface); provisions of
law and resolutions having the force of Rules of the
House; and pertinent decisions of the Speakers and other
presiding officers of the House and Committee of the
Whole interpreting the rules and other procedural author-
ity used in the House of Representatives.
The rules for the One Hundred Seventeenth Congress
were adopted on January 4, 2021, when the House agreed
to House Resolution 8. In addition to a series of changes
to various standing rules, House Resolution 8 included
separate free-standing orders constituting procedures to
be followed in the One Hundred Seventeenth Congress.
Explanations of the changes to the standing rules appear
in the annotations following each rule in the text of this
Manual.
The substantive changes in the standing rules made by
House Resolution 8 of the One Hundred Seventeenth Con-
gress included:
(1) removal of outdated authority for Clerk maintenance
of former Speaker staff on the House payroll (clause 2(i)
of rule II);
(2) codification of the Office of Diversity and Inclusion
and Office of the Whistleblower Ombuds and establish-
ment of policy direction and oversight thereof (clauses 9
and 10 of rule II; clause 4(d) of rule X);
(3) clarification that continuing litigation authority in-
cludes the authority to issue subpoenas (clause 8(c) of rule
II);
(4) expansion of admission in the Hall of the House to
the Mayor of the District of Columbia and prohibition of
admission in the Hall of the House for former Members,
officers, and staff convicted of any crime related to the in-
dividual’s election or service to the House (clause 2 and 4
of rule IV);
(5) modification of numerous provisions to establish gen-
der-neutral terminology and elimination of a blanket gen-
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PREFACE
der-neutrality clause (rules X, XXIII, XXVII, and clause 2
of rule XXIX);
(6) clarification of the jurisdiction of the Committee on
Armed Services to include the Space Force and Marine
Corps (clause 1(c) of rule X);
(7) modification to the committee oversight plan require-
ment to require priority consideration of diversity-related
inequities in the development of such plans (clause 2(d) of
rule X);
(8) elimination of the printing requirement for avail-
ability of a report by the Committee on House Administra-
tion on expense resolutions (clause 6 of rule X);
(9) modification of the availability requirement for the
report on a Senate amendment reported in disagreement
to permit availability pursuant to clause 3 of rule XXIX
(clause 8(b) of rule XXII);
(10) removal of the requirement that committee votes be
made available by the committee for physical inspection in
the committee offices, and expansion of amendment text
availability requirement to include all amendments dis-
posed of or withdrawn (clause 2(e) of rule XI);
(11) expansion of the committee hearing witness disclo-
sure requirements to include disclosure of any fiduciary
interest in an entity with an interest in the subject matter
of the hearing, to include grants as part of the foreign gov-
ernment disclosure, and to extend the disclosure window
to 36 months (clause 2(g) of rule XI);
(12) codification of a prior separate order to allow elec-
tronic filing of reports and to permit electronic signatures
to satisfy certain signature requirements under the rules
(rules XIII, XXV, and XXVII);
(13) clarification of the application of committee sub-
poena authority to all persons, including current and
former Presidents and Vice Presidents, as well as current
or former employees of Presidential offices (clause 2(m) of
rule XI);
(14) modernization of the restriction on the use of com-
mittee audio and visual coverage for partisan political
campaign purposes (clause 4(b) of rule XI);
(15) modification of the cosponsorship process to permit
Members to remove themselves as cosponsors as a matter
of right (clause 7(b) of rule XII);
(16) elimination of certain comparative print require-
ments (clause 12 of rule XXI);
(17) codification of points of order against the consider-
ation of an unreported bill or joint resolution and against
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PREFACE
the consideration of a reported bill or joint resolution that
fails to include in the report a list of related committee
and subcommittee hearings and the designation of at least
one committee or subcommittee hearing used to develop or
consider such bill or joint resolution (clause 3(c) of rule
XIII; clause 12 of rule XXI);
(18) elimination of the motion to recommit with instruc-
tions and of debatability of the motion to recommit, and
establishment of automatic ordering of previous question
thereon (clause 2 of rule XIX; clause 7(d) of rule XXII),
and conforming modification to the restriction of the au-
thority of the Committee on Rules to report a special order
of business preventing the offering of a motion to recom-
mit (clause 6(c) of rule XIII);
(19) elimination of the special days for the consideration
of District of Columbia business (clause 4 of rule XV);
(20) restriction of the authority to offer a motion to
amend the title of a measure to the Majority Leader or a
designee (clause 6 of rule XVI);
(21) elimination of a point of order against consideration
of a concurrent resolution on the budget containing rec-
onciliation directives that specify changes in law that
would require reported reconciliation legislation to cause
an increase in net direct spending (clause 7 of rule XXI);
(22) modification of the availability requirement for un-
reported bills and joint resolutions to allow the publicly-
available text of an unintroduced bill or joint resolution to
count for purposes of availability under the rule (clause 11
of rule XXI);
(23) removal of outdated proscriptive regulatory require-
ment for the ethics rule prohibiting Members from serving
as an officer or director of a public company (clause 19(c)
of rule XXIII);
(24) prohibition against the prevention of or retaliation
for the provision of truthful information by an individual
to the Committee on Ethics, the Office of Congressional
Ethics, the Office of Congressional Workplace Rights, or
law enforcement (clause 20 of rule XXIII);
(25) prohibition against the disclosure of the identity of
or personally identifiable information about individuals
providing information pursuant to specified whistleblower
laws (clause 21 of rule XXIII); and
(26) conforming update to the name of the House Com-
munications Standards Commission (clause 5 of rule
XXIV).
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PREFACE
In addition to the amendments cited above, the defini-
tion of ‘‘mass mailing’’ in clause 9 of rule XXIV was ex-
panded (P.L. 116–260, Dec. 27, 2020) and clause 3(g) of
rule II was modified to conform the Committee on Ethics
appeals process under such clause to similar appeals proc-
esses established in the 117th Congress (sec. 8, H. Res. 85,
Feb. 2, 2021, p. l).
Citations in this edition refer to:
(1) Hinds’ Precedents of the House of Representatives of
the United States (volumes I through V) and Cannon’s
Precedents of the House of Representatives of the United
States (volumes VI through VIII), by volume and section
(e.g., V, 5763; VIII, 2852);
(2) Deschler’s Precedents of the U.S. House of Rep-
resentatives (volumes 1 through 9), Deschler-Brown Prece-
dents of the U.S. House of Representatives (volumes 10
through 16), Deschler-Brown-Johnson Precedents of the
U.S. House of Representatives (volume 17), and Deschler-
Brown-Johnson-Sullivan Precedents of the U.S. House of
Representatives (volume 18), by chapter and section (e.g.,
Deschler, ch. 26, § 79.7; Deschler-Brown, ch. 28, § 4.26);
(3) Precedents of the U.S. House of Representatives (vol-
umes 1 through 2), by Parliamentarian last name, chapter
and section (e.g., Precedents (Wickham), ch. 1, § 1.1);
(4) the Congressional Record, by date and page (e.g.,
Jan. 29, 1986, p. 684);
(5) House Practice (2017), by chapter and section (e.g.,
House Practice, ch. 1, § 2);
(6) Deschler-Brown Procedure in the U.S. House of Rep-
resentatives (4th edition and 1987 supplement), by chap-
ter and section (e.g., Procedure, ch. 5, § 8.1);
(7) the United States Code, by title and section (e.g., 2
U.S.C. 287); and
(8) the United States Reports, by volume and page (e.g.,
395 U.S. 486).
All of the members of the Office of the Parliamentarian
- Anne Gooch, Kyle T. Jones, Julia Cook, Ben Osheroff,
Christina Reid, Lloyd Jenkins, Kristen Donahue, and Mat-
thew Kowalewski, as well as Charles Johnson, Max
Spitzer, Andrew Neal, Catherine Moran, and Bryan
Feldblum - worked diligently to annotate the decisions of
the Chair and other parliamentary precedents of the
116th Congress and of the 117th Congress to the date of
publication of this edition. Their contributions, and their
devotion to the pursuit of excellence in the procedural
practices of the House, are gratefully acknowledged.
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PREFACE
Finally, we take a moment to express our gratitude to
Thomas J. Wickham, Jr., not only for his significant con-
tribution to this publication but for his decades of service
to the office. Tom’s immeasurable knowledge and adroit
application of House procedure were matched only by his
reverence for the institution and his commitment to
mentorship. Like his predecessors, Tom has left an indel-
ible mark on his colleagues and on the procedure of the
House.
JAY SMITH
MARCH 31, 2021
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CONTENTS
THE CONSTITUTION
Page
PREAMBLE ............................................................................................ 3
ARTICLE I.—The legislative power .......................................... 4
II.—The executive power ........................................... 68
III.—The judicial power .............................................. 81
IV.—Obligations, duties, etc., of the States .............. 83
V.—Amendments to ................................................... 85
VI.—Law of the land, etc. ........................................... 87
VII.—Ratification of ...................................................... 92
Amendments ratified .......................................... 94
JEFFERSON’S MANUAL
SECTION I.—Importance of adhering to rules ........................ 129
III.—Privilege ............................................................... 132
VI.—Quorum ................................................................ 153
VII.—Call of the House ................................................ 154
IX.—Speaker ................................................................ 154
X.—Address ................................................................ 157
XI.—Committees ......................................................... 157
XII.—Committee of the Whole ..................................... 161
XIII.—Examination of witnesses .................................. 170
XIV.—Arrangement of business ................................... 175
XV.—Order .................................................................... 176
XVI.—Order respecting papers ..................................... 177
XVII.—Order in debate ................................................... 178
XVIII.—Orders of the House ............................................ 203
XIX.—Petition ................................................................ 207
XX.—Motion .................................................................. 208
XXI.—Resolutions .......................................................... 209
XXIII.—Bills, leave to bring in ........................................ 211
XXIV.—Bills, first reading ............................................... 212
XXV.—Bills, second reading ........................................... 212
XXVI.—Bills, commitment ............................................... 213
XXVII.—Report of committee ........................................... 224
[XI]
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CONTENTS
Page
SECTION XXVIII.—Bill, recommitment ............................................. 225
XXIX.—Bills, reports taken up ....................................... 226
XXX.—Quasi-committee ................................................. 228
XXXI.—Bill, second reading in the House ..................... 231
XXXII.—Reading papers ................................................... 234
XXXIII.—Privileged questions ........................................... 236
XXXIV.—The previous question ........................................ 249
XXXV.—Amendments ....................................................... 251
XXXVI.—Division of the question ..................................... 260
XXXVII.—Coexisting questions ........................................... 263
XXXVIII.—Equivalent questions .......................................... 264
XXXIX.—The question ........................................................ 266
XL.—Bills, third reading ............................................. 267
XLI.—Division of the House ......................................... 271
XLII.—Titles .................................................................... 276
XLIII.—Reconsideration ................................................... 276
XLIV.—Bills sent to the other House ............................. 280
XLV.—Amendments between the Houses .................... 281
XLVI.—Conferences ......................................................... 291
XLVII.—Messages .............................................................. 304
XLVIII.—Assent .................................................................. 309
XLIX.—Journals ............................................................... 311
L.—Adjournment ....................................................... 314
LI.—A session .............................................................. 315
LII.—Treaties ................................................................ 319
LIII.—Impeachment ....................................................... 322
RULES OF THE HOUSE
RULE I.—The Speaker ........................................................ 345
II.—Other Officers and Officials ............................... 371
III.—The Members, Delegates, and Resident 396
Commissioner of Puerto Rico.
IV.—The Hall of the House ........................................ 401
V.—Broadcasting the House ..................................... 410
VI.—Official Reporters and News Media Galleries .. 412
VII.—Records of the House .......................................... 425
VIII.—Response to Subpoenas ...................................... 429
IX.—Questions of Privilege ......................................... 432
X.—Organization of Committees .............................. 454
XI.—Procedures of Committees and Unfinished 567
Business.
XII.—Receipt and Referral of Measures and Matters 639
XIII.—Calendars and Committee Reports ................... 655
XIV.—Order and Priority of Business .......................... 691
XV.—Business in Order on Special Days ................... 701
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CONTENTS
Page
RULE XVI.—Motions and Amendments ................................. 720
XVII.—Decorum and Debate .......................................... 776
XVIII.—The Committee of the Whole House on the 809
state of the Union.
XIX.—Motions Following the Amendment Stage ........ 840
XX.—Voting and Quorum Calls .................................. 854
XXI.—Restrictions on Certain Bills .............................. 884
XXII.—House and Senate Relations .............................. 943
XXIII.—Code of Official Conduct ..................................... 970
XXIV.—Limitations on Use of Official Funds ................ 987
XXV.—Limitations on Outside Earned Income and 992
Acceptance of Gifts.
XXVI.—Financial Disclosure ........................................... 1021
XXVII.—Disclosure by Members and Staff of 1047
Employment Negotiations.
XXVIII.—Statutory Limit on the Public Debt .................. 1048
XXIX.—General Provisions .............................................. 1051
PROVISIONS OF LEGISLATIVE REORGANIZATION ACT OF 1946, AS AMENDED
BY THE LEGISLATIVE REORGANIZATION ACT OF 1970, APPLICABLE TO
BOTH HOUSES
Congressional adjournment ................................................................ 1057
Preservation of committee hearings .................................................. 1058
JOINT AND SELECT COMMITTEES
Economic Committee, Joint ................................................................ 1059
Taxation, Joint Committee on ............................................................ 1059
Library, Joint Committee of Congress on the ................................... 1060
Printing, Joint Committee on ............................................................ 1060
Inaugural Ceremonies, Joint Congressional Committee on ............ 1060
Select committees ................................................................................ 1060
HOUSE AND CONGRESSIONAL OFFICES
House Communications Standards Commission .............................. 1063
House Office Building Commission ................................................... 1063
Government Accountability Office ..................................................... 1063
Office of Congressional Workplace Rights ........................................ 1063
Congressional Research Service ......................................................... 1064
Legislative Counsel ............................................................................. 1064
Congressional Budget Office .............................................................. 1064
Law Revision Counsel ......................................................................... 1064
Technology Assessment ...................................................................... 1064
Office of the Parliamentarian ............................................................ 1064
Speaker’s Office for Legislative Floor Activities ............................... 1065
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CONTENTS
Page
Office of Interparliamentary Affairs .................................................. 1065
House Recording Studio ..................................................................... 1065
United States Capitol Preservation Commission ............................. 1065
Office of General Counsel ................................................................... 1065
Former Office of Emergency Planning, Preparedness, and 1066
Operations.
Office of Attending Physician ............................................................. 1066
Office of Architect of the Capitol ....................................................... 1066
House Democracy Partnership ........................................................... 1066
Tom Lantos Human Rights Commission .......................................... 1066
Office of Congressional Ethics ........................................................... 1067
Early organization of the House ........................................................ 1069
MISCELLANEOUS PROVISIONS OF CONGRESSIONAL BUDGET LAWS
Congressional Budget Act of 1974 ..................................................... 1075
Budget Enforcement Act of 1990 ....................................................... 1157
Statutory Pay-As-You-Go Act of 2010 ............................................... 1161
LEGISLATIVE PROCEDURES ENACTED IN LAW
Measures privileged for consideration in House .............................. 1165
INDEX
Index .................................................................................................... 1361
[XIV]
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GENERAL ORDER OF BUSINESS
RULE XIV
First. Prayer by Chaplain.
Second. Approval of Journal.
Third. The Pledge of Allegiance to the Flag.
Fourth. Correction of reference of public bills.
Fifth. Disposal of business on Speaker’s table.
Sixth. Unfinished business.
Seventh. The morning hour for the consideration of bills.
Eighth. Motions to go into Committee of the Whole.
Ninth. Orders of the day.
SPECIAL ORDER OF BUSINESS
MONDAYS
Every Monday:
Motions to suspend rules. Rule XV, clause 1.
TUESDAYS
First Tuesday:
Private Calendar. Rule XV, clause 5. Individual private bills consid-
ered on first Tuesday of each month.
Every Tuesday:
Motions to suspend rules. Rule XV, clause 1.
WEDNESDAYS
Call of Committees under Calendar Wednesday. Rule XV, clause 6.
Every Wednesday:
Motions to suspend rules. Rule XV, clause 1.
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CONSTITUTION
[1]
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WE THE PEOPLE of the United States, in Order
to form a more perfect Union, es-
§ 1. The preamble.
tablish Justice, insure domestic
Tranquility, provide for the common defence,
promote the general Welfare, and secure the
Blessings of Liberty to ourselves and our Pos-
terity, do ordain and establish this Constitution
for the United States of America.
The First Continental Congress met in Philadelphia in September, 1774
and adopted the Declaration and Resolves of the First
§ 2. Formation of the
Constitution. Continental Congress, embodying rights and principles
later to be incorporated into the Constitution of the
United States. The Second Continental Congress adopted in November,
1777 the Articles of Confederation, which the States approved in July,
1778. Upon recommendation of the Continental Congress, a convention
of State representatives met in May, 1787 to revise the Articles of Confed-
eration and reported to the Continental Congress in September a new Con-
stitution, which the Congress submitted to the States for ratification. Nine
States, as required by the Constitution for its establishment, had ratified
by June 21, 1788, and eleven States had ratified by July 26, 1788. The
Continental Congress adopted a resolution on September 13, 1788, putting
the new Constitution into effect; the First Congress of the United States
convened on March 4, 1789, and George Washington was inaugurated as
the first President on April 30, 1789.
[3]
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CONSTITUTION OF THE UNITED STATES
§ 3–§ 6 [ARTICLE I, SECTIONS 1–2]
ARTICLE I.
SECTION 1. All legislative Powers herein
granted shall be vested in a Con-
§ 3. Legislative powers
vested in Congress.
gress of the United States, which
shall consist of a Senate and House of Rep-
resentatives.
The power to legislate includes the power to conduct inquiries and inves-
tigations. See Kilbourn v. Thompson, 103 U.S. 168 (1880); McGrain v.
Daugherty, 273 U.S. 135 (1927); Watkins v. United
§ 4. Power to
investigate. States, 354 U.S. 178 (1957); Barenblatt v. United
States, 360 U.S. 109 (1959). The Chair cannot unilater-
ally grant a request for an investigation (Jan. 12, 2017, p. l). For the
power of the House to punish for contempt in the course of investigations,
see § 293, infra.
SECTION 2. 1 The House of Rep-
§ 5. Members chosen
resentatives shall be composed of
by the people of the
States every second
year. Members chosen every second Year
by the People of the several States, * * *
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, 394 U.S. 526 (1969). 2 U.S.C. 2a mandates apportionment of
Representatives based upon population, and 2 U.S.C. 2c requires the estab-
lishment by the States of single-Member congressional districts. For elec-
tions generally, see Deschler, ch. 8.
The term of a Congress, before ratification of the 20th amendment to
the Constitution, began on the 4th of March of odd-
§ 6. Term of a
Congress. 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 com-
mencing proceedings under the said Constitution.’’ This date was March
4, 1789. Soon after the first Congress assembled a joint committee deter-
mined 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
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CONSTITUTION OF THE UNITED STATES
[ARTICLE I, SECTION 2] § 7–§ 9
no other hour is fixed (I, 4, 210). In the later practice a resolution fixing
the daily hour of meeting is agreed to at the beginning of each session.
Before adoption of the 20th amendment, the legislative day of March
3 extended to noon on March 4 (V, 6694–6697) and, unless earlier ad-
journed, 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).
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, if a state of war exists pursuant to a congres-
sional declaration or if, in an odd-numbered (nonelection) year, the Con-
gress has agreed to adjourn for the month preceding Labor Day. For more
on this provision, see § 1106, infra.
* * * and the Electors in each
§ 7. Electors of the
House of
State shall have the Qualifications
Representatives.
requisite for Electors of the most
numerous Branch of the State Legislature.
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 Govern-
ment, 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).
The power of the States to set qualifications for electors is not unlimited,
§ 8. Decisions of the
being subject to the 15th, 19th, 24th, and 26th amend-
Court. ments, 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).
Congress has some power in setting qualifications for electors, as in pro-
tecting the right to vote and lowering the minimum age for electors in
congressional elections. Katzenbach v. Morgan, 384 U.S. 641 (1966); Or-
egon v. Mitchell, 400 U.S. 112 (1970).
2 No Person shall be a Representative who
§ 9. Age as a shall not have attained
qualification of the
Representative. to the Age of twenty five
Years, * * *
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CONSTITUTION OF THE UNITED STATES
§ 10–§ 11 [ARTICLE I, SECTION 2]
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).
§ 10. Citizenship as a * * * and been seven Years a Cit-
qualification of the
Member.
izen of the United States, * * *
Henry Ellenbogen, Pa., had not been a citizen for seven years when elect-
ed 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 enti-
tled 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).
§ 11. Inhabitancy as a * * * and who shall not, when
qualification of the
Member.
elected, be an Inhabitant of that
State in which he shall be chosen.
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). Resi-
dence 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-
[6]
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CONSTITUTION OF THE UNITED STATES
[ARTICLE I, SECTION 2] § 12
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 citizen-
ship, were accepted as evidence of inhabitancy (VI, 55).
Whether Congress may by law establish qualifications other than those
§ 12. Qualifications
prescribed by the Constitution has been the subject of
other than those much discussion (I, 449, 451, 457, 458, 478); but in a
specified by the case wherein a statute declared a Senator convicted of
Constitution. a certain offense ‘‘forever thereafter incapable of hold-
ing any office of honor, trust, or profit under the Gov-
ernment 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 cir-
cumstances 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 Representa-
tive-elect Adam C. Powell of New York (H. Res. 1, Jan. 10, 1967, p. 14;
H. Res. 278, Mar. 1, 1967, p. 4997). In Powell v. McCormack, 395 U.S.
486 (1969), the Supreme 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. Thornton, 514
U.S. 779 (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,
§§ 9–14.
For expulsion of seated Members, which requires a two-thirds vote rather
than a majority vote, see article I, section 5, clause 2 (§ 62, infra).
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CONSTITUTION OF THE UNITED STATES
§ 13–§ 15 [ARTICLE I, SECTION 2]
Both Houses of Congress have decided, when a Member-elect is found
§ 13. Minority
to be disqualified, that the person receiving the next
candidate not seated highest number of votes is not entitled to the seat (I,
when returned 323, 326, 450, 463, 469; VI, 58, 59), even in a case
Member is wherein reasonable notice of the disqualification was
disqualified.
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).
3 [Representatives and direct Taxes shall be
apportioned among the several
§ 14. The old provision
for apportionment of
States which may be included with-
Representatives and
direct taxes.
in this Union, according to their re-
spective Numbers, which shall be determined by
adding to the whole Number of free Persons, in-
cluding those bound to Service for a Term of
Years, and excluding Indians not taxed, three
fifths of all other Persons.] * * *
The part of this clause relating to the mode of apportionment of Rep-
resentatives 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 actual Enumeration shall be made
§ 15. Census as a basis within three Years after the first
of apportionment.
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 Rep-
resentative; and until such enumeration shall be
made, the State of New Hampshire shall be enti-
tled to chuse three, Massachusetts eight, Rhode-
Island and Providence Plantations one, Con-
necticut five, New York six, New Jersey four,
Pennsylvania eight, Delaware one, Maryland
[8]
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CONSTITUTION OF THE UNITED STATES
[ARTICLE I, SECTION 2] § 16–§ 17
six, Virginia ten, North Carolina five, South
Carolina five, and Georgia three.
The census has been taken decennially since 1790, and, with the excep-
tion of 1920, was followed each time by reapportionment. In the First Con-
gress 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). Member-
ship 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).
Decisions of the Supreme Court of the United States: Dred Scott v.
§ 16. Decisions of the
Sandford, 60 U.S. (19 How.) 393 (1857); Veazie Bank
Court. v. Fenno, 75 U.S. (8 Wall.) 533 (1869); Scholey v. Rew,
90 U.S. (23 Wall.) 331 (1874); De Treville v. Smalls,
98 U.S. 517 (1878); Gibbons v. District of Columbia, 116 U.S. 404 (1886);
Pollock v. Farmers Loan & Trust Co. (Income Tax case), 157 U.S. 429
(1895); Pollock v. Farmers’ Loan & Trust Co. (Rehearing), 158 U.S. 601
(1895); Thomas v. United States, 192 U.S. 363 (1904); Flint v. Stone Tracy
Co. (Corporation Tax cases), 220 U.S. 107 (1911); Eisner v. Macomber,
252 U.S. 189 (1920); New York Trust Co. v. Eisner, 256 U.S. 345 (1921);
Franklin v. Massachusetts, 505 U.S. 788 (1992); Utah v. Evans, 536 U.S.
452 (2002).
4 When vacancies happen in the Representa-
§ 17. Writs for tion from any State, the Executive
elections to vacancies
in representation. Authority thereof shall issue Writs
of Election to fill such Vacancies.
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 § 1024b, infra). Clause
5(c) of rule XX permits the House to operate with a provisional number
of the House if the House is without a quorum due to catastrophic cir-
cumstances (see § 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.
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CONSTITUTION OF THE UNITED STATES
§ 18–§ 19 [ARTICLE I, SECTION 2]
It was long the practice to notify the executive of the State when a va-
§ 18. Vacancy from
cancy was caused by the death of a Member during
death. a session (II, 1198–1202); but it is now the practice for
State authorities to take cognizance of the vacancies
without notice. When a Member dies while not in attendance in the House
or during a recess, the House is sufficiently informed of the vacancy by
the credentials of the successor, when they set forth the fact of the death
(I, 568). The death of a Member-elect creates a vacancy, although no certifi-
cate 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). The Clerk announces any vacancy created by the death
of a Member-elect following the call of the roll at the beginning of a Con-
gress (Jan. 3, 2021, p. l). 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 com-
mittee did not recommend to the House a resolution it had agreed to declar-
ing 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 pre-
sumptive 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 § 23, infra.
In recent practice the Member informs the House by letter that a resigna-
§ 19. Vacancy from
tion has been sent to the State executive (II, 1167–1176)
resignation. and this is satisfactory evidence of the resignation (I,
567). Both a letter to the Speaker and a copy of the
letter to the State executive are laid before the House. However, Members
have resigned by letter to the House alone, it being presumed that the
Member would also notify the Governor (VI, 226). Where a Member re-
signed 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). If a Member does not inform the House, the State executive
may do so (II, 1193, 1194; VI, 232). The House has learned of a Member’s
resignation by means of the credentials of the successor (II, 1195, 1356).
Where the fact of a Member’s resignation has not appeared either from
the credentials of the 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).
It has been established that a Member or Senator may select a future
date for a resignation to take effect and, until the arrival of that date,
participate in the proceedings (II, 1220–1225, 1228, 1229; VI, 227, 228;
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CONSTITUTION OF THE UNITED STATES
[ARTICLE I, SECTION 2] § 19
Dec. 15, 1997, p. 26709; June 5, 2001, p. 9882; Nov. 27, 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 antici-
pated date of a special election that might fill the vacancy thereby created
(Deschler, ch. 8, § 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 State executive 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 January 27, 2003 (p. 1751)
(Texas). When the Governor of Oklahoma received a prospective resigna-
tion 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).
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, in which the Mem-
ber 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 Mem-
ber may include in a letter of prospective resignation a statement of inten-
tion 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 from 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-elect may resign before taking the oath
(II, 1230–1232).
A letter of resignation is presented as privileged (II, 1167–1176); but
a resolution to permit a Member to withdraw a 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, trans-
mitted 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 Presi-
dent (Dec. 6, 1973, p. 39927).
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CONSTITUTION OF THE UNITED STATES
§ 20–§ 22a [ARTICLE I, SECTION 2]
A Member who has been elected to a seat may decline to accept it, and
§ 20. Vacancy from
in such a case the House informed the executive of the
declination. 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 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). A Member has notified the Speaker and the
Governor in one Congress of an intention not to take a seat in the next
Congress (Jan. 6, 2009, pp. 2, 3; Jan. 3, 2013, p. 21; Jan. 3, 2013, p. 21;
Jan. 6, 2015, p. 29).
At the time of the secession of several States, Members of the House
§ 21. Vacancy by
from those States withdrew (II, 1218). In the Senate,
withdrawal. in cases of such withdrawals, the Secretary was di-
rected 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).
If the House, by its action in a question of election or otherwise, creates
§ 22. Vacancy by
a vacancy, the Speaker is directed to notify the Execu-
action of the House. tive 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 in which
a Member-elect was unable to take the oath of office or to decline the
office because of an incapacitating illness (Feb. 24, 1981, pp. 2916–18).
A vacancy exists where the Clerk does not receive a certificate of election
§ 22a. Vacancy by lack
from a State and there is no election contest or any
of election results. person seeking to be sworn as a Member, and the Clerk
announces such lack of certification when announcing
the official roll of Members immediately prior to the call of the roll at
the beginning of a Congress (Jan. 3, 2019, p. l; Jan. 3, 2021, p. l). On
opening day of the 116th Congress the Clerk announced that no certificate
of election had been received from the state of North Carolina with respect
to its Ninth Congressional District and therefore only 434 certificates of
election had been received (Jan. 3, 2019, p. l). No election contest was
filed and no person sought to take the oath of office. Soon thereafter, the
state ordered a special election for the district and a letter from the state
board of elections informing the Clerk of the dates of such election was
laid before the House (Mar. 14, 2019, p. l). On the opening day of the
117th Congress the Clerk announced that no certificate of election had
been received from the state of New York with respect to its Twenty-Second
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CONSTITUTION OF THE UNITED STATES
[ARTICLE I, SECTION 2] § 23–§ 25
Congressional District and therefore only 434 certificates of election had
been received (Jan. 3, 2021, p. l). Soon thereafter, the state of New York
certified the election results for its Twenty-Second Congressional District
and the Member-elect appeared in the Chamber to take the oath of office
(Feb. 11, 2021, p. l).
The House declines to give prima facie effect to credentials, even though
§ 23. Questions as to
they be regular in form, until it has ascertained wheth-
the existence of a er or not the seat is vacant (I, 322, 518, 565, 569), and
vacancy. a person returned as elected at a second election was
unseated on ascertainment that another person had ac-
tually been chosen at the first election (I, 646). Where a Member was re-
elected 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 miss-
ing 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).
The term ‘‘vacancy’’ as occurring in this paragraph of the Constitution
§ 24. Functions of the
has been examined in relation to the functions of the
State executive in State executive (I, 312, 518). A Federal law empowers
filling vacancies. 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 the 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 (Precedents (Wickham), ch. 2, § 3.9). For a discussion of
a State election to fill a prospective vacancy of the House, see § 19, supra.
A Member elected to fill a vacancy serves no longer time than the remain-
§ 25. Term of a
der of the term of the Member whose place he fills (I,
Member elected to fill 3). For the compensation and allowances of such Mem-
a vacancy. bers, see § 87, infra.
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CONSTITUTION OF THE UNITED STATES
§ 26–§ 27 [ARTICLE I, SECTION 2]
5 The House of Representatives shall chuse
§ 26. House chooses their Speaker and other Offi-
the Speaker and other
officers. cers; * * *
The officers of the House are the Speaker, who has always been one
of its Members and whose term as Speaker must expire with the term
as a Member; and the Clerk, Sergeant-at-Arms, Chief Administrative Offi-
cer, 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 contin-
ued through the entire Congress succeeding that in which they were elected
(I, 244, 263). Former officers include Doorkeeper (abolished by the 104th
Congress, see § 663b, infra) and Postmaster (abolished during the 102d
Congress, see § 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. 5602).
The Speaker, who was at first elected by ballot, has been chosen viva
§ 27. Election of a
voce by surname in response to a call of the roll since
Speaker. 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). Because the House is composed
of Members elected by the people of the several States, and because the
House elects its Speaker, the Delegates-elect and the Resident Commis-
sioner from Puerto Rico are not constitutionally qualified to vote in the
House for Speaker (Precedents (Wickham), ch. 1, § 4.2; Jan. 3, 2017, p.
l). The Clerk appoints tellers for this election (I, 217). Ultimately, the
House, and not the Clerk, decides 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).
The motion to proceed to the election of a Speaker is privileged (I, 212,
214; VIII, 3383), 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 recog-
nized for nominations for Speaker as being of higher constitutional privi-
lege 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 pre-
sented (VI, 24). In 1860 the voting for Speaker proceeded slowly, being
interspersed with debate (I, 223), and in one instance the House asked
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CONSTITUTION OF THE UNITED STATES
[ARTICLE I, SECTION 2] § 28
candidates for Speaker to state their views before proceeding to election
(I, 218).
A proposition to elect a Speaker is in order at any time a vacancy exists
§ 28. Vacancies in the
and presents a question of the highest privilege (VIII,
Office of Speaker. 3383). 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). A resolu-
tion declaring vacant the Office of Speaker is presented as a matter of
high constitutional privilege (VI, 35), but in the 116th Congress the House
adopted clause 2(a)(3) of rule IX, providing that such a resolution only
constitutes a question of the privileges of the House if offered by direction
of a party caucus or conference (sec. 102(e), H. Res. 6, Jan. 3, 2019, p.
l). Upon a vacancy in the Office of Speaker, the House elects a new Speak-
er either viva voce following nominations (in the case in which a Speaker
has died between sessions of Congress or resigned) or by resolution (in
the case in which a Speaker has died during a session of Congress). For
example, in the case in which 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 in which 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). 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; H. Res. 383, Oct. 22,
2013, p. 16056; H. Res. 254, May 12, 2015, pp. 6455, 6492).
Speakers have resigned by addressing the House (I, 231, 233; Precedents
(Wickham), ch. 6, § 1.2), by calling a Member to the Chair and tendering
the resignation verbally from the floor (I, 225), by tendering the resignation
during recognition under a question of personal privilege (Precedents
(Wickham), ch. 6, § 7.4), or by sending a letter that the Clerk reads to
the House at the beginning of a new session (I, 232). In cases in which
a Speaker resigned ‘‘on the election of my successor’’ (May 31, 1989, p.
10440; Precedents (Wickham), ch. 6, § 1.2), he entertained nominations
for Speaker and, following the roll call, declared the winner of the election
‘‘duly elected Speaker’’ (Precedents (Wickham), ch. 1, § 4.6; Precedents
(Wickham), ch. 6, § 1.2). 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). 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
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CONSTITUTION OF THE UNITED STATES
§ 29–§ 32 [ARTICLE I, SECTION 3]
change in the party control of the House, announced that under the cir-
cumstances 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
§ 29. Power of House
to elect its officers as a law has been considered of doubtful validity (V, 6765,
related to law. 6766) in theory and practice (I, 241, 242). The Legisla-
tive Reorganization Act of 1946 (2 U.S.C. 5501) author-
izes the Speaker to fill temporary vacancies in the offices of Clerk, Ser-
geant-at-Arms, Chief Administrative Officer, and Chaplain. For a history
of the Speaker’s exercise of such authority, see § 640, infra; and, for further
information on the elections of officers, see Deschler, ch. 6.
It has been held that the Act of June 1, 1789 (2 U.S.C. 25) binds the
House to elect a Clerk before proceeding to business
§ 30. Election of Clerk
in relation to (I, 237, 241; contrast, I, 242, 244). When a vacancy
business. arises in the Office of Clerk during a session, business
has intervened before the election of a new Clerk (I,
239).
* * * and [the House of Representatives] shall
§ 31. House of have the sole Power of Impeach-
Representatives alone
impeaches. ment.
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 (§ 173, infra); Deschler, ch. 14.
A Federal court having subpoenaed certain evidence gathered by a com-
mittee of the House in an impeachment inquiry, the House adopted a reso-
lution granting such limited access to the evidence as would not infringe
upon its sole power of impeachment (Aug. 22, 1974, p. 30047).
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 investiga-
tion (28 U.S.C. 595(c)). For a description of impeachment proceedings
prompted by a communication from an independent counsel, see § 176,
infra.
SECTION 3. 1 [The Senate of the United States
§ 32. Numbers, terms, shall be composed of two Senators
and votes of Senators.
from each State, chosen by the Leg-
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CONSTITUTION OF THE UNITED STATES
[ARTICLE I, SECTION 3] § 33–§ 35
islature thereof, for six Years; and each Senator
shall have one Vote.]
This provision was changed by the 17th amendment.
2 Immediately after they shall be assembled in
Consequence of the first Election,
§ 33. Division of the
Senate into classes.
they shall be divided as equally as
may be into three Classes. The Seats of the Sen-
ators 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
§ 34. Filling of Year, so that one-third may be cho-
vacancies in the
Senate. sen every second Year; [and if Va-
cancies 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 Va-
cancies.]
That part of the above paragraph in brackets was changed by the 17th
amendment.
3 No Person shall be a Senator who shall not
§ 35. Qualifications of have attained to the Age of thirty
Senators.
Years, and been nine Years a Cit-
izen 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
[17]
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CONSTITUTION OF THE UNITED STATES
§ 36–§ 38 [ARTICLE I, SECTION 3]
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 quali-
fied (I, 439).
4 The Vice President of the United States shall
§ 36. The Vice be President of the Senate, but
President; voting.
shall have no Vote, unless they be
equally divided.
The right of the Vice President to vote has been construed to extend
to questions relating to the organization of the Senate (V, 5975), the elec-
tion of officers of the Senate (V, 5972–5974), the title of a claimant to
a seat (V, 5976, 5977), or the confirmation of a Cabinet nominee (Feb.
6, 2017, p. l). The Senate has declined to make a rule relating to the
vote of the Vice President (V, 5974).
5 TheSenate shall chuse their other Officers,
and also a President pro tempore,
§ 37. Choice of
President pro tempore
in the Absence of the Vice Presi-
and other officers of
the Senate.
dent, or when he shall exercise the
Office of President of the United States.
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).
6 The Senate shall have the sole Power to try
all Impeachments. When sitting for
§ 38. Senate tries
impeachment and
that Purpose, they shall be on Oath
convicts by two-thirds
vote.
or Affirmation. When the President
of the United States is tried, the Chief Justice
shall preside: And no Person shall be convicted
without the Concurrence of two thirds of the
Members present.
For the exclusive power of the Senate to try impeachment under the
United States Constitution, see Ritter v. United States, 84 Ct. Cl. 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
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CONSTITUTION OF THE UNITED STATES
[ARTICLE I, SECTION 4] § 41–§ 42
that a Senate impeachment 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 impeach-
ment procedures, see §§ 608–20, infra.
7 Judgment in Cases of Impeachment shall not
extend further than to removal
§ 41. Judgment in
cases of impeachment.
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 pro-
nounced (III, 2397). In the Ritter case, it was first held that upon conviction
of the respondent, judgment of removal required no vote, following auto-
matically 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 con-
victions in the Senate (Oct. 20, 1989, p. 25335; Nov. 3, 1989, p. 27101).
In the 111th Congress, a Federal district judge was removed from office
following his conviction in the Senate (Dec. 8, 2010, p. 19349). For a further
discussion of judgments in cases of impeachment, see § 619, infra.
SECTION 4. 1 The Times, Places and Manner of
§ 42. Times, places, holding Elections for Senators and
and manner of
elections of Representatives, shall be prescribed
Representatives and
Senators.
in each State by the Legislature
thereof; but the Congress may at
any time by Law make or alter such Regula-
tions, except as to the places of chusing Sen-
ators.
The relative powers of the Congress and the States under this paragraph
have been the subject of much discussion (I, 311, 313, 507, footnote); but
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CONSTITUTION OF THE UNITED STATES
§ 43–§ 44 [ARTICLE I, SECTION 4]
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 Members of Congress contingent on the time of the State
election (I, 522). This paragraph gives Congress the power to protect the
right to vote in primaries in which 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 para-
graph 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).
The meaning of the word ‘‘legislature’’ in this clause of the Constitution
§ 43. Functions of a
has been the subject of discussion (II, 856), as to wheth-
State legislature in er or not it means a constitutional convention as well
fixing time, etc., of as a legislature in the commonly accepted meaning of
elections. 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 vacan-
cies in representation from the States exceed 100 (P.L. 109–55; 2 U.S.C.
8).
Decisions of the Supreme Court of the United States: Ex parte Siebold,
§ 44. Decisions of the
100 U.S. 371 (1880); Ex parte Clark, 100 U.S. 399
Court. (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 U.S.
232 (1921); Smiley v. Holm, 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–
[20]
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CONSTITUTION OF THE UNITED STATES
[ARTICLE I, SECTION 5] § 45–§ 46
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 10th amend-
ment 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.
2 [The Congress shall assemble at least once in
every Year, and such Meeting shall
§ 45. Annual meeting
of Congress.
be on the first Monday in Decem-
ber, 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 § 84, infra. Congress has frequently appointed
by law a day for the meeting (I, 4, 5, 10–12, footnote; see also § 243, infra).
SECTION 5. 1 Each House shall be the Judge of
§ 46. House the judge the Elections, Returns and Quali-
of elections, returns,
and qualifications. fications of its own Members, * * *
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
ch. 9 (election contests); for discussion of the power of the House to judge
qualifications, see Deschler, ch. 7.
The House has the same authority to determine the right of a Delegate
to a 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),
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CONSTITUTION OF THE UNITED STATES
§ 47 [ARTICLE I, SECTION 5]
and the courts of a State have no role in such matters (II, 959). The House
has once examined the relations of this power to the power to expel (I,
469).
As nearly all the laws governing the elections of Representatives in Con-
§ 47. Power of judging
gress are State laws, questions have often arisen as
as related to State to the relation of this power of judging to those laws
laws as to returns. (I, 637). The House decided very early that the certifi-
cate 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 irreg-
ularities 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).
When the question concerns not the acts of returning officers, but the
§ 48. Power of judging
act of the voter in voting, the House has found more
as related to State difficulty in determining the proper exercise of its con-
laws as to acts of the stitutional power. Although the House has always acted
voter. on the principle of giving expression to the intent of
the voter (I, 575, 639, 641; II, 1090), 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, § 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.
Where the State courts have upheld a State election law as constitutional
§ 49. Power of House
the House does not ordinarily question the law (II, 856,
as related to 1071). But if there has been no such decision the House,
constitutionality of in determining its election cases, has passed on the va-
State laws. lidity of State laws under State constitutions (II, 1011,
1134), and has acted on its decision that they were un-
constitutional (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).
The courts of a State do not have a direct role in judging the elections,
§ 50. Effect of
qualifications, and returns of Representatives in Con-
interpretation of State gress (II, 959), but where the highest State court has
election laws by State interpreted the State law the House has concluded that
courts. 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), especially by a decision on an analo-
[22]
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CONSTITUTION OF THE UNITED STATES
[ARTICLE I, SECTION 5] § 51–§ 53
gous 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 an illustration of a protracted election dispute lasting four months
see House Report 99–58, culminating in House Resolution 146 of the 99th
Congress (Precedents (Wickham), ch. 2, § 3.8).
The statutes of the United States provide specific methods for institution
§ 51. Laws of Congress
of a contest as to the title to a seat in the House (I,
not binding on the 678, 697–706) (2 U.S.C. 381–396), which the House re-
House in its function gards as not of absolute binding force, but rather a pru-
of judging its dent rule not to be departed from except for cause (I,
elections.
597, 719, 825, 833). It sometimes by resolution modifies
the procedure prescribed by the law (I, 449, 600).
Decisions of the Supreme Court of the United States: In re Loney, 134
§ 51a. Decisions of the
U.S. 317 (1890); Reed v. County Commissioners, 277
Court. U.S. 376 (1928); Barry v. United States ex rel.
Cunningham, 279 U.S. 597 (1929); Roudebush v.
Hartke, 405 U.S. 15 (1972).
* * * and a Majority of each [House] shall
constitute a Quorum to do Busi-
§ 52. The quorum.
ness; 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.
Out of conditions arising between 1861 and 1891 the rule was established
that a majority of the Members chosen and living con-
§ 53. Interpretation of
the Constitution as tostituted the quorum required by the Constitution (IV,
number constituting a 2885–2888); but later examination has resulted in a
quorum. 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 resigna-
tion or by the action of the House (IV, 2889, 2890; VI, 638). Under clause
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 § 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. 43; see § 1024a, infra).
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CONSTITUTION OF THE UNITED STATES
§ 54–§ 55 [ARTICLE I, SECTION 5]
For many years a quorum was determined only by noting the number
§ 54. The theory of the
of Members voting (IV, 2896, 2897), with the result that
quorum present; and Members by refusing to vote could often break a
the count by the quorum and obstruct the public business (II, 1034; IV,
Speaker. 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 over-
ruled; 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, § 5. In
the 116th and 117th Congresses the House adopted a provision, effective
during a designated public health emergency, to count for the purpose
of establishing a quorum all Members voting or recording their presence
by proxy (sec. 3(b), H. Res. 965, May 15, 2020, p. l; sec. 3(s), H. Res.
8, Jan. 4, 2021, p. l).
The absence of a quorum having been disclosed, there must be a quorum
§ 55. Relations of the
of record before the House may proceed to business (IV,
quorum to acts of the 2952, 2953; VI, 624, 660, 662), and the point of no
House. quorum may not be withdrawn even by unanimous con-
sent 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
pro tempore, the Speaker on the next day ruled that the action was null
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CONSTITUTION OF THE UNITED STATES
[ARTICLE I, SECTION 5] § 55
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 opin-
ion by Members individually (IV, 2961).
Major revisions in the House rules concerning the necessity and estab-
lishment 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 chair 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 chair to the
House. 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 deter-
mines 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 rule-
making authority that can be interpreted consistently with the require-
ment that a quorum be present to conduct business (as opposed to mere
debate) (Sept. 8, 1977, pp. 28123, 28124; Precedents (Wickham), ch. 5,
§ 3.1).
Before these changes to rule XX (formerly rule XV), a quorum was re-
quired 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); 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. 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 Constitu-
tion 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; Oct. 8, 1968, p. 30090). Adjournment
sine die is in order notwithstanding the absence of a quorum if both Houses
[25]
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CONSTITUTION OF THE UNITED STATES
§ 56–§ 59 [ARTICLE I, SECTION 5]
have already adopted a concurrent resolution providing for an adjournment
sine die on that day (Oct. 18, 1972, p. 37200).
At the time of organization the two Houses inform one another of the
§ 56. Relations of the
appearance of the quorum in each, and the two Houses
quorum to jointly inform the President (I, 198–203). A message
organization of the from one House that its quorum has appeared is not
House. 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 adjournment
sine die, 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), al-
though in one case the Speaker objected to such proceedings (II, 875). Pray-
er 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).
Decisions of the Supreme Court of the United States: Kilbourn v. Thomp-
§ 57. Decisions of the
son, 103 U.S. 190 (1880); United States v. Ballin, 144
Court. U.S. 1 (1892); Burton v. United States, 202 U.S. 344
(1906).
2 Each House may determine the Rules of its
§ 58. The House Proceedings, * * *
determines its rules.
The power of each House of Representatives to make its own rules may
§ 59. Power to make
not be impaired or controlled by the rules of a preceding
rules not impaired by House (I, 187, 210; V, 6002, 6743–6747), or by a law
rules or 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 (e.g., H. Res. 5, 95th Cong., Jan. 4, 1977, p. 53) and has also
incorporated provisions of concurrent resolutions that were intended to
remain applicable under the Budget Act (e.g., H. Res. 5, 107th Cong., Jan.
3, 2001, p. 25). Ordinary rights and functions of the House under the Con-
stitution 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
[26]
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CONSTITUTION OF THE UNITED STATES
[ARTICLE I, SECTION 5] § 60
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 a vote as a Member by a rule was successfully resisted (V, 5966, 5967).
Although the Act of June 1, 1789 (see 2 U.S.C. 25) requires the election
of a Clerk before the House proceeds to business, 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). 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).
Before the adoption of rules the House is governed by general parliamen-
§ 60. Procedure in the
tary law, but Speakers have been inclined to give
House before the weight to the rules and precedents of the House in
adoption of rules. 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).
Before the adoption of rules, it is in order for any Member who is recog-
nized 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
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, § 8), even before recognizing another Member to offer
as a question of privilege another resolution calling into question the con-
stitutionality of that resolution (Speaker Foley, Precedents (Wickham), ch.
1, § 6.9). 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 (Precedents (Wickham), ch. 1, § 6.10; Precedents
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CONSTITUTION OF THE UNITED STATES
§ 61 [ARTICLE I, SECTION 5]
(Wickham), ch. 5, § 5.2). 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; secs. 506–510, H. Res. 6, Jan. 4, 2007, p. 30; sec. 5, H. Res. 5, Jan.
6, 2009, p. 10; sec. 5(b), H. Res. 5, Jan. 3, 2017, p. l), as has a special
order providing for the consideration of the resolution adopting the rules
(Jan. 3, 2019, p. l). 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 dis-
position of the resolution (Speaker Hastert, Precedents (Wickham), ch. 1,
§ 6.8).
During debate on the resolution adopting rules, any Member may make
a point of order that a quorum is not present based upon general parliamen-
tary precedents, because 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 (Precedents (Wickham), ch. 5, § 5.3). Before adoption
of rules, under general parliamentary law as modified by usage and prac-
tice 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 allot-
ted time to be removed from the well and by directing the Sergeant-at-
Arms to present the mace as the traditional symbol of order (Precedents
(Wickham), ch. 1, § 6.5).
The motion to commit is permitted after the previous question has been
ordered on the resolution adopting the rules (V, 5604; Precedents
(Wickham), ch. 5, § 5.5; Jan. 3, 1991, p. 61; Precedents (Wickham), ch.
1, § 6.4) 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 amend-
ment is reported back pursuant thereto, then separate votes may be had
on the reported amendments (Jan. 5, 1993, p. 98). The motions to refer
and postpone have 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 (e.g., Precedents (Wickham), ch. 5, § 5.9; Jan. 4, 2021,
p. l).
The two Houses of Congress adopted in the early years of the Govern-
§ 61. Joint rules.
ment 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).
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CONSTITUTION OF THE UNITED STATES
[ARTICLE I, SECTION 5] § 61a–§ 63
Decisions of the Supreme Court of the United States: United States v.
Smith, 286 U.S. 6 (1932); Christoffel v. United States,
§ 61a. Decisions of the
Court. 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).
* * * [Each House may] punish its Members
for disorderly Behaviour, and, with
§ 62. Punishment and
expulsion of Members.
the Concurrence of two thirds, expel
a Member.
Among the punishments that the House may impose under this provi-
§ 63. Punishment and
sion, the rules of the Committee on Ethics outline the
expulsion, generally. 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 under the Constitu-
tion the House of Representatives may impose such denial or limitation;
or (6) any other sanction determined by the Committee to be appropriate
(rule 24, Committee on Ethics, 115th Cong.). Under rule 10 of the rules
of that committee, a statement of alleged violation must be proven by clear
and convincing evidence.
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 resolu-
tions 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 cen-
sure was pending was asked by the Speaker if he desired to be heard
(VI, 236). However, after the House had voted to censure and the Member
had 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 the time to the accused (Oct. 2, 1980,
p. 28966; July 24, 2002, p. 14309; Dec. 2, 2010, p. 18721).
A resolution recommending reprimand, censure, or expulsion of a Mem-
ber 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. 13525; Oct.
23, 2007, p. 27966; July 31, 2008, pp. 17463, 17464; Jan. 16, 2019, p. l),
as does one disapproving of the behavior of a Member inside (Sept. 15,
2009, p. 21662; Mar. 18, 2010, pp. 3847, 3848) or outside (Dec. 20, 2011,
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CONSTITUTION OF THE UNITED STATES
§ 64 [ARTICLE I, SECTION 5]
p. 21435; Sept. 25, 2019, p. l; Sept. 27, 2019, p. l; Oct. 21, 2019, p.
l) the Chamber. If reported by the Committee on Ethics (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; Dec. 2, 2010, p. 18721). A propo-
sition 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).
In the 94th Congress the House by adopting a report from the Committee
§ 64. Punishment by
on Standards of Official Conduct (now Ethics) rep-
reprimand. rimanded a Member for failing to report certain finan-
cial 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 (now Ethics) into whether Members or em-
ployees 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 adopt-
ed a resolution reprimanding a Member for ‘‘ghost voting,’’ improperly di-
verting government resources, and maintaining a ‘‘ghost employee’’ on his
staff (Dec. 18, 1987, p. 36266). In the 101st Congress another was rep-
rimanded for seeking dismissal of parking tickets received by a person
with whom he had a personal relationship and not related to official busi-
ness and for misstatements of fact in a memorandum relating to the crimi-
nal probation record of that person (July 26, 1990, p. 19717). In the 105th
Congress the House reprimanded the Speaker and ordered him to reim-
burse a portion of the costs of the investigation by the Committee on Stand-
ards of Official Conduct (now Ethics) (Jan. 21, 1997, p. 393). In the 112th
Congress the House by adopting a report from the Committee on Ethics
reprimanded a Member for using official resources of the House for unoffi-
cial purposes and compelling staff to perform campaign work, and imposed
a fine (Aug. 2, 2012, pp. 13191, 13194, 13195). In the 116th Congress the
House by adopting a report from the Committee on Ethics reprimanded
a Member for the misuse of campaign funds for personal purposes, and
imposed a fine (July 31, 2020, p. l).
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CONSTITUTION OF THE UNITED STATES
[ARTICLE I, SECTION 5] § 65–§ 66
Censure is inflicted by the Speaker (II, 1259) and the words are entered
§ 65. Punishment by
in the Journal (II, 1251, 1656; VI 236), but the Speaker
censure. 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 resolu-
tions 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 per-
sonal 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). In the 111th Congress, after the House de-
feated an amendment to instead punish by reprimand, a Member was cen-
sured for using official resources to solicit funds for an educational center,
failing to file complete financial disclosure forms, accepting the benefits
of a rent-stabilized residence in a manner creating an appearance of impro-
priety, and failing to pay taxes on certain property, and was ordered to
pay restitution for such unpaid taxes (Dec. 2, 2010, pp. 18729–30).
Five Members have been expelled in the history of the House. Among
§ 66. Punishment by
those, three were expelled for various offenses related
expulsion. 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 for 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 kick-
backs 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
[31]
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CONSTITUTION OF THE UNITED STATES
§ 66a–§ 68 [ARTICLE I, SECTION 5]
employees while they were being paid by the taxpayers to perform public
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).
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 dis-
cussed (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’ elec-
tion has been discussed (II, 1264, 1284, 1285, 1286, 1288, 1289; VI, 56,
238). In one case the Committee on the Judiciary 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).
In the 117th Congress the House adopted an unreported resolution (re-
§ 66a. Punishment by
ferred to the Committee on Ethics and considered pur-
removal from suant to a special order of business reported by the
committee. Committee on Rules) removing a Member from com-
mittee assignments based on such Member’s conduct
(H. Res. 72, Feb. 4, 2021, p. l).
Decisions of the Supreme Court of the United States: Anderson v. Dunn,
§ 67. Decisions of the
19 U.S. (6 Wheat.) 204 (1821); Kilbourn v. Thompson,
Court. 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).
3 Each House shall keep a Journal of its Pro-
§ 68. Each House to ceedings, and from time to time
keep a journal.
publish the same, excepting such
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CONSTITUTION OF THE UNITED STATES
[ARTICLE I, SECTION 5] § 69–§ 72
Parts as may in their Judgment require Se-
crecy; * * *
The Journal and not the Congressional Record is the official record of
§ 69. The Journal the
the proceedings of the House (IV, 2727). Its nature and
official record. functions have been the subject of extended discussions
(IV, 2730, footnote). The House has fixed its title (IV,
2728). Although it ought to be a correct transcript of proceedings, the House
has not insisted on a strict chronological order of entries (IV, 2815). The
Journal is dated as of the legislative and not the calendar day (IV, 2746).
The Journal records proceedings but not the reasons therefor (IV, 2811)
§ 70. Journal a record
or the circumstances attending (IV, 2812), or the state-
of proceedings and ments or opinions of Members (IV, 2817–2820). Excep-
not of reasons. tions 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, 2844–2846).
The House controls the Journal and may decide what are proceedings,
§ 71. House’s absolute
even to the extent of omitting things actually done or
control of entries in recording things not done (IV, 2784; VI, 634). Although
the Journal. 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, 3091–3093),
in none of those rulings was an amendment permitted to correct the Jour-
nal that had the effect of collaterally changing the tabling of a motion
to reconsider. In fact, under the precedents cited in § 902, infra, under
clause 1 of rule XVI it has been held not in order to amend or strike 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 a
resolution actually offered (IV, 2789), but on one occasion the House va-
cated the Speaker’s referral of an executive communication by amending
the Journal of the preceding day (Precedents (Wickham), ch. 5, § 14.1).
Only on rare occasions 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).
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
§ 72. Record of votes
in the Journal. vote is recorded in figures only when the yeas and nays
are taken (IV, 2827), when the vote is recorded by elec-
tronic device or by clerks, or when a vote is taken by ballot, it having
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CONSTITUTION OF THE UNITED STATES
§ 73–§ 74 [ARTICLE I, SECTION 5]
been determined in latest practice that the Journal should show not only
the result but the state of the ballot or ballots (IV, 2832).
It is the uniform practice of the House to approve its Journal for each
§ 73. Approval of the
legislative day (IV, 2731). If Journals of more than one
Journal. session remain unapproved, they are taken up for ap-
proval in chronological order (IV, 2771–2773; Prece-
dents (Wickham), ch. 5, § 12.6).
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 § 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 Con-
gress (H. Res. 5, Jan. 15, 1979, pp. 7–16). Under the current practice,
the Speaker is authorized to announce 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 the approval of the Journal to a later time on that legislative
day (H. Res. 5, Jan. 3, 1983, p. 34). Although 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 arraign-
ment of impeachment (VI, 469), and questions of the privileges of the House
(II, 1630), and the Speaker has discretion to 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 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 matter.
Under the practice before clause 1 of rule I was adopted in its present
§ 74. Motions to amend
form, the motion to amend the Journal took precedence
the Journal. 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). Although a proposed correction of the Journal may be
recorded in the Journal, 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
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CONSTITUTION OF THE UNITED STATES
[ARTICLE I, SECTION 5] § 74a–§ 76
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.
Decisions of the Supreme Court of the United States: Field v. Clark,
§ 74a. Decisions of the
143 U.S. 649 (1892); United States v. Ballin, 144 U.S.
Court. 1 (1892).
* * * and the Yeas and Nays of the Members
of either House on any question
§ 75. Yeas and Nays
entered on the
Journal. shall, at the Desire of one fifth of
those Present, be entered on the
Journal.
The yeas and nays may be ordered before the organization of the House
§ 76. Conditions of
(I, 91; V, 6012, 6013), but are not taken in the Com-
ordering yeas and mittee of the Whole (IV, 4722, 4723). They are not nec-
nays. essarily 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 (§ 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 auto-
matic call are vacated and the question recurs de novo when the bill again
comes before the House (Oct. 10, 1940, pp. 13534, 13535; Oct. 13, 1962,
p. 23474; Oct. 19, 1966, p. 27641). Although 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 (Precedents (Wickham), ch. 5,
§ 10.3).
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).
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CONSTITUTION OF THE UNITED STATES
§ 77–§ 79 [ARTICLE I, SECTION 5]
The yeas and nays may be demanded while the Speaker is announcing
§ 77. Demanding the
the result of a division (V, 6039), while a vote by tellers
yeas and nays. is being taken (V, 6038), and even after the announce-
ment 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 actively seeking recognition for that purpose when the Chair
announces the result of the voice vote (Nov. 22, 1991, p. 34075; Sept. 21,
2005, p. 20856). But after the Speaker has announced the result of a divi-
sion 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). A demand for the yeas and nays is
not timely when further proceedings have been postponed on a measure
pursuant to clause 8 of rule XX (Dec. 19, 2018, p. l).
In passing on a demand for the yeas and nays the Speaker need deter-
§ 78. Yeas and nays
mine only whether one-fifth of those present sustain
ordered by one-fifth. 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 wish to be counted (VIII, 3111, 3120). Such count
is not subject to verification by appeal (Sept. 12, 1978, p. 28984; Mar.
8, 2006, p. 2954; Aug. 3, 2007, p. 22745; Mar. 18, 2010, p. 3842), a request
for a count of those opposed to the demand is not in order (VIII, 3112–
3114), and the Speaker may refuse to entertain a parliamentary inquiry
regarding the number of Members counted by the Chair (Aug. 3, 2007,
p. 22745). If the Chair prolongs the count of the House in determining
whether one-fifth have supported the demand for yeas and nays, the Speak-
er 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).
A motion to reconsider the vote ordering the yeas and nays is in order
§ 79. Reconsideration
(V, 6029; VIII, 2790), and the vote may be reconsidered
of the vote ordering by a majority. If the House votes to reconsider the yeas
the yeas and nays. 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
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CONSTITUTION OF THE UNITED STATES
[ARTICLE I, SECTION 5] § 80–§ 82a
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).
A motion to adjourn may be admitted after the yeas and nays are ordered
§ 80. Effect of an order
and before the roll call has begun (V, 5366); and a mo-
of the yeas and nays. tion to suspend the rules has been entertained after
the yeas and nays have been demanded on another mat-
ter (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
not precluded or set aside by the fact that the yeas and nays are demanded
and refused (V, 5998; VIII, 3103).
Decisions of the Supreme Court of the United States: Field v. Clark,
§ 81. Decisions of the
143 U.S. 649 (1892); United States v. Ballin, 144 U.S.
Court. 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).
4 Neither
House, during the Session of Con-
gress shall, without the Consent of
§ 82. Adjournment for
more than three days
the other, adjourn for more than
or to another place.
three days, nor to any other Place
than that in which the two Houses shall be sit-
ting.
The word ‘‘Place’’ in the above paragraph was construed to mean the
seat of Government, and consent of the Senate is not
§ 82a. Adjournment to
another place. required if the House orders its meetings to be held
in another structure at the seat of Government (Speak-
er 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, if, in the opinion of the Speak-
er, the public interest shall warrant it (§ 639, infra). The two Houses once
granted joint leadership (or their designees) authority for an entire Con-
gress to assemble the Congress at a place outside the District of Columbia
whenever the public interest warranted it (H. Con. Res. 1, Feb. 13, 2003,
p. 4080). The Speaker executed by letter his designation under that author-
ity (Mar. 13, 2003, p. 6123). The House, but not the Senate, re-adopted
similar concurrent resolutions in succeeding Congresses (e.g., H. Con. Res.
1, Jan. 4, 2005, p. 68; H. Con. Res. 1, Jan. 4, 2007, p. 42; H. Con. Res.
1, Jan. 6, 2009, p. 22; H. Con. Res. 1, Jan. 5, 2011, p. 103). After September
11, 2001, recall authority carried in adjournment resolutions has allowed
reassembly at such place as may be designated (see § 84, infra). The Presi-
dent may convene Congress at places outside the seat of Government dur-
ing hazardous circumstances (2 U.S.C. 27; Deschler, ch. 1, § 4).
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CONSTITUTION OF THE UNITED STATES
§ 83 [ARTICLE I, SECTION 5]
On November 22, 1940 (p. 13715), the House adopted a resolution pro-
viding 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 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.
There has been no occasion for the convening of a session of Congress
outside the seat of Government. However, the Congress has engaged in
commemorative or 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).
The House of Representatives in adjourning for not more than three
§ 83. Adjournment of
days must take into the count either the day of adjourn-
the House within the ing or the day of the meeting, but not Sundays (V, 6673,
three-day limit. 6674). The House may provide for a session of the
House on a Sunday, traditionally a ‘‘dies non’’ under
the precedents of the House (e.g., Dec. 17, 1982, p. 31946; Nov. 17, 1989,
p. 30029; Aug. 20, 1994, p. 23367). The House has by standing order pro-
vided 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 not more than three days but specified that
it would continue in adjournment pursuant to a concurrent resolution
adopted by the House if it received a message of the Senate’s adoption
of the concurrent resolution before the time of the House’s reconvening
(e.g., 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 multiple 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 (Precedents
(Wickham), ch. 1, § 2.9; Jan. 5, 1996, p. 357).
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CONSTITUTION OF THE UNITED STATES
[ARTICLE I, SECTION 5] § 83a–§ 84
Clause 12(e) of rule I provides certain authorities for reconvening or
§ 83a. Reconvening
postponing the time for reconvening during any recess
from adjournment of or adjournment of not more than three days when war-
not more than three ranted by the public interest (see § 639, infra), and the
days. Speaker has reconvened the House before the time pre-
viously appointed pursuant to such authority (Dec. 3,
2018, p. l). The House had previously provided such authority by standing
order (H. Res. 479, 112th Cong., Dec. 6, 2011, p. 18998; H. Res. 66, Feb.
14, 2013, p. 1405) and on one occasion convened earlier than previously
ordered (Precedents (Wickham), ch. 1, § 11.12). The Senate has adopted
similar authority, applicable also to the place of convening, which may
be exercised by the Senate Majority and Minority Leaders when warranted
by intervening circumstances (S. Res. 296, 108th Cong., Feb. 3, 2004, p.
731). 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 adjourn-
ment of the two Houses (H. Con. Res. 103, Mar. 17, 2005, p. 5143), section
2 of which enabled a recall of the House (Mar. 20, 2005, p. 5446).
Congress enables an adjournment for more than three days by a concur-
§ 84. Resolutions for
rent resolution (IV, 4031, footnote). When it adjourns
adjournment of the in this way, but not to or beyond the day fixed by Con-
two Houses. stitution 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 consenting to such adjournment sine die at any time
before a specified date (Nov. 19, 1919, p. 8810).
Until the 67th Congress neither House had 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; Aug. 20, 1954, p. 15554); (3) the two Houses provided for an adjourn-
ment sine die of the House on December 20 or December 21, 1982, pursuant
to a motion made by the Majority Leader or a 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
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CONSTITUTION OF THE UNITED STATES
§ 84 [ARTICLE I, SECTION 5]
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 termi-
nate (V, 6686).
A concurrent resolution adjourning both Houses for more than three
days, or sine die, normally includes authority to reassemble the Members
whenever the public interest shall warrant it, either separately (see, e.g.,
Dec. 26, 2013, p. 19517) or jointly (see, e.g., July 8, 1943, p. 7516; July
26, 1947, p. 10521; Dec. 20, 1974, p. 41815; Nov. 21, 1989, p. 31156; Oct.
3, 1996, p. 12275; Dec. 15, 2000, p. 27019). Similarly, a concurrent resolu-
tion adjourning one House typically provides for recall of that House (see,
e.g., Sept. 28, 2016, p. l).
Pursuant to such recall authority: (1) the Speaker and the Majority Lead-
er of the Senate notified Members of the House to reassemble, the Senate
already being in session (Mar. 20, 2005, p. 5446, pursuant to H. Con. Res.
103, Mar. 17, 2005, p. 5143; Precedents (Wickham), ch. 1, § 11.10); (2) the
Speaker and the Majority Leader of the Senate notified Members of both
Houses to reassemble (Sept. 2, 2005, p. 19424, pursuant to H. Con. Res.
225, July 28, 2005, p. 18356; Precedents (Wickham), ch. 1, § 11.13).
Joint leadership and House-only recall provisions were included in the
sine die adjournment resolution for the second session of the 105th Con-
gress (H. Con. Res. 353, Oct. 20, 1998, p. 27348), and the Speaker exercised
recall authority under that resolution to reassemble the House (Dec. 17,
1998, p. 27802). One-House recall authority, with provision to again ad-
journ for more than three days, was included in two complementary one-
House adjournment resolutions of the 111th Congress (H. Con. Res. 307,
H. Con. Res. 308, July 29, 2010, p. 14604) and the Speaker (Precedents
(Wickham), ch. 1, § 11.11) and Majority Leader of the Senate (Aug. 12,
2010, p. 15504) each exercised recall authority under the respective ad-
journment resolution.
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. 7, 2004, p. 25708). 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 the designation under a
concurrent resolution of adjournment (e.g., Mar. 13, 2003, p. 6123). Such
letter was expanded in the 114th Congress to account for the increased
use of separate recall authority and for new designation authority in clause
12(f) of rule I (Precedents (Wickham), ch. 1, § 11.8). The Speaker also exe-
cutes by letter the designation of another Member to utilize reassembly
authority under a joint resolution changing the convening date of the next
session (H. J. Res. 80, Dec. 15, 2003, p. 32411).
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 ad-
journed sine die (H. Con. Res. 235, Nov. 18, 1999, p. 30734). A simple
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CONSTITUTION OF THE UNITED STATES
[ARTICLE I, SECTION 5] § 84
resolution adopted in the first session of the 111th Congress provided for
a series of adjournments of not more than three days, unless the House
sooner received: (1) a specified message from the Senate, (2) confirmation
that the President had approved a certain bill, and (3) a message that
the Senate had concurred in an adjournment resolution, in which case
it would stand adjourned pursuant to such adjournment resolution (H.
Res. 976, Dec. 16, 2009, p. 32039). It has become the common practice
for the House, by unanimous consent adopted after originating an adjourn-
ment 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 trans-
mitting 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).
A concurrent resolution providing for adjournment sine die 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, Dec. 20, 1979, p. 37317; H. Con. Res. 260, Nov. 26,
1991, p. 35840; H. Con. Res. 235, 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 (e.g., Precedents (Wickham), ch. 1,
§ 2.10). Such a prohibition does not preclude recognition for one-minute
speeches and special-order speeches by unanimous consent (Precedents
(Wickham), ch. 1, § 2.8) or the introduction and numbering of bills and
resolutions (which would not be noted in the Congressional Record or re-
ferred by the Speaker until the next legislative day, when executive com-
munications, petitions, and memorials also would be numbered and re-
ferred) (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.,
Precedents (Wickham), ch. 1, § 2.3; H. J. Res. 80, Nov. 21, 2003, pp. 30856,
30857).
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 unani-
mous-consent request that the resolution be agreed to (Oct. 27, 1990, p.
36850). The Legislative Reorganization Act of 1970 provides for an adjourn-
ment sine die, 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 § 1106, infra).
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CONSTITUTION OF THE UNITED STATES
§ 85–§ 86 [ARTICLE I, SECTION 6]
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 resolu-
tion, 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 concur-
rent resolutions providing adjournments for more than three calendar days
during the month of July until the House has approved annual appropria-
tion bills within the jurisdictions of all the subcommittees on Appropria-
tions 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
§ 1127, infra).
SECTION 6. 1 The Senators and Representa-
§ 85. Compensation of tives shall receive a Compensation
Members.
for their Services, to be ascertained
by Law, and paid out of the Treasury of the
United States.
The 27th amendment to the Constitution addresses laws varying the
compensation for the services of the Senators and Representatives (see
§ 258, infra). The present rate of compensation of Representatives, the Resi-
dent 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. 4501; 3 U.S.C. 104) with an additional amount per annum
to assist in defraying expenses for the Speaker and Vice President (2 U.S.C.
5121; 3 U.S.C. 111). These rates of compensation are all (except for the
expense allowances) subject to annual cost of living adjustments (2 U.S.C.
4501(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.
4501(2).
Under the Federal Salary Act of 1967 (2 U.S.C. 351–362), the Citizens’
Commission on Public Service and Compensation (for-
§ 86. Salary and
deductions. merly 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 Sal-
ary Act (see § 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
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CONSTITUTION OF THE UNITED STATES
[ARTICLE I, SECTION 6] § 87–§ 88
the Congress (2 U.S.C. 5306; 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 Speak-
er (2 U.S.C. 5301, 5302, 5304). 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 Mem-
ber maintains an abode for the purpose of attending sessions of Congress
(4 U.S.C. 113). The pension of a Member may be forfeited upon conviction
involving abuse of the public trust (5 U.S.C. 8312, 8411).
Questions have arisen frequently as to compensation of Members espe-
cially in cases of Members elected to fill vacancies (I,
§ 87. Questions as to
compensation. 500; II, 1155) and in which 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 the predecessor has ceased. Page v. United States, 127 U.S. 67 (1888);
see also 2 U.S.C. 5304.
In the 92d Congress, the provisions of H. Res. 457 of that Congress,
authorizing the Committee on House Administration
§ 88. Travel and
Members’ to adjust allowances of Members and committees with-
representational out further action by the House, were enacted into per-
allowances. manent law (2 U.S.C. 4313), but the 94th Congress en-
acted into permanent law H. Res. 1372 of that Con-
gress, stripping the committee of that authority and requiring House ap-
proval of the committee’s recommendations, except in cases made nec-
essary by price changes in materials and supplies, technological advances
in office equipment, and cost of living increases (2 U.S.C. 4314). The Com-
mittee on House Administration retains authority under 2 U.S.C. 4313
to independently adjust amounts under certain conditions outlined in 2
U.S.C. 4314 (Mar. 21, 1977, p. 8227; Apr. 21, 1983, p. 9339). The text
of those statutes follow:
‘‘SEC. 4313. 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, allow-
ances 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 official mail
within the jurisdiction of the Committee under section 503 of this
title.
‘‘(2) For committees, the Speaker, the Majority and Minority Lead-
ers, the Clerk, the Sergeant at Arms, and the Chief Administrative
Officer, allowances for official mail (including all aspects of official
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CONSTITUTION OF THE UNITED STATES
§ 88 [ARTICLE I, SECTION 6]
mail within the jurisdiction of the Committee under section 503 of
this title), stationery, and telephone and telegraph and other commu-
nications.
‘‘(b) PROVISION SPECIFIED.—The provision of law referred to in subsection
(a) of this section is section 503 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 Con-
gress.’’
‘‘SEC. 4314. LIMITATION ON ALLOWANCE AUTHORITY OF COMMITTEE ON
HOUSE ADMINISTRATION.
‘‘(a) IN GENERAL.—An order under the provision of law specified in sub-
section (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 equip-
ment; 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 sub-
sections (a) and (b) of this section is section 4313 of this title.’’
In the 104th Congress the Committee on House Administration promul-
gated an order abolishing separate allowances for Clerk Hire, Official Ex-
penses, and Official Mail, in favor of a single ‘‘Members’ Representational
Allowance’’ (MRA), which was ultimately enacted into law (2 U.S.C. 5341).
The MRA is provided for the employment of staff in the Member’s Wash-
ington and district offices, official expenses incurred by the Member, and
the postage expenses of first, third, and fourth class frankable mail.
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. 4532), the
maximum salary for staff members is set by pay order of the Speaker.
A Member may not employ a relative on an MRA (5 U.S.C. 3110). The
Code of Official Conduct also precludes certain hiring practices of Members
(see § 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
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CONSTITUTION OF THE UNITED STATES
[ARTICLE I, SECTION 6] § 88a–§ 89a
exceed $1,160 per month. Such internships were available for college stu-
dents and secondary or postsecondary school teachers (H. Res. 420, Sept.
18, 1973, p. 30186; 2 U.S.C. 5322). In the 115th Congress there was estab-
lished a separate allowance available to Members for the compensation
of interns (2 U.S.C. 5322a).
The statutes provide for continuation of the pay of clerical assistants
to a Member upon 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. 5323–5329). Upon the
expulsion of a Member in the 96th Congress, the House by resolution ex-
tended 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 Members’
Congressional Handbook, Committee on House Administration.
At its organization the 104th Congress prohibited the establishment or
§ 88a. Ban on
continuation of any legislative service organization (as
Legislative Service that term had been understood in the 103d Congress)
Organizations. and directed the Committee on House Administration
to take such steps as were necessary to ensure an or-
derly termination and accounting for funds of any legislative service organi-
zation in existence on January 3, 1995 (sec. 222, H. Res. 6, Jan. 4, 1995,
p. 477). The 114th through 117th Congresses authorized the payment of
salaries and expenses by certain Congressional Member Organizations that
had registered with the Committee on House Administration during the
previous Congress (sec. 3(p), H. Res. 5, Jan. 6, 2015, p. 37; (sec. 3(n), H.
Res. 5, Jan. 3, 2017, p. l; sec. 103(p), H. Res. 6, Jan. 3, 2019, p. l; sec.
3(o), H. Res. 8, Jan. 4, 2021, p. l).
Separate from the MRA specified above, the leaders of the House (the
§ 89. Leadership staff
Speaker, Majority Leader, Minority Leader, Majority
allowances. 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 Legisla-
tive Reorganization Act of 1970 (84 Stat. 1140). The portion of these allow-
ances for leadership office personnel may be adjusted by the Clerk of the
House in certain situations when the President effects a pay adjustment
for certain classes of Federal employees under the Federal Pay Com-
parability Act of 1970 (P.L. 91–656; 84 Stat. 1946).
Under section 311(d) of the Legislative Branch Appropriations Act, 1988
§ 89a. Speaker’s ‘‘pay
(2 U.S.C. 4532), the Speaker may issue ‘‘pay orders’’
orders.’’ that adjust pay levels for officers and employees of the
House to maintain certain relationships with com-
parable levels in the Senate and in the other branches of government.
For the text of section 311(d), see § 1130(12), infra.
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CONSTITUTION OF THE UNITED STATES
§ 90–§ 93 [ARTICLE I, SECTION 6]
* * * They [the Senators and Representa-
tives] shall in all Cases, except
§ 90. Privilege of
Members from arrest.
Treason, Felony, and Breach of the
Peace, be privileged from Arrest during their at-
tendance at the Session of their respective
Houses, and in going to and returning from the
same; * * *
The word ‘‘felony’’ in this provision has been interpreted not to refer
to a delinquency in a matter of debt (III, 2676), and
§ 91. Assertions of
privilege of Members ‘‘treason, felony, and breach of the peace’’ have been
by the House. 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 had him imprisoned (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), in which 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 gov-
erning subpoenas to Members, officers, and employees directing their ap-
pearance as witnesses relating to the official functions of the House, or
for the production of House documents.
* * * and for any Speech or Debate in either
§ 92. MembersHouse, they [the Senators and Rep-
privileged from being
resentatives] shall not be ques-
questioned for speech
or debate.
tioned in any other place.
This privilege as to ‘‘any speech or debate’’ applies generally to ‘‘things
§ 93. Scope of the
done in a session of the House by one of its Members
privilege. in relation to the business before it.’’ Kilbourn v.
Thompson, 103 U.S. 168 (1880), cited at III, 2675. See
also II, 1655 and §§ 301, 302, infra, for provisions in Jefferson’s Manual
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CONSTITUTION OF THE UNITED STATES
[ARTICLE I, SECTION 6] § 93
on the privilege; and Deschler, ch. 7. Moreover, it applies to all acts within
the ‘‘legislative sphere,’’ which includes matters that are ‘‘an integral part
of the deliberative and communicative processes by which Members partici-
pate in committee and House proceedings with respect to the consideration
or passage or rejection of proposed legislation or with respect to other mat-
ters which the Constitution places within the jurisdiction of either House.’’
Gravel v. United States, 408 U.S. 606, 624, 625 (1972). 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 Con-
gress 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 docu-
ments 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 in which the prosecu-
tion established a prima facie case without relying on the Member’s con-
stitutionally-protected legislative speech. United States v. Brewster, 408
U.S. 501 (1972). Nor does the clause protect transmittal of allegedly defam-
atory material issued in press releases and newsletters by a Senator, be-
cause neither was essential to the deliberative process of the Senate.
Hutchinson v. Proxmire, 443 U.S. 111 (1979). For a discussion of waivers
of the Speech or Debate clause, see § 301, infra.
Legislative employees acting under orders of the House are not nec-
essarily protected under the clause from judicial inquiry into the constitu-
tionality 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),
in which 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 or Debate 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 (now the Director of the Government Publishing Office) and
Superintendent of Documents.
For Federal court decisions on the applicability of the clause to unofficial
circulation of reprints from the Congressional Record, see McGovern v.
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CONSTITUTION OF THE UNITED STATES
§ 94–§ 96 [ARTICLE I, SECTION 6]
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).
For assaulting a Member for words spoken in debate, Samuel Houston,
§ 94. Action by the
not a Member, was arrested, tried, and censured by
House. the House (II, 1616–1619). Where Members have as-
saulted 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 De-
partment 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 ques-
tion 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 is 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).
Decisions of the Supreme Court of the United States: Kilbourn v. Thomp-
§ 95. Decisions of the
son, 103 U.S. 168 (1880); Tenney v. Brandhove, 341
Court. 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); Doe
v. McMillan, 412 U.S. 306 (1973); Eastland v. United States Serviceman’s
Fund, 421 U.S. 491 (1975); United States v. Helstoski, 442 U.S. 477 (1979);
Hutchinson v. Proxmire, 443 U.S. 111 (1979); Helstoski v. Meanor, 442
U.S. 500 (1979).
2 No
Senator or Representative shall, during
the Time for which he was elected,
§ 96. Restriction on
appointment of
be appointed to any Civil Office
Members to office.
under the Authority of the United
States, which shall have been created, or the
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CONSTITUTION OF THE UNITED STATES
[ARTICLE I, SECTION 6] § 97–§ 98
Emoluments whereof shall have been encreased
during such time; * * *
In a few cases questions have arisen under this paragraph (I, 506, foot-
note; and see 42 Op. Att’y Gen. 36 (1969); see also Deschler, ch. 7; P.L.
110–455 (emoluments of Secretary of State); P.L. 111–1 (emoluments of
Secretary of the Interior).
* * * and no Person holding any Office
under the United States, shall be a
§ 97. Members not to
hold office under the
United States. Member of either House during his
Continuance in Office.
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).
The Committee on the Judiciary has concluded that members of commis-
sions created by law to investigate and report, but hav-
§ 98. As to what are
incompatible offices. ing 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 hold-
ing simultaneously other offices under the United States (VII, 2164). A
Member of either House is eligible to appointment to any office not forbid-
den 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 ap-
pointed 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 assist-
ant United States attorney (II, 993), and the acceptance of an incompatible
office. The House has declined to hold that a contractor under the Govern-
ment 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 Committee on the Judiciary 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 continued 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). The
House adopted a privileged resolution authorizing and directing the Speak-
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CONSTITUTION OF THE UNITED STATES
§ 99–§ 101 [ARTICLE I, SECTION 6]
er to administer the oath of office to a Member-elect then serving as presi-
dent of a city council (H. Res. 1161, Nov. 29, 2018, p. l). For an insertion
by the Speaker, in concurrence with the Minority Leader, on this case
and relevant precedents, see Dec. 6, 2018, p. l.
The House decided that the status of a Member-elect was not affected
§ 99. Appointment of
by the constitutional requirement (I, 499), the theory
Members-elect to being advanced that the status of the Member-elect is
offices under the distinguished from the status of the Member who has
United States. 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 Mem-
ber-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)).
The House has manifestly subscribed to the idea that a contestant hold-
§ 100. Relation of
ing an incompatible office need not make an election
contestants to until the House has declared the contestant entitled
incompatible offices. to the seat (I, 505). Although a contestant had accepted
and held a State office in violation of the State constitu-
tion, if he were really elected a Member, the House did not treat his contest
as abated (II, 1003). Where a Member had been appointed to an incompat-
ible office a contestant not found to be elected was not admitted to fill
the vacancy (I, 807).
Where a Member has accepted an incompatible office, the House has
§ 101. Procedure of the
assumed or declared the seat vacant (I, 501, 502; VI,
House when 65). In the cases of Baker and Yell, the Elections Com-
incompatible offices mittee concluded that the acceptance of a commission
are accepted. 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 Con-
gress and the taking of the oath of office the 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).
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,
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CONSTITUTION OF THE UNITED STATES
[ARTICLE I, SECTION 7] § 102
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).
SECTION 7. 1 All Bills for raising Revenue shall
§ 102. Bills raising originate in the House of Rep-
revenue to originate
in the House. resentatives; but the Senate may
propose or concur with Amend-
ments as on other Bills.
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 a 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 espe-
cially vigorous over the right of the Senate to concur with amendments
(II, 1489), and although 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 chal-
lenged 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; Sept. 23, 2010, pp. 16379, 16380; Dec.
12, 2012, p. 16984), 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 relat-
ing 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 dealing with the tax treatment of income
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CONSTITUTION OF THE UNITED STATES
§ 102 [ARTICLE I, SECTION 7]
derived from the exercise of Indian treaty fishing rights (June 21, 1988,
p. 15425); a Senate-passed bill creating a tax-exempt government corpora-
tion (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 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 rec-
reational boats (July 14, 1994, p. 16593); Senate-passed bills prescribing
the tax treatment of certain benefits to members of the Armed Forces (Nov.
18, 1999, p. 30732), of public-sector retirement plans (Nov. 18, 1999, p.
30734), or of a military retirement fund (June 25, 2015, p. 10498); a Senate-
passed bill prohibiting the importation of commodities subject to tariff (July
30, 1987, p. 21582); a Senate-passed bill banning all imports from Iran,
a tariff measure as affecting revenue from dutiable imports (June 16, 1988,
p. 14780); 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 restric-
tions against countries that fail to eliminate large-scale driftnet fishing
(Feb. 25, 1992, p. 3377); 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-passed bill pro-
posing new import restrictions on products containing any substance de-
rived 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); 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); 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 amendment to a general appro-
priation bill proposing to increase two fees to finance general government
operations (Sept. 23, 2010, pp. 16379, 16380); a Senate-passed bill pro-
posing to repeal a fee on electricity generated by nuclear energy that other-
wise would raise revenue (Mar. 5, 1998, p. 2618).
The House has adopted a resolution recommitting a House bill to con-
ference upon determining that a conference report (on which the House
was acting first) accompanying such bill originated provisions in derogation
of the constitutional prerogative of the House (July 24, 2018, p. l), but
has laid on the table a similar resolution (July 27, 2000, p. 16565). The
House has also laid on the table a resolution that Senate amendments,
including those subsequently agreed to in a conference report (on which
the House was acting first), originated provisions in derogation of the con-
[52]
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CONSTITUTION OF THE UNITED STATES
[ARTICLE I, SECTION 7] § 103–§ 104
stitutional prerogative of the House and resolving that such bill and Senate
amendments be returned to the Senate (July 28, 1982, p. 18375; Aug. 19,
1982, p. 22127).
The House, by adopting one resolution, has returned multiple measures
to the Senate (Sept. 23, 2010, pp. 16379, 16380; Dec. 12, 2012, p. 16984).
A bill raising revenue incidentally was held not to infringe upon the
constitutional prerogative of the House to originate revenue legislation (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 ques-
tion has been presented pending the motion to call up a conference report
on the bill (June 20, 1968, Deschler, ch. 13, § 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). The Senate decided that a bill
proposing a gasoline tax in the District of Columbia should not originate
in the Senate (VI, 316).
Clause 5(a) of rule XXI prohibits consideration of any amendment, in-
cluding any Senate amendment, proposing a tax or tariff during consider-
ation of a bill or joint resolution reported by a committee not having that
jurisdiction (§ 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 § 597, infra. For a discussion
of how the House exercises its origination clause responsibilities by a
former chair of the Committee on Ways and Means, see Dec. 12, 2014,
p. 18729. For examples of Senate messages requesting the return of Senate
revenue measures, see § 565, infra.
Decisions of the Supreme Court of the United States: Field v. Clark,
§ 103. Decisions of the
143 U.S. 649 (1892); Twin City Bank v. Nebeker, 167
Court. 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).
2 Every Bill which shall have passed the
House of Representatives and the
§ 104. Approval and
disapproval of bills by
the President.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 Objec-
tions to that House in which it shall have origi-
nated, who shall enter the Objections at large on
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CONSTITUTION OF THE UNITED STATES
§ 105 [ARTICLE I, SECTION 7]
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 reconsid-
ered, 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 deter-
mined by Yeas and Nays, and the Names of the
Persons voting for and against the Bill shall be
entered on the Journal of each House respec-
tively. * * *
Under the usual practice, bills are considered to have been presented
§ 105. The act of
to the President at the time they are delivered to the
approval. 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 infor-
mal 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 (which changed the date of meeting of
Congress to January 3), 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, because 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 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 memo-
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CONSTITUTION OF THE UNITED STATES
[ARTICLE I, SECTION 7] § 106–§ 108
randum of his construction of the bill (IV, 3492). But if 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 stat-
utes 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).
Notice of the signature of a bill by the President is sent by message
§ 106. Notice of
to the House in which it originated (VII, 1089) and that
approval sent by House informs the other (IV, 3429). But this notice is
message. not necessary to the validity of the act (IV, 3495). Some-
times, at the close of a Congress the President informs
the House of such bills as have been approved and of such as have been
allowed to fail (IV, 3499–3502). In one instance he communicated his omis-
sion 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).
A message withholding approval of a bill, called a veto message, is sent
§ 107. Disapproval (or
to the House in which the bill originated; but it has
veto) of bills. 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 mes-
sage may not be read after the absence of a quorum has been ascertained,
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 adjourn-
ment from returning a bill with his objections he has sometimes at the
next session communicated his reasons for not approving (V, 6618–6620).
For enrollments returned with ‘‘memoranda of disapproval,’’ see § 113,
infra.
It is possible, although not invariable, that a bill returned with the objec-
§ 108. Consideration of
tions of the President shall be voted on at once (IV,
a vetoed bill in the 3534–3536) and when laid before the House the ques-
House. tion 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 ‘‘pro-
ceed to reconsider’’ 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)
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CONSTITUTION OF THE UNITED STATES
§ 108 [ARTICLE I, SECTION 7]
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). The House may by unanimous consent (e.g., August 17,
1978, pp. 26802, 26803) or special order of business (Jan. 7, 2016, p. 133;
Dec. 21, 2020, p. l) postpone consideration of a vetoed bill, or any motion
related to its disposition, in advance of its receipt by the House, and such
a special order of business may supersede an earlier unanimous-consent
request in order to further postpone consideration (May 27, 2020, p. l).
When consideration of a veto message is postponed to a date certain it
has the status of unfinished business on that day, such that the House
may proceed to its consideration without motion from the floor (e.g., May
9, 1996, p. 10807; Nov. 6, 2007, pp. 29822, 29823). Although under clause
4 of rule XVI, and under the precedents the motion for the previous ques-
tion takes precedence over motions to postpone or to refer when a question
is under debate, if 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 pre-
vious question does not take precedence (Speaker Wright, Aug. 3, 1988;
Procedure, ch. 24, § 15.8). A resolution asserting that to recognize for a
motion to refer a veto message 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 constitu-
tional 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 re-
port promptly (Jan. 24, 1990, p. 421). But although 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 com-
mittee takes precedence over the question of passing the bill, the objections
of the President to the contrary notwithstanding (Procedure, ch. 24, § 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).
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
(IV, 3550; V, 5439). Also a motion to discharge a committee from the consid-
eration 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,
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CONSTITUTION OF THE UNITED STATES
[ARTICLE I, SECTION 7] § 109–§ 110
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). Although a vetoed bill is always privileged, the same is not true
of a bill reported in lieu of it (IV, 3531; VII, 1103).
If two-thirds of the House to which a bill is returned with the President’s
§ 109. Action on a
objections agree to pass it, and then two-thirds of the
vetoed bill. 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).
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
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).
A bill incorrectly enrolled has been recalled from the President, who
§ 110. Errors in bills
erased his signature (IV, 3506). Bills sent to the Presi-
sent to the President. dent 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 amend-
ed; 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 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 Con-
gress (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 can-
cellation procedures of the Line Item Veto Act violated the presentment
clause of article I, section 7 of the Constitution. For a discussion of the
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CONSTITUTION OF THE UNITED STATES
§ 110a–§ 111 [ARTICLE I, SECTION 7]
operation of the Act during the period of its effectiveness, see § 1130(6b),
infra.
Decisions of the Supreme Court of the United States: Matthews v. Zane,
§ 110a. Decisions of
20 U.S. (7 Wheat.) 164 (1822); Gardner v. Collector,
the Court. 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).
* * * If any Bill shall not be returned by the
§ 111. Bills that President within ten Days (Sundays
become laws without
the President’s excepted) after it shall have been
approval.
presented to him, the Same shall be
a Law, in like Manner as if he had signed it, un-
less 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 becomes a law even though such signing takes place
when Congress is not in session, whether during the period of an adjourn-
ment to a day certain or after the final adjournment of a session (IV, 3486).
A President may sign a bill after adjournment sine die but within 10 days
after its receipt. For example, President Truman, after the convening of
the 82d Congress, approved bills passed and presented in the 81st Congress
(e.g., P.L. 81–910); President Reagan, after the convening of the 98th Con-
gress, approved bills passed and presented in the 97th Congress (e.g., P.L.
97–414); and President Obama, after the convening of the 113th Congress,
approved bills passed and presented in the 112th Congress (e.g., P.L. 112–
241). 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 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)).
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CONSTITUTION OF THE UNITED STATES
[ARTICLE I, SECTION 7] § 112–§ 113
A bill that is passed by both Houses of Congress during the first regular
§ 112. The pocket veto.
session of a Congress and presented to the President
less than 10 days (Sundays excepted) before the ad-
journment sine die of that session, but is neither signed by the President,
nor returned to the House in which it originated, does not become a law
(‘‘The Pocket Veto Case,’’ 279 U.S. 655 (1929); VII, 1115). The Supreme
Court has held that the adjournment of the House of origin for not exceed-
ing 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). President Truman during an ad-
journment 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.
Doubt has existed as to whether a bill that remains with the President
§ 113. Effect of
10 days without his signature, Congress meanwhile be-
adjournment to a day fore the tenth day having adjourned to a day certain,
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
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.
In the 101st, 110th, and 111th Congresses, when the President returned
an enrolled bill during an intersession adjournment, not by way of message
under seal but with a ‘‘memorandum of disapproval’’ setting forth his objec-
tions, the House treated it as a return veto subject to override under article
I, section 7 (Jan. 23, 1990, p. 4; Jan. 15, 2008, pp. 11, 12; Jan. 12, 2010,
p. 7). For similar treatment by the Senate in the 114th Congress, including
holding the veto message at the desk, see January 11, 2016, pp. 253, 254.
Similarly, in the 102d, 106th, and 111th Congresses, an enrolled House
bill returned to the Clerk during an intrasession 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; Sept. 6, 2000, p. 17156; Nov. 13, 2000, p. 26022; Nov.
15, 2010, p. 17521). 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
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CONSTITUTION OF THE UNITED STATES
§ 114 [ARTICLE I, SECTION 7]
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).
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 De-
partment 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).
As part of the concurrent resolution providing for the adjournments sine
die 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 Gen-
eral 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; Oct. 2, 2008, pp.
23874, 23875; May 26, 2010, pp. 9473, 9474); 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.
Decisions of the Supreme Court of the United States: La Abra Silver
§ 114. Decisions of the
Mining Co. v. United States, 175 U.S. 423 (1899);
Court. Wilkes County v. Coler, 180 U.S. 506 (1901); the Pocket
Veto Case, 279 U.S. 655 (1929); Edwards v. United
[60]
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CONSTITUTION OF THE UNITED STATES
[ARTICLE I, SECTION 8] § 115–§ 117
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)).
3 EveryOrder, Resolution, or Vote to which
§ 115. As to the Concurrence of the Senate and
presentation of orders
House of Representatives may be
and resolutions for
approval.
necessary (except on a question of
Adjournment) shall be presented to the Presi-
dent 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 Rep-
resentatives, according to the Rules and Limita-
tions prescribed in the Case of a Bill.
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-
tion seems specific, the practice of early Congresses was to present to the
President for approval only such concurrent resolutions as were legislative
in effect (IV, 3483, 3484).
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 § 192, infra.
Decisions of the Supreme Court of the United States: Field v. Clark,
§ 116. Decisions of the
143 U.S. 649 (1892); United States v. Ballin, 144 U.S.
Court. 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).
SECTION 8. The Congress shall have Power 1
§ 117. The revenue To lay and collect Taxes, Duties,
power.
Imposts and Excises, to pay the
Debts and provide for the common Defence and
general Welfare of the United States; but all Du-
ties, Imposts and Excises shall be uniform
throughout the United States;
[61]
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CONSTITUTION OF THE UNITED STATES
§ 118–§ 127 [ARTICLE I, SECTION 8]
2 To borrow Money on the credit of the United
§ 118. The borrowing States:
power.
3 To regulate Commerce with foreign Nations,
§ 119. Power over and among the several States, and
commerce.
with the Indian Tribes;
4 To establish an uniform Rule of Naturaliza-
§ 120. Naturalization tion, and uniform Laws on the sub-
and bankruptcy.
ject of Bankruptcies throughout the
United States;
5 To coin Money, regulate the Value thereof,
§ 121. Coinage, weight, and of foreign Coin, and fix the
and measures.
Standard of Weights and Measures;
6 To provide for the Punishment of counter-
§ 122. Counterfeiting. feiting the Securities and current
Coin of the United States;
7 To establish Post Offices and Post Roads;
§ 123. Post-offices and
post-roads.
8 To promote the Progress of Science and use-
§ 124. Patents and ful Arts, by securing for limited
copyrights.
Times to Authors and Inventors the
exclusive Right to their respective Writings and
Discoveries;
9 To constitute Tribunals inferior to the su-
§ 125. Inferior courts. preme Court;
10 To define and punish Piracies and Felonies
§ 126. Piracies and committed on the high Seas, and
offenses against law of
nations. Offenses against the Law of Na-
tions;
11 To declare War, grant Letters of Marque
§ 127. Declarations of and Reprisal, and make Rules con-
war and maritime
operations. cerning Captures on Land and
Water;
[62]
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CONSTITUTION OF THE UNITED STATES
[ARTICLE I, SECTION 8] § 128–§ 133
The 93d Congress passed over the President’s veto Public Law 93–148,
§ 128. War powers of
relating to the power of Congress to declare war under
Congress and the this clause and the power of the President as Com-
President. mander in Chief under article II, section 2, clause 1.
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 resolu-
tions introduced pursuant to the provisions of the Act (see § 1130(2), infra).
For further discussion of that Act, and war powers generally, see Deschler,
ch. 13.
12 To raise and support Armies, but no Appro-
priation of Money to that Use shall
§ 129. Raising and
support of armies.
be for a longer Term than two
Years;
13 To provide and maintain a Navy;
§ 130. Provisions for a
navy.
14 To make Rules for the Government and
§ 131. Land and naval Regulation of the land and naval
forces.
Forces;
15 To provide for calling forth the Militia to
§ 132. Calling out the execute the Laws of the Union, sup-
militia.
press Insurrections and repel Inva-
sions;
16 To provide for organizing, arming, and dis-
§ 133. Power over ciplining, the Militia, and for gov-
militia.
erning such Part of them as may be
employed in the Service of the United States, re-
serving to the States respectively, the Appoint-
ment of the Officers, and the Authority of train-
[63]
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CONSTITUTION OF THE UNITED STATES
§ 134–§ 135 [ARTICLE I, SECTION 8]
ing the Militia according to the discipline pre-
scribed by Congress;
17 To exercise exclusive Legislation in all
§ 134. Power over Cases whatsoever, over such Dis-
territory of the United
States. trict (not exceeding ten Miles
square) as may, by Cession of par-
ticular 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, Arse-
nals, dock-Yards, and other needful Buildings;—
And
Congress has provided by law that ‘‘all that part of the territory of the
§ 135. Congressional
United States included within the present limits of the
authority over the District of Columbia shall be the permanent seat of gov-
District of Columbia. ernment 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 (§ 675, infra) and Desch-
ler, ch. 7, § 3. In 1973, Congress passed the District of Columbia Self-Gov-
ernment and Governmental Reorganization Act, which reorganized the
governmental structure of the District, provided a charter for local govern-
ment 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 Organiza-
tion 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 § 1130(5), infra).
[64]
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CONSTITUTION OF THE UNITED STATES
[ARTICLE I, SECTION 9] § 135a–§ 141
Decisions of the Supreme Court of the United States: Hepburn v. Ellzey,
§ 135a. Decisions of
6 U.S. 445 (1805); National Mutual Insurance Co. of
the Court. D.C. v. Tidewater Transfer Co, 337 U.S. 582 (1945).
18 To make all Laws which shall be necessary
and proper for carrying into Execu-
§ 136. General leg-
islative power.
tion the foregoing Powers, and all
other Powers vested by this Constitution in the
Government of the United States, or in any De-
partment or Officer thereof.
SECTION 9. 1 The Migration or Importation of
§ 137. Migration or such Persons as any of the States
importation of
persons. 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.
2 The Privilege of the Writ of Habeas Corpus
§ 138. Writ of habeas shall not be suspended, unless
corpus.
when in Cases of Rebellion or Inva-
sion the public Safety may require it.
3 No Bill of Attainder or ex post facto Law
§ 139. Bills of attainder shall be passed.
and ex post facto
laws.
4 [No Capitation, or other direct, tax shall be
§ 140. Capitation and laid, unless in Proportion to the
direct taxes.
Census or Enumeration herein be-
fore directed to be taken.]
This provision was changed in 1913 by the 16th amendment.
5 No Tax or Duty shall be laid on Articles ex-
§ 141. Export duties. ported from any State.
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CONSTITUTION OF THE UNITED STATES
§ 142–§ 145 [ARTICLE I, SECTION 9]
6 No Preference shall be given by any Regula-
§ 142. Freedom of tion of Commerce or Revenue to the
commerce.
Ports of one State over those of an-
other: nor shall Vessels bound to, or from, one
State, be obliged to enter, clear, or pay Duties in
another.
7 No Money shall be drawn from the Treasury,
§ 143. Appropriations but in Consequence of Appropria-
and accounting of
public money. tions made by Law; and a regular
Statement and Account of the Re-
ceipts and Expenditures of all public Money
shall be published from time to time.
8 No Title of Nobility shall be granted by the
§ 144. Titles of nobility United States: And no Person hold-
and gifts from foreign
states. ing any Office of Profit or Trust
under them, shall, without the Con-
sent of the Congress, accept of any present,
Emolument, Office, or Title, of any kind what-
ever, from any King, Prince, or foreign State.
Consent has been granted to officers and employees of the government,
§ 145. Foreign gifts
under enumerated conditions, to accept certain gifts
and decorations. 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 em-
powered 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
(now Ethics) of the House of Representatives as the employing agency for
the House with respect to foreign gifts and decorations received by Mem-
bers 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.
[66]
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CONSTITUTION OF THE UNITED STATES
[ARTICLE I, SECTION 10] § 146–§ 148
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).
SECTION 10. 1 No State shall enter into any
§ 146. States not to Treaty, Alliance, or Confederation;
make treaties, coin
money, pass ex post grant Letters of Marque and Re-
facto laws, impair
contracts, etc.
prisal; 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.
2 No State shall, without the Consent of the
§ 147. States not to lay Congress, lay any Imposts or Duties
imposts or duties.
on Imports or Exports, except what
may be absolutely necessary for executing it’s in-
spection Laws: and the net Produce of all Duties
and Imposts, laid by any State on Imports or Ex-
ports, shall be for the Use of the Treasury of the
United States; and all such Laws shall be sub-
ject to the Revision and Controul of the Con-
gress.
3 No State shall, without the Consent of Con-
§ 148. States not to lay gress, lay any Duty of Tonnage,
tonnage taxes, make
compacts, or go to keep Troops, or Ships of War in
war.
time of Peace, enter into any Agree-
ment 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.
[67]
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CONSTITUTION OF THE UNITED STATES
§ 149–§ 151 [ARTICLE II, SECTION 1]
ARTICLE II.
SECTION 1. 1 The executive Power shall be
§ 149. Terms of the vested in a President of the United
President and Vice
President. States of America. He shall hold his
Office during the Term of four
years, and together with the Vice President, cho-
sen for the same Term, be elected, as follows:
George Washington took the oath of office as the first President on April
§ 150. Commencement
30, 1789 (III, 1986). The two Houses of the First Con-
of President’s term of gress found, after examination by a joint committee,
office. that by provisions made in the Federal Constitution
and by the Continental Congress, the term of the Presi-
dent had, notwithstanding, begun on March 4, 1789 (I, 3). The 20th amend-
ment, 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 amend-
ment, the first time inauguration day fell on Sunday was January 20,
1957, and President 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-
ning of the second terms of President Reagan and President Obama, with
the oath being given at the White House on Sunday (1985 and 2013), fol-
lowed by a public ceremony on Monday in the Rotunda (1985) or the East
Front of the Capitol (2013). The 22d amendment provides that no person
shall be elected President more than twice.
2 Each State shall appoint, in such Manner as
the Legislature thereof may direct,
§ 151. Electors of
President and Vice
a Number of Electors, equal to the
President and their
whole Number of Senators and Rep-
qualifications.
resentatives to which the State may be entitled
in the Congress; but no Senator or Representa-
tive, or Person holding an Office of Trust or
Profit under the United States, shall be ap-
pointed an Elector.
[68]
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CONSTITUTION OF THE UNITED STATES
[ARTICLE II, SECTION 1] § 152–§ 152a
Questions of the qualifications of electors have arisen, and in one in-
§ 152. Questions as to
stance certain ones were found disqualified, but be-
qualifications of cause their number was not sufficient to affect the re-
electors. sult and 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).
3 [The
Electors shall meet in their respective
States and vote by Ballot for two
§ 152a. Original
provision for failure
Persons, of whom one at least shall
of electoral college to
choose.
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 Certifi-
cates, and the Votes shall then be counted. The
Person having the greatest Number of Votes
shall be the President, if such Number be a ma-
jority of the whole Number of Electors ap-
pointed: 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 pur-
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CONSTITUTION OF THE UNITED STATES
§ 153–§ 154 [ARTICLE II, SECTION 1]
pose 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.]
This third clause of article II, section 1 was superseded by the 12th
amendment (see §§ 219–223, infra).
4 The Congress may determine the Time of
chusing the Electors, and the Day
§ 153. Time of choosing
electors and time at
on which they shall give their
which their votes are
given.
Votes; which Day shall be the same
throughout the United States.
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 statute also provides for transmitting to the
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).
5 No Person except a natural born Citizen, or
§ 154. Qualifications of a Citizen of the United States, at
President of the
United States. 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 at-
tained to the Age of thirty five Years, and been
fourteen Years a Resident within the United
States.
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CONSTITUTION OF THE UNITED STATES
[ARTICLE II, SECTION 1] § 155–§ 157
6 In Case of the Removal of the President from
Office, or of his Death, Resignation,
§ 155. Succession in
case of removal,
or Inability to discharge the Powers
death, resignation, or
and Duties of the said Office, the
disability of President
and Vice President.
Same shall devolve on the Vice
President, and the Congress may by Law pro-
vide for the Case of Removal, Death, Resigna-
tion or Inability, both of the President and Vice
President, declaring what Officer shall then act
as President, and such Officer shall act accord-
ingly, until the Disability be removed, or a
President shall be elected.
The 25th amendment provides for filling a vacancy in the Office of the
§ 156. Resignation of
Vice President and, when the President is unable to
the President. 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 the 25th amend-
ment, Vice President Gerald R. Ford became President and the House and
Senate confirmed his nominee, Nelson A. Rockefeller, to become Vice Presi-
dent (December 19, 1974, p. 41516).
Congress also has provided for the performance of the duties of the Presi-
dent in case of removal, death, resignation or inability, both of the Presi-
dent and Vice President (3 U.S.C. 19).
7 The President shall, at stated Times, receive
for his Services, a Compensation,
§ 157. Compensation of
President.
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 established by law (3 U.S.C. 102).
In addition, the law provides an expense allowance (3 U.S.C. 102) and
a travel allowance (3 U.S.C. 103).
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CONSTITUTION OF THE UNITED STATES
§ 158–§ 161 [ARTICLE II, SECTION 2]
8 Before he enter on the Execution of his Of-
§ 158. Oath of the fice, he shall take the following
President.
Oath or Affirmation:—‘‘I do sol-
emnly swear (or affirm) that I will faithfully exe-
cute the Office of President of the United States,
and will to the best of my Ability, preserve, pro-
tect and defend the Constitution of the United
States.’’
The taking of this oath, which is termed the inauguration, is made the
occasion of certain ceremonies that are arranged for by
§ 159. Inauguration of
the President. 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 inclement 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 on the West
Front, as scheduled, on January 21, 1985. Permission for such use is au-
thorized by concurrent resolution (see, e.g., Oct. 9, 1984, p. 30926).
SECTION 2. 1 The President shall be Com-
§ 160. The President mander in Chief of the Army and
the Commander in
Chief. 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,
§ 161. Opinions of the of the principal Officer in each of
President’s advisers.
the executive Departments, upon
any Subject relating to the Duties of their re-
[72]
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CONSTITUTION OF THE UNITED STATES
[ARTICLE II, SECTION 2] § 162–§ 166
spective Offices, and he shall have Power to
§ 162. President grants grant Reprieves and Pardons for
reprieves and
pardons. Offences against the United States,
except in Cases of Impeachment.
The 93d Congress passed over the President’s veto Public Law 93–148,
§ 163. War powers of
relating to the power of Congress to declare war under
Congress and the article I, section 8, clause 11 (§ 127, supra) and the
President. power of the President as Commander in Chief under
this clause. For further discussion of the reports to Con-
gress required and the procedure for congressional action provided under
Public Law 93–148, see § 128, supra.
In 1974, President Ford exercised his power under the last phrase of
§ 164. Pardon of
this clause by pardoning former President Nixon for
former President. any crimes he might have committed during a certain
period in office (Proclamation 4311, September 8, 1974).
President Nixon had resigned on August 9, 1974, following the decision
of the Committee on the Judiciary to report to the House a recommendation
of impeachment (H. Rept. 93–1305, Aug. 20, 1974, p. 29219).
2 He shall have Power, by and with the Advice
and Consent of the Senate, to make
§ 165. President makes
treaties.
Treaties, provided two thirds of the
Senators present concur; and he shall nominate,
and by and with the Advice and Consent of the
Senate, shall appoint Ambassadors, other public
§ 166. Appointing Ministers and Consuls, Judges of
power of the
President. 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.
The power of the President to appoint diplomatic representatives to for-
eign governments and to determine their rank is derived from the Constitu-
tion 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
[73]
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CONSTITUTION OF THE UNITED STATES
§ 167–§ 168 [ARTICLE II, SECTION 3]
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. For a discussion
of the role of the House with respect to treaties affecting revenue, see
§ 597, infra.
3 The President shall have Power to fill up all
§ 167. President’s Vacancies that may happen during
power to fill vacancies
during recess of the the Recess of the Senate, by grant-
Senate.
ing Commissions which shall expire
at the End of their next Session.
Decision of the Supreme Court of the United States: National Labor
Relations Bd. v. Noel Canning, 573 U.S. 513 (2014).
§ 167a. Decision of the
Court.
SECTION 3. He shall from time to time give to
§ 168. Messages from the Congress Information of the
the President.
State of the Union, and recommend
to their Consideration such Measures as he shall
judge necessary and expedient; * * *
In the early years of the Government the President made a speech to
Congress on its assembling (V, 6629), but in 1801 President Jefferson dis-
continued this practice and transmitted a message in writing. This protocol
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. A message in writing is usually communicated to both Houses
on the same day, but an accompanying document can be sent to but one
House (V, 6616, 6617). The President’s State of the Union message is re-
ferred on motion to the Union Calendar and ordered printed (e.g., Jan.
15, 1975, p. 177). This motion may also refer a separate hand-delivered
written message from the President (e.g., Jan. 19, 1978, p. 152). In response
to a series of inquiries regarding the potential destruction of such written
message, the Chair affirmed that such message is part of the proceedings
of the House and is used by the House for archival and printing purposes
(Feb. 5, 2020, p. l). A resolution disapproving of the Speaker’s conduct
relating to the handling of such message constitutes a question of the privi-
leges of the House (Feb. 6, 2020, p. l). In early years confidential messages
[74]
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CONSTITUTION OF THE UNITED STATES
[ARTICLE II, SECTION 3] § 169–§ 171
were often sent and considered in secret session of the House (V, 7251,
7252).
By law (31 U.S.C. 1105), the President is required to transmit the budget
§ 169. Messages
to Congress on or after the first Monday in January
required by law. but not later than the first Monday in February each
year. In addition, the President 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 budget (15 U.S.C. 1022). The Congres-
sional Budget and Impoundment Control Act of 1974 (2 U.S.C. 601) re-
quires 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. In addition, the Act provides for the transmittal of messages pro-
posing rescissions and deferrals of budget authority (2 U.S.C. 683, 684).
When the President has expressed desire to address Congress in person
a concurrent resolution is adopted by both Houses arranging for a joint
session to receive the message. The Speaker presides and 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 ceremony of receiving a message in writing is simple (V, 6591), and
§ 170. Reception of
may occur during consideration of a question of privi-
messages from the lege (V, 6640–6642) or before the organization of the
President. House (V, 6647–6649) and in the absence of a quorum
(V, 6650; VIII, 3339; clause 7 of rule XX).
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). Although
a message of the President is always read, 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 may, on extraordinary Occasions, con-
§ 171. Power of vene both Houses, or either of
President as to
convening and them, and in Case of Disagreement
adjourning Congress.
between them, with Respect to the
Time of Adjournment, he may adjourn them to
such Time as he shall think proper; * * *
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 on
occasion 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
[75]
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CONSTITUTION OF THE UNITED STATES
§ 172–§ 174 [ARTICLE II, SECTION 4]
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;
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).
* * * he shall receive Ambassadors and other
§ 172. President public Ministers; he shall take Care
receives ambassadors,
executes the laws, and That the Laws be faithfully exe-
commissions officers.
cuted, and shall Commission all the
officers of the United States.
SECTION 4. The President, Vice President, and
§ 173. Impeachment of all civil Officers of the United
civil officers.
States, shall be removed from Office
on Impeachment for, and Conviction of, Treason,
Bribery, or other high Crimes and Mis-
demeanors.
In the Blount trial the managers contended that all citizens of the United
States were liable to impeachment, but this contention
§ 174. As to the officers
who may be was not admitted (III, 2315), and in the Belknap trial
impeached. 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), al-
though various opinions have been given that such an officer is not im-
peachable (III, 2022, 2486, 2493). A committee of the House by majority
vote held a Commissioner of the District of Columbia not to be a civil
officer subject to impeachment under the Constitution (VI, 548). An inde-
pendent counsel appointed under 28 U.S.C. 593 (a statute currently ineffec-
tive under 28 U.S.C. 599) may be impeached under 28 U.S.C. 596(a), and
a resolution impeaching such an independent counsel constitutes a ques-
tion of the privileges of the House under rule IX (Sept. 23, 1998, p. 21560).
A resolution impeaching the United States Ambassador to the United Na-
tions (July 13, 1978, p. 20606) or the Commissioner of the Internal Revenue
[76]
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CONSTITUTION OF THE UNITED STATES
[ARTICLE II, SECTION 4] § 175
Service (Dec. 6, 2016, p. l) constitutes a question of the privileges of the
House under rule IX.
As to what are impeachable offenses there has been much discussion
§ 175. Nature of
(III, 2008, 2019, 2020, 2356, 2362, 2379–2381, 2405,
impeachable offenses. 2406, 2410, 2498, 2510; VI, 455; Impeachment of Rich-
ard M. Nixon, President of the United States, Com-
mittee on the Judiciary, H. Rept. 93–1305, Aug. 20, 1974, p. 29219; Asso-
ciate Justice William O. Douglas, Final Report by the Special Sub-
committee on H. Res. 920, Committee on the Judiciary, Sept. 17, 1970;
Impeachment of William Jefferson Clinton, President of the United States,
H. Rept. 105–830, Dec. 16, 1998; Impeachment of Donald J. Trump, Presi-
dent of the United States, H. Rept. 116–346, Dec. 15, 2019). 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 10th and 11th articles of the impeachment
of 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). Although 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), the House has impeached judges for improper personal habits
(III, 2328, 2505), and in the impeachment of President Johnson one of
the articles charged him with ‘‘intemperate, inflammatory, and scandalous
harangues’’ in public addresses, tending to harm 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 convic-
tion 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 as a cause for impeachment
(III, 2404, 2508, 2509, 2516, 2517). There also has 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). Reports accom-
panying resolutions to impeach Presidents Clinton and Trump, and the
debate in the House thereon, as well as debate in the House during the
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CONSTITUTION OF THE UNITED STATES
§ 176 [ARTICLE II, SECTION 4]
second impeachment of President Trump, included discussion of the nature
of an impeachable offense (H. Rept. 105–830; Dec. 18, 1998, p. 27828; H.
Rept. 116–346, Dec. 15, 2019, p. l; Jan. 13, 2021, p. l). Of the four articles
of impeachment of President Clinton reported by the Committee on the
Judiciary ((1) perjury in grand jury, (2) perjury in a civil deposition, (3)
obstruction of justice, and (4) improper responses to written questions from
the Committee on the Judiciary), only the first and third were adopted
by the House (Dec. 19, 1998, p. 28110).
The articles of impeachment adopted by the House in 1936 against Judge
§ 176. Other
Ritter charged a variety of judicial misconduct, includ-
impeachment ing violations of criminal law. The seventh and general
inquiries. article, upon which Judge Ritter was convicted by the
Senate, charged general misconduct to bring his court
into scandal and disrepute and to destroy public confidence in his court
and in the judicial system (Impeachment by the House, Mar. 2, 1936, p.
3091; Conviction by the Senate, Apr. 17, 1936, p. 5606). Following his con-
viction by the Senate, former Judge Ritter brought an action for back sal-
ary, 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).
In 1970 a special subcommittee of the Committee on the Judiciary consid-
ered charges of impeachment against Associate Justice Douglas of the Su-
preme Court. The subcommittee recommended against his impeachment
but concluded that a Federal judge could be impeached (1) for judicial
conduct that is a serious dereliction from public duty and (2) for nonjudicial
conduct that 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 impeach-
ment against President Nixon (Feb. 6, 1974, p. 2349), 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 (Aug. 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
recommended impeachment of 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 con-
duct violating the constitutional rights of citizens, impairing the adminis-
tration 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 Rich-
ard M. Nixon, President of the United States, Committee on the Judiciary,
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CONSTITUTION OF THE UNITED STATES
[ARTICLE II, SECTION 4] § 176
H. Rept. 93–1305, Aug. 20, 1974, printed in full in the Cong. Record, Aug.
22, 1974, p. 29219).
In 1986, for the first time since 1936, the House agreed to a resolution
impeaching a Federal district judge. Judge Harry Claiborne had been con-
victed 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 impeach-
ment 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 privi-
lege and agreed to by a recorded vote of 406 yeas, 0 nays. After trial in
the Senate, Judge Claiborne was convicted on three of the four articles
of impeachment and removed from office on October 9, 1986.
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 ad-
dressing allegations on which the judge had been acquitted in a Federal
criminal trial (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 continu-
ance of impeachment proceedings in a succeeding Congress, see § 620,
infra.
In 1998 the House agreed to a privileged resolution reported from the
Committee on Rules, referring to the Committee on the Judiciary a commu-
nication from an independent counsel transmitting under 28 U.S.C. 595(c)
evidence of possible impeachable offenses by President Clinton, and re-
stricting access to the communication and to meetings and hearings there-
on (Sept. 11, 1998, p. 20020). Later, the House adopted a privileged resolu-
tion reported from the Committee on the Judiciary authorizing an impeach-
ment inquiry by that committee and investing it with special investigative
authorities to facilitate the inquiry (Oct. 8, 1998, p. 24679). The Committee
on the Judiciary filed with the House a privileged report accompanying
a resolution containing four articles of impeachment against President
Clinton that alleged: (1) the President gave perjurious, false, and mis-
leading testimony to a grand jury; (2) the President gave perjurious, false,
and misleading testimony in a Federal civil action; (3) the President pre-
vented, obstructed, and impeded the administration of justice relating to
a Federal civil action; and (4) the President abused his office, impaired
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CONSTITUTION OF THE UNITED STATES
§ 176 [ARTICLE II, SECTION 4]
the administration of justice, and contravened the authority of the legisla-
tive branch by his response to 81 written questions submitted by the Com-
mittee on the Judiciary (Dec. 17, 1998, p. 27819). The chair of the Com-
mittee on the Judiciary called up the resolution on December 18, 1998
(p. 27828).
In 2008, the House agreed to an unreported resolution authorizing an
impeachment inquiry of Federal district Judge G. Thomas Porteous by
the Committee on the Judiciary and investing it with special investigative
authorities to facilitate the inquiry (Sept. 17, 2008, p. 19517), which was
continued in the next Congress (Precedents (Wickham), ch. 1, § 8.1). In
2010, the House adopted a resolution reported from the committee and
called up as a question of the privileges of the House impeaching the judge
for high crimes and misdemeanors specified in 4 articles of impeachment
(Mar. 11, 2010, p. 3147).
In 2009, 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 Samuel B. Kent for high crimes and
misdemeanors specified in 4 articles of impeachment, some of them ad-
dressing allegations on which the judge had been convicted in a Federal
criminal trial (June 19, 2009, p. 15747).
In 2019, the House agreed to a privileged resolution reported from the
Committee on Rules directing the Permanent Select Committee on Intel-
ligence and the Committees on Financial Services, Foreign Affairs, the
Judiciary, Oversight and Reform, and Ways and Means to ‘‘continue their
ongoing investigations as part of the existing . . . inquiry into whether
sufficient grounds exist for the House of Representatives to exercise its
Constitutional power to impeach Donald J. Trump’’ (H. Res. 660, Oct. 31,
2019, p. l). The resolution directed further ongoing investigation by all
listed committees and established a two-phase public committee procedure,
beginning with the Permanent Select Committee on Intelligence and con-
cluding in the Committee on the Judiciary. The Permanent Select Com-
mittee on Intelligence adopted a report detailing its findings and trans-
mitted such report to the Committee on the Judiciary and to the House
(H. Rept. 116–335, Dec. 9, 2019, p. l). The Committee on the Judiciary
subsequently filed with the House a privileged report accompanying a reso-
lution containing two articles of impeachment against President Trump
that alleged: (1) the President used the powers of his office to solicit and
pressure a foreign government, Ukraine, to investigate his domestic polit-
ical rival and interfere in the upcoming United State Presidential election;
and (2) the President categorically obstructed the Congressional impeach-
ment inquiry into his conduct (H. Rept. 116–346, Dec. 15, 2019, p. l).
Upon the adoption of a special order of business, the House proceeded
to the immediate consideration of the impeachment resolution (Dec. 18,
2019, p. l).
A resolution offered from the floor to permit the Delegate of the District
of Columbia to vote on the articles of impeachment was held not to con-
[80]
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CONSTITUTION OF THE UNITED STATES
[ARTICLE III, SECTION 2] § 177–§ 178
stitute a question of the privileges of the House under rule IX (Dec. 18,
1998, p. 27825). To a privileged resolution of impeachment, an amendment
proposing instead censure, which is not privileged, was held not germane
(Dec. 19, 1998, p. 28100).
For further discussion of impeachment proceedings, see §§ 601–620,
infra; § 31, supra, and Deschler, ch. 14.
ARTICLE III.
SECTION 1. The judicial Power of the United
States, shall be vested in one su-
§ 177. The judges, their
terms, and
compensation. preme Court, and in such inferior
Courts as the Congress may from
time to time ordain and establish. The Judges,
both of the supreme and inferior Courts, shall
hold their Offices during good Behaviour, and
shall, at stated Times, receive for their Services,
a Compensation, which shall not be diminished
during their Continuance in Office.
SECTION 2. 1 The judicial Power shall extend
§ 178. Extent of the to all Cases, in Law and Equity,
judicial power.
arising under this Constitution, the
Laws of the United States, and Treaties made,
or which shall be made, under their Authority;—
to all Cases affecting Ambassadors, other public
Ministers and Consuls;—to all Cases of admi-
ralty and maritime Jurisdiction;—to Controver-
sies to which the United States shall be a
Party;—to Controversies between two or more
States;—between a State and Citizens of an-
other State;—between Citizens of different
States;—between Citizens of the same State
claiming Lands under Grants of different States,
and between a State, or the Citizens thereof,
and foreign States, Citizens or Subjects.
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CONSTITUTION OF THE UNITED STATES
§ 178a–§ 182 [ARTICLE III, SECTION 3]
Decisions of the Supreme Court involving legislative standing to bring
§ 178a. Decisions of
cases in Federal court include Coleman v. Miller, 307
the Court on U.S. 433 (1939); Goldwater v. Carter, 444 U.S. 996
legislative standing.(1979); Allen v. Wright, 468 U.S. 737 (1984); Whitmore
v. Arkansas, 495 U.S. 149 (1990); and, most recently,
Raines v. Byrd, 521 U.S. 811 (1997), holding that Member plaintiffs must
have alleged a ‘‘personal stake’’ in having an actual injury redressed, rather
than an ‘‘institutional injury’’ that is ‘‘abstract and widely dispersed.’’ See
also the 11th amendment (§ 218, infra).
2 In all Cases affecting Ambassadors, other
§ 179. Original and public Ministers and Consuls, and
appellate jurisdiction
of the Supreme Court. those in which a State shall be
Party, the supreme Court shall
have original Jurisdiction. In all the other Cases
before mentioned, the supreme Court shall have
appellate Jurisdiction, both as to Law and Fact,
with such Exceptions, and under such Regula-
tions as the Congress shall make.
3 The Trial of all Crimes, except in Cases of
§ 180. Places of trial of Impeachment, shall be by Jury; and
crimes by jury.
such Trial shall be held in the State
where the said Crimes shall have been com-
mitted; but when not committed within any
State, the Trial shall be at such Place or Places
as the Congress may by Law have directed.
SECTION 3. 1 Treason against the United
§ 181. Treason against States, shall consist only in levying
the United States.
War against them, or in adhering to
their Enemies, giving them Aid and Comfort. No
Person shall be convicted of Treason unless on
the Testimony of two Witnesses to the same
overt Act, or on Confession in open Court.
2 The Congress shall have Power to declare the
§ 182. Punishment for Punishment of Treason, but no At-
treason.
tainder of Treason shall work Cor-
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CONSTITUTION OF THE UNITED STATES
[ARTICLE IV, SECTIONS 1–2] § 183–§ 186
ruption of Blood, or Forfeiture except during the
Life of the Person Attainted.
ARTICLE IV.
SECTION 1. Full Faith and Credit shall be
§ 183. Each State to given in each State to the Public
give credit to acts,
records, etc., of other Acts, Records, and judicial Pro-
States.
ceedings of every other State. And
the Congress may by general Laws prescribe the
Manner in which such Acts, Records and Pro-
ceedings shall be proved, and the Effect thereof.
SECTION 2. 1 The Citizens of each State shall
§ 184. Privileges and be entitled to all Privileges and Im-
immunities of citizens.
munities of Citizens in the several
States.
2 A Person charged in any State with Treason,
§ 185. Extradition for Felony, or other Crime, who shall
treason, felony, or
other crime. flee from Justice, and be found in
another State, shall on Demand of
the executive Authority of the State from which
he fled, be delivered up, to be removed to the
State having Jurisdiction of the Crime.
3 No Person held to Service or Labour in one
§ 186. Persons held to State, under the Laws thereof, es-
service or labor.
caping into another, shall, in Con-
sequence of any Law or Regulation therein, be
discharged from such Service or Labour, but
shall be delivered up on Claim of the Party to
whom such Service or Labour may be due.
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CONSTITUTION OF THE UNITED STATES
§ 187–§ 189 [ARTICLE IV, SECTIONS 3–4]
SECTION 3. 1 New States may be admitted by
§ 187. Admission and the Congress into this Union; but
formation of new
States. no new State shall be formed or
erected within the Jurisdiction of
any other State; nor any State be formed by the
Junction of two or more States, or Parts of
States, without the Consent of the Legislatures
of the States concerned as well as of the Con-
gress.
2 The Congress shall have Power to dispose of
§ 188. Power of and make all needful Rules and
Congress over
territory and other Regulations respecting the Terri-
national property.
tory or other Property belonging to
the United States; and nothing in this Constitu-
tion shall be so construed as to Prejudice any
Claims of the United States, or of any particular
State.
The Court of Appeals for the District of Columbia Circuit has held that
the property clause does not prohibit the transfer of United States property
to foreign nations through self-executing treaties. Edwards v. Carter, 580
F.2d 1055 (1978), cert. denied, 436 U.S. 907 (1978).
SECTION 4. The United States shall guarantee
to every State in this Union a Re-
§ 189. Republican form
of government and
publican Form of Government, and
protection from
shall protect each of them against
domestic violence
guaranteed to the
States. Invasion; and on Application of the
Legislature, or of the Executive
(when the Legislature cannot be convened)
against domestic violence.
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CONSTITUTION OF THE UNITED STATES
[ARTICLE V] § 190–§ 191
ARTICLE V.
The Congress, whenever two thirds of both
§ 190. Amendments to Houses shall deem it necessary,
the Constitution.
shall propose Amendments to this
Constitution, or, on the Application of the Legis-
latures of two thirds of the several States, shall
call a Convention for proposing Amendments,
which, in either Case, shall be valid to all In-
tents and Purposes, as Part of this Constitution,
when ratified by the Legislatures of three
fourths of the several States, or by Conventions
in three fourths thereof, as the one or the other
Mode of Ratification may be proposed by the
Congress; Provided that no Amendment which
may be made prior to the Year One thousand
eight hundred and eight shall in any Manner af-
fect the first and fourth Clauses in the Ninth
Section of the first Article; and that no State,
without its Consent, shall be deprived of its
equal Suffrage in the Senate.
Amendments to the Constitution are proposed in the form of joint resolu-
§ 191. Form of and
tions, which have their several readings and are en-
action on amendments rolled and signed by the presiding officers of the two
to the Constitution. Houses (V, 7029, footnote), but are not presented to the
President for his approval (V, 7040; see discussion
under § 115, supra; Hollingsworth v. Virginia, 3 U.S. (3 Dall.) 378 (1798)).
They are filed with the Archivist who, under the law (1 U.S.C. 106b; 1
U.S.C. 112), has the responsibility for the certification and publication of
such amendments, once they are ratified by the States. Under the earlier
procedure, the two Houses sometimes requested the President to transmit
to the States certain proposed amendments (V, 7041, 7043), but a concur-
rent resolution to that end was without privilege (VIII, 3508). The Presi-
dent notified Congress by message of the promulgation of the ratification
of a constitutional amendment (V, 7044). The House in the 114th through
117th Congresses required that petitions from state legislatures purporting
to call for constitutional conventions or to rescind such calls be made pub-
licly available (sec. 3(c), H. Res. 5, Jan. 6, 2015, p. 35; sec. 3(d), H. Res.
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CONSTITUTION OF THE UNITED STATES
§ 192 [ARTICLE V]
5, Jan. 3, 2017, p. l; sec. 103(b), H. Res. 6, Jan. 3, 2019, p. l; sec. 3(m),
H. Res. 8, Jan. 4, 2021, p. l).
The vote required on a joint resolution proposing an amendment to the
§ 192. The two-thirds
Constitution is two-thirds of those voting, a quorum
vote on proposed being present, and not two-thirds of the entire member-
amendments. ship (V, 7027, 7028; VIII, 3503). The majority required
to pass a constitutional amendment, like the majority
required to pass a bill over the President’s veto (VII, 1111) and the majority
required to adopt a motion to suspend the rules (Dec. 16, 1981, pp. 31850,
31851, 31855, 31856), is two-thirds of those Members voting either in the
affirmative or negative, a quorum being present, and Members who only
indicate that they are ‘‘present’’ are not counted in this computation (Nov.
15, 1983, p. 32685). The requirement of the two-thirds vote applies to the
vote on final passage and not to amendments (V, 7031, 7032; VIII, 3504),
or prior stages (V, 7029, 7030), but is required if the House votes on agree-
ing to Senate amendments (V, 7033, 7034; VIII, 3505), or on agreeing to
a conference report (V, 7036). One House having, by a two-thirds vote,
passed in amended form a proposed constitutional amendment from the
other House, and then having by a majority vote receded from its amend-
ment, the constitutional amendment was held not to be passed (V, 7035).
In the 95th Congress, both the House and Senate passed by a majority
vote House Joint Resolution 638, extending the time period for ratification
by the States of the Equal Rights Amendment, where House Joint Resolu-
tion 208 of the 92d Congress, proposing the amendment, had provided
for a seven-year ratification period. The House determined, by laying on
the table by a record vote a privileged resolution asserting that a vote
of two-thirds of the Members present and voting was required to pass a
joint resolution extending the ratification period for a constitutional
amendment already submitted to the States, that only a majority vote
was required on such a measure (H.J. Res. 638; Speaker O’Neill, Aug.
15, 1978, p. 26203).
The joint resolution extending the ratification period for the Equal Rights
Amendment was delivered to the President, who signed it although ex-
pressing doubt as to the necessity for his doing so (Presidential Documents,
Oct. 19, 1978). When sent to the Archivist, the joint resolution was not
assigned a public law number, but the Archivist notified the States of the
action of the Congress in extending the ratification period. For a judicial
decision voiding this extension, see Idaho v. Freeman, 529 F.Supp. 1107
(D.C.D. Idaho, 1981), judgment stayed sub nom. National Organization
of Women v. Idaho, 455 U.S. 918 (1982), vacated and remanded to dismiss,
459 U.S. 809 (1982).
In the 116th Congress, the House passed by a majority vote House Joint
Resolution 79, eliminating the deadline for ratification by the States of
the Equal Rights Amendment (Feb. 13, 2020, p. l), following adoption
of a resolution (by special order of business) affirming that the proper
threshold to adopt such joint resolution was a majority vote (H. Res. 842,
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CONSTITUTION OF THE UNITED STATES
[ARTICLE VI] § 193–§ 195
Feb. 11, 2020, p. l). In response to a point of order regarding the proper
vote threshold prior to the question on final passage of the joint resolution,
the Chair ruled that a majority vote threshold was required pursuant to
the terms of House Resolution 842 and declined to entertain an appeal
from such ruling because the terms of that resolution were unambiguous
(Feb. 13, 2020, p. l). The House adopted a similar resolution (by special
order of business) setting a majority threshold for the vote on final passage
of House Joint Resolution 17 in the 117th Congress (H. Res. 232, Mar.
16, 2021, p. l)
The yeas and nays are not required to pass a joint resolution proposing
to amend the Constitution (V, 7038–7039; VIII, 3506).
Question has arisen as to the power of a State to recall, or rescind, its
assent to a constitutional amendment (V, 7042; footnotes to §§ 225, 234,
infra) but has not been the subject of a final judicial determination (see
Idaho v. Freeman, 529 F.Supp. 1107 (D. Idaho, 1981), judgment stayed
sub nom. National Organization of Women v. Idaho, 455 U.S. 918 (1982),
vacated and remanded to dismiss, 459 U.S. 809 (1982)).
Decisions of the Supreme Court of the United States: National Prohibi-
§ 193. Decisions of the
tion Cases, 253 U.S. 350 (1920); Hawke v. Smith, 253
Court. U.S. 221 (1920); Dillon v. Gloss, 256 U.S. 368 (1921);
Leser v. Garnett, 258 U.S. 130 (1922); Coleman v. Mil-
ler, 307 U.S. 433 (1939); Chandler v. Wise, 307 U.S. 474 (1939).
ARTICLE VI.
1 All Debts contracted and Engagements en-
tered into, before the Adoption of
§ 194. Validity of debts
and engagements.
this Constitution, shall be as valid
against the United States under this Constitu-
tion, as under the Confederation.
2 This Constitution, and the Laws of the
§ 195. Constitution, United States which shall be made
laws, and treaties the
supreme law of the in Pursuance thereof; and all Trea-
land.
ties 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.
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CONSTITUTION OF THE UNITED STATES
§ 196–§ 198 [ARTICLE VI]
3 TheSenators and Representatives before
mentioned, and the Members of the
§ 196. Oaths of public
officers; and
several State Legislatures, and all
prohibition of
executive and judicial Officers, both
religious tests.
of the United States and of the several States,
shall be bound by Oath or Affirmation, to sup-
port this Constitution; but no religious Test
shall ever be required as a Qualification to any
Office or public Trust under the United States.
The form of the oath is prescribed by statute (5 U.S.C. 3331; I, 128):
§ 197. Form of oath.
‘‘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 men-
tal 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.’’
The Act of June 1, 1789 (2 U.S.C. 25), provides that on the organization
§ 198. Administration
of the House and previous to entering on any other busi-
of oath at ness the oath shall be administered by any Member
organization. (generally the Member with longest continuous service)
(I, 131; VI, 6) to the Speaker and by the Speaker to
the other Members and 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 con-
stitutional 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, § 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 partici-
pated 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
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CONSTITUTION OF THE UNITED STATES
[ARTICLE VI] § 199–§ 201
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, § 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 per-
mitted in the House chamber consistent with guidance from the Office
of Attending Physician (Jan. 3, 2021, p. l).
The Speaker possesses no arbitrary power in the administration of the
§ 199. Functions of the
oath (I, 134), and when objection is made the question
Speaker in must be decided by the House and not by the Chair
administering the (I, 519, 520). An objection prevents the Speaker from
oath. 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 where-
in 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 instruc-
tion 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 designa-
tion 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, § 4.9).
Members-elect have been sworn at the beginning of a second session
§ 200. Administration
before the ascertainment of a quorum (I, 176–178), but
of the oath as related when the Clerk called the second session of the 87th
to the quorum. Congress to order, Members-elect were not sworn be-
fore ascertainment of a quorum and election of Speaker
McCormack to succeed Speaker Rayburn, who had died during the adjourn-
ment 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).
A proposition to administer the oath is a matter of high privilege (VI,
§ 201. Privilege of
14). It has been administered during a call of the roll
administration of the and during an electronic vote on a motion to agree to
oath. rules at the time of organization (I, 173; VI, 22; Prece-
dents (Wickham), ch. 2, § 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, § 3.21).
It also has been administered before the reading of the Journal (I, 172),
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CONSTITUTION OF THE UNITED STATES
§ 202–§ 203 [ARTICLE VI]
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 pre-
vious 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 engross-
ment and third reading (Precedents (Wickham), ch. 2, § 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, § 3.17).
The right of a Member-elect to take the oath is sometimes challenged,
§ 202. Challenge of the
usually at the time of organization of the House. The
right to take the oath. 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).
It has been held, although not uniformly, that in cases in which the
§ 203. Consideration of
right of a Member-elect to take the oath is challenged,
an objection to the the Speaker may direct the Member to abstain tempo-
taking of the oath. rarily (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; Prece-
dents (Wickham), ch. 2, § 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 resolu-
tion 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. l). 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 consider-
ation 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).
[90]
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CONSTITUTION OF THE UNITED STATES
[ARTICLE VI] § 204–§ 205
Although the House has emphasized the impropriety of swearing a Mem-
§ 204. Relation of
ber without credentials (I, 162–168), yet it has been
credentials to the done in cases in which the credentials are delayed or
right to take the oath. 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 recog-
nized constituency whose credentials are in due form and whose qualifica-
tions 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 certifi-
cate 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 Admin-
istration (Precedents (Wickham), ch. 2, § 4.1). After a recount of the votes
was conducted by that committee, the House on its recommendation de-
clared the candidate without the certificate entitled to the seat (Precedents
(Wickham), ch. 2, § 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 mat-
ter by adopting a privileged resolution authorizing and directing the Speak-
er to administer the oath to the Member-elect (H. Res. 1161, Nov. 29,
2018, p. l; see § 98, supra). For an insertion by the Speaker, in concurrence
with the Minority Leader, on this matter and relevant precedents, see Dec.
6, 2018, p. l.
Questions of sanity (I, 441) and loyalty (I, 448) seem to pertain to com-
§ 205. Sanity, loyalty,
petency to take the oath as a question of qualifications,
and incapacity as although there has been not a little debate on this sub-
related to the oath. ject (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 Constitu-
tion. In Bond v. Floyd, 385 U.S. 116 (1966), the Supreme Court held that
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CONSTITUTION OF THE UNITED STATES
§ 206–§ 207 [ARTICLE VII]
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 (H. Res. 80, Feb. 24, 1981, pp.
2916–18).
Decisions of the Supreme Court of the United States: McCulloch v. Mary-
§ 206. Decisions of the
land, 17 U.S. (4 Wheat.) 316 (1819); Ex parte Garland,
Court. 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).
ARTICLE VII.
The Ratification of the Conventions of nine
States, shall be sufficient for the
§ 207. Ratification of
the Constitution.
Establishment of this Constitution
between the States so ratifying the Same.
DONE in Convention by the Unanimous Consent
of the States present the Seventeenth Day of
September in the Year of our Lord one thou-
sand seven hundred and Eighty seven and of
the Independence of the United States of
America the Twelfth IN WITNESS whereof We
have hereunto subscribed our Names,
Go WASHINGTON—Presidt.
and Deputy from Virginia.
[Signed also by the deputies of twelve States.]
New Hampshire.
JOHN LANGDON, NICHOLAS GILMAN.
Massachusetts.
NATHANIEL GORHAM, RUFUS KING.
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CONSTITUTION OF THE UNITED STATES
[ARTICLE VII] § 207
Connecticut.
WM. SAML. JOHNSON, ROGER SHERMAN.
New York.
ALEXANDER HAMILTON.
New Jersey.
WIL: LIVINGSTON, WM. PATERSON,
DAVID BREARLEY, JONA: DAYTON.
Pennsylvania.
B FRANKLIN, THOMAS MIFFLIN,
ROBT. MORRIS, GEO. CLYMER,
THOS. FITZSIMONS, JARED INGERSOLL,
JAMES WILSON, GOUV MORRIS.
Delaware.
GEO. READ, GUNNING BEDFORD JUN,
JOHN DICKINSON, RICHARD BASSETT.
JACO BROOM,
Maryland.
JAMES MCHENRY, DAN OF ST THOS. JENIFER.
DANl CARROLL,
Virginia.
JOHN BLAIR, JAMES MADISON Jr.
North Carolina.
WM. BLOUNT, RICH’D. DOBBS SPAIGHT.
HU WILLIAMSON,
South Carolina.
J. RUTLEDGE, CHARLES COTESWORTH PINCKNEY,
CHARLES PINCKNEY, PIERCE BUTLER.
Georgia.
WILLIAM FEW, ABR BALDWIN.
Attest: WILLIAM JACKSON, Secretary.
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CONSTITUTION OF THE UNITED STATES
§ 208–§ 209 [AMENDMENTS I–II]
ARTICLES IN ADDITION TO, AND AMENDMENT OF,
THE CONSTITUTION OF THE UNITED STATES OF
AMERICA, PROPOSED BY CONGRESS, AND RATI-
FIED BY THE SEVERAL STATES PURSUANT TO
THE FIFTH ARTICLE OF THE ORIGINAL CONSTITU-
TION1
AMENDMENT I.
Congress shall make no law respecting an es-
tablishment of religion, or prohib-
§ 208. Freedom of
religion, of speech,
iting the free exercise thereof; or
and of peaceable
assembly.
abridging the freedom of speech, or
of the press; or the right of the people peaceably
to assemble, and to petition the Government for
a redress of grievances.
AMENDMENT II.
A well regulated Militia being necessary to the
security of a free State, the right of
§ 209. The right to
bear arms.
the people to keep and bear arms,
shall not be infringed.
1 The first 10 amendments to the Constitution of the United States
were proposed to the legislatures of the several States by the First Con-
gress on September 25, 1789 (this date and the date succeeding amend-
ments were proposed is the date of final congressional action—signature
by the presiding officer of the Senate—as is shown in the Senate Jour-
nals). They were ratified by the following States, on the dates shown,
and the notifications by the governors thereof of ratification were com-
municated by the President to Congress: New Jersey, November 20,
1789; Maryland, December 19, 1789; North Carolina, December 22, 1789;
South Carolina, January 19, 1790; New Hampshire, January 25, 1790;
Delaware, January 28, 1790; New York, February 27, 1790; Pennsyl-
vania, March 10, 1790; Rhode Island, June 7, 1790; Vermont, November
3, 1791; Virginia, December 15, 1791. Ratification was completed on De-
cember 15, 1791. The amendments were subsequently ratified by Massa-
chusetts, March 2, 1939; Georgia, March 18, 1939; Connecticut, April 19,
1939.
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CONSTITUTION OF THE UNITED STATES
[AMENDMENTS III–V] § 210–§ 212
AMENDMENT III.
No soldier shall, in time of peace be quartered
§ 210. Quartering of in any house, without the consent
soldiers in houses.
of the Owner, nor in time of war,
but in a manner to be prescribed by law.
AMENDMENT IV.
The right of the people to be secure in their
§ 211. Security from persons, houses, papers, and effects,
unreasonable searches
and seizures. against unreasonable searches and
seizures, shall not be violated, and
no Warrants shall issue, but upon probable
cause, supported by Oath or affirmation, and
particularly describing the place to be searched,
and the persons or things to be seized.
AMENDMENT V.
No person shall be held to answer for a cap-
ital, or otherwise infamous crime,
§ 212. Security as to
accusations, trials,
and property.unless on a presentment or indict-
ment of a Grand Jury, except in
cases arising in the land or naval forces, or in
the Militia, when in actual service in time of
War or public danger; nor shall any person be
subject for the same offence to be twice put in
jeopardy of life or limb; nor shall be compelled
in any Criminal Case to be a witness against
himself; nor be deprived of life, liberty, or prop-
erty, without due process of law; nor shall pri-
vate property be taken for public use, without
just compensation.
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CONSTITUTION OF THE UNITED STATES
§ 213–§ 215 [AMENDMENTS VI–VIII]
AMENDMENT VI.
In all criminal prosecutions, the accused shall
enjoy the right to a speedy and pub-
§ 213. Right to trial by
jury and to confront
lic trial, by an impartial jury of the
witnesses and secure
testimony.
State and district wherein the
crime shall have been committed, which district
shall have been previously ascertained by law,
and to be informed of the nature and cause of
the accusation; to be confronted with the wit-
nesses against him; to have compulsory process
for obtaining witnesses in his favor, and to have
the Assistance of Counsel for his defence.
AMENDMENT VII.
In suits at common law, where the value in
Controversy shall exceed twenty
§ 214. Jury trial in
suits at common law.
dollars, the right of trial by jury
shall be preserved, and no fact tried by a jury
shall be otherwise re-examined in any Court of
the United States, than according to the rules of
the common law.
AMENDMENT VIII.
Excessive bail shall not be required, nor exces-
§ 215. Excessive bail or sive fines imposed, nor cruel and
fines and cruel
punishments unusual punishments inflicted.
prohibited.
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CONSTITUTION OF THE UNITED STATES
[AMENDMENTS IX–XI] § 216–§ 218
AMENDMENT IX.
The enumeration in the Constitution, of cer-
§ 216. Rights reserved tain rights, shall not be
to the people.
construed to deny or disparage others retained
by the people.
AMENDMENT X.
The powers not delegated to the United States
§ 217. Powers reserved by the Constitution, nor prohibited
to the States.
by it to the States, are reserved to
the States respectively, or to the people.
AMENDMENT XI.2
The Judicial power of the United States shall
not be construed to extend to any
§ 218. Extent of the
judicial power.
suit in law or equity, commenced or
prosecuted against one of the United States by
Citizens of another State, or by Citizens or Sub-
jects of any Foreign State.
2 The 11th amendment to the Constitution of the United States was
proposed to the legislatures of the several States by the Third Congress
on March 11, 1794; and was declared in a message from the President
to Congress dated the 8th of January, 1798, to have been ratified by the
legislatures of three-fourths of the States. The dates of ratification were:
New York, March 27, 1794; Rhode Island, March 31, 1794; Connecticut,
May 8, 1794; New Hampshire, June 16, 1794; Massachusetts, June 26,
1794; Vermont, October 28, 1794; Virginia, November 18, 1794; Georgia,
November 29, 1794; Kentucky, December 7, 1794; Maryland, December
26, 1794; Delaware, January 23, 1795; North Carolina, February 7, 1795.
Ratification was completed on February 7, 1795. The amendment was
subsequently ratified by South Carolina, December 4, 1797. New Jersey
and Pennsylvania did not take action on the amendment.
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CONSTITUTION OF THE UNITED STATES
§ 219 [AMENDMENT XII]
AMENDMENT XII.3
The Electors shall meet in their respective
§ 219. Meeting of the states, and vote by ballot for Presi-
electors and
transmission and dent and Vice-President, one of
count of their votes.
whom, at least, shall not be an in-
habitant of the same state with themselves; they
shall name in their ballots the person voted for
as President, and in distinct ballots the person
voted for as Vice-President, and they shall make
distinct lists of all persons voted for as Presi-
dent, and of all persons voted for as Vice-Presi-
dent, and the number of votes for each, which
lists they shall sign and certify, and transmit
sealed to the seat of the government of the
United States, directed to the President of the
Senate;—The President of the Senate shall, in
presence of the Senate and House of Representa-
tives, open all the certificates and the votes shall
then be counted;— * * *
3 See article II, section 1 of the Constitution. The 12th amendment to
the Constitution was proposed to the legislatures of the several States
by the Eighth Congress on December 12, 1803, in lieu of the original
third paragraph of the first section of the second article, and was de-
clared in a proclamation of the Secretary of State, dated the 25th of Sep-
tember, 1804, to have been ratified by the legislatures of three-fourths
of the States. The dates of ratification were: North Carolina, December
21, 1803; Maryland, December 24, 1803; Kentucky, December 27, 1803;
Ohio, December 30, 1803; Virginia, December 31, 1803; Pennsylvania,
January 5, 1804; Vermont, January 30, 1804; New York, February 10,
1804; New Jersey, February 22, 1804; Rhode Island, March 12, 1804;
South Carolina, May 15, 1804; Georgia, May 19, 1804; New Hampshire,
June 15, 1804. Ratification was completed on June 15, 1804. The amend-
ment was subsequently ratified by Tennessee, July 27, 1804. The amend-
ment was rejected by Delaware, January 18, 1804; Massachusetts, Feb-
ruary 3, 1804; and by Connecticut at its session begun May 10, 1804.
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CONSTITUTION OF THE UNITED STATES
[AMENDMENT XII] § 220
The electoral count occurs in a joint session of the two Houses in the
§ 220. The electoral
Hall of the House (III, 1819) at 1 p.m. on the sixth
count. day of January succeeding every meeting of electors (3
U.S.C. 15). The Vice President, as President of the Sen-
ate (or the President pro tempore in the Vice President’s absence), presides
over the joint session (3 U.S.C. 15). The date of the count has been changed
by law as follows: Monday, January 7, 1957 (P.L. 84–436); Monday, Janu-
ary 7, 1985 (P.L. 98–456); Wednesday, January 4, 1989 (P.L. 100–646);
Thursday, January 9, 1997 (P.L. 104–296); Thursday, January 8, 2009
(P.L. 110–430); Friday, January 4, 2013 (P.L. 112–228).
Sections 15–18 of title 3, United States Code, prescribe in detail the
procedure for the count. Nevertheless, the two Houses traditionally adopt
a concurrent resolution providing for the meeting in joint session to count
the vote, for the appointment of tellers, and for the declaration of the state
of the vote (III, 1961; Deschler, ch. 10, § 2.1). Under the law governing
the proceedings, the two Houses divide to consider an objection to the
counting of any electoral vote or ‘‘other question arising in the matter’’
(3 U.S.C. 15–18; Jan. 6, 1969, pp. 145–47; Jan. 6, 2001, p. 101; Jan. 6,
2005, pp. 198, 199; Jan. 6, 2017, p. l; Jan. 6, 2021, p. l), but only when
in writing and signed by both a Member and a Senator (Jan. 6, 2001,
p. 101; Jan. 6, 2005, p. 198; Jan. 6, 2017, p. l; Jan. 6, 2021, p. l). Examples
of an ‘‘other question arising in the matter’’ include: (1) an objection for
lack of a quorum (Jan. 6, 2001, p. 101); (2) a motion that either House
withdraw from the joint session (Jan. 6, 2001, p. 101); and (3) an appeal
from a ruling by the presiding officer (Jan. 6, 2001, p. 101). Such questions
and objections are not debatable in the joint session (3 U.S.C. 18; Jan.
6, 2001, p. 101; Jan. 6, 2017, p. l; Jan. 6, 2021, p. l). When the two
Houses have divided, a motion in the House to lay the objection on the
table is not in order (Jan. 6, 1969; pp. 169–72), but the Chair may declare
the House in an emergency recess pursuant to clause 12(b) of rule I (Jan.
6, 2021, p. l). A Vice President-elect, as Speaker of the House or as a
sitting Vice President, has participated in the ceremonies (e.g., VI, 446;
Jan. 6, 2005, p. 197). See Deschler, ch. 10 for further discussion. When
addressing a controversy over the election of President and Vice President
in the State of Florida, the Supreme Court indicated its view of a section
of the statute (3 U.S.C. 5) addressing a determination of controversy as
to the appointment of electors. Bush v. Palm Beach County Canvassing
Bd. (531 U.S. 70 (2000)). Ultimately, the Supreme Court found that the
Florida Supreme Court violated the Equal Protection Clause of the 14th
amendment by ordering certain counties to conduct manual recounts of
the votes for President and Vice President without establishing standards
for those recounts. Bush v. Gore (531 U.S. 98 (2000)).
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CONSTITUTION OF THE UNITED STATES
§ 221 [AMENDMENT XII]
* * * The person having the greatest number
§ 221. Elections of of votes for President, shall be the
President and Vice
President by the President, if such number be a ma-
House and Senate in
certain cases.
jority of the whole number of Elec-
tors appointed; and if no person
have such majority, then from the persons hav-
ing the highest numbers not exceeding three on
the list of those voted for as President, the
House of Representatives shall choose imme-
diately, by ballot, the President. But in choosing
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. And if the House of Rep-
resentatives shall not choose a President when-
ever the right of choice shall devolve upon them,
before the fourth day of March next following,
then the Vice-President shall act as President,
as in the case of the death or other constitu-
tional disability of the President. The person
having the greatest number of votes as Vice-
President, shall be the Vice-President, if such
number be a majority of the whole number of
Electors appointed, and if no person have a ma-
jority, then from the two highest numbers on the
list, the Senate shall choose the Vice-President;
a quorum for the purpose shall consist of two-
thirds of the whole number of Senators, and a
majority of the whole number shall be necessary
to a choice. But no person constitutionally ineli-
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CONSTITUTION OF THE UNITED STATES
[AMENDMENT XIII] § 222–§ 224
gible to the Office of President shall be eligible
to that of Vice-President of the United States.
The 20th amendment to the Constitution has clarified some of the provi-
§ 222. History of
sions of the 12th amendment. In 1801 (III, 1983), the
original provision for House of Representatives chose a President under arti-
failure of electoral cle II, section 1, clause 3 (see § 152a, supra), the con-
college to choose. stitutional provision superseded by the 12th amend-
ment.
In 1825 the House elected a President under the 12th amendment (III,
§ 223. Occasions of
1985); and in 1837 the Senate elected a Vice President
election by House and (III, 1941).
Senate after 1803.
AMENDMENT XIII.4
SECTION 1. Neither slavery nor involuntary
§ 224. Prohibition of servitude, except as a punishment
slavery and
involuntary servitude. for crime whereof the party shall
have been duly convicted, shall
4 The 13th amendment to the Constitution of the United States was
proposed to the legislatures of the several States by the 38th Congress,
on February 1, 1865, and was declared, in a proclamation of the Sec-
retary of State, dated December 18, 1865, to have been ratified by the
legislatures of 27 of the 36 States. The dates of ratification were: Illinois,
February 1, 1865; Rhode Island, February 2, 1865; Michigan, February
2, 1865; Maryland, February 3, 1865; New York, February 3, 1865; Penn-
sylvania, February 3, 1865; West Virginia, February 3, 1865; Missouri,
February 6, 1865; Maine, February 7, 1865; Kansas, February 7, 1865;
Massachusetts, February 7, 1865; Virginia, February 9, 1865; Ohio, Feb-
ruary 16, 1865; Indiana, February 13, 1865; Nevada, February 16, 1865;
Louisiana, February 17, 1865; Minnesota, February 23, 1865; Wisconsin,
February 24, 1865; Vermont, March 9, 1865; Tennessee, April 7, 1865;
Arkansas, April 14, 1865; Connecticut, May 4, 1865; New Hampshire,
July 1, 1865; South Carolina, November 13, 1865; Alabama, December
2, 1865; North Carolina, December 4, 1865; Georgia, December 6, 1865.
Ratification was completed on December 6, 1865. The amendment was
subsequently ratified by Oregon, December 8, 1865; California, December
19, 1865; Florida, December 28, 1865 (Florida again ratified on June 9,
1868, upon its adoption of a new constitution); Iowa, January 15, 1866;
New Jersey, January 23, 1866 (after having rejected the amendment on
March 16, 1865); Texas, February 18, 1870; Delaware, February 12, 1901
Continued
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CONSTITUTION OF THE UNITED STATES
§ 225 [AMENDMENT XIV]
exist within the United States, or any place sub-
ject to their jurisdiction.
SECTION 2. Congress shall have power to en-
force this article by appropriate legislation.
AMENDMENT XIV.5
SECTION 1. All persons born or naturalized in
the United States, and subject to
§ 225. Citizenship:
security and equal
the jurisdiction thereof, are citizens
protection of citizens.
of the United States and of the
(after having rejected the amendment on February 8, 1865); Kentucky,
March 30, 1976 (after having rejected the amendment on February 24,
1865). The amendment was rejected by Mississippi, December 4, 1865,
but subsequently ratified on March 16, 1995.
5 The 14th amendment to the Constitution of the United States was
proposed to the legislatures of the several States by the 39th Congress,
on June 15, 1866. On July 20, 1868, the Secretary of State issued a proc-
lamation that the 14th amendment was a part of the Constitution if
withdrawals of ratification were ineffective. On July 21, 1868, Congress
adopted and transmitted to the Department of State a concurrent resolu-
tion declaring that ‘‘the legislatures of the States of Connecticut, Ten-
nessee, New Jersey, Oregon, Vermont, New York, Ohio, Illinois, West
Virginia, Kansas, Maine, Nevada, Missouri, Indiana, Minnesota, New
Hampshire, Massachusetts, Nebraska, Iowa, Arkansas, Florida, North
Carolina, Alabama, South Carolina, and Louisiana, being three-fourths
and more of the several States of the Union, have ratified the fourteenth
article of amendment to the Constitution of the United States, duly pro-
posed by two-thirds of each House of the Thirty-ninth Congress: There-
fore Resolved, That said fourteenth article is hereby declared to be a part
of the Constitution of the United States, and it shall be duly promul-
gated as such by the Secretary of State.’’ The Secretary of State accord-
ingly issued a proclamation, dated July 28, 1868, declaring that the pro-
posed 14th amendment had been ratified, in the manner hereafter men-
tioned, by the legislatures of 28 States. The dates of ratification were:
Connecticut, June 30, 1866; New Hampshire, July 6, 1866; Tennessee,
July 18, 1866; New Jersey, September 11, 1866 (subsequently, on Feb-
ruary 20, 1868, the legislature rescinded its ratification, and on March
24, 1868, readopted its resolution of rescission over the Governor’s veto,
and on April 23, 2003, revoked the resolution of rescission); Oregon, Sep-
tember 19, 1866 (subsequently rescinded its ratification on October 16,
1868, and ratified on April 25, 1973); New York, January 10, 1867; Ohio,
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CONSTITUTION OF THE UNITED STATES
[AMENDMENT XIV] § 226
State wherein they reside. No State shall make
or enforce any law which shall abridge the privi-
leges or immunities of citizens of the United
States; nor shall any State deprive any person of
life, liberty, or property, without due process of
law; nor deny to any person within its jurisdic-
tion the equal protection of the laws.
SECTION 2. Representatives shall be appor-
§ 226. Apportionment tioned among the several States ac-
of representation.
cording to their respective numbers,
counting the whole number of persons in each
State, excluding Indians not taxed. But when
the right to vote at any election for the choice of
electors for President and Vice President of the
United States, Representatives in Congress, the
Executive and Judicial officers of a State, or the
members of the Legislature thereof, is denied to
January 11, 1867 (subsequently rescinded its ratification on January 13,
1868, and ratified on March 12, 2003); Illinois, January 15, 1867; West
Virginia, January 16, 1867; Michigan, January 16, 1867; Minnesota, Jan-
uary 16, 1867; Kansas, January 17, 1867; Maine, January 19, 1867; Ne-
vada, January 22, 1867; Indiana, January 23, 1867; Missouri, January
25, 1867; Pennsylvania, February 6, 1867; Rhode Island, February 7,
1867; Wisconsin, February 13, 1867; Massachusetts, March 20, 1867; Ne-
braska, June 15, 1867; Iowa, March 16, 1868; Arkansas, April 6, 1868;
Florida, June 9, 1868; North Carolina, July 4, 1868 (after having rejected
the amendment December 14, 1866); Louisiana, July 9, 1868 (after hav-
ing rejected the amendment February 6, 1867); South Carolina, July 9,
1868 (after having rejected the amendment December 20, 1866). Ratifica-
tion was completed on July 9, 1868. The amendment was subsequently
ratified by Alabama, July 13, 1868; Georgia, July 21, 1868 (after having
rejected it on November 9, 1866); Virginia, October 8, 1869 (after having
rejected it on January 9, 1867); Mississippi, January 17, 1870; Texas,
February 18, 1870 (after having rejected it on October 27, 1866); Dela-
ware, February 12, 1901 (after having rejected it on February 8, 1867);
Maryland, April 4, 1959 (after having rejected it on March 23, 1867);
California, May 6, 1959; Kentucky, March 30, 1976 (after having rejected
it on January 10, 1867).
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CONSTITUTION OF THE UNITED STATES
§ 227 [AMENDMENT XIV]
any of the male inhabitants of such State, being
twenty-one years of age, and citizens of the
United States, or in any way abridged, except
for participation in rebellion, or other crime, the
basis of representation therein shall be reduced
in the proportion which the number of such
male citizens shall bear to the whole number of
male citizens twenty-one years of age in such
State.
There has been a readjustment of House representation each 10 years
§ 227. Law governing
except during the period 1911 to 1929 (VI, 41, footnote).
the establishment of From March 4, 1913, permanent House membership
districts. has remained fixed at 435 (VI, 40, 41; 37 Stat. 13). Upon
admission of Alaska and Hawaii to statehood, total
membership was temporarily increased to 437 until the next reapportion-
ment (72 Stat. 339, 345; 73 Stat. 8). Congress has by law provided for
automatic apportionment of the 435 Representatives among the States ac-
cording to each census including and after that of 1950 (2 U.S.C. 2a). The
Apportionment Act formerly provided that the districts in a State were
to be composed of contiguous and compact territory containing as nearly
as practicable an equal number of inhabitants (I, 303; VI, 44); but subse-
quent apportionment Acts, those of 1929 (46 Stat. 26) and 1941 (55 Stat.
761), omitted such provisions. See Wood v. Broom, 287 U.S. 1 (1932).
Congress has by law provided that for the 91st and subsequent Con-
gresses each State entitled to more than one Representative shall establish
a number of districts equal to the number of such Representatives, and
that Representatives shall be elected only from the single-Member districts
so established. (Hawaii and New Mexico were excepted from the operation
of this statute for the elections to the 91st Congress by Public Law 90–
196; see 2 U.S.C. 2c). After any apportionment, until a State is redistricted
in a manner provided by its own law and in compliance with the congres-
sional mandate, the question of whether its Representatives shall be elect-
ed by districts, at large, or by a combination of both, is determined by
the Apportionment Act of 1941 (2 U.S.C. 2a).
Under the Apportionment Act, a statistical model known as the ‘‘method
of equal proportions’’ is used to determine the number of Representatives
to which each State is entitled. Although other methods for apportioning
House seats may be permitted, the equal proportions method chosen by
Congress has been upheld under the Constitution and was plainly intended
to reach as close as practicable the goal of ‘‘one person, one vote.’’ Massachu-
setts v. Mosbacher, 785 F. Supp. 230 (D. Mass. 1992), rev’d on other
grounds Franklin v. Massachusetts, 505 U.S. 788 (1992). The courts also
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CONSTITUTION OF THE UNITED STATES
[AMENDMENT XIV] § 228–§ 230
have recently upheld under Federal law and the Constitution a counting
methodology used by the Census Bureau in a decennial census. This meth-
od, known as ‘‘imputation,’’ was held to be different than ‘‘sampling,’’ a
method prohibited under section 195 of title 13, United States Code. Utah
v. Evans, 536 U.S. 452 (2002). The method of apportioning the seats in
the House is vested exclusively in Congress, and neither States nor courts
may direct greater or lesser representation than that allocated by statute
(Deschler, ch 8 § 1). See Deschler, ch. 8 for apportionment and districting.
The House has always seated Members elected at large in the States,
§ 228. Questions as to
although the law required election by districts (I, 310,
elections. 519). Questions have arisen from time to time when
a vacancy has occurred soon after a change in districts,
with the resulting question whether the vacancy should be filled by election
in the old or new district (I, 311, 312, 327). The House has declined to
interfere with the act of a State in changing the boundaries of a district
after the apportionment has been made (I, 313).
The Supreme Court has ruled that congressional districts must be as
§ 229. Requirement
equally populated as practicable. Wesberry v. Sanders,
that districts be 376 U.S. 1 (1964); Kirkpatrick v. Preisler, 385 U.S. 450
equally populated. (1967). The Court has made clear that variances in pop-
ulation among congressional districts within a State
may be considered de minimis only if they cannot practicably be avoided.
If such variances, no matter how mathematically miniscule, could have
been reduced or eliminated by a good faith effort, then they may be justified
only on the basis of a consistent, rational State policy. Karcher v. Daggett,
462 U.S. 725 (1983). The Court also has made evident that it will take
judicial review of a claim that apportionment schemes lack consistent, ra-
tional bases. Davis v. Bandemer, 478 U.S. 109 (1986) (holding political
gerrymandering complaint justiciable under equal protection clause).
SECTION 3. No person shall be a Senator or
§ 230. Loyalty as a Representative in Congress, or elec-
qualification of
Senators and tor of President and Vice President,
Representatives.
or hold any office, civil or military,
under the United States, or under any State,
who, having previously taken an oath, as a
member of Congress, or as an officer of the
United States, or as a member of any State leg-
islature, or as an executive or judicial officer of
any State, to support the Constitution of the
United States, shall have engaged in insurrec-
tion or rebellion against the same, or given aid
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CONSTITUTION OF THE UNITED STATES
§ 231–§ 233 [AMENDMENT XIV]
or comfort to the enemies thereof. But Congress
may by a vote of two-thirds of each House, re-
move such disability.
Congress has by law removed generally the disabilities arising from the
§ 231. Removal of
Civil War (30 Stat. 432). Soon after the war various
disabilities and questions arose under this section (I, 386, 393, 455,
questions as to seating456). For disloyalty to the United States, for giving aid
a Member-elect. and comfort to a public enemy, for publication of expres-
sions hostile to the Government a Member-elect was
denied a seat in the House (VI, 56, 58). As to the meaning of the words
‘‘aid or comfort’’ as used in the 14th amendment (VI, 57).
SECTION 4. The validity of the public debt of
the United States, authorized by
§ 232. Validity of the
national debt, etc.
law, including debts incurred for
payment of pensions and bounties for services in
suppressing insurrection or rebellion, shall not
be questioned. But neither the United States nor
any State shall assume or pay any debt or obli-
gation incurred in aid of insurrection or rebel-
lion against the United States, or any claim for
the loss or emancipation of any slave; but all
such debts, obligations and claims shall be held
illegal and void.
SECTION 5. The Congress shall have power to
enforce, by appropriate legislation,
§ 233. Enforcement of
the 14th amendment.
the provisions of this article.
Congress may legislate under this section to protect voting rights by
preempting discriminatory State qualifications for electors (Katzenbach v.
Morgan, 384 U.S. 641 (1966)), and may lower the voting age in Federal
(but not State) elections (Oregon v. Mitchell, 400 U.S. 112 (1970)).
[106]
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CONSTITUTION OF THE UNITED STATES
[AMENDMENT XV] § 234
AMENDMENT XV.6
SECTION 1. The right of citizens of the United
§ 234. Suffrage not to States to vote shall not be denied or
be abridged for race,
color, etc. abridged by the United States or by
any State on account of race, color,
or previous condition of servitude.
SECTION 2. The Congress shall have power to
enforce this article by appropriate legislation.
6 The 15th amendment to the Constitution of the United States was
proposed to the legislatures of the several States by the 40th Congress
on February 26, 1869, and was declared, in a proclamation of the Sec-
retary of State, dated March 30, 1870, to have been ratified by the legis-
latures of 29 of the 37 States. The dates of these ratifications were: Ne-
vada, March 1, 1869; West Virginia, March 3, 1869; North Carolina,
March 5, 1869; Illinois, March 5, 1869; Louisiana, March 5, 1869; Michi-
gan, March 8, 1869; Wisconsin, March 9, 1869; Maine, March 11, 1869;
Massachusetts, March 12, 1869; Arkansas, March 15, 1869; South Caro-
lina, March 15, 1869; Pennsylvania, March 25, 1869; New York, April 14,
1869 (subsequently withdrew its consent to the ratification on January
5, 1870 but rescinded this action on March 30, 1970); Indiana, May 14,
1869; Connecticut, May 19, 1869; Florida, June 14, 1869; New Hamp-
shire, July 1, 1869; Virginia, October 8, 1869; Vermont, October 20, 1869;
Alabama, November 16, 1869; Missouri, January 7, 1870 (Missouri had
ratified the first section of the 15th amendment on March 1, 1869, but
had failed to include in its ratification the second section of the amend-
ment); Minnesota, January 13, 1870; Mississippi, January 17, 1870;
Rhode Island, January 18, 1870; Kansas, January 19, 1870; Ohio, Janu-
ary 27, 1870 (after having rejected the amendment April 30, 1869); Geor-
gia, February 2, 1870; Iowa, February 3, 1870. Ratification was com-
pleted on February 3, 1870, unless the withdrawal of ratification by New
York was effective; in which event ratification was completed on Feb-
ruary 17, 1870, when ratified by Nebraska. The amendment was subse-
quently ratified by Texas, February 18, 1870; New Jersey, February 15,
1871 (after having rejected it on February 7, 1870); Delaware, February
12, 1901 (after having rejected it on March 18, 1869); Oregon, February
24, 1959; California, April 3, 1962 (after having rejected it on January
28, 1870); Maryland, May 7, 1973 (after having rejected it on February
4 and February 26, 1870); Kentucky, March 30, 1976 (after having re-
jected it on March 11 and March 12, 1869); Tennessee, April 2, 1997,
(after having rejected it on November 16, 1869).
[107]
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CONSTITUTION OF THE UNITED STATES
§ 235 [AMENDMENT XVI]
AMENDMENT XVI.7
The Congress shall have power to lay and col-
§ 235. Taxes on lect taxes on incomes, from what-
incomes.
ever source derived, without appor-
tionment among the several States, and without
regard to any census or enumeration.
7 The 16th amendment to the Constitution of the United States was
proposed to the legislatures of the several States by the 61st Congress
on July 16, 1909, and was declared, in a proclamation of the Secretary
of State dated February 25, 1913, to have been ratified by the legisla-
tures of 36 of the 48 States. The dates of ratification were: Alabama, Au-
gust 10, 1909; Kentucky, February 8, 1910; South Carolina, February 19,
1910; Illinois, March 1, 1910; Mississippi, March 7, 1910; Oklahoma,
March 10, 1910; Maryland, April 8, 1910; Georgia, August 3, 1910;
Texas, August 16, 1910; Ohio, January 19, 1911; Idaho, January 20,
1911; Oregon, January 23, 1911; Washington, January 26, 1911; Mon-
tana, January 30, 1911; Indiana, January 30, 1911; California, January
31, 1911; Nevada, January 31, 1911; South Dakota, February 3, 1911;
Nebraska, February 9, 1911; North Carolina, February 11, 1911; Colo-
rado, February 15, 1911; North Dakota, February 17, 1911; Kansas, Feb-
ruary 18, 1911; Michigan, February 23, 1911; Iowa, February 24, 1911;
Missouri, March 16, 1911; Maine, March 31, 1911; Tennessee, April 7,
1911; Arkansas, April 22, 1911 (after having rejected it at the session
begun January 9, 1911); Wisconsin, May 26, 1911; New York, July 12,
1911; Arizona, April 6, 1912; Minnesota, June 11, 1912; Louisiana, June
28, 1912; West Virginia, January 31, 1913; Delaware, February 3, 1913;
Wyoming, February 3, 1913; New Mexico, February 3, 1913. Ratification
was completed on February 3, 1913. The amendment was subsequently
ratified by New Jersey, February 4, 1913; Vermont, February 19, 1913
(after having rejected the amendment January 17, 1911); Massachusetts,
March 4, 1913; New Hampshire, March 7, 1913 (after having rejected the
amendment March 2, 1911). The amendment was rejected by Rhode Is-
land, April 29, 1910; Utah, March 9, 1911; Connecticut, June 28, 1911;
and Florida, May 31, 1913. Pennsylvania and Virginia did not complete
action.
[108]
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CONSTITUTION OF THE UNITED STATES
[AMENDMENT XVII] § 236
AMENDMENT XVII.8
The Senate of the United States shall be com-
posed of two Senators from each
§ 236. Election of
Senators by direct
vote. State, elected by the people thereof,
for six years; and each Senator
shall have one vote. The electors in each State
shall have the qualifications requisite for elec-
tors of the most numerous branch of the State
legislatures.
When vacancies happen in the representation
of any State in the Senate, the executive author-
ity of such State shall issue writs of election to
fill such vacancies: Provided, That the legisla-
ture of any State may empower the executive
thereof to make temporary appointments until
8 See article I, section 3 of the Constitution. The 17th amendment to
the Constitution was proposed to the legislatures of the several States
by the 62d Congress on May 15, 1912, and was declared, in a proclama-
tion by the Secretary of State dated May 31, 1913, to have been ratified
by the legislatures of 36 of the 48 States. The dates of ratification were:
Massachusetts, May 22, 1912; Arizona, June 3, 1912; Minnesota, June
10, 1912; New York, January 15, 1913; Kansas, January 17, 1913; Or-
egon, January 23, 1913; North Carolina, January 25, 1913; California,
January 28, 1913; Michigan, January 28, 1913; Iowa, January 30, 1913;
Montana, January 30, 1913; Idaho, January 31, 1913; West Virginia,
February 4, 1913; Colorado, February 5, 1913; Nevada, February 6, 1913;
Texas, February 7, 1913; Washington, February 7, 1913; Wyoming, Feb-
ruary 8, 1913; Arkansas, February 11, 1913; Maine, February 11, 1913;
Illinois, February 13, 1913; North Dakota, February 14, 1913; Wisconsin,
February 18, 1913; Indiana, February 19, 1913; New Hampshire, Feb-
ruary 19, 1913; Vermont, February 19, 1913; South Dakota, February 19,
1913; Oklahoma, February 24, 1913; Ohio, February 25, 1913; Missouri,
March 7, 1913; New Mexico, March 13, 1913; Nebraska, March 14, 1913;
New Jersey, March 17, 1913; Tennessee, April 1, 1913; Pennsylvania,
April 2, 1913; Connecticut, April 8, 1913. Ratification was completed on
April 8, 1913. The amendment was subsequently ratified by Louisiana,
June 11, 1914; Alabama, April 16, 2002. The amendment was rejected
by Utah, February 26, 1913; Delaware, March 18, 1913. Florida, Georgia,
Rhode Island, and South Carolina did not complete action.
[109]
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CONSTITUTION OF THE UNITED STATES
§ 237–§ 239 [AMENDMENT XVIII]
the people fill the vacancies by election as the
legislature may direct.
This amendment shall not be so construed as
to affect the election or term of any Senator cho-
sen before it becomes valid as part of the Con-
stitution.
Senator Rebecca L. Felton, appointed during the recess of the Senate
on October 3, 1922, to fill a vacancy, was the first
§ 237. Filling vacancies
in the Senate. woman to sit in the Senate (VI, 156). Senator Walter
F. George was elected to fill the vacancy on Novem-
ber 7, 1922. Mrs. Felton took the oath of office on November 21, 1922,
and Senator George took the oath November 22, 1922 (VI, 156). Discus-
sion as to the term of service of a Senator appointed by a State executive
to fill a vacancy (VI, 156).
The right of an elector to vote for a Senator is fundamentally derived
from the United States Constitution (United States v.
§ 238. Qualifications of
electors. Aczel 219 F.2d 917 (1915)) and may not be denied in
a discriminatory fashion (Chapman v. King, 154 F.2d
460 (1946), cert. denied, 327 U.S. 800 (1946); Forssenius v. Harman, 235
F. Supp. 66 (1964), aff’d., 380 U.S. 529 (1965)).
AMENDMENT XVIII.9
SECTION 1. [After one year from the ratifica-
§ 239. Prohibition of tion of this article the manufacture,
intoxicating liquors.
sale, or transportation of intoxi-
9 See amendment XXI, repealing this amendment. The 18th amend-
ment to the Constitution of the United States was proposed to the legis-
latures of the several States by the 65th Congress on December 18, 1917,
and was declared in a proclamation by the Secretary of State dated Jan-
uary 29, 1919, to have been ratified by the legislatures of 36 of the 48
States. The dates of these ratifications were: Mississippi, January 8,
1918; Virginia, January 11, 1918; Kentucky, January 14, 1918; North
Dakota, January 25, 1918; South Carolina, January 29, 1918; Maryland,
February 13, 1918; Montana, February 19, 1918; Texas, March 4, 1918;
Delaware, March 18, 1918; South Dakota, March 20, 1918; Massachu-
setts, April 2, 1918; Arizona, May 24, 1918; Georgia, June 26, 1918; Lou-
isiana, August 3, 1918; Florida, December 3, 1918; Michigan, January 2,
1919; Ohio, January 7, 1919; Oklahoma, January 7, 1919; Idaho, Janu-
ary 8, 1919; Maine, January 8, 1919; West Virginia, January 9, 1919;
California, January 13, 1919; Tennessee, January 13, 1919; Washington,
January 13, 1919; Arkansas, January 14, 1919; Kansas, January 14,
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CONSTITUTION OF THE UNITED STATES
[AMENDMENT XIX] § 240
cating liquors within, the importation thereof
into, or the exportation thereof from the United
States and all territories subject to the jurisdic-
tion thereof for beverage purposes is hereby pro-
hibited.
SECTION 2. The Congress and the several
States shall have concurrent power to enforce
this article by appropriate legislation.
SECTION 3. This article shall be inoperative
unless it shall have been ratified as an amend-
ment to the Constitution by the legislatures of
the several States, as provided in the Constitu-
tion, within seven years from the date of the
submission hereof to the States by the Con-
gress.]
AMENDMENT XIX.10
The right of citizens of the United States to
§ 240. Women’svote shall not be denied or abridged
suffrage.
by the United States or by any
State on account of sex.
1919; Alabama, January 15, 1919; Colorado, January 15, 1919; Iowa,
January 15, 1919; New Hampshire, January 15, 1919; Oregon, January
15, 1919; Nebraska, January 16, 1919; North Carolina, January 16,
1919; Utah, January 16, 1919; Missouri, January 16, 1919; Wyoming,
January 16, 1919. Ratification was completed on January 16, 1919. The
amendment was subsequently ratified by Minnesota, January 17, 1919;
Wisconsin, January 17, 1919; New Mexico, January 20, 1919; Nevada,
January 21, 1919; New York, January 29, 1919; Vermont, January 29,
1919; Pennsylvania, February 25, 1919; Connecticut, May 6, 1919; New
Jersey, March 9, 1922. Connecticut and Rhode Island rejected the
amendment.
10 The 19th amendment to the Constitution of the United States was
proposed to the legislatures of the several States by the 66th Congress
on June 5, 1919, and was declared in a proclamation by the Secretary
of State dated August 26, 1920, to have been ratified by the legislatures
Continued
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CONSTITUTION OF THE UNITED STATES
§ 241 [AMENDMENT XX]
Congress shall have power to enforce this arti-
cle by appropriate legislation.
AMENDMENT XX.11
SECTION 1. The terms of the President and
Vice President shall end at noon on
§ 241. Commencement
of terms of Pres., Vice
the 20th day of January, and the
Pres., Senators, and
terms of Senators and Representa-
Representatives.
of 36 of the 48 States. The dates of these ratifications were: Illinois, June
10, 1919 (and that State readopted its resolution of ratification June 17,
1919); Michigan, June 10, 1919; Wisconsin, June 10, 1919; Kansas, June
16, 1919; New York, June 16, 1919; Ohio, June 16, 1919; Pennsylvania,
June 24, 1919; Massachusetts, June 25, 1919; Texas, June 28, 1919;
Iowa, July 2, 1919; Missouri, July 3, 1919; Arkansas, July 28, 1919; Mon-
tana, August 2, 1919; Nebraska, August 2, 1919; Minnesota, September
8, 1919; New Hampshire, September 10, 1919; Utah, October 2, 1919;
California, November 1, 1919; Maine, November 5, 1919; North Dakota,
December 1, 1919; South Dakota, December 4, 1919; Colorado, December
15, 1919; Kentucky, January 6, 1920; Rhode Island, January 6, 1920; Or-
egon, January 13, 1920; Indiana, January 16, 1920; Wyoming, January
27, 1920; Nevada, February 7, 1920; New Jersey, February 9, 1920;
Idaho, February 11, 1920; Arizona, February 12, 1920; New Mexico, Feb-
ruary 21, 1920; Oklahoma, February 28, 1920; West Virginia, March 10,
1920; Washington, March 22, 1920; Tennessee, August 28, 1920. Ratifica-
tion was completed on August 28, 1920. The amendment was subse-
quently ratified by Connecticut, September 14, 1920 (and that State re-
affirmed on September 21, 1920); Vermont, February 8, 1921; Delaware,
March 6, 1923 (after having rejected the amendment on June 2, 1920);
Maryland, March 29, 1941 (after having rejected the amendment on Feb-
ruary 24, 1920; ratification certified February 25, 1958); Virginia, Feb-
ruary 21, 1952 (after having rejected the amendment February 12, 1920);
Alabama, September 8, 1953 (after having rejected the amendment Sep-
tember 22, 1919); Florida, May 13, 1969; South Carolina, July 1, 1969
(after having rejected the amendment on January 28, 1920); Georgia,
February 20, 1970 (after having rejected the amendment on July 24,
1919); Louisiana, June 11, 1970 (after having rejected it on July 1, 1920);
North Carolina, May 6, 1971; Mississippi, March 22, 1984 (after having
rejected the amendment on March 29, 1920).
11 See article I, section 4 of the Constitution. The 20th amendment to
the Constitution was proposed to the legislatures of the several States
by the 72d Congress, on March 3, 1932, and was declared in a proclama-
tion by the Secretary of State dated February 6, 1933, to have been rati-
[112]
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CONSTITUTION OF THE UNITED STATES
[AMENDMENT XX] § 242
tives at noon on the 3d day of January, of the
years in which such terms would have ended if
this article had not been ratified; and the terms
of their successors shall then begin.
SECTION 2. The Congress shall assemble at
§ 242. Meeting of least once in every year, and such
Congress.
meeting shall begin at noon on the
3d day of January, unless they shall by law ap-
point a different day.
Before the ratification of the 20th amendment Congress met on the first
Monday in December as provided in article I, section 4, of the Constitution.
For discussion of the term of Congress before and pursuant to the 20th
amendment, see § 6, supra (accompanying art. I, sec. 2, cl. 1), and Deschler,
ch. 1.
fied by the legislatures of 36 of the 48 States. The dates of these ratifica-
tions were: Virginia, March 4, 1932; New York, March 11, 1932; Mis-
sissippi, March 16, 1932; Arkansas, March 17, 1932; Kentucky, March
17, 1932; New Jersey, March 21, 1932; South Carolina, March 25, 1932;
Michigan, March 31, 1932; Maine, April 1, 1932; Rhode Island, April 14,
1932; Illinois, April 21, 1932; Louisiana, June 22, 1932; West Virginia,
July 30, 1932; Pennsylvania, August 11, 1932; Indiana, August 15, 1932;
Texas, September 7, 1932; Alabama, September 13, 1932; California,
January 4, 1933; North Carolina, January 5, 1933; North Dakota, Janu-
ary 9, 1933; Minnesota, January 12, 1933; Montana, January 13, 1933;
Nebraska, January 13, 1933; Oklahoma, January 13, 1933; Arizona, Jan-
uary 13, 1933; Kansas, January 16, 1933; Oregon, January 16, 1933; Wy-
oming, January 19, 1933; Delaware, January 19, 1933; Washington, Jan-
uary 19, 1933; South Dakota, January 20, 1933; Tennessee, January 20,
1933; Iowa, January 20, 1933; Idaho, January 21, 1933; New Mexico,
January 21, 1933; Ohio, January 23, 1933; Utah, January 23, 1933; Mis-
souri, January 23, 1933; Georgia, January 23, 1933. Ratification was
completed on January 23, 1933. The amendment was subsequently rati-
fied by Massachusetts, January 24, 1933; Wisconsin, January 24, 1933;
Colorado, January 24, 1933; Nevada, January 26, 1933; Connecticut,
January 27, 1933; New Hampshire, January 31, 1933; Vermont, Feb-
ruary 2, 1933; Maryland, March 24, 1933; Florida, April 26, 1933.
The ratification of this amendment to the Constitution shortened the
first term of President Franklin D. Roosevelt and Vice President John N.
Garner, and the terms of all Senators and Representatives of the 73d
Congress.
[113]
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CONSTITUTION OF THE UNITED STATES
§ 243 [AMENDMENT XX]
Pursuant to section 2 of the 20th amendment, a regular session of a
Congress must begin at noon on January 3 of every year unless Congress
sets a different date by law, and if the House is in session at that time
the Speaker declares the House adjourned sine die without a motion from
the floor, in order that the next regular session of that Congress, or the
first session of the next Congress (as the case may be) may assemble at
noon on that day (Jan. 3, 1980, pp. 37773, 37774; Jan. 3, 1996, pp. 35,
36; Jan. 3, 2012, p. 21498; Precedents (Wickham), ch. 1, § 2.6; Precedents
(Wickham), ch. 1, § 2.5; Jan. 3, 2017, p. l; Jan. 3, 2018, p. l; Jan. 3,
2019, p. l; Jan. 3, 2020, p. l; Jan. 3, 2021, p. l). The House has adjourned
the second session of a Congress without motion at its expiration and con-
vened the first session of the new Congress on a different date as prescribed
by law (Jan. 3, 2009, p. 24812).
Since ratification, the following days for assembling have been estab-
§ 243. Laws appointing
lished: Public Law 74–120, Jan. 5, 1937; Public Law
different day for 77–395, Jan. 5, 1942; Public Law 77–819, Jan. 6, 1943;
convening. Public Law 78–210, Jan. 10, 1944; Public Law 79–289,
Jan. 14, 1946; Public Law 80–358, Jan. 6, 1948; Public
Law 82–244, Jan. 8, 1952; Public Law 83–199, Jan. 6, 1954; Public Law
83–700, Jan. 5, 1955; Public Law 85–290, Jan. 7, 1958; Public Law 85–
819, Jan. 7, 1959; Public Law 86–305, Jan. 6, 1960; Public Law 87–348,
Jan. 10, 1962; Public Law 87–864, Jan. 9, 1963; Public Law 88–247, Jan.
7, 1964; Public Law 88–649, Jan. 4, 1965; Public Law 89–340, Jan. 10,
1966; Public Law 89–704, Jan. 10, 1967; Public Law 90–230, Jan. 15, 1968;
Public Law 91–182, Jan. 19, 1970; Public Law 91–643, Jan. 21, 1971; Public
Law 92–217, Jan. 18, 1972; Public Law 93–196, Jan. 21, 1974; Public Law
93–553, Jan. 14, 1975; Public Law 94–186, Jan. 19, 1976; Public Law 94–
494, Jan. 4, 1977; Public Law 95–594, Jan. 15, 1979; Public Law 96–566,
Jan. 5, 1981; Public Law 97–133, Jan. 25, 1982; Public Law 98–179, Jan.
23, 1984; Public Law 99–379, Jan. 21, 1986; Public Law 99–613, Jan. 6,
1987; Public Law 100–229, Jan. 25, 1988; Public Law 101–228, Jan. 23,
1990; Public Law 102–475, Jan. 5, 1993; Public Law 103–395, Jan. 4, 1995;
Public Law 104–296, Jan. 7, 1997; Public Law 105–140, Jan. 27, 1998;
Public Law 105–350, Jan. 6, 1999; Public Law 106–127, Jan. 24, 2000;
Public Law 107–328, Jan. 7, 2003; Public Law 108–181, Jan. 20, 2004;
Public Law 108–433, Jan. 4, 2005; Public Law 109–447, Jan. 4, 2007; Public
Law 110–430, Jan. 6, 2009; Public Law 111–121, Jan. 5, 2010; Public Law
111–289, Jan. 5, 2011; Public Law 113–201, Jan. 6, 2015; Public Law 114–
108, Jan. 4, 2016. Such laws for the convening of a second session of a
Congress may provide for possible earlier assembly by joint-leadership re-
call (see, e.g., Public Law 107–98, Jan. 23, 2002).
[114]
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CONSTITUTION OF THE UNITED STATES
[AMENDMENT XX] § 244–§ 246
SECTION 3. If, at the time fixed for the begin-
§ 244. Death or ning of the term of the President,
disqualification of
President-elect. the President elect shall have died,
the Vice President elect shall be-
come President. If a President shall not have
been chosen before the time fixed for the begin-
ning of his term, or if the President elect shall
have failed to qualify, then the Vice President
elect shall act as President until a President
shall have qualified; and the Congress may by
law provide for the case wherein neither a Presi-
dent elect nor a Vice President elect shall have
qualified, declaring who shall then act as Presi-
dent, or the manner in which one who is to act
shall be selected, and such person shall act ac-
cordingly until a President or Vice President
shall have qualified.
Congress provided by law in 1947 for the performance of the duties of
§ 245. Statutory
the President in case of removal, death, resignation or
succession and the inability, both of the President and Vice President (3
25th amendment. U.S.C. 19). Earlier succession statutes covering the pe-
riods 1792–1886 and 1887–1948 can be found in 18
Stat. 21, and 24 Stat. 1, respectively. Also see the 25th amendment to
the Constitution, relating to vacancies in the Office of Vice President and
Presidential inability.
Before the 20th amendment there was no provision in the Constitution
for a case wherein the President-elect was disqualified or had died.
SECTION 4. The Congress may by law provide
for the case of the death of any of
§ 246. Congress to
provide for case
the persons from whom the House
wherein death occurs
of Representatives may choose a
among those from
whom House chooses
a President.President whenever the right of
choice shall have devolved upon
them, and for the case of the death of any of the
persons from whom the Senate may choose a
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CONSTITUTION OF THE UNITED STATES
§ 247 [AMENDMENT XXI]
Vice President whenever the right of choice shall
have devolved upon them.
The above section changes the 12th amendment insofar as it gives Con-
gress the power to provide by law the manner in which the House should
proceed in the event no candidate had a majority and one of the three
highest on the list of those voted for as President had died.
SECTION 5. Sections 1 and 2 shall take effect
on the 15th day of October following the ratifica-
tion of this article.
SECTION 6. This article shall be inoperative
unless it shall have been ratified as an amend-
ment to the Constitution by the legislatures of
three-fourths of the several States within seven
years from the date of its submission.
AMENDMENT XXI.12
SECTION 1. The eighteenth article of amend-
§ 247. Repeal of ment to the Constitution of the
prohibition.
United States is hereby repealed.
12 The 21st amendment to the Constitution of the United States was
proposed to conventions of the several States by the 72d Congress on
February 20, 1933, and was declared in a proclamation by the Acting
Secretary of State dated December 5, 1933, to have been ratified by con-
ventions in 36 of the 48 States. The dates of these ratifications were:
Michigan, April 10, 1933; Wisconsin, April 25, 1933; Rhode Island, May
8, 1933; Wyoming, May 25, 1933; New Jersey, June 1, 1933; Delaware,
June 24, 1933; Massachusetts, June 26, 1933; Indiana, June 26, 1933;
New York, June 27, 1933; Illinois, July 10, 1933; Iowa, July 10, 1933;
Connecticut, July 11, 1933; New Hampshire, July 11, 1933; California,
July 24, 1933; West Virginia, July 25, 1933; Arkansas, August 1, 1933;
Oregon, August 7, 1933; Alabama, August 8, 1933; Tennessee, August
11, 1933; Missouri, August 29, 1933; Arizona, September 5, 1933; Ne-
vada, September 5, 1933; Vermont, September 23, 1933; Colorado, Sep-
tember 26, 1933; Washington, October 3, 1933; Minnesota, October 10,
1933; Idaho, October 17, 1933; Maryland, October 18, 1933; Virginia, Oc-
tober 25, 1933; New Mexico, November 2, 1933; Florida, November 14,
1933; Texas, November 24, 1933; Kentucky, November 27, 1933; Ohio,
December 5, 1933; Pennsylvania, December 5, 1933; Utah, December 5,
1933. The amendment was subsequently ratified by Maine on December
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CONSTITUTION OF THE UNITED STATES
[AMENDMENT XXII] § 248–§ 249
SECTION 2. The transportation or importation
§ 248. Transportation into any State, Territory, or posses-
into States prohibited.
sion of the United States for deliv-
ery or use therein of intoxicating liquors, in vio-
lation of the laws thereof, is hereby prohibited.
SECTION 3. This article shall be inoperative
unless it shall have been ratified as an amend-
ment to the Constitution by conventions in the
several States, as provided in the Constitution,
within seven years from the date of the submis-
sion hereof to the States by the Congress.
AMENDMENT XXII.13
SECTION 1. No person shall be elected to the
§ 249. No person shall office of the President more than
be elected President
more than twice. twice, and no person who has held
the office of President, or acted as
6, 1933; Montana, August 6, 1934. The convention held in the State of
South Carolina on December 4, 1933, rejected the 21st amendment.
13 The 22d amendment to the Constitution of the United States was
proposed to the legislatures of the several States by the 80th Congress
on March 24, 1947, and was declared by the Administrator of General
Services, in a proclamation dated March 1, 1951, to have been ratified
by the legislatures of 36 of the 48 States. The dates of these ratifications
were: Maine, March 31, 1947; Michigan, March 31, 1947; Iowa, April 1,
1947; Kansas, April 1, 1947; New Hampshire, April 1, 1947; Delaware,
April 2, 1947; Illinois, April 3, 1947; Oregon, April 3, 1947; Colorado,
April 12, 1947; California, April 15, 1947; New Jersey, April, 15, 1947;
Vermont, April 15, 1947; Ohio, April 16, 1947; Wisconsin, April 16, 1947;
Pennsylvania, April 29, 1947; Connecticut, May 21, 1947; Missouri, May
22, 1947; Nebraska, May 23, 1947; Virginia, January 28, 1948; Mis-
sissippi, February 12, 1948; New York, March 9, 1948; South Dakota,
January 21, 1949; North Dakota, February 25, 1949; Louisiana, May 17,
1950; Montana, January 25, 1951; Indiana, January 29, 1951; Idaho,
January 30, 1951; New Mexico, February 12, 1951; Wyoming, February
12, 1951; Arkansas, February 15, 1951; Georgia, February 17, 1951; Ten-
nessee, February 20, 1951; Texas, February 22, 1951; Nevada, February
26, 1951; Utah, February 26, 1951; Minnesota, February 27, 1951. Ratifi-
Continued
[117]
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CONSTITUTION OF THE UNITED STATES
§ 250 [AMENDMENT XXIII]
President, for more than two years of a term to
which some other person was elected President
shall be elected to the office of the President
more than once. But this Article shall not apply
to any person holding the office of President
when this Article was proposed by the Congress,
and shall not prevent any person who may be
holding the office of President, or acting as
President, during the term within which this Ar-
ticle becomes operative from holding the office of
President or acting as President during the re-
mainder of such term.
SECTION 2. This article shall be inoperative
unless it shall have been ratified as an amend-
ment to the Constitution by the legislatures of
three-fourths of the several States within seven
years from the date of its submission to the
States by the Congress.
AMENDMENT XXIII.14
SECTION 1. The District constituting the seat
of Government of the United States
§ 250. Representation
in the Electoral
shall appoint in such manner as the
College to the District
of Columbia.
Congress may direct:
cation was completed February 27, 1951. The amendment was subse-
quently ratified by North Carolina, February 28, 1951; South Carolina,
March 13, 1951; Maryland, March 14, 1951; Florida, April 16, 1951; Ala-
bama, May 4, 1951. Massachusetts and Oklahoma rejected the amend-
ment.
14 The 23d amendment to the Constitution of the United States was
proposed to the legislatures of the several States by the 86th Congress
on June 17, 1960, and was declared by the Administrator of General
Services, in a proclamation dated April 3, 1961, to have been ratified by
the legislatures of 39 of the 50 States. The dates of these ratifications
were: Hawaii, June 23, 1960; Massachusetts, August 22, 1960; New Jer-
sey, December 19, 1960; New York, January 17, 1961; California, Janu-
[118]
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CONSTITUTION OF THE UNITED STATES
[AMENDMENT XXIII] § 250
A number of electors of President and Vice
President equal to the whole number of Senators
and Representatives in Congress to which the
District would be entitled if it were a State, but
in no event more than the least populous State;
they shall be in addition to those appointed by
the States, but they shall be considered, for the
purposes of the election of President and Vice
President, to be electors appointed by a State;
and they shall meet in the District and perform
such duties as provided by the twelfth article of
amendment.
SECTION 2. The Congress shall have power to
enforce this article by appropriate legislation.
ary 19, 1961; Oregon, January 27, 1961; Maryland, January 30, 1961;
Idaho, January 31, 1961; Maine, January 31, 1961; Minnesota, January
31, 1961; New Mexico, February 1, 1961; Nevada, February 2, 1961;
Montana, February 26, 1961; Colorado, February 8, 1961; Washington,
February 9, 1961; West Virginia, February 9, 1961; Alaska, February 10,
1961; Wyoming, February 13, 1961; South Dakota, February 14, 1961;
Delaware, February 20, 1961; Utah, February 21, 1961; Wisconsin, Feb-
ruary 21, 1961; Pennsylvania, February 28, 1961; Indiana, March 3,
1961; North Dakota, March 3, 1961; Tennessee, March 6, 1961; Michi-
gan, March 8, 1961; Connecticut, March 9, 1961; Arizona, March 10,
1961; Illinois, March 14, 1961; Nebraska, March 15, 1961; Vermont,
March 15, 1961; Iowa, March 16, 1961; Missouri, March 20, 1961; Okla-
homa, March 21, 1961; Rhode Island, March 22, 1961; Kansas, March 29,
1961; and Ohio, March 29, 1961. Ratification was completed March 29,
1961. The amendment was subsequently ratified by New Hampshire on
March 30, 1961 (when that State annulled and then repeated its ratifica-
tion of March 29, 1961). Arkansas rejected the amendment January 24,
1961.
[119]
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CONSTITUTION OF THE UNITED STATES
§ 251 [AMENDMENT XXV]
AMENDMENT XXIV.15
SECTION 1. The right of citizens of the United
§ 251. Right to vote not States to vote in any primary or
denied for failure to
pay poll tax. other election for President or Vice
President, for electors for President
or Vice President, or for Senator or Representa-
tive in Congress, shall not be denied or abridged
by the United States or any State by reason of
failure to pay any poll tax or other tax.
Harman v. Forssenius, 380 U.S. 528 (1965); Harper v. Virginia State
Board of Elections, 383 U.S. 663 (1966).
SECTION 2. The Congress shall have power to
enforce this article by appropriate legislation.
15 The 24th amendment to the Constitution of the United States was
proposed to the legislatures of the several States by the 87th Congress
on August 28, 1962, and was declared by the Administrator of General
Services, in a proclamation dated February 4, 1964, to have been ratified
by the legislatures of 38 of the 50 States. The dates of these ratifications
were: Illinois, November 14, 1962; New Jersey, December 3, 1962; Or-
egon, January 25, 1963; Montana, January 28, 1963; West Virginia, Feb-
ruary 1, 1963; New York, February 4, 1963; Maryland, February 6, 1963;
California, February 7, 1963; Alaska, February 11, 1963; Rhode Island,
February 14, 1963; Indiana, February 19, 1963; Utah, February 20, 1963;
Michigan, February 20, 1963; Colorado, February 21, 1963; Ohio, Feb-
ruary 27, 1963; Minnesota, February 27, 1963; New Mexico, March 5,
1963; Hawaii, March 6, 1963; North Dakota, March 7, 1963; Idaho,
March 8, 1963; Washington, March 14, 1963; Vermont, March 15, 1963;
Nevada, March 19, 1963; Connecticut, March 20, 1963; Tennessee, March
21, 1963; Pennsylvania, March 25, 1963; Wisconsin, March 26, 1963;
Kansas, March 28, 1963; Massachusetts, March 28, 1963; Nebraska,
April 4, 1963; Florida, April 18, 1963; Iowa, April 24, 1963; Delaware,
May 1, 1963; Missouri, May 13, 1963; New Hampshire, June 12, 1963;
Kentucky, June 27, 1963; Maine, January 16, 1964; and South Dakota,
January 23, 1964. Ratification was completed on January 23, 1964. Mis-
sissippi rejected the amendment on December 20, 1962. The amendment
was subsequently ratified by Virginia, February 25, 1977; North Caro-
lina, May 3, 1989; Alabama, Sept. 26, 2002; Texas, May 22, 2009.
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CONSTITUTION OF THE UNITED STATES
[AMENDMENT XXV] § 252–§ 253
AMENDMENT XXV.16
SECTION 1. In case of the removal of the Presi-
§ 252. Presidential dent from office or of his death or
succession and
inability. resignation, the Vice President
shall become President.
SECTION 2. Whenever there is a vacancy in the
§ 253. Confirmation by office of the Vice President, the
House and Senate of
nominee to fill vice President shall nominate a Vice
presidential vacancy.
President who shall take office
upon confirmation by a majority vote of both
Houses of Congress.
16 The 25th amendment to the Constitution of the United States was
proposed to the legislatures of the several States by the 89th Congress
on July 7, 1965, and was declared by the Administrator of General Serv-
ices, in a proclamation dated February 23, 1967, to have been ratified by
the legislatures of 39 of the 50 States. The dates of these ratifications
were: Nebraska, July 12, 1965; Wisconsin, July 13, 1965; Oklahoma, July
16, 1965; Massachusetts, August 9, 1965; Pennsylvania, August 18, 1965;
Kentucky, September 15, 1965; Arizona, September 22, 1965; Michigan,
October 5, 1965; Indiana, October 20, 1965; California, October 21, 1965;
Arkansas, November 4, 1965; New Jersey, November 29, 1965; Delaware,
December 7, 1965; Utah, January 17, 1966; West Virginia, January 20,
1966; Maine, January 24, 1966; Rhode Island, January 28, 1966; Colo-
rado, February 3, 1966; New Mexico, February 3, 1966; Kansas, Feb-
ruary 8, 1966; Vermont, February 10, 1966; Alaska, February 18, 1966;
Idaho, March 2, 1966; Hawaii, March 3, 1966; Virginia, March 8, 1966;
Mississippi, March 10, 1966; New York, March 14, 1966; Maryland,
March 23, 1966; Missouri, March 30, 1966; New Hampshire, June 13,
1966; Louisiana, July 5, 1966; Tennessee, January 12, 1967; Wyoming,
January 25, 1967; Iowa, January 26, 1967; Washington, January 26,
1967; Oregon, February 2, 1967; Minnesota, February 10, 1967; Nevada,
February 10, 1967. Ratification was completed February 10, 1967. The
amendment was subsequently ratified by Connecticut, February 14,
1967; Montana, February 15, 1967; South Dakota, March 6, 1967; Ohio,
March 7, 1967; Alabama, March 14, 1967; North Carolina, March 22,
1967; Illinois, March 22, 1967; Texas, April 25, 1967; Florida, May 25,
1967.
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CONSTITUTION OF THE UNITED STATES
§ 254–§ 255 [AMENDMENT XXV]
SECTION 3. Whenever the President transmits
§ 254. President’s to the President pro tempore of the
declaration of
disability. Senate and the Speaker of the
House of Representatives his writ-
ten declaration that he is unable to discharge
the powers and duties of his office, and until he
transmits to them a written declaration to the
contrary, such powers and duties shall be dis-
charged by the Vice President as Acting Presi-
dent.
SECTION 4. Whenever the Vice President and
§ 255. Determination a majority of either the principal of-
of Presidential
inability and Vice ficers of the executive departments
President as Acting
President.
or of such other body as Congress
may by law provide, transmit to the
President pro tempore of the Senate and the
Speaker of the House of Representatives their
written declaration that the President is unable
to discharge the powers and duties of his office,
the Vice President shall immediately assume the
powers and duties of the office as Acting Presi-
dent.
Thereafter, when the President transmits to
the President pro tempore of the Senate and the
Speaker of the House of Representatives his
written declaration that no inability exists, he
shall resume the powers and duties of his office
unless the Vice President and a majority of ei-
ther the principal officers of the executive de-
partment or of such other body as Congress may
by law provide, transmit within four days to the
President pro tempore of the Senate and the
Speaker of the House of Representatives their
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CONSTITUTION OF THE UNITED STATES
[AMENDMENT XXV] § 256
written declaration that the President is unable
to discharge the powers and duties of his office.
Thereupon Congress shall decide the issue, as-
sembling within forty-eight hours for that pur-
pose if not in session. If the Congress, within
twenty-one days after receipt of the latter writ-
ten declaration, or, if Congress is not in session,
within twenty-one days after Congress is re-
quired to assemble, determines by two-thirds
vote of both Houses that the President is unable
to discharge the powers and duties of his office,
the Vice President shall continue to discharge
the same as Acting President; otherwise, the
President shall resume the powers and duties of
his office.
Congress has twice performed its responsibility under section two of the
25th amendment. On October 13, 1973, the Speaker
§ 256. Instances in
which House and laid before the House a message from President Nixon
Senate have transmitting his nomination of Gerald R. Ford, Minor-
confirmed nominee asity Leader in the House of Representatives, to be Vice
Vice President;
temporary incapacity
President of the United States, Vice President Agnew
of President. having resigned on October 10, 1973. The Speaker re-
ferred the nomination to the Committee on the Judici-
ary, which under rule X has jurisdiction over matters relating to Presi-
dential succession (Precedents (Wickham), ch. 3, § 6.6). The nomination
of Mr. Ford to be Vice President was confirmed by the Senate on November
27, 1973 (p. 38225) and by the House on December 6, 1973 (p. 39900),
and Vice President Ford was sworn in in the Chamber of the House of
Representatives on December 6 (p. 39925). Subsequently, President Nixon
resigned from office by delivering his written resignation to the Office of
the Secretary of State, pursuant to 3 U.S.C. 20, on August 9, 1974. Pursu-
ant to section one of the 25th amendment, Vice President Ford became
President, and was sworn in in the East Room at the White House. He
nominated Nelson A. Rockefeller to be Vice President, which nomination
was received in the House of Representatives and referred to the Com-
mittee on the Judiciary on August 20, 1974; the nomination was confirmed
by the Senate on December 10, 1974 (p. 38936) and by the House on Decem-
ber 19, 1974 (p. 41516), and Vice President Rockefeller was sworn in in
the Senate Chamber on December 19, 1974 (p. 41181). On both instances,
the House received the message from the Senate, announcing that body’s
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CONSTITUTION OF THE UNITED STATES
§ 257 [AMENDMENT XXVI]
confirmation of the nominee for Vice President, following the vote on con-
firmation by the House.
The Chair laid before the House communications from the President
pursuant to section three of this amendment as follows: First, before under-
going sedation for a medical procedure, declaring his impending inability
to discharge the constitutional powers and duties of the Office of President
and advising that the Vice President would discharge those responsibilities
as Acting President until the President declared his ability to resume that
role; and second (after recovering from the sedation and the medical proce-
dure) declaring his ability to resume the discharge of the constitutional
powers and duties of the Office of President, and advising that he was
doing so immediately (July 15, 1985, p. 18955; July 8, 2002, pp. 12089,
12090; July 23, 2007, p. 20036).
AMENDMENT XXVI.17
SECTION 1. The right of citizens of the United
States, who are eighteen years of
§ 257. Right to vote
extended to persons
age or older, to vote shall not be de-
18 years of age or
older.
nied or abridged by the United
States or by any State on account of age.
17 The 26th amendment to the Constitution was proposed by the Con-
gress on March 23, 1971. It was declared, in a certificate of the Adminis-
trator of General Services, dated July 5, 1971, to have been ratified by
the legislatures of 39 of the 50 States. The dates of ratification were:
Connecticut, March 23, 1971; Delaware, March 23, 1971; Minnesota,
March 23, 1971; Tennessee, March 23, 1971; Washington, March 23,
1971; Hawaii, March 24, 1971; Massachusetts, March 24, 1971; Montana,
March 29, 1971; Arkansas, March 30, 1971; Idaho, March 30, 1971; Iowa,
March 30, 1971; Nebraska, April 2, 1971; New Jersey, April 3, 1971;
Kansas, April 7, 1971; Michigan, April 7, 1971; Alaska, April 8, 1971;
Maryland, April 8, 1971; Indiana, April 8, 1971; Maine, April 9, 1971;
Vermont, April 16, 1971; Louisiana, April 17, 1971; California, April 19,
1971; Colorado, April 27, 1971; Pennsylvania, April 27, 1971; Texas,
April 27, 1971; South Carolina, April 28, 1971; West Virginia, April 28,
1971; New Hampshire, May 13, 1971; Arizona, May 14, 1971; Rhode Is-
land, May 27, 1971; New York, June 2, 1971; Oregon, June 4, 1971; Mis-
souri, June 14, 1971; Wisconsin, June 22, 1971; Illinois, June 29, 1971;
Alabama, June 30, 1971; Ohio, June 30, 1971; North Carolina, July 1,
1971; Oklahoma, July 1, 1971.
Ratification was completed on July 1, 1971.
The amendment was subsequently ratified by Virginia, July 8, 1971;
Wyoming, July 8, 1971; Georgia, October 4, 1971.
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CONSTITUTION OF THE UNITED STATES
[AMENDMENT XXVII] § 258
SECTION 2. The Congress shall have power to
enforce this article by appropriate legislation.
AMENDMENT XXVII.18
No law, varying the compensation for the serv-
ices of the Senators and Represent-
§ 258. Timing of law
varying congressional
compensation.atives, shall take effect, until an
election of Representatives shall
have intervened.
To quell speculation over the efficacy of a ratification process spanning
two centuries, the House adopted a concurrent resolution declaring the
ratification of the amendment (H. Con. Res. 320, May 19, 1992, p. 11779
(adopted May 20, 1992, p. 12051)). The Senate adopted both a separate
concurrent resolution and a simple resolution making similar declarations
(S. Con. Res. 120 and S. Res. 298, May 20, 1992, p. 11869). Neither House
considered the concurrent resolution of the other. For a concurrent resolu-
tion declaring the ratification of the 14th amendment, see July 21, 1868.
For opinions of the Supreme Court concerning the duration of the ratifica-
18 The 27th amendment to the Constitution was proposed on September
25, 1789. It was declared to have been ratified by the legislatures of 39
of the 50 States in a certificate of the Archivist dated May 18, 1992. The
dates of ratification were: Maryland, December 19, 1789; North Carolina,
December 22, 1789; South Carolina, January 19, 1790; Delaware, Janu-
ary 28, 1790; Vermont, November 3, 1791; Virginia, December 15, 1791;
Ohio, May 6, 1873; Wyoming, March 6, 1978; Maine, April 27, 1983; Col-
orado, April 22, 1984; South Dakota, February 21, 1985; New Hamp-
shire, March 7, 1985; Arizona, April 3, 1985; Tennessee, May 23, 1985;
Oklahoma, July 10, 1985; New Mexico, February 14, 1986; Indiana, Feb-
ruary 24, 1986; Utah, February 25, 1986; Arkansas, March 6, 1987; Mon-
tana, March 17, 1987; Connecticut, May 13, 1987; Wisconsin, July 15,
1987; Georgia, February 2, 1988; West Virginia, March 10, 1988; Lou-
isiana, July 7, 1988; Iowa, February 9, 1989; Idaho, March 23, 1989; Ne-
vada, April 26, 1989; Alaska, May 6, 1989; Oregon, May 19, 1989; Min-
nesota, May 22, 1989; Texas, May 25, 1989; Kansas, April 5, 1990; Flor-
ida, May 31, 1990; North Dakota, March 25, 1991; Alabama, May 5,
1992; Missouri, May 5, 1992; Michigan, May 7, 1992; New Jersey, May
7, 1992.
Ratification was completed on May 7, 1992. The amendment was sub-
sequently ratified by Illinois, May 12, 1992; California, June 26, 1992;
Rhode Island, June 10, 1993; Hawaii, April 26, 1994; Washington, Au-
gust 12, 1995; Kentucky, March 21, 1996; Nebraska, April 1, 2016.
[125]
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CONSTITUTION OF THE UNITED STATES
§ 258 [AMENDMENT XXVII]
tion process and the contemporaneity of State ratifications, see Dillon v.
Gloss, 256 U.S. 368 (1921) and Coleman v. Miller, 307 U.S. 433 (1939).
A law enacted in the 113th Congress directed the payroll administrators
of each House to withhold the pay of Members or Senators until either
(1) a concurrent resolution on the budget was adopted in their respective
body or (2) in order to ensure compliance with the 27th amendment, the
final day of the 113th Congress (P.L. 113-3).
For Federal court opinions upholding congressional cost-of-living adjust-
ments for Members under the Ethics Reform Act of 1989 (103 Stat. 1716),
see Boehner v. Anderson, 809 F. Supp. 138 (D.D.C. 1992), aff’d, 30 F.3d
156 (D.C. Cir 1994); Schaffer v. Clinton, 54 F. Supp.2d 1014 (D.Colo. 1999).
[126]
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JEFFERSON’S MANUAL
[127]
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JEFFERSON’S MANUAL OF PARLIAMENTARY
PRACTICE 1
SEC. I—IMPORTANCE OF ADHERING TO RULES
Mr. Onslow, the ablest among the Speakers of
the House of Commons, used to say,
§ 283. Rules as related
to the privileges of
minorities. ‘‘It was a maxim he had often heard
when he was a young man, from old
1 Jefferson’s Manual was prepared by Thomas Jefferson for his own
guidance as President of the Senate in the years of his Vice Presidency,
from 1797 to 1801. In 1837 the House, by rule that still exists, provided
that the provisions of the Manual should ‘‘govern the House in all cases
to which they are applicable and in which they are not inconsistent with
the Rules and orders of the House.’’ Rule XXIX, § 1105, infra. In 1880
the committee that revised the Rules of the House declared in their re-
port that the Manual, ‘‘compiled as it was for the use of the Senate exclu-
sively and made up almost wholly of collations of English parliamentary
practice and decisions, it was never especially valuable as an authority
in the House of Representatives, even in its early history, and for many
years past has been rarely quoted in the House’’ (V, 6757). This state-
ment, although sanctioned by high authority, is extreme, for in certain
parts of the Manual are to be found the foundations of some of the most
important portions of the House’s practice.
The Manual is regarded by English parliamentarians as the best state-
ment of what the law of Parliament was at the time
§ 284. The Manual as a
statement of Jefferson wrote it. Jefferson himself says, in the pref-
parliamentary law. ace of the work:
‘‘I could not doubt the necessity of quoting the sources of my informa-
tion, among which Mr. Hatsel’s most valuable book is preeminent; but
as he has only treated some general heads, I have been obliged to recur
to other authorities in support of a number of common rules of practice,
to which his plan did not descend. Sometimes each authority cited sup-
ports the whole passage. Sometimes it rests on all taken together. Some-
times the authority goes only to a part of the text, the residue being in-
ferred from known rules and principles. For some of the most familiar
Continued
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JEFFERSON’S MANUAL
§ 283
and experienced Members, that nothing tended
more to throw power into the hands of adminis-
tration, and those who acted with the majority
of the House of Commons, than a neglect of, or
departure from, the rules of proceeding; that
these forms, as instituted by our ancestors, oper-
ated as a check and control on the actions of the
majority, and that they were, in many instances,
a shelter and protection to the minority, against
the attempts of power.’’ So far the maxim is cer-
tainly true, and is founded in good sense, that as
it is always in the power of the majority, by
their numbers, to stop any improper measures
proposed on the part of their opponents, the only
weapons by which the minority can defend
themselves against similar attempts from those
in power are the forms and rules of proceeding
which have been adopted as they were found
forms no written authority is or can be quoted, no writer having sup-
posed it necessary to repeat what all were presumed to know. The state-
ment of these must rest on their notoriety.
‘‘I am aware that authorities can often be produced in opposition to the
rules which I lay down as parliamentary. An attention to dates will gen-
erally remove their weight. The proceedings of Parliament in ancient
times, and for a long while, were crude, multiform, and embarrassing.
They have been, however, constantly advancing toward uniformity and
accuracy, and have now attained a degree of aptitude to their object be-
yond which little is to be desired or expected.
‘‘Yet I am far from the presumption of believing that I may not have
mistaken the parliamentary practice in some cases, and especially in
those minor forms, which, being practiced daily, are supposed known to
everybody, and therefore have not been committed to writing. Our re-
sources in this quarter of the globe for obtaining information on that part
of the subject are not perfect. But I have begun a sketch, which those
who come after me will successively correct and fill up, till a code of rules
shall be formed for the use of the Senate, the effects of which may be
accuracy in business, economy of time, order, uniformity, and impar-
tiality.’’
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JEFFERSON’S MANUAL
§ 285
necessary, from time to time, and are become
the law of the House, by a strict adherence to
which the weaker party can only be protected
from those irregularities and abuses which these
forms were intended to check, and which the
wantonness of power is but too often apt to sug-
gest to large and successful majorities, 2 Hats.,
171, 172.
And whether these forms be in all cases the
§ 285. Necessity of most rational or not is really not of
rules of action.
so great importance. It is much
more material that there should be a rule to go
by than what that rule is; that there may be a
uniformity of proceeding in business not subject
to the caprice of the Speaker or captiousness of
the members. It is very material that order, de-
cency, and regularity be preserved in a dignified
public body. 2 Hats., 149.
Jefferson also says in his preface, as to the source most desirable at
that time from which to draw principles of procedure:
‘‘But to what system of rules is he to recur, as supplementary to those
of the Senate? To this there can be but one answer:
§ 286. Relations of the
parliamentary law to To the system of regulations adopted for the govern-
the early practice of ment of some one of the parliamentary bodies within
Congress. these States, or of that which has served as a proto-
type to most of them. This last is the model which we
have all studied, while we are little acquainted with the modifications of
it in our several States. It is deposited, too, in publications possessed by
many, and open to all. Its rules are probably as wisely constructed for
governing the debates of a deliberative body, and obtaining its true
sense, as any which can become known to us; and the acquiescence of
the Senate, hitherto, under the references to them, has given them the
sanction of the approbation.’’
Those portions of the Manual that refer exclusively to Senate proce-
dure or that refer to English practice wholly inapplicable to the House
have been omitted. Paragraphs from the Constitution of the United
States have also been omitted, because the Constitution is printed in full
in this volume.
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JEFFERSON’S MANUAL
§ 287
Whether the House is in order so that a Member may proceed in debate
is determined by the Chair (Speaker McCormack, Dec. 9, 1963, p. 23831;
Apr. 23, 2008, pp. 6748, 6749), who may refuse to proceed with business
in the face of a breach of decorum (Mar. 13, 2014, p. 4393), such as the
mass presence of Members in the well while not under recognition (Prece-
dents (Wickham), ch. 6, § 6.1). Alleged partiality in making such a deter-
mination has been renounced (July 31, 2008, p. 17495). The comportment
of a presiding officer has formed the basis of a question of privilege (Aug.
3, 2007, p. 22783).
* * * * *
SEC. III—PRIVILEGE
The privileges of members of Parliament, from
small and obscure beginnings, have
§ 287. Privileges of
members of
Parliament. been advancing for centuries with a
firm and never yielding pace.
Claims seem to have been brought forward from
time to time, and repeated, till some example of
their admission enabled them to build law on
that example. We can only, therefore, state the
points of progression at which they now are. It
is now acknowledged, 1st. That they are at all
times exempted from question elsewhere, for
anything said in their own House; that during
the time of privilege, 2d. Neither a member him-
self, his, order H. of C. 1663, July 16, wife, nor
his servants (familiares sui), for any matter of
their own, may be, Elsynge, 217; 1 Hats., 21; 1
Grey’s Deb., 133, arrested on mesne process, in
any civil suit: 3d. Nor be detained under execu-
tion, though levied before time of privilege: 4th.
Nor impleaded, cited, or subpoenaed in any
court: 5th. Nor summoned as a witness or juror:
6th. Nor may their lands or goods be distrained:
7th. Nor their persons assaulted, or characters
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JEFFERSON’S MANUAL
§ 288
traduced. And the period of time covered by
privilege, before and after the session, with the
practice of short prorogations under the conniv-
ance of the Crown, amounts in fact to a per-
petual protection against the course of justice. In
one instance, indeed, it has been relaxed by the
10 G. 3, c. 50, which permits judiciary pro-
ceedings to go on against them. That these privi-
leges must be continually progressive, seems to
result from their rejecting all definition of them;
the doctrine being, that ‘‘their dignity and inde-
pendence are preserved by keeping their privi-
leges indefinite; and that ‘the maxims upon
which they proceed, together with the method of
proceeding, rest entirely in their own breast, and
are not defined and ascertained by any par-
ticular stated laws.’ ’’ 1 Blackst., 163, 164.
For a modern discussion of privileges of Members of Parliament, see
Report of Joint Committee on Parliamentary Privilege of the House of Com-
mons (H.C. 214–1, Mar. 30, 1999).
It was probably from this view of the en-
§ 288. Privilege of croaching character of privilege that
Members of Congress
under the the framers of our Constitution, in
Constitution.
their care to provide that the laws
shall bind equally on all, and especially that
those who make them shall not exempt them-
selves from their operation, have only privileged
‘‘Senators and Representatives’’ themselves from
the single act of ‘‘arrest in all cases except trea-
son, felony, and breach of the peace, during their
attendance at the session of their respective
Houses, and in going to and returning from the
same, and from being questioned in any other
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JEFFERSON’S MANUAL
§ 289
place for any speech or debate in either House.’’
Const. U.S. Art I, Sec. 6. Under the general au-
thority ‘‘to make all laws necessary and proper
for carrying into execution the powers given
them,’’ Const. U.S., Art. II, Sec. 8, they may pro-
vide by law the details which may be necessary
for giving full effect to the enjoyment of this
privilege. No such law being as yet made, it
seems to stand at present on the following
ground: 1. The act of arrest is void, ab initio. 2
Stra., 989. 2. The member arrested may be dis-
charged on motion, 1 Bl., 166; 2 Stra., 990; or by
habeas corpus under the Federal or State au-
thority, as the case may be; or by a writ of privi-
lege out of the chancery, 2 Stra., 989, in those
States which have adopted that part of the laws
of England. Orders of the House of Commons,
1550, February 20. 3. The arrest being unlawful,
is a trespass for which the officer and others
concerned are liable to action or indictment in
the ordinary courts of justice, as in other cases
of unauthorized arrest. 4. The court before
which the process is returnable is bound to act
as in other cases of unauthorized proceeding,
and liable, also, as in other similar cases, to
have their proceedings stayed or corrected by
the superior courts.
The time necessary for going to, and returning
§ 289. Privilege as to from, Congress, not being defined,
going and returning.
it will, of course, be judged of in
every particular case by those who will have to
decide the case. While privilege was understood
in England to extend, as it does here, only to ex-
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JEFFERSON’S MANUAL
§ 290–§ 291a
emption from arrest, eundo, morando, et
redeundo, the House of Commons themselves de-
cided that ‘‘a convenient time was to be under-
stood.’’ (1580) 1 Hats., 99, 100. Nor is the law so
strict in point of time as to require the party to
set out immediately on his return, but allows
him time to settle his private affairs, and to pre-
pare for his journey; and does not even scan his
road very nicely, nor forfeit his protection for a
little deviation from that which is most direct;
some necessity perhaps constraining him to it. 2
Stra., 986, 987.
This privilege from arrest, privileges, of
§ 290. Privilege of course, against all process the dis-
Members as related to
rights of courts to obedience to which is punishable by
summon witnesses
and jurors.
an attachment of the person; as a
subpoena ad respondendum, or
testificandum, or a summons on a jury; and with
reason, because a Member has superior duties to
perform in another place. When a Representa-
tive is withdrawn from his seat by summons, the
40,000 people whom he represents lose their
voice in debate and vote, as they do on his vol-
untary absence; when a Senator is withdrawn by
summons, his State loses half its voice in debate
and vote, as it does on his voluntary absence.
The enormous disparity of evil admits no com-
parison.
The House has decided that the summons of a court to Members to attend
and testify constituted a breach of privilege, and di-
§ 291a. Attitude of the
House as to demandsrected them to disregard the mandate (III, 2661); but
of the courts. in other cases wherein Members informed the House
that they had been summoned before the District Court
of the United States for the District of Columbia or other courts, the House
authorized them to respond (III, 2662; Feb. 23, 1948, p. 1557; Mar. 5, 1948,
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JEFFERSON’S MANUAL
§ 291a
p. 2224; Apr. 8, 1948, p. 4264; Apr. 12, 1948, p. 4347; Apr. 14, 1948, p.
4461; Apr. 15, 1948, p. 4529; Apr. 28, 1948, p. 5009; May 6, 1948, pp.
5433, 5451; Feb. 2, 1950, p. 1399; Apr. 4, 1951, p. 3320; Apr. 9, 1951,
p. 3525; Apr. 12, 1951, pp. 3751, 3752; Apr. 13, 1951, p. 3915; June 4,
1951, p. 6084; June 22, 1951, p. 7001; Sept. 18, 1951, p. 11571; Sept. 27,
1951, p. 12292; Mar. 5, 1953, p. 1658; Mar. 18, 1953, p. 2085; Mar. 11,
1954, p. 3102; July 19, 1954, p. 10904; Apr. 9, 1956, p. 5970; Apr. 10,
1956, p. 5991). The House, however, has declined to make a general rule
permitting Members to waive their privilege, preferring that the Member
in each case should apply for permission (III, 2660). Also in maintenance
of its privilege the House has refused to permit the Clerk or other officers
to produce in court, in obedience to a summons, an original paper from
the files, but has given the court facilities for making copies (III, 2664,
2666; Apr. 15, 1948, p. 4552; Apr. 29, 1948, pp. 5161, 5162; May 6, 1948,
p. 5432; Jan. 18, 1950, p. 565; Feb. 8, 1950, p. 1695; Feb. 13, 1950, p.
1765; Sept. 22, 1950, p. 15636; Apr. 6, 1951, p. 3403; Apr. 12, 1951, p.
3800; Oct. 20, 1951, p. 13777; Jan. 22, 1953, p. 498; May 25, 1953, p.
5523; Jan. 28, 1954, p. 964; Feb. 25, 1954, p. 2281; July 1, 1955, p. 9818;
Apr. 12, 1956, p. 6258; Apr. 24, 1958, p. 7262; Apr. 29, 1958, p. 7636;
Sept. 16, 1974, p. 31123; Jan. 19, 1977, p. 1728), but on one occasion,
in which the circumstances warranted such action, the Clerk was permitted
to respond and take with him certified copies of certain documents de-
scribed in the subpoena (H. Res. 601, Oct. 29, 1969, p. 32005) and on two
other occasions, in response to a request from the Department of Justice,
to provide a copy of the audio backup file of a committee deposition made
by the Official Reporters of Debate to the prosecuting attorney for use
in a criminal proceeding (Precedents (Wickham), ch. 6, § 26.7; Sept. 12,
2019, p. l); and on the rare occasions in which the House has permitted
the production of an original paper from its files, it has made explicit provi-
sion for its return (H. Res. 1022, 1023, Jan. 16, 1968, p. 80; H. Res. 1429,
July 27, 1976, p. 24089). No officer or employee, except by authority of
the House, should produce before any court a paper from the files of the
House, nor furnish a copy of any paper except by authority of the House
or a statute (III, 2663; VI, 587; Apr. 15, 1948, p. 4552; Apr. 30, 1948,
pp. 5161, 5162; May 6, 1948, p. 5432; Jan. 18, 1950, p. 565; Feb. 8, 1950,
p. 1695; Feb. 13, 1950, p. 1765; Sept. 22, 1950, p. 15636; Apr. 6, 1951,
p. 3403; Apr. 12, 1951, p. 3800; Oct. 20, 1951, p. 13777; Mar. 10, 1954,
p. 3046; Feb. 7, 1955, p. 1215; May 7, 1956, p. 7588; Precedents (Wickham),
ch. 6, § 27.3). In the 98th Congress, the House adopted a resolution denying
compliance with a subpoena issued by a Federal Court for the production
of records in the possession of the Clerk (documents of a select committee
from the prior Congress), where the Speaker and joint leadership had in-
structed the Clerk in the previous Congress not to produce such records
and where the Court refused to stay the subpoena or to allow the select
committee to intervene to protect its interest; the resolution directed the
Counsel to the Clerk to assert the rights and privileges of the House and
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JEFFERSON’S MANUAL
§ 291b
to take all steps necessary to protect the rights of the House (Precedents
(Wickham), ch. 6, § 26.4). On appeal from a subsequent district court judg-
ment finding the Clerk in contempt, the Court of Appeals reversed on the
ground that a subpoena to depose a nonparty witness under the Federal
Rules of Civil Procedure may only be served in the district (of Maryland)
where it was issued. In re Guthrie, 733 F.2d 634 (4th Cir. 1984). If an
official of both Houses of Congress is subpoenaed in his official capacity,
the concurrence of both Houses by concurrent resolution is required to
permit compliance (Precedents (Wickham), ch. 6, § 26.8). The House has
authorized a former committee employee to provide testimony in a criminal
proceeding, such authorization having been provided by the committee in
the previous two Congresses (sec. 3(f)(3), H. Res. 5, Jan. 6, 2015, p. 36).
A resolution routinely adopted up to the 95th Congress provided that
when the House had recessed or adjourned Members, officers, and employ-
ees were authorized to appear in response to subpoenas duces tecum, but
were prohibited from producing official papers in response thereto; the
resolution also provided that when a court found that official papers, other
than executive session material, were relevant, the court could obtain cop-
ies thereof through the Clerk of the House (see, e.g., H. Res. 12, Jan. 3,
1973, p. 30). In the 95th Congress, the House for the first time by resolution
permitted this same type of general response whether or not the House
is in session or in adjournment if a court has found that specific documents
in possession of the House are material and relevant to judicial pro-
ceedings. The House reserved to itself the right to revoke this general
permission in any specific case in which the House desires to make a dif-
ferent response (H. Res. 10, Jan. 4, 1977, p. 73; H. Res. 10, Jan. 15, 1979,
p. 19). The permission did not apply to executive session material, such
as a deposition of a witness in executive session of a committee, which
could be released only by a separate resolution passed by the House (H.
Res. 296, June 4, 1979, p. 13180). H. Res. 10 of the 96th Congress was
clarified and revised later in that Congress by H. Res. 722 (Sept. 17, 1980,
pp. 25777–90) and became the basis for rule VIII, added as rule L in the
97th Congress (H. Res. 5, Jan. 5, 1981, pp. 98–113, see § 697, infra).
Although the statutes provide that the Department of Justice may rep-
§ 291b. Judicial
resent any officer of the House or Senate in the event
appearances on behalf of judicial proceedings against such officer in relation
of House. to the performance of official duties (see 2 U.S.C. 5503),
and that the Department of Justice shall generally rep-
resent the interests of the United States in court (28 U.S.C. 517), the House
has on occasion authorized special appearances on its own behalf by special
counsel when the prerogatives or powers of the House have been questioned
in the courts. The House has adopted privileged resolutions authorizing
the chair of a subcommittee to intervene in any judicial proceeding con-
cerning subpoenas duces tecum issued by that committee, authorizing the
appointment of a special counsel to carry out the purposes of such a resolu-
tion, and providing for the payment from the contingent fund (now referred
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JEFFERSON’S MANUAL
§ 291b
to as ‘‘applicable accounts of the House described in clause 1(k)(1) of rule
X’’) of expenses to employ such special counsel (H. Res. 1420, Aug. 26,
1976, p. 27858; H. Res. 334, May 9, 1977, pp. 13949–52), authorizing the
Sergeant-at-Arms to employ a special counsel to represent him in a pending
action in Federal court in which he was named as a defendant, and pro-
viding for the payment from the contingent fund of expenses to employ
such counsel (H. Res. 1497, Sept. 2, 1976, p. 28937), and authorizing the
chair of the Committee on House Administration to intervene as a party
in a pending civil action in the U.S. Court of Claims, to defend on behalf
of the House the constitutional authority to make laws necessary and prop-
er for executing its constitutional powers, authorizing the employment of
special counsel for such purpose, and providing for the payment from the
contingent fund of expenses to employ such counsel (H. Res. 884, Nov.
2, 1977, p. 36661). The House has authorized the Speaker to take any
steps considered necessary to protect the interests of the House before
the court (H. Res. 49, Jan. 29, 1981, p. 1304) or to submit briefs amicus
curiae (H. Res. 639, Mar. 17, 2016, pp. 3369, 3370 (see Apr. 18, 2016,
p. l for notification to the House of the filing of a brief pursuant to this
authorization)). The House has authorized the Speaker to initiate or inter-
vene in civil actions regarding the failure of the President or any other
employee of the executive branch to implement a given law and authorized
the Office of General Counsel to represent the House in such matters and
to employ outside counsel (Precedents (Wickham), ch. 6, § 19.3), which au-
thority was continued in the next Congress (sec. 3(f)(2), H. Res. 5, Jan.
6, 2015, p. 36). The House has also authorized the Speaker to intervene
in an existing case and appellate proceedings arising therefrom, and to
intervene or appear in any other similar case in order to defend a particular
law, and has authorized the Office of General Counsel to represent the
House in such matters and to employ outside counsel (sec. 103(n), H. Res.
6, Jan. 3, 2019, p. l; title III, H. Res. 6, Jan. 9, 2019, p. l). The House
has on occasion adopted privileged resolutions, reported from the Com-
mittee on Rules, authorizing standing or select committees to make appli-
cations to courts in connection with their investigations (H. Res. 252, Feb.
9, 1977, pp. 3966–75; H. Res. 760, Sept. 28, 1977, pp. 31329–36; H. Res.
67, Mar. 4, 1981, pp. 3529–33), including regarding judicial enforcement
of committee subpoenas (H. Res. 706, June 28, 2012, p. 10512, continued
in the next two Congresses by sec. 4(a)(2), H. Res. 5, Jan. 3, 2013, p. 27
and sec. 3(f)(1), H. Res. 5, Jan. 6, 2015, p. 36). In the 116th Congress
the House adopted a resolution reported by the Committee on Rules author-
izing a standing committee to intervene in or initiate judicial proceedings
with respect to several specified investigations and reaffirming the author-
ity of committees to initiate or intervene in judicial proceedings with re-
spect to any subpoena issued by such committee if authorized to do so
by the Bipartisan Legal Advisory Group pursuant to clause 8(b) of rule
II (H. Res. 430, June 11, 2019, p. l). The House has also adopted (by
special rule) an unreported resolution on the same topic (H. Res. 980, Feb.
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JEFFERSON’S MANUAL
§ 292–§ 293
14, 2008, pp. 2190, 2191, continued and expanded in the next Congress
by sec. 4(f), H. Res. 5, Jan. 6, 2009, p. 10), and in the 116th Congress
the House adopted (by special rule) an unreported resolution ratifying and
reaffirming current and future investigations and subpoenas issued by
committees with respect to certain individuals and subject matters (H.
Res. 507, July 24, 2019, p. l). In the 115th Congress, the House enabled
continuing litigation authority by adopting clause 8(c) of rule II (sec. 2(h),
H. Res. 5, Jan. 3, 2017, p. l), and amended such clause in the 117th
Congress to clarify that the issuance of subpoenas is included under such
continuing litigation authority (sec. 2(c), H. Res. 8, Jan. 4, 2021, p. l).
For a discussion of the Office of General Counsel, which was established
to provide legal assistance and representation to the House without regard
to political affiliation and in consultation with the Bipartisan Legal Advi-
sory Group, see clause 8 of rule II, §§ 670, 670a, infra.
When either House desires the attendance of a Member of the other
to give evidence it is the practice to ask the other House
§ 292. Attitude of one
House as to demands that the Member have leave to attend, and the use of
of the other for a subpoena is of doubtful propriety (III, 1794). However,
attendance or papers.in one case the Senate did not consider that its privilege
forbade the House to summon one of its officers as a
witness (III, 1798). But when the Secretary of the Senate was subpoenaed
to appear before a committee of the House with certain papers from the
files of the Senate, the Senate discussed the question of privilege before
empowering him to attend (III, 2665). For discussion of the means by which
one House may prefer a complaint against a Member or officer of the other,
see § 373, infra.
So far there will probably be no difference of
§ 293. Power of the opinion as to the privileges of the
House to punish for
contempts. two Houses of Congress; but in the
following cases it is otherwise. In
December, 1795, the House of Representatives
committed two persons of the name of Randall
and Whitney for attempting to corrupt the integ-
rity of certain Members, which they considered
as a contempt and breach of the privileges of the
House; and the facts being proved, Whitney was
detained in confinement a fortnight and Randall
three weeks, and was reprimanded by the
Speaker. In March, 1796, the House voted a
challenge given to a Member of their House to
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JEFFERSON’S MANUAL
§ 294–§ 295
be a breach of the privileges of the House; but
satisfactory apologies and acknowledgments
being made, no further proceeding was had.
* * *
The cases of Randall and Whitney (II, 1599–1603) were followed in 1818
§ 294. Decision of the
by the case of John Anderson, a citizen, who for at-
court in Anderson’s tempted bribery of a Member was arrested, tried, and
case. censured by the House (II, 1606). Anderson appealed
to the courts and this procedure finally resulted in a
discussion by the Supreme Court of the United States of the right of the
House to punish for contempts, and a decision that the House by implica-
tion has the power to punish, because ‘‘public functionaries must be left
at liberty to exercise the powers which the people have intrusted to them,’’
and ‘‘the interests and dignity of those who created them require the exer-
tion of the powers indispensable to the attainment of the ends of their
creation. Nor is a casual conflict with the rights of particular individuals
any reason to be urged against the exercise of such powers’’ (II, 1607;
Anderson v. Dunn, 19 U.S. (6 Wheat.) 204, 226, 227 (1821)). In 1828 an
assault on the President’s secretary in the Capitol gave rise to a question
of privilege that involved a discussion of the inherent power of the House
to punish for contempt (II, 1615). Again in 1832, when the House censured
Samuel Houston, a citizen, for assault on a Member for words spoken in
debate (II, 1616), there was a discussion by the House of the doctrine of
inherent and implied power as opposed to the other doctrine that the House
might exercise no authority not expressly conferred on it by the Constitu-
tion or the laws of the land (II, 1619). In 1865 the House arrested and
censured a citizen for attempted intimidation and assault on a member
(II, 1625); in 1866, a citizen who had assaulted the clerk of a committee
of the House in the Capitol was arrested by order of the House, but because
there was not time to punish in the few remaining days of the session,
the Sergeant-at-Arms was directed to turn the prisoner over to the civil
authorities of the District of Columbia (II, 1629); and in 1870 Woods, who
had assaulted a Member on his way to the House, was arrested on warrant
of the Speaker, arraigned at the bar, and imprisoned for a term extending
beyond the adjournment of the session, although not beyond the term of
the existing House (II, 1626–1628).
In 1876 the arrest and imprisonment by the House of Hallet Kilbourn,
§ 295. Views of the
a contumacious witness, resulted in a decision by the
court in Kilbourn’s Supreme Court of the United States that the House
case. had no general power to punish for contempt, as in a
case wherein it was proposing to coerce a witness in
an inquiry not within the constitutional authority of the House. The Court
also discussed the doctrine of inherent power to punish, saying in conclu-
sion, ‘‘We are of opinion that the right of the Houses of Representatives
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JEFFERSON’S MANUAL
§ 296
to punish the citizen for a contempt of its authority or a breach of its
privileges can derive no support from the precedents and practices of the
two Houses of the English Parliament, nor from the adjudged cases in
which the English courts have upheld these practices. Nor, taking what
has fallen from the English judges, and especially the later cases on which
we have just commented, is much aid given to the doctrine, that this power
exists as one necessary to enable either House of Congress to exercise
successfully their function of legislation. This latter proposition is one that
we do not propose to decide in the present case, because we are able to
decide it without passing upon the existence or nonexistence of such a
power in aid of the legislative function’’ (Kilbourn v. Thompson, 103 U.S.
168, 189 (1880); II, 1611). In 1894, in the case of Chapman, another con-
tumacious witness, the Supreme Court affirmed the undoubted right of
either House of Congress to punish for contempt in cases to which its power
properly extends under the expressed terms of the Constitution (II, 1614;
In re Chapman, 1166 U.S. 661 (1897)). The nature of the punishment that
the House may inflict was discussed by the Court in Anderson’s case (II,
1607; Anderson v. Dunn, 19 U.S. (6 Wheat.) 204 (1821)).
In the case of Marshall v. Gordon, 243 U.S. 521 (1917), the Court ad-
dressed the following situation:
Appellant, while United States Attorney for the Southern District of New
§ 296. Decision of the
York, conducted a grand jury investigation that led to
court in Marshall v. the indictment of a Member of the House. Acting on
Gordon. charges of misfeasance and nonfeasance made by the
Member against appellant in part before the indictment
and renewed with additions afterward, the House by resolution directed
its Judiciary Committee to make inquiry and report concerning appellant’s
liability to impeachment. Such inquiry being in progress through a sub-
committee, appellant addressed to the subcommittee’s chair, and gave to
the press, a letter, charging the subcommittee with an endeavor to probe
into and frustrate the action of the grand jury, and couched in terms cal-
culated to arouse the indignation of the members of that committee and
those of the House generally. Thereafter, appellant was arrested in New
York by the Sergeant-at-Arms pursuant to a resolution of the House where-
by the letter was characterized as defamatory and insulting and as tending
to bring that body into public contempt and ridicule, and whereby appellant
in writing and publishing such letter was adjudged to be in contempt of
the House in violating its privileges, honor, and dignity. He applied for
habeas corpus.
The court held that the proceedings concerning which the alleged con-
tempt was committed were not impeachment proceedings; that, whether
they were impeachment proceedings or not, the House was without power
by its own action, as distinct from such action as might be taken under
criminal laws, to arrest or punish for such acts as were committed by appel-
lant.
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§ 296
No express power to punish for contempt was granted to the House save
the power to deal with contempts committed by its own Members (art.
I, sec. 5). The possession by Congress of the commingled legislative and
judicial authority to punish for contempts that was exerted by the House
of Commons is at variance with the view and tendency existing in this
country when the Constitution was adopted, as evidenced by the manner
in which the subject was treated in many State constitutions, beginning
at or about that time and continuing thereafter. Such commingling of pow-
ers would be destructive of the basic constitutional distinction between
legislative, executive, and judicial power, and repugnant to limitations that
the Constitution fixes expressly; hence there is no warrant whatever for
implying such a dual power in aid of other powers expressly granted to
Congress. The House has implied power to deal directly with contempt
so far as is necessary to preserve and exercise the legislative authority
expressly granted. Being, however, a power of self-preservation, a means
and not an end, the power does not extend to infliction of punishment,
as such; it is a power to prevent acts that in and of themselves inherently
prevent or obstruct the discharge of legislative duty and to compel the
doing of those things that are essential to the performance of the legislative
functions. As pointed out in Anderson v. Dunn, 19 U.S. (6 Wheat.) 204
(1821), this implied power in its exercise is limited to imprisonment during
the session of the body affected by the contempt.
The authority does not cease when the act complained of has been com-
mitted, but includes the right to determine in the use of legitimate and
fair discretion how far from the nature and character of the act there is
necessity for repression to prevent immediate recurrence, i.e., the contin-
ued existence of the interference or obstruction to the exercise of legislative
power. In such case, unless there be manifest an absolute disregard of
discretion, and a mere exertion of arbitrary power coming within the reach
of constitutional limitations, the exercise of the authority is not subject
to judicial interference. The power is the same in quantity and quality
whether exerted on behalf of the impeachment powers or of the others
to which it is ancillary. The legislative power to provide by criminal laws
for the prosecution and punishment of wrongful acts is not here involved.
The Senate may invoke its civil contempt statute (2 U.S.C. 288d) to direct
the Senate legal counsel to bring an action in Federal court to compel
a witness to comply with the subpoena of a committee of the Senate. The
House, in contrast, may either certify such a witness to the appropriate
United States Attorney for possible indictment under the criminal con-
tempt statute (2 U.S.C. 192) or exercise its inherent power to commit for
contempt by detaining the recalcitrant witness in the custody of the Ser-
geant-at-Arms.
(See also McGrain v. Daugherty, 273 U.S. 135 (1927); Sinclair v. United
States, 279 U.S. 263 (1929); Jurney v. MacCracken, 294 U.S. 125 (1935);
Quinn v. United States, 349 U.S. 155 (1955); Groppi v. Leslie, 404 U.S.
496 (1972).)
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§ 297–§ 298
* * * The editor of the Aurora having, in his
§ 297. Jefferson’s paper of February 19, 1800, in-
statement of
arguments for serted some paragraphs defamatory
inherent power to
punish for contempt.
of the Senate, and failed in his ap-
pearance, he was ordered to be com-
mitted. In debating the legality of this order, it
was insisted, in support of it, that every man, by
the law of nature, and every body of men, pos-
sesses the right of self-defense; that all public
functionaries are essentially invested with the
powers of self-preservation; that they have an
inherent right to do all acts necessary to keep
themselves in a condition to discharge the trusts
confided to them; that whenever authorities are
given, the means of carrying them into execution
are given by necessary implication; that thus we
see the British Parliament exercise the right of
punishing contempts; all the State Legislatures
exercise the same power, and every court does
the same; that, if we have it not, we sit at the
mercy of every intruder who may enter our
doors or gallery, and, by noise and tumult,
render proceeding in business impracticable;
that if our tranquillity is to be perpetually dis-
turbed by newspaper defamation, it will not be
possible to exercise our functions with the req-
uisite coolness and deliberation; and that we
must therefore have a power to punish these dis-
turbers of our peace and proceedings. * * *
* * * To this it was answered, that the Par-
§ 298. Statement of liament and courts of England have
arguments against the
inherent power to cognizance of contempts by the ex-
punish for contempts.
press provisions of their law; that
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§ 298
the State Legislatures have equal authority be-
cause their powers are plenary; they represent
their constituents completely, and possess all
their powers, except such as their constitutions
have expressly denied them; that the courts of
the several States have the same powers by the
laws of their States, and those of the Federal
Government by the same State laws adopted in
each State, by a law of Congress; that none of
these bodies, therefore, derive those powers from
natural or necessary right, but from express law;
that Congress have no such natural or necessary
power, nor any powers but such as are given
them by the Constitution; that that has given
them, directly, exemption from personal arrest,
exemption from question elsewhere for what is
said in their House, and power over their own
members and proceedings; for these no further
law is necessary, the Constitution being the law;
that, moreover, by that article of the Constitu-
tion which authorizes them ‘‘to make all laws
necessary and proper for carrying into execution
the powers vested by the Constitution in them,’’
they may provide by law for an undisturbed ex-
ercise of their functions, e.g., for the punishment
of contempts, of affrays or tumult in their pres-
ence, &c.; but, till the law be made, it does not
exist; and does not exist, from their own neglect;
that, in the meantime, however, they are not un-
protected, the ordinary magistrates and courts of
law being open and competent to punish all un-
justifiable disturbances or defamations, and
even their own sergeant, who may appoint depu-
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§ 299
ties ad libitum to aid him 3 Grey, 59, 147, 255,
is equal to small disturbances; that in requiring
a previous law, the Constitution had regard to
the inviolability of the citizen, as well as of the
Member; as, should one House, in the regular
form of a bill, aim at too broad privileges, it may
be checked by the other, and both by the Presi-
dent; and also as, the law being promulgated,
the citizen will know how to avoid offense. But
if one branch may assume its own privileges
without control, if it may do it on the spur of the
occasion, conceal the law in its own breast, and,
after the fact committed, make its sentence both
the law and the judgment on that fact; if the of-
fense is to be kept undefined and to be declared
only ex re nata, and according to the passions of
the moment, and there be no limitation either in
the manner or measure of the punishment, the
condition of the citizen will be perilous indeed.
* * *
* * * Which of these doctrines is to prevail,
§ 299. Jefferson’s time will decide. Where there is no
suggestion that a law
might define fixed law, the judgment on any par-
procedure in cases of
contempt.
ticular case is the law of that single
case only, and dies with it. When a
new and even a similar case arises, the judg-
ment which is to make and at the same time
apply to the law, is open to question and consid-
eration, as are all new laws. Perhaps Congress
in the mean time, in their care for the safety of
the citizen, as well as that for their own protec-
tion, may declare by law what is necessary and
proper to enable them to carry into execution
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§ 299
the powers vested in them, and thereby hang up
a rule for the inspection of all, which may direct
the conduct of the citizen, and at the same time
test the judgments they shall themselves pro-
nounce in their own case.
In 1837 the House declined to proceed with a bill ‘‘defining the offense
of a contempt of this House, and to provide for the punishment thereof’’
(II, 1598). Congress has, however, prescribed that a witness summoned
to appear before a committee of either House who does not respond or
who refuses to answer a question pertinent to the subject of the inquiry
shall be deemed guilty of a misdemeanor (2 U.S.C. 192).
A resolution directing the Speaker to certify to the United States Attor-
ney the refusal of a witness to respond to a subpoena issued by a House
committee involves the privileges of the House and may be offered from
the floor as privileged if offered by direction of the committee reporting
the resolution (e.g., Oct. 27, 2000, p. 25200). A committee report to accom-
pany such resolution may therefore be presented to the House without
regard to the availability requirement for other reports (see clause 4 of
rule XIII; July 13, 1971, p. 24720). A resolution with two resolving clauses
separately directing the certification of the contemptuous conduct of two
individuals is subject to a demand for a division of the question as to each
individual (contempt proceedings against Ralph and Joseph Bernstein,
Feb. 27, 1986, p. 3061); as is a resolution with one resolving clause certi-
fying contemptuous conduct of several individuals (Oct. 27, 2000, p. 25200;
contrast, Deschler-Brown, ch. 30, § 49.1). A contempt resolution may be
withdrawn as a matter of right before action thereon (Oct. 27, 2000, p.
25200). The Speaker certifies a contempt case to the United States Attor-
ney (2 U.S.C. 194) and informs the House thereof (e.g., Deschler, ch. 15,
§ 22.3; June 29, 2012, p. 10769; Precedents (Wickham), ch. 6, § 2.1).
In the 97th Congress, the House adopted a resolution directing the
Speaker to certify to the United States Attorney the failure of an official
of the executive branch (Anne M. Gorsuch, Administrator, Environmental
Protection Agency) to submit executive branch documents to a House sub-
committee pursuant to a subcommittee subpoena. This was the first occa-
sion on which the House cited an executive official for contempt of Congress
(Dec. 16, 1982, p. 31754). In the following Congress, the House adopted
(as a question of privilege) a resolution reported from the same committee
certifying to the United States Attorney the fact that an agreement had
been entered into between the committee and the executive branch for
access by the committee to the documents that Anne Gorsuch had failed
to submit and that were the subject of the contempt citation (where the
contempt had not yet been prosecuted) (Aug. 3, 1983, p. 22692). In other
cases in which compliance had subsequently been attained in the same
Congress, the House has adopted privileged resolutions certifying the facts
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§ 300
to the United States Attorney to the end that contempt proceedings be
discontinued (see Deschler, ch. 15, § 21). In the 98th Congress, the House
adopted a privileged resolution directing the Speaker to certify to the
United States Attorney the refusal of a former official of the executive
branch to obey a subpoena to testify before a subcommittee (H. Res. 200,
May 18, 1983, p. 12720). In the 106th Congress the House considered a
resolution directing the Speaker to certify to the United States Attorney
the refusal of three individuals to obey a subpoena duces tecum and to
answer certain questions while appearing under subpoena before a sub-
committee, which resolution was withdrawn before action thereon (H. Res.
657, Oct. 27, 2000, p. 25217). In the 110th Congress, the House adopted
(by special rule) a resolution directing the Speaker to certify to the United
States Attorney the refusal of White House Chief of Staff to produce docu-
ments to a committee, and former White House Counsel to appear, testify,
and produce documents to a subcommittee, each as directed by subpoena
(H. Res. 979, Feb. 14, 2008, pp. 2190, 2191). In the 112th Congress, the
House adopted a resolution directing the Speaker to certify to the United
States Attorney the refusal of the Attorney General to produce documents
to a committee as directed by subpoena (H. Res. 711, June 28, 2012, p.
10514). In the 113th Congress, the House adopted a resolution directing
the Speaker to certify to the United States Attorney the refusal of the
former Director of Exempt Organizations at the Internal Revenue Service
to produce documents to a committee as directed by subpoena (H. Res.
574, May 7, 2014, p. 7490). In the 116th Congress, the House adopted
a resolution directing the Speaker to certify to the United States Attorney
the refusal of the Attorney General and the Secretary of Commerce to
produce documents to a committee as directed by subpoena and authorizing
that committee to take steps to seek civil enforcement of certain subpoenas
(H. Res. 497, July 17, 2019, p. l).
A resolution laying on the table a message from the President containing
certain averments inveighing disrespect toward Members of Congress was
considered as a question of the privileges of the House as a breach of privi-
lege in a formal communication to the House (VI, 330).
Privilege from arrest takes place by force of
§ 300. Status of the election; and before a return be
Member-elect as to
privilege, oath, made a Member elected may be
committee service, etc.
named of a committee, and is to
every extent a Member except that he cannot
vote until he is sworn, Memor., 107, 108.
D’Ewes, 642, col. 2; 643, col. 1. Pet. Miscel. Parl.,
119. Lex. Parl., c. 23.2 Hats., 22, 62.
The Constitution of the United States limits the broad Parliamentary
privilege to the time of attendance on sessions of Congress, and of going
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§ 301
to and returning therefrom. In a case wherein a Member was imprisoned
during a recess of Congress, he remained in confinement until the House,
on assembling, liberated him (III, 2676).
Although a Member may be named to a committee before being sworn,
and in some cases a Member has not taken the oath until long afterwards
(IV, 4483), in the modern practice a Member-elect is elected to a standing
committee effective only when sworn (e.g., H. Res. 26, 27; Precedents
(Wickham), ch. 2, § 1.2). Where a Member-elect participated in various
committee business before taking the oath of office, the House adopted
a resolution ratifying his election to and participation in proceedings of
the committee (Precedents (Wickham), ch. 2, § 3.3). In one case, when a
Member did not appear to take the oath, the Speaker with the consent
of the House appointed another Member to the committee in his place
(IV, 4484). The status of a Member-elect under the Constitution undoubt-
edly differs greatly from the status of a Member-elect under the law of
Parliament. In various inquiries by committees of the House this question
has been examined, with the conclusions that a Member-elect becomes
a Member from the very beginning of the term to which elected (I, 500),
that he is as much an officer of the Government before taking the oath
as afterwards (I, 185), and that his status is distinguished from that of
a Member who has qualified (I, 183, 184). Members-elect may resign or
decline before taking the oath (II, 1230–1233, 1235; Jan. 6, 1999, p. 42).
They have been excluded (I, 449, 464, 474, 550, 551; VI, 56; Mar. 1, 1967,
pp. 4997–5038) and in one case a Member-elect was expelled (I, 476; II,
1262). The names of Members who have not been sworn are not entered
on the roll from which the yeas and nays are called for entry on the Journal
(V, 6048; VIII, 3122), nor are such Members-elect permitted to vote or
introduce bills (see § 198, supra). The House has granted a Member-elect
a leave of absence (e.g., Precedents (Wickham), ch. 2, § 1.8; Jan. 6, 2015,
p. 63).
Every man must, at his peril, take notice who
§ 301. Relations of are members of either House re-
Members and others
to privilege. turned of record. Lex. Parl., 23; 4
Inst., 24.
On Complaint of a breach of privilege, the
party may either be summoned, or sent for in
custody of the sergeant. 1 Grey, 88, 95.
The privilege of a Member is the privilege of
the House. If the Member waive it without
leave, it is a ground for punishing him, but can-
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§ 302
not in effect waive the privilege of the House. 3
Grey, 140, 222.
Although the privilege of Members of the House is limited by the Con-
stitution, these provisions of the Parliamentary law are applicable, and
persons who have attempted to bribe Members (II, 1599, 1606), assault
them for words spoken in debate (II, 1617, 1625) or interfere with them
while on the way to attend the sessions of the House (II, 1626), have been
arrested by order of the House by the Sergeant-at-Arms, ‘‘Wherever to
be found.’’ The House has declined to make a general rule to permit Mem-
bers to waive their privilege in certain cases, preferring to give or refuse
permission in each individual case (III, 2660–2662).
In United States v. Helstoski, 442 U.S. 477 (1979), the Supreme Court
discussed the ability of either an individual Member or the entire Congress
to waive the protection of the Speech or Debate Clause. The Court found
first, that the Member’s conduct in testifying before a grand jury and volun-
tarily producing documentary evidence of legislative acts protected by the
Clause did not waive its protection. Assuming, without deciding, that a
Member could waive the Clause’s protection against being prosecuted for
a legislative act, the Court said that such a waiver could only be found
after an explicit and unequivocal renunciation of its immunity, which was
absent in this case. Second, passage of the official bribery statute, 18 U.S.C.
201, did not amount to an institutional waiver of the Speech or Debate
Clause for individual Members. Again assuming without deciding whether
Congress could constitutionally waive the Clause for individual Members,
such a waiver could be shown only by an explicit and unequivocal expres-
sion of legislative intent, and there was no evidence of that in the legislative
history of the statute. The Speech or Debate clause is not an impediment
to the enforcement within the House of the rule prohibiting personalities
in debate (clause 1 of rule XVII, May 25, 1995, p. 14436).
For any speech or debate in either House, they
§ 302. Parliamentary shall not be questioned in any other
law as to questioning
a Member in another place. Const. U.S., I, 6; S. P. protest
place for speech or
debate.
of the Commons to James I, 1621; 2
Rapin, No. 54, pp. 211, 212. But
this is restrained to things done in the House in
a parliamentary course. 1 Rush, 663. For he is
not to have privilege contra morem
parliamentarium, to exceed the bounds and lim-
its of his place and duty. Com. p.
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JEFFERSON’S MANUAL
§ 303–§ 305
If an offense be committed by a member in the
§ 303. Relation of the House, of which the House has cog-
courts to
parliamentary nizance, it is an infringement of
privilege.
their right for any person or court
to take notice of it till the House has punished
the offender or referred him to a due course.
Lex. Parl., 63.
Privilege is in the power of the House, and is
a restraint to the proceeding of inferior courts,
but not of the House itself. 2 Nalson, 450; 2
Grey, 399. For whatever is spoken in the House
is subject to the censure of the House; and of-
fenses of this kind have been severely punished
by calling the person to the bar to make submis-
sion, committing him to the tower, expelling the
House, &c. Scob., 72; L. Parl., c. 22.
It is a breach of order for the Speaker to
§ 304. Breach of refuse to put a question which is in
privilege to refuse to
put a question which order. 1 Hats., 175–6; 5 Grey, 133.
is in order.
Where the Clerk, presiding during organization of the House, declined
to put a question, a Member put the question from the floor (I, 67).
And even in cases of treason, felony, and
§ 305. Parliamentary breach of the peace, to which privi-
law of privilege as
related to treason, lege does not extend as to sub-
felony, etc.
stance, yet in Parliament a member
is privileged as to the mode of proceeding. The
case is first to be laid before the House, that it
may judge of the fact and of the ground of the
accusation, and how far forth the manner of the
trial may concern their privilege; otherwise it
would be in the power of other branches of the
government, and even of every private man,
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§ 306
under pretenses of treason, &c., to take any man
from his service in the House, and so, as many,
one after another, as would make the House
what he pleaseth. Dec’l of the Com. on the King’s
declaring Sir John Hotham a traitor. 4 Rushw.,
586. So, when a member stood indicted for fel-
ony, it was adjudged that he ought to remain of
the House till conviction; for it may be any
man’s case, who is guiltless, to be accused and
indicted of felony, or the like crime. 23 El., 1580;
D’Ewes, 283, col. 1; Lex. Parl., 133.
Where Members of the House have been arrested by the State authorities
the cases have not been laid first before the House; but when the House
has learned of the proceedings, it has investigated to ascertain if the crime
charged was actually within the exceptions of the Constitution (III, 2673),
and in one case in which it found a Member imprisoned for an offense
not within the exceptions it released him by the hands of its own officer
(III, 2676).
The House has not usually taken action in the infrequent instances in
§ 306. Practice as to
which Members have been indicted for felony, and in
Members indicted or one or two instances Members under indictment or
convicted. pending appeal on conviction have been appointed to
committees (IV, 4479). The House has, however,
adopted a resolution expressing the sense of the House that Members con-
victed of certain felonies should refrain from participation in committee
business and from voting in the House until the presumption of innocence
is reinstated or until re-elected to the House (see H. Res. 128, Nov. 14,
1973, p. 36944), and that principle has been incorporated in the Code of
Official Conduct, along with the principle that Members indicted for certain
felonies should resign from committees and party caucus or conference
leadership positions until the charges have been dismissed or reduced to
less than a felony (clause 10 of rule XXIII). A Senator after indictment
was omitted from committees at his own request (IV, 4479), and a Member
who had been convicted in one case did not appear in the House during
the Congress (IV, 4484, footnote). A Senator in one case withdrew from
the Senate pending his trial (II, 1278). After conviction but before the Sen-
ator’s resignation, and while an appeal for rehearing was pending, the
Senate continued its investigation (II, 1282).
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JEFFERSON’S MANUAL
§ 307–§ 309
When it is found necessary for the public serv-
§ 307. Parliamentary ice to put a Member under arrest,
law as to arrest of a
Member. or when, on any public inquiry,
matter comes out which may lead
to affect the person of a member, it is the prac-
tice immediately to acquaint the House, that
they may know the reasons for such a pro-
ceeding, and take such steps as they think prop-
er. 2 Hats., 259. Of which see many examples.
Ib., 256, 257, 258. But the communication is
subsequent to the arrest. 1 Blackst., 167.
It is highly expedient, says Hatsel, for the due
§ 308. A breach of preservation of the privileges of the
privilege for one
House to encroach or separate branches of the legisla-
interfere as to the
other.
ture, that neither should encroach
on the other, or interfere in any
matter depending before them, so as to preclude,
or even influence, that freedom of debate which
is essential to a free council. They are, therefore,
not to take notice of any bills or other matters
depending, or of votes that have been given, or
of speeches which have been held, by the mem-
bers of either of the other branches of the legis-
lature, until the same have been communicated
to them in the usual parliamentary manner. 2
Hats., 252; 4 Inst., 15; Seld. Jud., 53.
Thus the King’s taking notice of the bill for
§ 309. Relations of the suppressing soldiers, depending be-
Sovereign to the
Parliament and its fore the House; his proposing a pro-
Members.
visional clause for a bill before it
was presented to him by the two Houses; his ex-
pressing displeasure against some persons for
matters moved in Parliament during the debate
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JEFFERSON’S MANUAL
§ 310
and preparation of a bill, were breaches of privi-
lege, 2 Nalson, 743; and in 1783, December 17,
it was declared a breach of fundamental privi-
leges, &c., to report any opinion or pretended
opinion of the King on any bill or proceeding de-
pending in either House of Parliament, with a
view to influence the votes of the members, 2
Hats., 251, 6.
* * * * *
SEC. VI—QUORUM
* * * * *
In general the chair is not to be taken till a
§ 310. Necessity of a quorum for business is present; un-
quorum during
business, including less, after due waiting, such a
debate.
quorum be despaired of, when the
chair may be taken and the House adjourned.
And whenever, during business, it is observed
that a quorum is not present, any member may
call for the House to be counted, and being
found deficient, business is suspended. 2 Hats.,
125, 126.
In the House the Speaker takes the Chair at the hour to which the
House stood adjourned and there is no requirement that the House proceed
immediately to establish a quorum, although the Speaker has the authority
under clause 7 of rule XX to recognize for a call of the House at any time.
The question of a quorum is not considered unless properly raised (IV,
2733; VI, 624), and it is not in order for the Speaker to recognize for a
point of no quorum unless the Speaker has put the pending question or
proposition to a vote. Although it was formerly the rule that a quorum
was necessary for debate as well as business (IV, 2935–2949), in the 94th
Congress the House restricted the Chair’s ability to recognize the absence
of a quorum (clause 7 of rule XX). Clause 5(c) of rule XX permits the House
to operate with a ‘‘provisional quorum’’ where the House is without a
quorum due to catastrophic circumstances. In the 116th and 117th Con-
gresses the House adopted a provision, effective during a designated public
health emergency, to count for purposes of establishing a quorum all Mem-
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§ 311–§ 312
bers voting or recording their presence by proxy (sec. 3(b), H. Res. 965,
May 15, 2020, p. l; sec. 3(s), H. Res. 8, Jan. 4, 2021, p. l). Title III
of the Legislative Branch Appropriations Act, 2006, amended Federal elec-
tion 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).
SEC. VII—CALL OF THE HOUSE
On the call of the House, each person rises up
§ 311. Parliamentary as he is called, and answereth; the
rules for call of the
House. absentees are then only noted, but
no excuse to be made till the House
be fully called over. Then the absentees are
called a second time, and if still absent, excuses
are to be heard. Ord. House of Commons, 92.
They rise that their persons may be recog-
nized; the voice, in such a crowd, being an insuf-
ficient verification of their presence. But in so
small a body as the Senate of the United States,
the trouble of rising cannot be necessary.
Orders for calls on different days may subsist
at the same time. 2 Hats., 72.
Rule XX, which provides for a call of the House, does not require Mem-
bers to rise on answering, and quorum calls are normally conducted by
electronic device (clause 2(a) of rule XX). Clause 5(c) of rule XX permits
the House to operate with a ‘‘provisional quorum’’ where the House is with-
out a quorum due to catastrophic circumstances.
* * * * *
SEC. IX—SPEAKER
* * * * *
When but one person is proposed, and no ob-
§ 312. Election of jection made, it has not been usual
Speaker.
in Parliament to put any question
to the House; but without a question the mem-
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§ 313
bers proposing him conduct him to the chair.
But if there be objection, or another proposed, a
question is put by the Clerk. 2 Hats., 158. As are
also questions of adjournment. 6 Gray, 406.
Where the House debated and exchanged mes-
sages and answers with the King for a week
without a Speaker, till they were prorogued.
They have done it de die in diem for fourteen
days. 1 Chand., 331, 335.
On October 23, 2000, the House of Commons, pursuant to a Standing
Order, elected a new Speaker after rejection of twelve other nominees of-
fered one at a time as amendments to the question. The amendments were
offered after refusal of the ‘‘Father of the House of Commons’’ to entertain
a motion to change the Standing Order to require a preliminary secret
ballot. On March 22, 2001, and on October 29, 2002, the House of Commons
adopted Standing Order 1B, requiring that the election of a new Speaker
be by secret ballot (Standing Orders of the House of Commons—Public
Business 2003).
For a discussion of the election of the Speaker of the House of Representa-
tives, see § 27, supra.
In the Senate, a President pro tempore, in the
§ 313. Election of absence of the Vice-President, is
President pro tempore
of the Senate. proposed and chosen by ballot. His
office is understood to be deter-
mined on the Vice-President’s appearing and
taking the chair, or at the meeting of the Senate
after the first recess.
In the later practice the President pro tempore has usually been chosen
by resolution. In 1876 the Senate determined that the tenure of the Office
of a President pro tempore elected at one session does not expire at the
meeting of Congress after the first recess, the Vice President not having
appeared to take the chair; that the death of the Vice President does not
have the effect of vacating the Office of President pro tempore; and that
the President pro tempore holds office at the pleasure of the Senate (II,
1417). 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).
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§ 314–§ 315
Where the Speaker has been ill, other Speak-
ers pro tempore have been ap-
§ 314. Parliamentary
law as to choice of
pointed. Instances of this are 1 H.,
Speaker pro tempore.
4. Sir John Cheyney, and Sir Wil-
liam Sturton, and in 15 H., 6. Sir John Tyrrel,
in 1656, January 27; 1658, March 9; 1659, Janu-
ary 13.
Sir Job Charlton ill, Sey-
mour chosen, 1673, Feb- Not merely pro
"
ruary 18. tem. 1 Chand.,
Seymour being ill, Sir 169, 276, 277.
Robert Sawyer chosen,
1678, April 15.
Sawyer being ill, Seymour chosen.
Thorpe in execution, a new Speaker chosen, 31
H. VI, 3 Grey, 11; and March 14, 1694, Sir John
Trevor chosen. There have been no later in-
stances. 2 Hats., 161; 4 Inst., 8; L. Parl., 263.
The House, by clause 8 of rule I, has provided for appointment and elec-
tion of Speakers pro tempore. Relying on the Act of June 1, 1789 (2 U.S.C.
25), the Clerk recognized for nominations for Speaker, at the convening
of a new Congress, as being of higher constitutional privilege than a resolu-
tion to postpone the election of a Speaker and instead provide for the elec-
tion of a Speaker pro tempore pending the disposition of certain ethics
charges against the nominee of the majority party (Precedents (Wickham),
ch. 1, § 4.1).
A Speaker may be removed at the will of the
House, and a Speaker pro tempore
§ 315. Removal of the
Speaker.
appointed, 2 Grey, 186; 5 Grey, 134.
A resolution declaring the Office of Speaker vacant presents a question
of constitutional privilege (VI, 35), though the House has never removed
a Speaker. In the 116th Congress the House adopted clause 2(a)(3) of rule
IX, providing that such a resolution only constitutes a question of the privi-
leges of the House if offered by direction of a party caucus or conference
(sec. 102(e), H. Res. 6, Jan. 3, 2019, p. l). The House has removed or
suspended other officers, such as Clerk and Doorkeeper (I, 287–290, 292;
II, 1417). A resolution for the removal of an officer is presented as a matter
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§ 316–§ 317
of privilege (I, 284–286; VI, 35). The Speaker may remove the Clerk, Ser-
geant-at-Arms, and Chief Administrative Officer under clause 1 of rule
II (e.g., Dec. 16, 2016, p. l).
SEC. X—ADDRESS
* * * * *
A joint address of both Houses of Parliament
§ 316. Addresses to the is read by the Speaker of the House
President.
of Lords. It may be attended by
both Houses in a body, or by a Committee from
each House, or by the two Speakers only. An ad-
dress of the House of Commons only may be pre-
sented by the Whole House, or by the Speaker,
9 Grey, 473; 1 Chandler, 298, 301; or by such
particular members as are of the privy council.
2 Hats., 278.
In the first years of Congress the President annually delivered an ad-
dress to the two Houses in joint session, and the House then prepared
an address, which the Speaker, attended by the House, carried to the Presi-
dent. A joint rule of 1789 also provided for the presentation of joint address-
es of the two Houses to the President (V, 6630). In 1876 the joint rules
of the House were abrogated, including the joint rule providing for presen-
tation of the joint addresses of the two Houses to the President (V, 6782–
6787). In 1801 President Jefferson transmitted a message in writing and
discontinued the practice of making addresses in person. From 1801 to
1913 all messages were sent in writing (V, 6629), but President Wilson
resumed the custom of making addresses in person on April 8, 1913, and,
with the exception of President Hoover (VIII, 3333), the custom has been
followed generally by subsequent Presidents.
SEC. XI—COMMITTEES
Standing committees, as of Privileges and
§ 317. Appointment of Elections, &c., are usually ap-
standing committees;
and designation and pointed at the first meeting, to con-
duties of chairs
thereof.
tinue through the session. The per-
son first named is generally per-
mitted to act as chairman. But this is a matter
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§ 318–§ 319
of courtesy; every committee having a right to
elect their own chairman, who presides over
them, puts questions, and reports their pro-
ceedings to the House. 4 inst., 11, 12; Scob., 9;
1 Grey, 122.
Before the 62d Congress, standing as well as select committees and their
chairs were appointed by the Speaker, but under the present form of rule
X, adopted in 1911, continued as a part of the Legislative Reorganization
Act of 1946, and revised under the Committee Reform Amendments of
1974 (H. Res. 988, 93d Cong., Oct. 8, 1974, p. 34470), standing committees
and their respective chairs are elected by the House (IV, 4448; VIII, 2178).
Owing to their number and size, committees are not usually elected imme-
diately, but resolutions providing for such elections are presented by the
majority and minority parties pursuant to clause 5 of rule X as soon as
they are able to perfect the lists. A committee may order its report to
be made by the chair, or by some other member (IV, 4669), even by a
member of the minority party (IV, 4672, 4673), or by a Delegate (July
1, 1958, p. 12871 (Burns of Hawaii)); and the chair sometimes submits
a report in which the chair has not concurred (IV, 4670). Clause 2 of rule
XIII requires that a report that has been approved by the committee must
be filed with the House within seven calendar days after a written request
from a majority of the committee is submitted to the committee clerk.
At these committees the members are to speak
§ 318. Parliamentary standing, and not sitting; though
law as to debate in
standing and select there is reason to conjecture it was
committees.
formerly otherwise. D’Ewes, 630, col.
1; 4 Parl. Hist., 440; 2 Hats., 77.
Their proceedings are not to be published, as
§ 319. Secrecy of they are of no force till confirmed
committee procedure.
by the House. Rushw., part 3, vol.
2, 74; 3 Grey, 401; Scob., 39.* * *
In the House it is entirely within rule and usage for a committee to
conduct its proceedings in secret (III, 1694, 1732; IV, 4558–4564; see also
clause 2(g) of rule XI), and the House may not abrogate the secrecy of
a committee’s proceedings except by suspending the rule (IV, 4565). The
House has no information concerning the proceedings of a committee not
officially reported by the committee (VII, 1015) and it is not in order in
debate to refer to executive session proceedings of a committee that have
not formally been reported to the House (V, 5080–5083; VIII, 2269, 2485,
2493; June 24, 1958, pp. 12120, 12122; Apr. 5, 1967, p. 8411). However,
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§ 320–§ 322
a complaint that certain remarks that might be uttered in debate would
improperly disclose executive-session material of a committee is not cog-
nizable as a point of order in the House if the Chair is not aware of the
executive-session status of the information (Nov. 5, 1997, p. 24648). On
one occasion a Member was permitted to refer to the unreported executive
session proceedings of a subcommittee to justify his point of order that
a resolution providing for a select committee to inquire into action of the
subcommittee was not privileged (June 30, 1958, p. 12690). In one case
the House authorized the clerk of a committee to disclose by deposition
its proceedings (III, 2604).
Under clause 2(g) of rule XI, hearings and business meetings conducted
by a standing committee (other than the Committee on Ethics) must be
open to the public except when a committee determines to close the meeting
or hearing for that day for the reasons stated in that clause. In addition,
clause 2(k) of rule XI establishes a procedure for closing a hearing because
of defamatory, degrading, or incriminating testimony.
* * * Nor can they receive a petition but
§ 320. Reception of through the House. 9 Grey, 412.
petitions by
committees.
When a committee is charged with an inquiry,
§ 321. Parliamentary if a Member prove to be involved,
law of procedure
when a committee they can not proceed against him
inquiry involves a
Member.
but must make a special report to
the House; whereupon the Member
is heard in his place, or at the bar, or a special
authority is given to the committee to inquire
concerning him. 9 Grey, 523.
Although the authority of this principle has not been questioned by the
§ 322. Practice of
House, there have in special instances been deviations
House when a from it. Thus, in 1832, when a Member had been slain
committee inquiry in a duel, and the fact was notorious that all the prin-
involves a Member. cipals and seconds were Members of the House, the
committee, charged only with investigating the causes
and whether or not there had been a breach of privilege, reported with
their findings recommendations for expulsion and censure of the Members
found to be implicated. There was criticism of this method of procedure
as deviating from the rule of Jefferson’s Manual, but the House did not
recommit the report (II, 1644). In 1857, when a committee charged with
inquiring into accusations against Members not named found certain Mem-
bers implicated, they gave them copies of the testimony and opportunities
to explain to the committee, under oath or otherwise, as they individually
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JEFFERSON’S MANUAL
§ 323–§ 325
might prefer (III, 1845), but reported recommendations for expulsion with-
out first seeking the order of the House (II, 1275; III, 1844). In 1859 and
1892 a similar procedure occurred (III, 1831, 2637). But the House, in
a case wherein an inquiry had incidentally involved a Member, evidently
considered the parliamentary law as applicable, because it admitted as
of privilege and agreed to a resolution directing the committee to report
the charges (III, 1843). And in cases wherein testimony taken before a
joint committee incidentally impeached the official characters of a Member
and a Senator, the facts in each case were reported to the House interested
(III, 1854). A select committee, appointed to report upon the right of a
Member-elect to be sworn (H. Res. 1, 90th Cong., pp. 14–27, Jan. 10, 1967),
invited him to appear, to testify, and permitted him to be accompanied
by counsel (see H. Rept. 90–27).
And where one House, by a committee, has found a Member of the other
§ 323. Inquiries
implicated, the testimony has been transmitted (II,
involving Members of 1276; III, 1850, 1852, 1853). Where such testimony was
other House. taken in open session of the committee, it was not
thought necessary that it be under seal when sent to
the other House (III, 1851).
So soon as the House sits, and a committee is
notified of it, the chairman is in
§ 324. Duty of chair of
a committee when the
House sits. duty bound to rise instantly, and
the members to attend the service
of the House. 2 Nals., 319.
For the current practice, see clauses 2(i) and 2(m)(1) of rule XI.
It appears that on joint committees of the
Lords and Commons each com-
§ 325. Action of joint
committees.
mittee acted integrally in the fol-
lowing instances: 7 Grey, 261, 278, 285, 338; 1
Chandler, 357, 462. In the following instances it
does not appear whether they did or not: 6 Grey,
129; 7 Grey, 213, 229, 321.
It is the practice in Congress that joint committees shall vote per capita,
and not as representatives of the two Houses (IV, 4425), although the mem-
bership from the House is usually, but not always (IV 4410), larger than
that from the Senate (III, 1946; IV, 4426–4431). But ordinary committees
of conference appointed to settle differences between the two Houses are
not considered joint committees, and the managers of the two Houses vote
separately (V, 6336), each House having one vote. A quorum of a joint
committee seems to have been considered to be a majority of the whole
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§ 326
number rather than a majority of the membership of each House (IV, 4424).
The first named of the Senate members acted as chair in one notable in-
stance (IV, 4424), and in another the joint committee elected its chair (IV,
4447).
SEC. XII—COMMITTEE OF THE WHOLE
The speech, messages, and other matters of
great concernment are usually re-
§ 326. Parliamentary
usage as to Committee
of the Whole. ferred to a Committee of the Whole
House (6 Grey, 311), where general
principles are digested in the form of resolu-
tions, which are debated and amended till they
get into a shape which meets the approbation of
a majority. These being reported and confirmed
by the House are then referred to one or more
select committees, according as the subject di-
vides itself into one or more bills. Scob., 36, 44.
Propositions for any charge on the people are es-
pecially to be first made in a Committee of the
Whole. 3 Hats., 127. The sense of the whole is
better taken in committee, because in all com-
mittees everyone speaks as often as he pleases.
Scob., 49. * * *
This provision is largely obsolete, the House having by its rules and
practice provided specifically for procedure in the Committee of the Whole,
and having also by its rules for the order of business left no privileged
status for motions to go into Committee on matters not already referred
there. The Committee no longer originates resolutions or bills, but receives
such as have been formulated by standing or select committees and referred
to it; and when it reports, the House usually acts at once on the report
without reference to select or other committees (IV, 4705). The practice
of referring annual messages of the President to the Committee, to be
there considered and reported with recommendations for the reference of
various portions to the proper standing or select committees (V, 6621,
6622), was discontinued in the 64th Congress (VIII, 3350). The current
practice is to refer the annual message to the Committee of the Whole
House on the state of the Union and order it printed (Jan. 14, 1969, p.
651). Executive communications submitted to implement the proposals con-
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§ 327–§ 329
tained in the State of the Union Message are referred by the Speaker
to the various committees having jurisdiction over the subject matter there-
in.
* * * They generally acquiesce in the chair-
man named by the Speaker; but, as
§ 327. Selection of
Chair of Committee of
the Whole. well as all other committees, have a
right to elect one, some member, by
consent, putting the question, Scob., 36; 3 Grey,
301. * * *
The House (by clause 1 of rule XVIII) gives the authority to appoint
the chair of the Committee of the Whole to the Speaker (IV, 4704).
* * * The form of going from the House into
committee, is for the Speaker, on
§ 328. Form of going
into Committee of the
Whole. motion, to put the question that the
House do now resolve itself into a
Committee of the Whole to take into consider-
ation such a matter, naming it. If determined in
the affirmative, he leaves the chair and takes a
seat elsewhere, as any other Member; and the
person appointed chairman seats himself at the
Clerk’s table. Scob., 36. * * *
This is the form in the House, except that the chair of the Committee
of the Whole sits in the Speaker’s chair. Clause 1(b) of rule XVIII (former
rule XXIII) was adopted to authorize the Speaker, and it is the modern
practice, when no other business is pending, to declare the House resolved
into the Committee to consider a measure at any time after the House
has adopted a special order of business providing for consideration of such
measure (and not require a motion), unless the resolution specifies other-
wise (H. Res. 5, Jan. 3, 1983, p. 34).
* * * Their quorum is the same as that of the
§ 329. Quorum in House; and if a defect happens, the
Committee of the
Whole. chairman, on a motion and ques-
tion, rises, the Speaker resumes the
chair and the chairman can make no other re-
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§ 330–§ 331
port than to inform the House of the cause of
their dissolution. * * *
Until 1890 a quorum of the Committee of the Whole was the same as
the quorum of the House; but in 1890 the rule (formerly clause 2 of rule
XXIII, current clause 6 of rule XVIII) fixed it at one hundred (IV, 2966).
Clause 6 of rule XVIII provides the procedure that is followed in the Com-
mittee in case of failure of a quorum.
* * * If a message is announced during a
§ 330. Rising of committee, the Speaker takes the
Committee for
reception of messages. chair and receives it, because the
committee can not. 2 Hats., 125,
126.
In the House, the Committee rises informally to receive a message, or
to enable the Speaker to sign and lay before the House an enrolled bill,
at the direction of the Chair without a formal motion from the floor (IV,
4786, footnote; Jan. 28, 1980, p. 888; Feb. 8, 1995, p. 4112); but at this
rising the House may not have the message read or transact other business
except by unanimous consent (IV, 4787–4791). However, it is the general
custom for the Speaker to decline to entertain a unanimous-consent request
during an informal rising of the Committee (IV, 4789, Apr. 6, 2000, p.
4778).
In a Committee of the Whole, the tellers on a
division differing as to numbers,
§ 331. Quarrels in
Committee of the
great heats and confusion arose,
Whole, and duty of the
and danger of a decision by the
Speaker in relation
thereto.
sword. The Speaker took the chair,
the mace was forcibly laid on the table; where-
upon the Members retiring to their places, the
Speaker told the House ‘‘he has taken the chair
without an order to bring the House into order.’’
Some excepted against it; but it was generally
approved as the only expedient to suppress the
disorder. And every Member was required,
standing up in his place, to engage that he
would proceed no further in consequence of what
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JEFFERSON’S MANUAL
§ 332–§ 333
had happened in the grand committee, which
was done. 3 Grey, 128.
In the House the Speaker has on several occasions taken the chair ‘‘with-
out an order to bring the House into order’’ (II, 1648–1653), but that being
accomplished the Speaker may yield to the chair that the committee may
rise in due form (II, 1349). In one instance, the Chair, having been defied
and insulted by a Member, left the chair; and, on the chair being taken
by the Speaker, he reported the facts to the House (II, 1653). In several
cases Members who have quarreled have made explanation and reconciled
their difficulties (II, 1651), or have been compelled by the House to apolo-
gize ‘‘for violating its privilege and offending its dignity’’ (II, 1648, 1650).
A Committee of the Whole being broken up in
§ 332. Effect of disorder, and the chair resumed by
breaking up of
Committee of the the Speaker without an order, the
Whole by disorder.
House was adjourned. The next day
the committee was considered as thereby dis-
solved, and the subject again before the House;
and it was decided in the House, without return-
ing into committee. 3 Grey, 130.
This provision is obsolete, because in the practice of the House there
is but one Committee of the Whole, which is in its nature a standing com-
mittee with calendars of business. It is never dissolved, and bills remain
on its calendar until reported in the regular manner after consideration
(IV, 4705). After restoring order, the Speaker usually leaves the chair,
thus permitting the committee later to rise in due form (II, 1349).
No previous question can be put in a com-
§ 333. Motions for mittee; nor can this committee ad-
previous question and
to adjourn not used in journ as others may; but if their
Committee of the
Whole.
business is unfinished, they rise, on
a question, the House is resumed,
and the chairman reports that the Committee of
the Whole have, according to order, had under
their consideration such a matter, and have
made progress therein; but not having had time
to go through the same, have directed him to
ask leave to sit again. Whereupon a question is
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JEFFERSON’S MANUAL
§ 334
put on their having leave, and on the time the
House will again resolve itself into a committee.
Scob., 38. But if they have gone through the
matter referred to them, a member moves that
§ 334. Parliamentary the committee may rise, and the
law as to reports from
Committee of the chairman report their proceedings
Whole.
to the House; which being resolved,
the chairman rises, the Speaker resumes the
chair, the chairman informs him that the com-
mittee have gone through the business referred
to them, and that he is ready to make report
when the House shall think proper to receive it.
If the House have time to receive it, there is
usually a cry of ‘‘now, now,’’ whereupon he
makes the report; but if it be late, the cry is ‘‘to-
morrow, to-morrow,’’ or ‘‘Monday,’’ etc., or a mo-
tion is made to that effect, and a question put
that it be received to-morrow, &c. Scob., 38.
In the practice of the House the previous question and motion to adjourn
are not admitted in the Committee of the Whole (e.g., June 12, 2019, p.
l); but the rules (clause 8 of rule XVIII) provide for closing five-minute
debate by motion. When the Committee rises without concluding a matter
the Chair reports that it ‘‘has come to no resolution thereon’’; but leave
to sit again is not asked in the modern practice. The permission of the
House is not asked when the Chair reports a matter concluded in Com-
mittee. The report is made and received as a matter of course, and is there-
upon before the House for action. When the House has vested control of
general debate in certain Members, their control may not be abrogated
during general debate by another Member moving to rise, unless they yield
for that purpose (May 25, 1967, p. 14121; June 10, 1999, p. 12471). A
Member yielded time in general debate may not yield to another for such
motion (Feb. 22, 1950, p. 2178; May 17, 2000, p. 8200). The motion is
privileged during debate under the five-minute rule, and may be offered
during debate on a pending amendment, except where a Member has the
floor (Aug. 13, 1986, p. 21215; Mar. 22, 1995, p. 8770). The motion may
not include restrictions on the amendment process or limitations on future
debate on amendments (June 6, 1990, p. 13234), is not debatable (May
17, 2000, p. 8203), may be withdrawn only by unanimous consent (June
12, 2019, p. l), and a demand for a recorded vote thereon is untimely
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JEFFERSON’S MANUAL
§ 335–§ 336
after the Committee rises (May 19, 2016, p. l). For a further discussion
of the motion to rise, see § 983, infra.
The Speaker recognizes only reports from the Committee of the Whole
§ 335. Duties of
made by the chair thereof (V, 6987), and a matter al-
Speaker and House as leged to have arisen therein but not reported may not
to reception of reports be brought to the attention of the House (VIII, 2429,
of Committee of the 2430) even on the claim that a question of privilege
Whole.
is involved (IV, 4912; V, 6987), but the Speaker has
responded to a parliamentary inquiry regarding events occurring during
an earlier vote in the Committee of the Whole by advising on a general
principle of the operation of the electronic voting system (May 19, 2016,
p. l). In one instance, however, the Committee reported with a bill a
resolution relating to an alleged breach of privilege (V, 6986). When a
bill is reported the Speaker must assume that it has passed through all
the stages necessary for the report (IV, 4916). When the Committee re-
ported not only what it had done but by whom it had been prevented from
doing other things, the Speaker held that the House might not amend
the report, which stood (IV, 4909). When an amendment is reported by
the Committee it may not be withdrawn, and a question as to its validity
is not considered by the Speaker (IV, 4900). When a Committee, directed
by order of the House to consider certain bills, reported also certain other
bills, the Speaker held that so much of the report as related to the latter
bills could be received only by unanimous consent (IV, 4911). When a report
is ruled out as in excess of the Committee’s power, the accompanying bill
stands recommitted (IV, 4784, 4907). A former rule prohibited a Commit-
tee’s report from being received in the absence of a quorum (VI, 666; clause
7 of rule XX).
The Committee of the Whole, like any other committee, may amend a
§ 336. Amendments in
proposition either by an ordinary amendment or by a
Committee of the substitute amendment (IV, 4899), but these amend-
Whole. ments must be reported to the House for action. Amend-
ments rejected by the Committee are not reported (IV,
4877). Ordinarily all amendments must be disposed of before the Com-
mittee may report (IV, 4752–4758); but sometimes a special order of busi-
ness requires a report at a specified time, in which case pending amend-
ments are reported (IV, 3225–3228) or not (IV, 4910) as the terms of the
order may direct. In the 98th Congress, clause 2 of rule XXI was amended
to give precedence to the motion that the Committee rise and report a
general appropriation bill at the conclusion of its reading for amendment
and before or between consideration of amendments proposing certain limi-
tations or retrenchments (H. Res. 5, Jan. 3, 1983, p. 34). The 104th Con-
gress further amended clause 2 to permit only the Majority Leader or a
designee to offer that motion (sec. 215(a), H. Res. 6, Jan. 4, 1995, p. 468).
The 105th Congress elevated the Majority Leader’s preferential motion
in clause 2 to take precedence of any motion to amend at that stage (H.
Res. 5, Jan. 7, 1997, p. 121). The practice of the House, based originally
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JEFFERSON’S MANUAL
§ 337
on a rule (IV, 4904), requires amendments to be reported from the Com-
mittee in their perfected forms, and this holds good even in the case of
an amendment in the nature of a substitute, which may have been amend-
ed freely (IV, 4900–4903). If the Committee amends a paragraph and subse-
quently strikes the paragraph as amended, the first amendment fails, and
is not reported to the House or voted on (IV, 4898; V, 6169; VIII, 2421,
2426), and when the Committee adopts two amendments that are subse-
quently deleted by an amendment striking and inserting new text, only
the latter amendment is reported to the House (June 20, 1967, p. 16497).
Where two amendments proposing inconsistent motions to strike and in-
sert a pending section are considered as separate first degree amendments
(not one as a substitute for the other) before either is finally disposed
of under a special procedure permitting the Chair to postpone requests
for a recorded vote, the Chair’s order of voting on the matter as unfinished
business determines which amendment (if both were adopted) would be
reported to the House (Aug. 6, 1998, pp. 19098–107). Normally, if the Com-
mittee perfects a bill by adopting certain amendments and then adopts
an amendment striking all after section one of the bill and inserting a
new text, only the bill, as amended by the motion to strike and insert,
is reported to the House; but when the bill is being considered under a
special rule permitting a separate vote in the House on any of the amend-
ments adopted in the Committee to the bill or to the committee substitute,
all amendments adopted in the Committee are reported to the House re-
gardless of their consistency (May 26, 1960, pp. 11302–04). Where a sepa-
rate vote is demanded in this type of situation in the House only on an
amendment striking a section of a committee substitute, but not on per-
fecting amendments that have been previously adopted in the Committee
of the Whole to that section, rejection in the House of the motion to strike
the section results in a vote on the committee substitute in its original
form and not as perfected, because the perfecting amendments have been
displaced in the Committee of the Whole and have not been revived on
a separate vote in the House (Speaker O’Neill, Oct. 13, 1977, pp. 33622–
24). But if the Committee of the Whole reports a bill to the House with
an adopted amendment in the nature of a substitute and the special order
of business in question does not provide for separate House votes on amend-
ments thereto, a separate vote may not be demanded on an amendment
to such amendment, because only one amendment in its perfected form
has been reported back to the House (Nov. 17, 1983, p. 33463).
All amendments to a bill reported from the Committee of the Whole
§ 337. Committee of
stand on an equal footing and must be voted on by the
the Whole House (IV, 4871) in the order in which they are re-
amendments in the ported, although they may be inconsistent, one with
House. another (IV, 4881, 4882), and are subject to amendment
in the House unless the previous question is ordered
(VIII, 2419). Two amendments being reported as distinct were considered
independently, although apparently one was a proviso attaching to the
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§ 337
other (IV, 4905); and an entire and distinct amendment may not be divided,
but must be voted on by the House as a whole (IV, 4883–4892; VIII, 2426).
It is a frequent practice for the House by unanimous consent to act at
once on all the amendments to a bill reported from the Committee, but
it is the right of any Member to demand a separate vote on any amendment
(IV, 4893, 4894; VIII, 2419) unless a special rule mandates that sundry
amendments be put en gros (June 24, 2009, p. 16147). Where a special
rule permits en bloc consideration of certain amendments in the Com-
mittee, those amendments if reported back to the House may also be consid-
ered en bloc for a separate vote in the House on demand of any Member
(Speaker O’Neill, Sept. 7, 1978, p. 28425). A Member may demand a sepa-
rate vote in the House on an amendment to a committee amendment in
the nature of a substitute adopted in the Committee of the Whole where
the bill is being considered under a special rule permitting separate votes
in the House on any of the amendments adopted in the Committee of the
Whole to the bill or committee amendment (Sept. 30, 1971, p. 34337), but
where a special rule ‘‘self-executes’’ an amendment as a modification of
an amendment in the nature of a substitute to be considered as an original
bill, that modification is not separately voted on upon demand in the House
(Speaker Foley, Feb. 3, 1993, p. 2043). A Member may withdraw a demand
for a separate vote in the House on an amendment reported from the Com-
mittee before the Speaker’s putting the question thereon, and unanimous
consent is not required (May 28, 1987, p. 14030). When demand is made
for separate votes in the House on several amendments adopted in the
Committee, the amendments are voted on in the House in the order in
which they appear in the bill (July 24, 1968, pp. 23093–95; May 28, 1987,
p. 14030; June 11, 1997, p. 10654), except when amendments have been
considered under a special rule prescribing the order for their consideration
where the bill is considered as read, in which case they are voted on upon
demand in the order in which considered in the Committee (Mar. 11, 1993,
p. 4733; Mar. 25, 1993, pp. 6358, 6359). For automatic reconsideration
in the House of amendments if the votes of Delegates and the Resident
Commissioner are decisive, see § 985, infra.
Depending on the will of the House as expressed on the question of order-
ing the previous question (IV, 4895; V, 5794; VIII, 2419), when a bill is
reported with amendments from the Committee of the Whole, it is in order
to submit additional amendments after disposition of the Committee
amendments (IV, 4872–4876). However, in modern practice the oppor-
tunity to submit amendments is normally foreclosed by the ordering of
the previous question under a special rule. The fact that a proposition
has been rejected by the Committee does not prevent it from being offered
as an amendment when the subject comes up in the House (IV, 4878–
4880; VIII, 2700). A substitute amendment may be offered to a bill reported
from the Committee, and then the previous question may be ordered on
the substitute, on all other amendments, and on the bill to final passage
(V, 5472). An amendment in the nature of a substitute reported from the
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JEFFERSON’S MANUAL
§ 338–§ 340
Committee is treated like any other amendment (V, 5341), and if the House
rejects the substitute the original bill without amendment is before the
House (VIII, 2426).
Where a series of bills are reported from Committee of the Whole, the
§ 338. Bills from
House considers them in the order in which they are
Committee of the reported (IV, 4869, 4870; VIII, 2417). A proposition re-
Whole in the House. ported for action has precedence over an independent
resolution on the same subject offered by a Member
from the floor (V, 6986), and where a bill and a resolution relating to an
alleged breach of privilege were reported together the question was put
first on the bill (V, 6986). A bill read in full and considered in the Committee
(IV, 3409, 3410), or presumed to have been so read (IV, 4916), is not read
in full again in the House when reported and acted on. The chair of the
Committee of the Whole who reports a bill does not become entitled to
prior recognition for debate in the House (II, 1453); but on an adverse
report an opponent is recognized to offer a motion for disposition of the
bill (IV, 4897; VIII, 2430), or for debate (VII, 2629). The recommendation
of the Committee being before the House, the motion to carry out the rec-
ommendation is usually considered as pending without being offered from
the floor (IV, 4896), but when a bill was reported with a recommendation
that it lie on the table, a question was raised as to whether or not this
motion, which prevents debate, should be considered as pending (IV, 4897).
The House considers an amendment reported from the Committee to the
preamble of a Senate joint resolution following disposition of amendments
to the text and pending third reading (May 25, 1993, pp. 11036, 11037).
A motion to discharge the Committee of the Whole from the consideration
§ 339. Discharge of the
of a matter committed to it is not privileged as against
Committee of the a demand for the regular order (IV, 4917). When the
Whole. Committee is discharged from consideration of a bill
the House, in lieu of the report of the chair, accepts
the minutes of the Clerk as evidence of amendments agreed to (IV, 4922).
In other things the rules or proceedings are to
be the same as in the House. Scob.,
§ 340. Application of
House rules in
39.
Committee of the
Whole.
The House provides by rule (clause 11 of rule XVIII) that the rules of
proceeding in the House shall apply in the Committee of the Whole so
far as they may be applicable.
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§ 341–§ 342
SEC. XIII—EXAMINATION OF WITNESSES
Common fame is a good ground for the House
to proceed by inquiry, and even to
§ 341. Common fame as
ground for
accusation. Resolution House of
investigation.
Commons, 1 Car., 1, 1625; Rush, L.
Parl., 115; Grey, 16–22, 92; 8 Grey, 21, 23, 27,
45.
In the House common fame has been held sufficient to justify procedure
for inquiry (III, 2701), as in a case wherein it was stated on the authority
of common rumor that a Member had been menaced (III, 2678). The House
also has voted to investigate with a view to impeachment on the basis
of common fame, as in the cases of Judges Chase (III, 2342), Humphreys
(III, 2385), and Durell (III, 2506).
Witnesses are not to be produced but where
the House has previously instituted
§ 342. The production
of witnesses at an
inquiry. an inquiry, 2 Hats., 102, nor then
are orders for their attendance given
blank. 3 Grey, 51.
In the House witnesses are summoned in pursuance and by virtue of
the authority conferred on a committee by the House to send for persons
and papers (III, 1750). Even in cases wherein the rules give to certain
committees the authority to investigate without securing special permis-
sion, authority must be obtained before the production of testimony may
be compelled (IV, 4316). Subpoenas issued by order of the House are signed
by the Speaker (clause 4 of rule I) and attested and sealed by the Clerk
(clause 2 of rule II). In clause 2(m) of rule XI the House has authorized
any committee or subcommittee to issue a subpoena when authorized by
a majority of the members of the committee or subcommittee voting, a
majority being present. A committee may also delegate the authority to
issue subpoenas to the chair of a full committee. Authorized subpoenas
are signed by the chair of the committee or by any other member designated
by the committee. Sometimes the House authorizes issue of subpoenas
during a recess of Congress and empowers the Speaker to sign them (III,
1806), and in one case the two Houses, by concurrent resolution, empow-
ered the Vice President and Speaker to sign during a recess (III, 1763).
See McGrain v. Daugherty, 273 U.S. 135 (1927); Barry v. U.S. ex rel.
Cunningham, 279 U.S. 597 (1929); Sinclair v. United States, 279 U.S. 263
(1929). During the 116th and 117th Congresses, the House authorized elec-
tronic signature of subpoenas and electronic attestation and affixation of
a seal by the Clerk during the pendency of a designated public health
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JEFFERSON’S MANUAL
§ 343
emergency (sec. 4(f), H. Res. 965, May 15, 2020, p. l; sec. 3(s), H. Res.
8, Jan. 4, 2021, p. l). Under section 2954 of title 5, United States Code,
an executive agency, if so requested by the Committee on Government
Operations (now Oversight and Reform), or any seven members thereof,
shall submit any information requested of it relating to any matter within
the jurisdiction of the committee.
When any person is examined before a com-
§ 343. Examination of mittee or at the bar of the House,
witnesses in the
House and in any Member wishing to ask the per-
committee.
son a question must address it to
the Speaker or chairman, who repeats the ques-
tion to the person, or says to him, ‘‘You hear the
question—answer it.’’ But if the propriety of the
question be objected to, the Speaker directs the
witness, counsel, and parties to withdraw; for no
question can be moved or put or debated while
they are there. 2 Hats., 108. Sometimes the
questions are previously settled in writing before
the witness enters. Ib., 106, 107; 8 Grey, 64. The
questions asked must be entered in the Journal.
3 Grey, 81. But the testimony given in answer
before the House is never written down; but be-
fore a committee, it must be, for the information
of the House, who are not present to hear it. 7
Grey, 52, 334.
The Committee of the Whole of the House was charged with an investiga-
tion in 1792, but the procedure was wholly exceptional (III, 1804), although
a statute still empowers the chair of the Committee of the Whole, as well
as the Speaker, chairs of select or standing committees, and Members to
administer oaths to witnesses (2 U.S.C. 191; III, 1769). Most inquiries,
in the modern practice, are conducted by select or standing committees,
and these in each case determine how they will conduct examinations (III,
1773, 1775). Clause 2(k) of rule XI, contains provisions governing certain
procedures at hearings by committees (§ 803, infra). In one case a com-
mittee permitted a Member of the House not of the committee to examine
a witness (III, 2403) and the modern practice is to allow non-committee
members to participate by unanimous consent. Usually these investiga-
tions are reported stenographically, thus making the questions and an-
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JEFFERSON’S MANUAL
§ 344–§ 346
swers of record for report to the House. To sustain a conviction of perjury,
a quorum of a committee must be in attendance when the testimony is
given. Christoffel v. United States, 338 U.S. 84 (1949). Certain criminal
statutes make it a felony to give perjurious testimony before a congres-
sional committee (18 U.S.C. 1621), to intimidate witnesses before commit-
tees (18 U.S.C. 1505), or to make false statements in any matter within
the jurisdiction of the executive, legislative, or judicial branch of the Gov-
ernment of the United States (18 U.S.C. 1001).
Another provision of the Federal criminal code (18 U.S.C. 6005) provides
for ‘‘use’’ immunity for certain witnesses before either House or committees
thereof.
The House, in its earlier years, arraigned and tried at its bar persons,
§ 344. Earlier and later
not Members, charged with violation of its privileges,
practice as to as in the cases of Randall, Whitney (II, 1599–1603),
inquiries at the bar of Anderson (II, 1606), and Houston (II, 1616); but in the
the House. case of Woods, charged with breach of privilege in 1870
(II, 1626–1628), the respondent was arraigned before
the House, but was heard in his defense by counsel and witnesses before
a standing committee. At the conclusion of that investigation the respond-
ent was brought to the bar of the House while the House voted his punish-
ment (II, 1628). The House also has arraigned at its bar contumacious
witnesses before taking steps to punish by its own action or through the
courts (III, 1685). In examinations at its bar the House has adopted forms
of procedure as to questions (II, 1633; III, 1768), providing that they be
asked through the Speaker (II, 1602, 1606) or by a committee (II, 1617;
III, 1668). And the questions to be asked have been drawn up by a com-
mittee, even when put by the Speaker (II, 1633). In the earlier practice
the answer of a witness at the bar was not written down (IV, 2874); but
in the later practice the answers appear in the journal (III, 1668). The
person at the bar withdraws while the House passes on an incidental ques-
tion (II, 1633; III, 1768). See McGrain v. Dougherty, 273 U.S. 135 (1927);
Barry v. U.S. ex rel. Cunningham, 279 U.S. 597 (1929); Jurney v.
MacCracken, 294 U.S. 125 (1935).
If either House have occasion for the presence
§ 345. Procuring of a person in custody of the other,
attendance of a
they ask the other their leave that
witness in custody of
the other House.
he may be brought up to them in
custody. 3 Hats., 52.
A Member, in his place, gives information to
§ 346. Members as the House of what he knows of any
witnesses.
matter under hearing at the bar.
Jour. H. of C., Jan. 22, 1744–5.
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JEFFERSON’S MANUAL
§ 347
At an examination at the bar of the House in 1795 both the written
information given by Members and their verbal testimony were required
to be under oath (II, 1602). In a case not of actual examination at the
bar, but wherein the House was deliberating on a proposition to order
investigation, it demanded by resolution that certain Members produce
papers and information (III, 1726, 1811). Members often give testimony
before committees of investigation, and in at least one case the Speaker
has thus appeared (III, 1776). But in a case wherein a committee sum-
moned a Member to testify as to a statement made by him in debate he
protested that it was an invasion of his constitutional privilege (III, 1777,
1778; see also H. Rept. 67–1372, and Jan. 25, 1923, pp. 2415–23). In one
instance the chair of an investigating committee administered the oath
to himself and testified (III, 1821). The House, in an inquiry preliminary
to an impeachment trial, gave leave to its managers to examine Members,
and leave to its Members to attend for the purpose (III, 2033).
Either House may request, but not command,
the attendance of a Member of the
§ 347. Method of
obtaining testimony of
other. They are to make the request
a Member of the other
House.
by message of the other House, and
to express clearly the purpose of attendance,
that no improper subject of examination may be
tendered to him. The House then gives leave to
the Member to attend, if he choose it; waiting
first to know from the Member himself whether
he chooses to attend, till which they do not take
the message into consideration. But when the
peers are sitting as a court of criminal judica-
ture, they may order attendance, unless where it
be a case of impeachment by the Commons.
There it is to be a request. 3 Hats., 17; 9 Grey,
306, 406; 10 Grey, 133.
The House and the Senate have observed this rule; but it does not appear
that they have always made public ascertainment of the willingness of
the Member to attend (III, 1790, 1791). In one case the Senate laid aside
pending business in order to comply with the request of the House (III,
1791). In several instances House committees, after their invitations to
Senators to appear and testify had been disregarded, have issued sub-
poenas. In such cases the Senators have either disregarded the subpoenas,
refused to obey them, or have appeared under protest (III, 1792, 1793).
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JEFFERSON’S MANUAL
§ 348
In one case, after a Senator had neglected to respond either to an invitation
or a subpoena the House requested of the Senate his attendance and the
Senate disregarded the request (III, 1794). Where Senators have responded
to invitations of House committees, their testimony has been taken without
obtaining consent of the Senate (III, 1793, 1795, footnote).
Counsel are to be heard only on private, not
§ 348. Admission of on public, bills and on such points
counsel.
of law only as the House shall di-
rect. 10 Grey, 61.
In 1804 the House admitted the counsel of certain corporations to address
the House on pending matters of legislation (V, 7298), and in 1806 voted
that a claimant might be heard at the bar (V, 7299); but in 1808, after
consideration, the House by a large majority declined to follow again the
precedent of 1804 (V, 7300). In early years counsel in election cases were
heard at the bar at the discretion of the House (I, 657, 709, 757, 765);
but in 1836, after full discussion, the practice was abandoned (I, 660),
and, with one exception in 1841 (I, 659), has not been revived, even for
the case of a contestant who could not speak the English language (I, 661).
Counsel appear before committees in election cases, however. Where wit-
nesses and others have been arraigned at the bar of the House for contempt,
the House has usually permitted counsel (II, 1601, 1616; III, 1667), some-
times under conditions (II, 1604, 1616); but in a few cases has declined
the request (II, 1608; III, 1666, footnote). In investigations before commit-
tees counsel usually have been admitted (III, 1741, 1846, 1847), sometimes
even to assist a witness (III, 1772), and clause 2(k)(3) of rule XI now pro-
vides that witnesses at hearings may be accompanied by their own counsel
for the purpose of advising them concerning their constitutional rights
(§ 803, infra). In examinations preliminary to impeachment counsel usually
have been admitted (III, 1736, 2470, 2516) unless in cases wherein such
proceedings were ex parte. During impeachment investigations against
Presidents Nixon, Clinton, and Trump, the Committee on the Judiciary
admitted counsel to the President to be present, to make presentations
and to examine witnesses during investigatory hearings (H. Rept. 93–1305,
Aug. 20, 1974, p. 29219; H. Rept. 105–830, Dec. 16, 1998, p. 27819; H.
Rept. 116–346, Dec. 15, 2019, p. l). Counsel for President Trump did
not formally participate during the impeachment investigation (H. Rept.
116–346, Dec. 15, 2019, p. l).
At one time the House required all counsel or agents representing per-
sons or corporations before committees to be registered with the Clerk
(III, 1771). The Lobbying Disclosure Act of 1995 requires all lobbyists to
register with the Clerk of the House and the Secretary of the Senate (2
U.S.C. 1603).
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JEFFERSON’S MANUAL
§ 349
SEC. XIV—ARRANGEMENT OF BUSINESS
The Speaker is not precisely bound to any
rules as to what bills or other mat-
§ 349. Advantages of
an order of business.
ter shall be first taken up; but it is
left to his own discretion, unless the House on a
question decide to take up a particular subject.
Hakew., 136.
A settled order of business is, however, nec-
essary for the government of the presiding per-
son, and to restrain individual Members from
calling up favorite measures, or matters under
their special patronage, out of their just turn. It
is useful also for directing the discretion of the
House, when they are moved to take up a par-
ticular matter, to the prejudice of others, having
priority of right to their attention in the general
order of business.
* * * * *
In this way we do not waste our time in debat-
ing what shall be taken up. We do one thing at
a time; follow up a subject while it is fresh, and
till it is done with; clear the House of business
gradatim as it is brought on, and prevent, to a
certain degree, its immense accumulation to-
ward the close of the session.
Jefferson gave as a part of his comment on the law of Parliament the
order of business in the Senate in his time. Both in the House and Senate
the order of business has been changed to meet the needs of the times.
The order of business now followed in the House is established by rule
XIV; and this rule, with the rules supplemental thereto, take away to a
very large extent the discretion exercised by the Speaker under the par-
liamentary law.
In the House before committees are appointed it is in order to offer a
bill or resolution for consideration not previously considered by a committee
(VII, 2103). In the 73d Congress, the House passed before the adoption
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§ 350–§ 351
of rules and election of committees a bill of major importance (providing
relief in the existing national emergency in banking), following a message
from the President recommending its immediate passage (Mar. 9, 1933,
pp. 75–84).
Arrangement, however, can only take hold of
§ 350. Conditions of matters in possession of the House.
the old and the
modern orders of New matter may be moved at any
business.
time when no question is before the
House. Such are original motions and reports on
bills. Such are bills from the other House, which
are received at all times, and receive their first
reading as soon as the question then before the
House is disposed of; and bills brought in on
leave, which are read first whenever presented.
So messages from the other House respecting
amendments to bills are taken up as soon as the
House is clear of a question, unless they require
to be printed, for better consideration. Orders of
the day may be called for, even when another
question is before the House.
In Jefferson’s time the principles of this comment would have applied
to both House and Senate; but in the House the order of business may
be interrupted at the will of the majority only by certain specified matters
(see annotations following rule XIV). For matters not thus specified, inter-
ruption of the order takes place only by unanimous consent. For a discus-
sion of the Speaker’s policy of conferring recognition for such unanimous-
consent requests, see § 956, infra.
SEC. XV—ORDER
* * * * *
In Parliament, ‘‘instances make order,’’ per
§ 351. Precedent in Speaker Onslow. 2 Hats., 141. But
Parliament and the
House. what is done only by one Par-
liament, cannot be called custom of
Parliament, by Prynne. 1 Grey, 52.
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§ 352
In the House the Clerk is required to note all questions of order and
the decisions thereon and print the record thereof as an appendix to the
Journal (clause 2 of rule II). The Parliamentarian has the responsibility
for compiling and updating the precedents (2 U.S.C. 28). The Committee
Reform Amendments of 1974 gave the Speaker the responsibility to prepare
an updated compilation of such precedents every two years (H. Res. 988,
93d Cong., Oct. 8, 1974, p. 34470). The Speaker feels constrained in rulings
to give precedent its proper influence (II, 1317), because the advantage
of such a course is undeniable (IV, 4045). But decisions of the Speakers
on questions of order are not like judgments of courts that conclude the
rights of parties, but may be reexamined and reversed (IV, 4637), except
on discretionary matters of recognition (II, 1425). It is rare, however, that
such a reversal occurs.
SEC. XVI—ORDER RESPECTING PAPERS
The Clerk is to let no journals, records, ac-
counts, or papers be taken from the
§ 352. Safekeeping of
papers and integrity
of bills. table or out of his custody. 2 Hats.,
193, 194.
Mr. Prynne, having at a Committee of the
Whole amended a mistake in a bill without
order or knowledge of the committee, was rep-
rimanded. 1 Chand., 77.
A bill being missing, the House resolved that
a protestation should be made and subscribed by
the members ‘‘before Almighty God, and this
honorable House, that neither myself, nor any
other to my knowledge, have taken away, or do
at this present conceal a bill entitled,’’ &c. 5
Grey, 202.
After a bill is engrossed, it is put into the
Speaker’s hands, and he is not to let any one
have it to look into. Town, col. 209.
In the House an alleged improper alteration of a bill was presented as
a question of privilege and examined by a select committee. It being
ascertained that the alteration was made to correct a clerical error, the
committee reported that it was ‘‘highly censurable in any Member or officer
of the House to make any change, even the most unimportant, in any
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JEFFERSON’S MANUAL
§ 353–§ 355
bill or resolution which has received the sanction of this body’’ (III, 2598).
Alleged abuse of power in the processing and enrollment of bills has formed
the basis of questions of privilege (Feb. 16, 2006, p. 1948; May 22, 2008,
p. 10522). Although engrossing papers must be at the desk, additional
copies of a pending measure are not required (June 26, 2009, pp. 16698–
700). The Clerk signs engrossments; the Speaker signs enrollments (1
U.S.C. 106).
SEC. XVII—ORDER IN DEBATE
When the Speaker is seated in his chair, every
§ 353. Decorum of member is to sit in his place. Scob.,
Members as to sitting
in their places. 6; Grey, 403.
In the House the decorum of Members is regulated by rule XVII; and
this provision of the parliamentary law is practically obsolete.
When any Member means to speak, he is to
stand up in his place, uncovered,
§ 354. Procedure of the
Member in seeking
recognition. and to address himself, not to the
House, or any particular Member,
but to the Speaker, who calls him by his name,
that the House may take notice who it is that
speaks. Scob., 6; D’Ewes, 487, col. 1; 2 Hats., 77;
4 Grey, 66; 8 Grey, 108. But Members who are
indisposed may be indulged to speak sitting. 2
Hats., 75, 77; 1 Grey, 143.
This provision has been superseded by clause 1 of rule XVII, which was
amended in the 115th Congress to remove a requirement that a Member
rise to seek recognition (sec. 2(e), H. Res. 5, Jan. 3, 2017, p. l). As long
ago as 1832, at least, Members were not required to seek recognition from
their own particular seats (V, 4979, footnote), and seats are no longer as-
signed. In addition, the Speaker calls the Member, not by name, but as
‘‘the gentleman or gentlewoman from ll,’’ (naming the State).
When a Member stands up to speak, no ques-
§ 355. Conditions tion is to be put, but he is to be
under which a
Member’s right to the heard unless the House overrule
floor is subjected to
the will of the House.
him. 4 Grey, 390; 5 Grey, 6, 143.
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§ 356–§ 357
Except as provided in clause 4 of rule XVII, no question is put as to
the right of a Member to the floor.
If two or more rise to speak nearly together,
§ 356. The the Speaker determines who was
parliamentary law as
first up, and calls him by name,
to recognition by the
Speaker.
whereupon he proceeds, unless he
voluntarily sits down and gives way to the other.
But sometimes the House does not acquiesce in
the Speaker’s decision, in which case the ques-
tion is put, ‘‘which Member was first up?’’ 2
Hats., 76; Scob., 7; D’Ewes, 434, col. 1, 2.
In the Senate of the United States the Presi-
dent’s decision is without appeal.
In the House recognition by the Chair is governed by clause 2 of rule
XVII and the practice thereunder. There has been no appeal from a decision
by the Speaker on a question of recognition since 1881, on which occasion
Speaker Randall stated that the power of recognition is ‘‘just as absolute
in the Chair as the judgment of the Supreme Court of the United States
is absolute as to the interpretation of the law’’ (II, 1425–1428), and in
the later practice no appeal is permitted (VIII, 2429, 2646, 2762).
No man may speak more than once on the
same bill on the same day; or even
§ 357. Right of the
Member to be heard a
second time. on another day, if the debate be ad-
journed. But if it be read more than
once in the same day, he may speak once at
every reading. Co., 12, 115; Hakew., 148; Scob.,
58; 2 Hats., 75. Even a change of opinion does
not give a right to be heard a second time.
Smyth’s Comw. L., 2, c. 3; Arcan, Parl., 17.
But he may be permitted to speak again to
clear a matter of fact, 3 Grey, 357, 416; or mere-
ly to explain himself, 2 Hats., 73, in some mate-
rial part of his speech, Ib., 75; or to the manner
or words of the question, keeping himself to that
only, and not traveling into the merits of it, Me-
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§ 358
morials in Hakew., 29; or to the orders of the
House, if they be transgressed, keeping within
that line, and not falling into the matter itself.
Mem. Hakew., 30, 31.
The House has modified the parliamentary law as to a Member’s right
to speak a second time by clause 3 of rule XVII and by permitting a Member
controlling time in debate to yield to another more than once (Apr. 5, 2000,
p. 4497; Oct. 18, 2007, p. 27575). In ordinary practice rule XVII is not
rigidly enforced, and Members find little difficulty in making such expla-
nations as are contemplated by the parliamentary law. See §§ 959, 981,
infra.
But if the Speaker rise to speak, the Member
standing up ought to sit down, that
§ 358. Participation of
the Speaker in debate.
he may be first heard. Town., col.
205; Hale Parl., 133; Mem. in Hakew., 30, 31.
Nevertheless, though the Speaker may of right
speak to matters of order, and be first heard, he
is restrained from speaking on any other subject,
except where the House have occasion for facts
within his knowledge; then he may, with their
leave, state the matter of fact. 3 Grey, 38.
This provision is usually observed in the practice of the House only with
regard to the conduct of the Speaker when in the chair. In several instances
the Speaker has been permitted by the House to make a statement from
the chair, as in a case wherein his past conduct had been criticized (II,
1369), in a case wherein there had been unusual occurrences in the joint
session to count the electoral vote (II, 1372; Jan. 6, 2021, p. l), and in
a matter relating to a contest for the seat of the Speaker as a Member
(II, 1360). In rare instances the Speaker has made brief explanations from
the chair without asking the assent of the House (II, 1373, 1374). Speakers
have called others to the chair and participated in debate, usually without
asking consent of the House (II, 1360, 1367, footnote, 1368, 1371; III, 1950),
and in one case a Speaker on the floor debated a point of order that the
Speaker pro tempore was to decide (V, 6097). In rare instances Speakers
have left the chair to make motions on the floor (II, 1367, footnote). Speak-
ers may participate in debate in the Committee of the Whole, although
the privilege was rarely exercised in early practice (II, 1367, footnote).
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§ 359–§ 361
No one is to speak impertinently or beside the
§ 359. Impertinent, question, superfluous, or tediously.
superfluous, or
tedious speaking. Scob., 31, 33; 2 Hats., 166, 168;
Hale Parl., 133.
The House, by clause 1 of rule XVII, provides that remarks must be
confined to the question under debate, but neither by rule nor practice
has the House suppressed superfluous or tedious speaking, its hour rule
(clause 2 of rule XVII) being a sufficient safeguard in this respect.
No person is to use indecent language against
§ 360. Languagethe proceedings of the House; no
reflecting on the
House. prior determination of which is to
be reflected on by any Member, un-
less he means to conclude with a motion to re-
scind it. 2 Hats., 169, 170; Rushw., p. 3, v. 1, fol.
42. But while a proposition under consideration
is still in fieri, though it has even been reported
by a committee, reflections on it are no reflec-
tions on the House. 9 Grey, 508.
In the practice of the House it has been held out of order in debate
to cast reflections on either the House or its membership or its decisions,
whether present or past (V, 5132–5138). A Member who had used offensive
words against the character of the House, and who declined to explain,
was censured (II, 1247). Words impeaching the loyalty of a portion of the
membership have also been ruled out (V, 5139). Where a Member reiter-
ated on the floor certain published charges against the House, action was
taken, although other business had intervened, the question being consid-
ered one of privilege (III, 2637). It has been held inappropriate and not
in order in debate to refer to the proceedings of a committee except such
as have been formally reported to the House (V, 5080–5083; VIII, 2269,
2485–2493; June 24, 1958, pp. 12120, 12122), but this rule does not apply
to the proceedings of a committee of a previous Congress (Feb. 2, 1914,
p. 2782), and the rationale for this limitation on debate is in part obsolete
under the modern practice of the House insofar as the doctrine is applied
to open committee meetings and hearings.
No person, in speaking, is to mention a Mem-
§ 361. Personalities in ber then present by his name, but
debate forbidden.
to describe him by his seat in the
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§ 361
House, or who spoke last, or on the other side of
the question, &c., Mem. in Hakew., 3; Smyth’s
Comw., L. 2, c. 3; nor to digress from the matter
to fall upon the person, Scob., 31; Hale Parl.,
133; 2 Hats., 166, by speaking reviling, nipping,
or unmannerly words against a particular Mem-
ber. Smyth’s Comw., L. 2, c. 3. * * *
In the practice of the House, a Member is not permitted to refer to an-
other Member by name (V, 5144; VIII, 2526, 2529, 2536), or to address
a Member in the second person (V, 5140–5143; VI, 600; VIII, 2529; Speaker
Boehner, Jan. 23, 2012, p. 180; Speaker Boehner, Feb. 26, 2013, p. 1680;
Speaker Boehner, Mar. 25, 2014, p. 4783; Speaker Boehner, Feb. 25, 2015,
p. 2554; Speaker Ryan, June 23, 2017, p. l). The proper reference to an-
other Member is ‘‘the gentleman or gentlewoman from ll,’’ (naming the
Member’s State) (June 14, 1978, p. 17615; July 21, 1982, p. 17314). A
mere reference to a Member’s voting record does not form a basis for a
point of order against those remarks (June 13, 2002, p. 10226, p. 10232).
By rule of the House (clause 1 of rule XVII), as well as by parliamentary
law, personalities are forbidden (V, 4979, 5145, 5163, 5169), whether
against the Member in the Member’s capacity as Representative or other-
wise (V, 5152, 5153), even if the references may be relevant to the pending
question (Sept. 28, 1996, p. 25778). The House has censured a Member
for gross personalities (II, 1251). The Chair may intervene to prevent im-
proper references if it is evident that a particular Member is being de-
scribed (Nov. 3, 1989, p. 27077).
The Chair does not rule on the veracity of a statement made by a Member
in debate (Apr. 9, 1997, p. 4926; Sept. 26, 2008, p. 22085). Although accus-
ing another Member of deceit engages in personality, merely accusing an-
other Member of making a mistake does not (V, 5157; Oct. 26, 2000, p.
24921).
Clause 1 of rule XVII has been held to proscribe: (1) referring to an
identifiable group of sitting Members as having committed a crime (e.g.,
stealing an election or obstructing justice) (Feb. 27, 1985, p. 3898; Speaker
Wright, Mar. 21, 1989, p. 5016; May 19, 1998, p. 9738; July 15, 2004,
p. 15859); (2) referring in a personally critical manner to the political tactics
of the Speaker or other Members (June 25, 1981, p. 14056); (3) referring
to a particular Member of the House in a derogatory fashion (Nov. 3, 1989,
p. 27077); (4) characterizing a Member as ‘‘the most impolite Member’’
(June 27, 1996, p. 15915) or ‘‘mean-spirited’’ (May 13, 1992, p. 11235);
(5) questioning the integrity of a Member (July 25, 1996, p. 19170); (6)
denouncing the spirit in which a Member had spoken (V, 6981); (7) using
a Member’s surname as though an adjective for a word of ridicule (June
13, 2002, p. 10232; May 13, 2008, p. 8923); (8) questioning the decency
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§ 361
of another Member (Mar. 21, 2007, p. 7074); (9) labeling the remarks of
a Member ‘‘hypocritical and dishonest’’ (Mar. 7, 2012, p. 3045).
A distinction has been drawn between general language, which charac-
terizes a measure or the political motivations behind a measure, and per-
sonalities (V, 5153, 5163, 5169). Although remarks in debate may not in-
clude personal attacks against a Member or an identifiable group of Mem-
bers, they may address political motivations for legislative positions (Jan.
24, 1995, p. 2214; Mar. 8, 1995, pp. 7307, 7308; Nov. 17, 1995, p. 33832;
June 13, 1996, p. 14043; July 16, 2008, p. 15273). For example, references
to ‘‘down-in-the-dirt gutter politics’’ and ‘‘you people are going to pay’’ were
held not to be personal references (Nov. 14, 1995, p. 32388). Similarly,
characterizing a pending measure as a ‘‘patently petty political terrorist
tactic’’ was held in order as a reference to the pending measure rather
than to the motive or character of the measure’s proponent (Nov. 9, 1995,
p. 31413). The Chair also has held in order a general reference that ‘‘big
donors’’ receive ‘‘access to leadership power and decisions’’ because the ref-
erence did not identify a specific Member as engaging in an improper quid
pro quo (Apr. 9, 1997, p. 4926). A general statement seeming to invoke
racial stereotypes but not in a context so inflammatory as to constitute
a breach of decorum, was held not unparliamentary (Apr. 9, 2003, p. 9005
(sustained by tabling of appeal)). Likewise, a general statement linking
politics with armed conflict in an impersonal way was held not to breach
decorum (Oct. 18, 2007, p. 27578).
A Member may not read in debate extraneous material critical of another
Member that would be improper if spoken in the Member’s own words
(May 25, 1995, pp. 14436, 14437; Sept. 12, 1996, p. 22898). Thus, words
in a telegram read in debate that repudiated the ‘‘lies and half-truths’’
of a House committee report were ruled out of order as reflecting on the
integrity of committee members (June 16, 1947, p. 7065), and unparliamen-
tary references in debate to newspaper accounts used in support of a Mem-
ber’s personal criticism of another Member were similarly ruled out of
order (Feb. 25, 1985, p. 3346).
A Member should refrain from references in debate to the official conduct
of a Member if such conduct is not the subject then pending before the
House by way of either a report of the Committee on Ethics or another
question of the privileges of the House (see, e.g., July 24, 1990, p. 18917;
Mar. 19, 1992, p. 6078; May 25, 1995, pp. 14434–37; Sept. 19, 1995, pp.
25454, 25455; Apr. 27, 2005, p. 8049); and, although such references are
ordinarily enforced by the Chair in response to a point of order, the Chair
may take the initiative in order to maintain proper decorum (Apr. 1, 1992,
p. 7899; June 17, 2004, p. 12748). This stricture also precludes a Member
from reciting news articles discussing a Member’s conduct (Sept. 24, 1996,
p. 24318), reciting the content of a previously tabled resolution raising
a question of the privileges of the House (Nov. 17, 1995, p. 33853; Sept.
19, 1996, p. 23855), or even referring to a Member’s conduct by mere insinu-
ation (Sept. 12, 1996, p. 22899). Notice of an intention to offer a resolution
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JEFFERSON’S MANUAL
§ 362
as a question of the privileges of the House under rule IX does not render
a resolution ‘‘pending’’ and thereby permit references to conduct of a Mem-
ber proposed to be addressed therein (Sept. 19, 1996, p. 23811).
The stricture against references to a Member’s conduct not then pending
before the House applies to the conduct of all sitting Members (Apr. 1,
1992, p. 7899), including conduct that has previously been resolved by
the Committee on Ethics or the House (Sept. 24, 1996, pp. 24483, 24485;
Precedents (Wickham), ch. 6, § 6.7). This stricture does not apply to the
conduct of a former Member, provided the reference is not made in an
attempt to compare the conduct of a former Member with the conduct of
a sitting Member (Sept. 20, 1995, pp. 25825, 25826; Sept. 12, 1996, pp.
22900, 22901).
Debate on a pending privileged resolution recommending disciplinary
action against a Member may necessarily involve personalities. However,
clause 1 of rule XVII still prohibits the use of language that is personally
abusive (see, e.g., July 31, 1979, p. 21584; Jan. 21, 1997, p. 393) and the
Chair may take the initiative to prevent violations of the rule (July 24,
2002, p. 14300). Furthermore, during the actual pendency of such a resolu-
tion, a Member may discuss a prior case reported to the House by the
Committee on Ethics for the purpose of comparing the severity of the sanc-
tion recommended in that case with the severity of the sanction rec-
ommended in the pending case, provided that the Member does not iden-
tify, or discuss the details of the past conduct of, a sitting Member (Dec.
18, 1987, p. 36271).
In addition to the prohibition against addressing a Member’s conduct
when it is not actually pending before the House, the Speaker has advised
that Members should refrain from references in debate (1) to the motiva-
tions of a Member who filed a complaint before the Committee on Stand-
ards of Official Conduct (now Ethics) (June 15, 1988, p. 14623; July 6,
1988, p. 16630; Mar. 22, 1989, p. 5130; May 2, 1989, p. 7735; Nov. 3, 1989,
p. 27077); (2) to personal criticism of a member of the committee (Apr.
1, 1992, p. 7899; Mar. 3, 1995, p. 6715; Sept. 19, 1996, p. 23812; Sept.
24, 1996, p. 24317); (3) to an investigation undertaken by the committee,
including suggestion of a course of action (Mar. 3, 1995, p. 6715; Sept.
24, 1996, p. 24317; Sept. 28, 1996, p. 25778) or advocacy of an interim
status report by the committee (Sept. 12, 1996, p. 22900; Sept. 28, 1996,
p. 25778).
For precedents applicable to references in debate to the President, see
§ 370, infra, or Members of the Senate, see § 371, infra.
Complaint of the conduct of the Speaker should be presented directly
§ 362. Criticism of the
for the action of the House and not by way of debate
Speaker. on other matters (V, 5188). In a case wherein a Member
used words insulting to the Speaker the House on a
subsequent day, and after other business had intervened, censured the
offender (II, 1248). In such a case the Speaker would ordinarily leave the
chair while action should be taken by the House (II, 1366; V, 5188; VI,
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JEFFERSON’S MANUAL
§ 363
565). In the 104th Congress the Chair reaffirmed that it is not in order
to speak disrespectfully of the Speaker, and that under the precedents
the sanctions for such violations transcend the ordinary requirements for
timeliness of challenges (II, 1248; Jan. 4, 1995, p. 552; Jan. 19, 1995, p.
1599). It is not in order to arraign the personal conduct of the Speaker
(Precedents (Wickham), ch. 6, § 6.6; Jan. 19, 1995, p. 1601). For example,
it is not in order to charge dishonesty or disregard of the rules (July 11,
1985, p. 18550), to reflect on his patriotism by accusing him of ‘‘kowtowing’’
to persons who would desecrate the flag (June 20, 1990, p. 14877), to refer
to him as a ‘‘crybaby’’ (Nov. 16, 1995, p. 33394), or to refer to official conduct
of the Speaker that has previously been resolved by the Committee on
Standards of Official Conduct (now Ethics) or the House (Precedents
(Wickham), ch. 6, § 6.7). The Chair may take the initiative to admonish
Members for references in debate that disparage the Speaker (June 25,
1981, p. 14056; Mar. 22, 1996, p. 6077; May 13, 2008, p. 8923). Debate
on a resolution authorizing the Speaker to entertain motions to suspend
the rules may not engage in personality by discussing the official conduct
of the Speaker, even if possibly relevant to the question of empowerment
of the Speaker (Sept. 24, 1996, p. 24485).
* * * The consequences of a measure may be
§ 363. Motives of reprobated in strong terms; but to
Members not to be
arraigned. arraign the motives of those who
propose to advocate it is a person-
ality, and against order. Qui digreditur a mate-
ria ad personam, Mr. Speaker ought to suppress.
Ord. Com., 1604, Apr. 19.
The arraignment of the motives of Members is not permitted (V, 5147–
51; Dec. 13, 1973, p. 41270), and Speakers have intervened to prevent
it, in the earlier practice preventing even mildest imputations (V, 5161,
5162). However, remarks in debate may address political, but not personal,
motivations for legislative positions (Jan. 24, 1995, p. 2214; Mar. 8, 1995,
pp. 7307, 7308; Nov. 17, 1995, p. 33832; June 13, 1996, p. 14043) or for
committee membership (July 10, 1995, pp. 18257–59). Accusing another
Member of hypocrisy has been held not in order (July 24, 1979, p. 20380;
Mar. 29, 1995, p. 9675; Mar. 7, 2012, p. 3045), and characterizing the
motivation of a Member in offering an amendment as deceptive and hypo-
critical was ruled out of order (June 12, 1979, p. 14461). A statement in
debate that an amendment could only be demagogic or racist because only
demagoguery or racism impelled such an amendment was ruled out of
order as impugning the motives of the Member offering the amendment
(Dec. 13, 1973, pp. 41270, 41271). However, debate characterizing a pend-
ing measure as a ‘‘patently petty political terrorist tactic’’ was held in order
as directed at the pending measure rather than the motive or the character
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§ 364
of its proponent (Nov. 9, 1995, p. 31913). Although in debate the assertion
of one Member may be declared untrue by another, in so doing an inten-
tional misrepresentation must not be implied (V, 5157–5160), and if stated
or implied is censurable (II, 1305). A Member in debate having declared
the words of another ‘‘a base lie,’’ censure was inflicted by the House on
the offender (II, 1249).
No one is to disturb another in his speech by
§ 364. Disorder and hissing, coughing, spitting, 6 Grey,
interruptions during
debate. 322; Scob., 8; D’Ewes, 332, col. 1,
640, col. 2, speaking or whispering
to another, Scob., 6; D’Ewes, 487, col. 1; nor
stand up to interrupt him, Town, col. 205; Mem.
in Hakew., 31; nor to pass between the Speaker
and the speaking Member, nor to go across the
House, Scob., 6, or to walk up and down it, or
to take books or papers from the table, or write
there, 2 Hats., 171, p. 170.
The House has, by clause 5 of rule XVII, prescribed certain rules of
decorum differing somewhat from this provision of the parliamentary law,
but supplemental to it rather than antagonistic. In one respect, however,
the practice of the House differs from the apparent intent of the parliamen-
tary law. In the House a Member may interrupt by addressing the Chair
for permission of the Member speaking (V, 5006; VIII, 2465); but it is
entirely within the discretion of the Member occupying the floor to deter-
mine when and by whom to be interrupted (V, 5007, 5008; VIII, 2463,
2465). There is no rule of the House requiring a Member having the floor
to yield to another Member referred to during debate (Aug. 2, 1984, p.
22241). A Member may ask another to yield from any microphone in the
Chamber, including those in the well, so long as not crossing between the
Member having the floor and the Chair (June 5, 1998, p. 11170). The Chair
may take the initiative in preserving order when a Member declining to
yield in debate continues to be interrupted by another Member, may order
that the interrupting Member’s remarks not appear in the Record (Prece-
dents (Wickham), ch. 5, § 22.24), and may admonish Members not to con-
verse with a Member attempting to address the House (Feb. 21, 1984,
p. 2758), because it is not in order to engage in disruption while another
is delivering remarks in debate (June 27, 1996, p. 15915). On the opening
day of the 103d Congress, during the customary announcement of policies
with respect to particular aspects of the legislative process, the Chair elabo-
rated on the rules of order in debate with a general statement concerning
decorum in the House (Jan. 5, 1993, p. 105). Under this provision, the
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Chair may require a line of Members waiting to sign a discharge petition
to proceed to the rostrum from the far right-hand aisle and require the
line not to form between the Chair and Members engaging in debate (Oct.
24, 1997, p. 23293). Hissing and jeering is not proper decorum in the House
(May 21, 1998, p. 10282). In the event of disorder in the well, the Chair
may ask Members to uphold the dignity and decorum of the House so
that business can be conducted in an orderly fashion (Speaker Ryan, Prece-
dents (Wickham), ch. 6, § 6.1) or may order that the well be cleared (Speak-
er McCormack, Dec. 9, 1963, p. 23831). For further discussion of interrup-
tions in debate, see § 946, infra.
Nevertheless, if a Member finds that it is not
§ 365. Parliamentary the inclination of the House to hear
method of silencing a
tedious Member. him, and that by conversation or
any other noise they endeavor to
drown his voice, it is his most prudent way to
submit to the pleasure of the House, and sit
down; for it scarcely ever happens that they are
guilty of this piece of ill manners without suffi-
cient reason, or inattention to a Member who
says anything worth their hearing. 2 Hats., 77,
78.
In the House, where the previous question and hour rule of debate have
been used for many years, the parliamentary method of suppressing a tedi-
ous Member has never been imported into the practice (V, 5445).
If repeated calls do not produce order, the
§ 366. The Speaker may call by his name any
parliamentary law as
to naming a Member obstinately persisting in ir-
regularity; whereupon the House
disorderly Member.
may require the Member to withdraw. He is
then to be heard in exculpation, and to with-
draw. Then the Speaker states the offense com-
mitted; and the House considers the degree of
punishment they will inflict. 2 Hats., 167, 7, 8,
172.
This provision of parliamentary law should be read in conjunction with
clause 4 of rule XVII, §§ 960–961, infra, particularly as this provision re-
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lates to the ultimate authority of the House to determine whether a Mem-
ber ignoring repeated calls to order should be permitted to proceed in order.
For instances of assaults and affrays in the
House of Commons, and the pro-
§ 367. Proceedings in
cases of assaults and
affrays. ceedings thereon, see 1 Pet. Misc.,
82; 3 Grey, 128; 4 Grey, 328; 5
Grey, 382; 6 Grey, 254; 10 Grey, 8. Whenever
warm words or an assault have passed between
Members, the House, for the protection of their
Members, requires them to declare in their
places not to prosecute any quarrel, 3 Grey, 128,
293; 5 Grey, 280; or orders them to attend the
Speaker, who is to accommodate their dif-
ferences, and report to the House, 3 Grey, 419;
and they are put under restraint if they refuse,
or until they do. 9 Grey, 234, 312.
In several instances assaults and affrays have occurred on the floor of
the House. Sometimes the House has allowed these affairs to pass without
notice, the Members concerned making apologies either personally or
through other Members (II, 1658–1662). In other cases the House has ex-
acted apologies (II, 1646–1651, 1657), or required the offending Members
to pledge themselves before the House to keep the peace (II, 1643). In
case of an aggravated assault by one Member on another on the portico
of the Capitol for words spoken in debate, the House censured the assailant
and three other Members who had been present, armed, to prevent inter-
ference (II, 1655, 1656). Assaults or affrays in the Committee of the Whole
are dealt with by the House (II, 1648–1651).
Disorderly words are not to be noticed till the
Member has finished his speech. 5
§ 368. Parliamentary
law as to taking down
Grey, 356; 6 Grey, 60. Then the per-
disorderly words.
son objecting to them, and desiring
them to be taken down by the Clerk at the table,
must repeat them. The Speaker then may direct
the Clerk to take them down in his minutes; but
if he thinks them not disorderly, he delays the
direction. If the call becomes pretty general, he
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orders the Clerk to take them down, as stated
by the objecting Member. They are then a part
of his minutes, and when read to the offending
Member, he may deny they were his words, and
the House must then decide by a question
whether they are his words or not. Then the
Member may justify them, or explain the sense
in which he used them, or apologize. If the
House is satisfied, no further proceeding is nec-
essary. But if two Members still insist to take
the sense of the House, the Member must with-
draw before that question is stated, and then the
sense of the House is to be taken. 2 Hats., 199;
4 Grey, 170; 6 Grey, 59. When any Member has
spoken, or other business intervened, after offen-
sive words spoken, they can not be taken notice
of for censure. And this is for the common secu-
rity of all, and to prevent mistakes which must
happen if words are not taken down imme-
diately. Formerly they might be taken down at
any time the same day. 2 Hats., 196; Mem. in
Hakew., 71; 3 Grey, 48; 9 Grey, 514.
The House has, by clause 4 of rule XVII, provided a method of procedure
in cases of disorderly words. The House permits and requires them to be
noticed as soon as uttered, and has not insisted that the offending Member
withdraw while the House is deciding as to its course of action.
Disorderly words spoken in a committee must
be written down as in the House;
§ 369. Disorderly
words taken down
but the committee can only report
and reported from
them to the House for animadver-
Committee of the
Whole.
sion. 6 Grey, 46.
This provision of the parliamentary law has been applied to the Com-
mittee of the Whole, rather than to select or standing committees, which
are separately empowered to enforce rules of decorum (clause 1(a) of rule
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XI, which incorporates the provisions of rule XVII where applicable). The
House has censured a Member for disorderly words spoken in the Com-
mittee of the Whole and reported therefrom (II, 1259).
In Parliament, to speak irreverently or sedi-
tiously against the King is against
§ 370. References in
debate to the
Executive. order. Smyth’s Comw., L. 2, c. 3; 2
Hats., 170.
This provision of the parliamentary law is manifestly inapplicable to
the House (V, 5086); and it has been held in order in debate to refer to
the President of the United States or his opinions, either with approval
or criticism, provided that such reference be relevant to the subject under
discussion and otherwise conformable to the Rules of the House (V, 5087–
5091; VIII, 2500). Under this standard the following references are in order:
(1) a reference to the probable action of the President (V, 5092); (2) an
adjuration to the President to keep his word (although an improper form
of address) (Dec. 19, 1995, p. 37601); (3) an accusation that the President
‘‘frivolously vetoed’’ a bill (Nov. 8, 1995, p. 31785).
Personal abuse, innuendo, or ridicule of the President is not permitted
(VIII, 2497; Aug. 12, 1986, p. 21078; Oct. 21, 1987, pp. 28857, 28858; Sept.
21, 1994, p. 25147; Sept. 7, 2006, pp. 17381, 17382; Oct. 24, 2017, p. l).
The standards applicable to references regarding the President applies also
to the President-elect (e.g., Nov. 14, 2016, p. l). In the 102d Congress,
the Speaker enunciated a minimal standard of propriety for all debate
concerning nominated candidates for the Presidency, based on the tradi-
tional proscription against personally offensive references to the President
even in the capacity as a candidate (Speaker Foley, Sept. 24, 1992, p.
27344). This policy has been extended to a presumptive major-party nomi-
nee for President (e.g., Apr. 22, 2004, pp. 7401, 7402) (although references
to the past statements or views of such nominee are not necessarily unpar-
liamentary (May 6, 2004, p. 8554)). The House has adopted a special order
of business permitting Members to engage in personalities toward the
President during debate on certain specified measures (sec. 2, H. Res. 38,
Jan. 12, 2021, p. l).
Under this standard, the following remarks regarding personal conduct,
demeanor, or attributes have been held out of order as unparliamentary
references: (1) discussing personal conduct even as a point of reference
or comparison (July 16, 1998, p. 15784; Sept. 9, 1998, p. 19735); (2) ‘‘cow-
ardly,’’ ‘‘cowardice’’ (e.g., Oct. 25, 1989, p. 25817), lacking personal courage
(Mar. 26, 2014, p. 4875), ‘‘dastardly’’ (July 25, 2017, p. l), or lacking a
backbone (July 16, 2018, p. l); (3) ‘‘a little bugger’’ (Nov. 18, 1995, p.
33974); (4) ‘‘disgusting’’ and ‘‘despicable’’ (Mar. 11, 2004, p. 4033; Jan. 15,
2019, p. l), ‘‘disgraceful’’ (e.g., June 20, 2012, pp. 9462, 9463) or a disgrace
(e.g., Sept. 25, 2017, p. l), ‘‘disgusting and indecent rhetoric’’ (Mar. 27,
2017, p. l), ‘‘vile’’ (June 15, 2018, p. l), incapable of ‘‘basic human de-
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cency’’ (Sept. 13, 2018, p. l) or a ‘‘loathsome human’’ (Dec. 14, 2017, p.
l); (5) a personal ‘‘dark side’’ (Mar. 1, 2017, p. l), ruthless (May 8, 2019,
p. l) or ‘‘sinister’’ (Dec. 20, 2018, p. l); (6) that such person is deserving
of shame (May 24, 2016, p. l) or is ‘‘shameful’’ (e.g., Dec. 8, 2016, p. l)
(although an accusation of ‘‘shameful opposition’’ to a legislative proposal
is not necessarily out of order (Deschler, ch. 29, § 58.7)); (7) not ‘‘a large
enough person’’ to apologize (Mar. 11, 2004, p. 4086); (8) ‘‘arrogant’’ (e.g.,
Jan. 11, 2007, p. 998); (9) ‘‘mean-spirited’’ (e.g., July 15, 2008, p. 15061),
‘‘mean’’ (July 28, 2017, p. l), or vicious (Sept. 25, 2017, p. l); vengeful
(June 3, 2013, p. 7783), ‘‘cruel’’ (e.g., Nov. 15, 2013, p. 17166), heartless
(e.g., July 25, 2017, p. l), callous (e.g., Sept. 27, 2017, p. l), a ‘‘jerk’’
(Nov. 15, 2018, p. l), or accusations of demeaning and denigrating others
(Oct. 26, 2017, p. l); (10) ill-tempered or lacking temperament (e.g., Sept.
7, 2016, p. l), ‘‘infantile’’ (June 15, 2016, p. l) or ‘‘petulant’’ (e.g., Jan.
18, 2018, p. l); (11) a ‘‘hissy fit’’ (e.g., Oct. 27, 2011, pp. 16239, 16245)
or ‘‘temper tantrum’’ (e.g., Mar. 19, 2018, p. l); (12) was ‘‘rooting against,’’
or was turning one’s back on, the American people (e.g., Mar. 16, 2016,
p. 3317), intentionally hurting the public (Oct. 3, 2013, p. 15069), or
‘‘bilking’’ the taxpayer (Apr. 22, 2015, p. 5374); (13) that such person had
engaged in insults (e.g., May 13, 2015, p. 6583), ‘‘attacks women’’ (July
16, 2018, p. l) or protected classes (Oct. 26, 2017, p. l), or ‘‘says ugly
things about women’’ (Nov. 21, 2019, p. l); (14) accusing such person of
being ‘‘delusional’’ (e.g., Dec. 9, 2015, pp. 19794, 19795), ‘‘paranoid’’ (Dec.
14, 2017, p. l), or ‘‘erratic and impetuous’’ (Jan. 24, 2019, p. l); (15)
commenting derogatorily on physical attributes (May 24, 2016, p. l); (16)
accusing such person of engaging in ‘‘character assassination’’ or a ‘‘smear
campaign’’ against others (Jan. 10, 2018, p. l); (17) alleging that such
person mocked disabled individuals (Feb. 14, 2018, p. l); (18) referring
to such person as a ‘‘moron’’ (Mar. 22, 2018, p. l) or an ‘‘idiot’’ (Dec. 20,
2017), or of doing or saying stupid things (Oct. 26, 2017, p. l); (19) refer-
ring to such person as ‘‘greedy’’ (Apr. 17, 2018, p. l); (20) accusing such
person of threats against public officials (Apr. 25, 2018, p. l); (21) ques-
tioning such person’s ‘‘reckless’’ and ‘‘negligent’’ personal conduct (May 24,
2018, p. l), doubting such person’s faithfulness to a spouse (e.g., June
13, 2018, p. l), accusing such person of ‘‘using women’’ (June 28, 2018,
p. l), or alleging that such person has a ‘‘sex tape’’ (July 18, 2018, p.
l); (22) ‘‘soulless’’ (June 21, 2018, p. l) or ‘‘immoral’’ (e.g., Sept. 25, 2017,
p. l); (23) a ‘‘drama queen’’ (Dec. 20, 2018, p. l); (24) insinuating that
such person acts according to his ego (Oct. 10, 2017, p. l), has a fragile
ego (Nov. 29, 2017, p. l), or is ‘‘making the American people suffer for
the sake of his ego’’ (Jan. 9, 2019, p. l); (25) accusing such person of
‘‘spreading evil’’ (Dec. 1, 2017, p. l); (26) accusing such person of vanity
(July 11, 2019, p. l).
It is not in order to call the President a ‘‘liar’’ or accuse such person
of ‘‘lying’’ (e.g., June 26, 1985, p. 17394). Indeed, any suggestion of men-
dacity is out of order, such as: (1) suggesting that such person misrepre-
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sented the truth, attempted to obstruct justice, and encouraged others to
perjure themselves (Feb. 25, 1998, p. 2621); (2) dishonesty (e.g., July 13,
2004, p. 15275), failing to be honest (Apr. 14, 2011, p. 6198), making a
‘‘dishonest argument’’ (Sept. 12, 2006, p. 17851), or intent to be intellectu-
ally dishonest (May 9, 1990, p. 9828) or issue a false statement (Dec. 20,
2017, p. l), or stating that many were convinced such person had ‘‘not
been honest’’ (Mar. 5, 1998, p. 2620), or stating that such person had ‘‘fallen
quite short when it comes to fairness or honesty’’ (June 12, 2017, p. l);
(3) ‘‘raping’’ the truth (Apr. 24, 1996, p. 8807), ‘‘contempt for the truth’’
(June 24, 2019, p. l), not telling the truth (e.g., Oct. 29, 2003, p. 26363),
distorting the truth (Sept. 9, 2003, pp. 21570–73), having only a ‘‘nodding
acquaintance’’ with the truth (Mar. 1, 2017, p. l), or asserting that such
person’s ‘‘relationship with the truth is complicated at best’’ (June 22, 2017,
p. l); (4) not being ‘‘straight with us’’ (e.g., Nov. 19, 2003, p. 29811) or
‘‘spoke out of the other side of his mouth’’ (Jan. 31, 2012, p. 525); (5) attrib-
uting ‘‘hypocrisy’’ (e.g., Sept. 25, 1992, p. 27674); (6) ‘‘deceit’’ (Nov. 17, 2014,
p. 15809), ‘‘deception’’ (e.g., Sept. 28, 2016, p. l), being deceptive (e.g.,
Mar. 29, 2004, pp. 5523, 5524), using ‘‘deceptive rhetoric’’ (Oct. 17, 2007,
pp. 27534, 27538), or engaging in a ‘‘massive campaign of deception’’ (July
11, 2018, p. l); (7) making promises while having ‘‘no intention of living
up to his promises’’ (Mar. 27, 2017, p. l) or stating that such person went
back on (Dec. 20, 2018, p. l) or ‘‘personally reneged on’’ (Jan. 18, 2018,
p. l) his word; (8) acting in a ‘‘duplicitous’’ manner (June 11, 2015, p.
9358); (9) acting in a ‘‘disingenuous’’ manner (Mar. 1, 2017, p. l); (10)
fabricating an issue (e.g., July 6, 2004, pp. 14313, 14314), engaging in
‘‘scams’’ (May 22, 2019, p. l), or intending to mislead (e.g., Oct. 6, 2004,
p. 21053), such as stating ‘‘blatant falsehoods’’ (Jan. 30, 2017, p. l); (11)
engaging in ‘‘elaborate attempts to conceal information’’ (Dec. 14, 2017,
p. l); (12) engaging in ‘‘defamation’’ (Dec. 14, 2017, p. l); (13) intentional
mischaracterization, although mischaracterization without intent to de-
ceive is not necessarily out of order (July 19, 2005, p. 16525); (14) cheating
in an election (Aug. 22, 2020, p. l).
It is not in order to cast aspersions on the ethical behavior of the Presi-
dent, including: (1) alluding to unethical behavior or corruption (e.g., June
20, 1996, p. 14829), such as implying a cause-and-effect relationship be-
tween political contributions and his actions as President (e.g., May 22,
2001, p. 9028), including an accusation that the President had ‘‘lined the
pockets’’ of his ‘‘political cronies’’ and filled ‘‘campaign coffers’’ (Sept. 14,
2005, pp. 20238, 20239); (2) using the Presidency for personal benefit (e.g.,
Jan. 11, 2017, p. l) or ‘‘self-enrichment’’ (e.g., Apr. 17, 2018, p. l), or
accusing the President of the ‘‘appearance of wrongdoing’’ and of ‘‘profiting
illegally’’ from the office (Mar. 15, 2018, p. l); (3) questioning whether
the President can ‘‘live up to the ethical requirements’’ of the office (Jan.
24, 2017, p. l); (4) calling such person ‘‘amoral’’ or lacking in morality
(June 3, 2013, p. 7783; Nov. 16, 2016, p. l), or accusing such person of
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