Assembly of Congressbudgetcounsel.files.wordpress.com/2016/11/deschlers-v1-ch-1-ch-6.pdf5 Assembly...

1

CHAPTER 1

Assembly of Congress

A. Meeting and Organization§ 1. In General; Law Governing§ 2. Types of Meeting; Sessions§ 3. Time of Meeting§ 4. Place of Meeting§ 5. Clerk as Presiding Officer; Authority§ 6. Election of the Speaker§ 7. Business Under Speaker as Presiding Officer

B. Procedure§ 8. Procedure before Adoption of Rules§ 9. —Motions

§ 10. Adoption of Rules; Applicability§ 11. Resumption of Legislative Business§ 12. Action on Bills and Resolutions During Organiza-

tion

Commentary and editing by Peter D. Robinson, J.D.

INDEX TO PRECEDENTS

Administration of oath to Speaker,§ 6.4

Amend, motion to, before rules adop-tion, § 9.6

Amendmentsgermaneness of, before rules adoption,

§§ 12.6, 12.7restriction on, before rules adoption,

§ 12.8

Announcements during organizationcommunications of foreign govern-

ments, § 7.9official actions during adjournment,

§§ 7.7, 7.8resignations, § 7.10

Billsconsideration of, before rules adoption,

§§ 12.8, 12.9

VerDate 26-APR-99 11:56 Jun 17, 1999 Jkt 052093 PO 00001 Frm 00001 Fmt 8876 Sfmt 8876 C:\52093C01.000 txed01 PsN: txed01

2

Ch. 1 DESCHLER’S PRECEDENTS

Bills—Cont.introduction of, before rules adoption,

§§ 12.2, 12.8, 12.9opening day, §§ 12.1, 12.2referral of, before rules adoption, § 12.2referral of, opening day, §§ 11.3, 12.1Senate action on, during organization,

§ 12.10Call of the House, before rules adop-

tion, § 9.8Chamber, meeting outside

consent of other House for, § 4.1joint meetings and ceremonies, §§ 4.5–

4.7reconvening in Chamber, resolution

for, § 4.2secret meetings, §§ 4.3, 4.4

Clerk as presiding officerduring election of Speaker, §§ 6.1, 6.6,

6.7organizational procedure under, § 5.1

Committee investigation, resolutionfor resumption of, § 11.1

Convening, consecutive sessionorganizational business and procedure,

§§ 7.5, 7.6presiding officer at, in absence of

Speaker, § 7.4procedure at, intervening death of

Speaker, §§ 6.6–6.8resumption of business at, §§ 11.2, 11.3Senate practice at, resumption of busi-

ness, §§ 11.4, 11.5Speaker presiding at, §§ 7.5, 7.6

Convening dateamending resolution to fix, § 3.8

Convening in Chamber, after sittingin another structure, § 4.2

Convening, new CongressClerk presiding at, § 5.1date of, determined by twentieth

amendment, § 3.5organizational business and procedure,

§§ 5.1, 6.1, 7.1

Convening, new Congress—Cont.Speaker presiding at, § 7.1

Day of meetingafter July, § 3.7change in, effect on business, § 3.2holiday as, § 3.6leadership authority over, §§ 3.16, 3.17pro forma meetings, § 3.9resolution to set, §§ 3.7–3.9twentieth amendment determines, for

convening, § 3.5Death of Members, proceedings as

to, §§ 8.1, 8.2Election of Speaker

by resolution, § 6.3Clerk as presiding over, §§ 6.1, 6.6, 6.7during the term of Congress, §§ 6.6–6.8procedure of, §§ 6.1, 6.2

Extension of remarks during organi-zation, § 8.2

Extraordinary sessionsappropriations for, § 2.3history of, § 2.1proclamations convening, § 2.2

Germaneness of amendments, beforerules adoption, §§ 12.6, 12.7

Hour of daily meetingconstruction as to ‘‘noon,’’ § 3.15fixing the hour when legislative day

extends beyond calendar day, § 3.1leadership authority over special meet-

ing, §§ 3.18, 3.19privileged motion to fix, § 3.11resolution fixing hour of night meeting,

§ 3.4resolution to fix, § 3.10unanimous-consent request to fix,

§§ 3.3, 3.11–3.14Hour of daily meeting, request to

change in Committee of the Whole,§ 3.14unanimous consent for, remainder of

week, § 3.12


3

Ch. 1ASSEMBLY OF CONGRESS

vacating order for, § 3.13Introduction of opening day bills,

§§ 12.1, 12.2Joint meetings

in Library of Congress, § 4.5informal invitation to Senate Chamber,

§ 4.6leadership authority over time of,

§§ 3.18, 3.19Leadership

recall of Congress, by announcement,§ 3.17

recall of Congress, pursuant to resolu-tion, § 3.16

Legislative Reorganization Actmeeting beyond July under, § 3.7portions of not in effect, prior to rules

adoption, § 12.9Messages received during organiza-

tion, § 8.3Motion to set time and date of meet-

ing, § 3.11Motions, before rules adoption

for call of the House, § 9.8for previous question, §§ 9.3, 9.4for yeas and nays, §§ 9.1, 9.2to amend, § 9.6to postpone, § 9.7to recommit, § 9.5

Night meeting, resolution for, § 3.4‘‘Noon,’’ construction of, § 3.15Opening day bills, §§ 12.1, 12.2Parliamentary law, before rules

adoption, §§ 12.8, 12.9Postpone, motion to, before rules

adoption, § 9.7Presiding officer at organization

during election of Speaker, §§ 6.1, 6.6in absence of Clerk, § 5.2in absence of Speaker, § 7.4

Previous question, motion for, beforerules adoption, §§ 9.3, 9.4

Pro forma meetings, resolution for,§ 3.9

Proclamation convening CongressClerk reads, § 2.2form of, § 2.2instances of, § 2.1

Recall of Congress, resolution au-thorizing, § 3.16

Recess during organizationSpeaker’s authority to declare, §§ 7.2,

7.3Recommit, motion to, before rules

adoption, § 9.5Resolution electing a Speaker, § 6.3Resolution to adopt rules

amendment of, §§ 10.9, 10.10correction of, § 10.12debate on, Speaker’s participation in,

§ 10.11form of, § 10.5introduction of, §§ 10.3, 10.4nondivisibility of, § 10.8postponement of, § 10.7withdrawal of, § 10.6

Resolutions, before rules adoptionaction on, §§ 12.3–12.5amendment of, §§ 12.5–12.7debate on, § 12.3postponement of, §§ 9.7, 10.7withdrawal of, §§ 10.6, 12.4

Resumption of committee investiga-tion, new Congress, § 11.1

Resumption of old business, consecu-tive session, §§ 11.2, 11.3

Rules Committeejurisdiction of pro forma meetings,

§ 3.9Rules of proceeding

prior Congress may not prescribe,§ 10.1

right of House to determine, § 10.1under general parliamentary law, be-

fore rules adoption, §§ 10.2, 12.8,12.9


4

Ch. 1 DESCHLER’S PRECEDENTS

Secret meetingsoutside of Chamber, § 4.3place of, kept confidential, § 4.4

Senate organizationintroduction of bills during, § 12.10resumption of business, §§ 11.4, 11.5

Sessionsextraordinary, §§ 2.1–2.3interval between, § 2.4

Speakeractions of during adjournment, §§ 7.7,

7.8asked unanimous consent to set hour

of meeting, § 3.3as to communications of foreign gov-

ernments, § 7.9authorized to determine time of joint

meeting, § 3.19election of, procedure for, § 6.1minority leader presents, after elec-

tion, § 6.2

Speaker—Cont.oath administered to, § 6.4participation in debate on adoption of

rules, § 10.11presides at convening of Congress, § 7.1presides at convening of consecutive

session, §§ 7.5, 7.6resignation from committees, § 6.5resignations received by, § 7.10vacancy in office of, during term,

§§ 6.6–6.8State of the Union Message

precedence of, over Senate business,§§ 11.4, 11.5, 12.10

Twentieth amendment, operation of,§ 3.5

Unanimous consent requests duringorganization, §§ 8.1, 8.2


5

Assembly of Congress

A. MEETING AND ORGANIZATION

§ 1. In General; Law Gov-erning

An understanding of the body ofprocedure through which theUnited States House of Represent-atives fulfills its functions and ex-ercises its prerogatives must bebased, in the beginning, on a com-prehension of how the Congresscomes together, and of the meth-ods through which it arrives at anorganizational structure and at abody of rules to govern its pro-ceedings.

This chapter is principally con-fined to the specific steps andprinciples of procedure whichapply to the initial organization ofthe House of Representatives. Thediscussion is chronological, fol-lowing the progression which theHouse itself follows at organiza-tion. Although this chapter fo-cuses on circumstances indigenousto the organization of a new Con-gress, parallels are drawn to themode of operation at the start ofnew sessions during a term ofCongress as well.

This chapter discusses the gen-eral law which governs the House

as soon as it has come together,but before organization has beenconsummated, the provisions oflaw directing the assembly of Con-gress, and the steps of organiza-tion which occur at the conveningof Congress. The four types of ‘‘as-sembly,’’ and their relationship tothe sessions of Congress, are de-scribed, as are the time and placeat which Congress meets both atassembly and during sessions.

The first division of this chaptersets forth, schematically, the var-ious organizational steps, includ-ing the election of the Speaker,and describes the proceedingsover which he presides in com-pleting organization. The func-tions and authority of the Speakerand of the other officers of theHouse at the opening of Congressare detailed.

The second division deals withthe principles of organizationalproceedings, before and afterstanding rules have been adopted.The use of motions, miscellaneousfloor procedure, and the consider-ation and passage of bills and res-olutions during the organizationalperiod are covered, as well as the


6

DESCHLER’S PRECEDENTSCh. 1 § 1

1. See 59 Am Jur 2d ParliamentaryLaw § 3. The general rules of par-liamentary procedure applicable toany membership organization havebeen variously described as: thosetreating participants with fairnessand good faith, Re Election of Direc-tors of Bushwick Sav. & Loan Assoc.,189 Misc. 316, 70 N.Y.S. 2d 478(1947); those used by all Americandeliberative assemblies, Theofel vButler, 134 Misc. 259, 236 N.Y.S. 81,affd. 227 App. Div. 626, 235 N.Y.S.896 (1929).

Collateral references: George S.Blair, American Legislatures; Struc-ture and Process, Harper and Row(N.Y., 1967). Lewis A. Froman, Jr.,‘‘Organization Theory and the Expla-nation of Important Characteristicsof Congress,’’ 62 AMERICAN POLIT-ICAL SCIENCE REVIEW 518–562(June, 1968). Guide to the Congressof the United States, Congressional

Quarterly, Inc. (Wash., D.C. 1971).Paul Riddick, The United StatesCongress Organization and Proce-dure, National Capitol Publishers(Manassas, Va. 1949).

2. See House Rules and Manual § 60(comment) (1973). See also 5 Hinds’Precedents §§ 6758–63; 8 Cannon’sPrecedents §§ 3383–86.

3. See 5 Hinds’ Precedents §§ 6757,6761–63. Rule XLII, House Rulesand Manual § 938 (1973) provides forthe application of Jefferson’s Manualto House procedure where not incon-sistent with standing rules.

4. For example, the motion to recommitwas admitted before the adoption ofrules on Dec. 7, 1931, 71 CONG. REC.12, 72d Cong. 1st Sess. (SpeakerJohn N. Garner), because it waswithin the ‘‘spirit’’ of the rules of thepreceding Congress (see § 9.5, infra).

5. Rule II (election of officers and ad-ministration of oath to them), § 635,and Rule III clause 1 (duties of Clerk

procedure and substantive law re-lating to the adoption of the rulesthemselves. How the House re-sumes business, and what busi-ness is resumed, is likewise in-cluded.

A word first is in order aboutthe general body of procedural lawwhich governs the House duringthe period of organization. It is ageneral principle that in the ab-sence of the adoption of rules ofprocedure and in the absence ofstatutory regulation, a public de-liberative body is governed by thegenerally accepted rules of par-liamentary procedure.(1) In the

House of Representatives, how-ever, the general parliamentarylaw applicable is that body of par-liamentary law generally basedupon precedents and rules of pastHouses.(2) Obsolete provisions ofJefferson’s Manual, inconsistentwith the prevailing practice of theHouse, do not apply.(3)

Past rules from a prior Con-gress may be relied upon to admitcertain motions before the adop-tion of rules,(4) and those relatingto organization procedures,though technically inapplicable,exert persuasive effect.(5) This is


7

ASSEMBLY OF CONGRESS Ch. 1 § 2

at commencement of new Congress),§ 637, House Rules and Manual(1973), prescribe the procedure at or-ganization which is generally fol-lowed, although the rules are nottechnically in force at that time.

6. See, e.g., 5 Hinds’ Precedents§§ 5590, 5604.

7. 5 Hinds’ Precedents §§ 6765–66.8. The requirements of the Legislative

Reorganization Act of 1970, Pub. L.No. 91–510, 84 Stat. 1140, incor-porate as an exercise of the rule-making power into the rules of the91st Congress, were ruled not appli-cable to the proceedings of the 92dCongress before the adoption ofrules. 117 CONG. REC. 132, 92dCong. 1st Sess., Jan. 22, 1971(Speaker Carl Albert, Okla.) (see§ 12.9, infra).

9. Section 2. The twentieth amend-ment, ratified Feb. 6, 1933, super-seded U.S. Const. art. I, § 4, clause 2.

10. See House Rules and Manual § 590(1973). See § 3, infra, for determina-tion of the meeting time of Congress.

11. For the President’s authority to con-vene Congress, see U.S. Const. art.II, § 3. For characterization of meet-ings called by the President, andwhether they constitute a new ses-sion, see § 3, infra. See also Ashley vKeith Oil Corp., 7 F.R.D. 589 (D.Mass. 1947); compare Jefferson’sManual, House Rules and Manual§ 588 (1973). For instances of extrasessions since 1936, see §§ 2.1–2.2,infra.

In the 93d Congress, the concur-rent resolution adjourning sine diethe 1st session (H. Con. Res. 412)provided that the leadership couldreassemble Congress.

not to infer, however, that pastrules are generally controlling.(6)A rule of a past Congress assum-ing to control a future House as torules at organization is not bind-ing,(7) and a statutory enactmentincorporated into the rules of apreceding Congress and enactedunder the rule-making power ofthe House and Senate has no ef-fect in a new Congress until ex-pressly adopted.(8)

§ 2. Types of Meeting; Ses-sions

Congress assembles in variousways, as determined by the statusof Congress at its last meeting

and by the provisions of the twen-tieth amendment, requiring as-sembly at least once a year.(9) Thetwo types of ‘‘assembly’’ con-templated by the twentiethamendment include the conveningof the first session of a new Con-gress and the convening of thesecond or following session of anexisting Congress.(10) A third cat-egory of assembly, the extra ses-sion, may arise when the Con-gress is convened pursuant toPresidential proclamation afterthe final adjournment of one ses-sion but before the constitutionalday for the convening of the nextsession.(11) When the President ex-


8


12. For historical commentary on thenumber of sessions per term, see § 3,infra.

13. See 86 CONG. REC. 14059, 76thCong. 3d Sess., Jan. 3, 1941. See also§ 2.4, infra, and 8 Cannon’s Prece-dents § 3375.

14. 6 Cannon’s Precedents § 5.A message from one House that a

quorum has appeared is not deliv-ered in the other until a quorum hasappeared there also. 1 Hinds’ Prece-dents § 126.

Although art. I, § 5, clause 1 of theConstitution requires a quorum to dobusiness, the House has proceeded tobusiness at the beginning of a secondsession despite the lack thereof inthe Senate (1 Hinds’ Precedents§ 126), and both Houses have per-mitted the oath to be administeredin the absence of a quorum (1 Hinds’Precedents §§ 174, 181, 182; 4 Hinds’Precedents § 875).

ercises his power to convene, aCongress may hold three or moresessions during its term.(12) Thelast category of assembly, as theterm is used generally to connotea meeting, occurs during a sessionof Congress, after adjournment ei-ther to a day certain or from dayto day.

The final adjournment of onesession, preceding the opening ofa new session, is usually but notalways accomplished by a sine dieadjournment resolution.

For example, the 76th Congress,3d session, terminated and the77th Congress, 1st session, beganat noon on Jan. 3, 1941, pursuantto the twentieth amendment; nei-ther a concurrent resolution pro-viding for adjournment sine dienor a law changing the conveningdate of the 77th Congress hadbeen passed. The House adopted asimple motion to adjourn on Jan.2, and the Senate stayed in ses-sion up to noon on Jan. 3 whenthe 3d session of the 76th Con-gress expired.(13)

These distinctions are impor-tant in determining the procedure

of the House and the power of itsMembers when it meets. At thebeginning of the first session of anew Congress, the House is with-out the anchors of rules of proce-dure, elected officers, or dulysworn Members. At the beginningof a consecutive session of an ex-isting Congress, on the otherhand, Members have been swornand rules and officers remain thesame. The openings of new ses-sions, however, whether of a newCongress, or of an old Congress,or by Presidential proclamation,share one common proceduralcharacteristic: the ascertainmentof a quorum must be the firstorder of business. Congress is not‘‘assembled’’ until a quorum ispresent in both Houses, and eachHouse has been notified of thequorum in the other.(14) That re-


9


15. See Ch. 20, infra. On at least one oc-casion, a quorum was not present atthe opening day of the second ses-sion. 10 ANNALS OF CONG. 782, 6thCong., 2d Sess., Nov. 17, 1800 (thedate Congress moved permanently tothe District of Columbia).

16. See § 7.1, infra.17. See 1 Hinds’ Precedents §§ 87–88.18. See 1 Hinds’ Precedents § 82.

19. See, in general, § 12, infra. For con-sideration of legislation before rulesadoption, see § 12.8, infra.

20. On the question whether a legisla-tive body was technically in sessionat the time a bill was passed, thereare two rules of statutory construc-tion: under the conclusive presump-tion rule, courts refuse to go beyondauthenticated bills to inquire wheth-er the legislative body was in ses-sion; the opposite view admits ex-trinsic evidence. Sutherland, Stat-utes and Statutory Construction§ 406 (3d. ed. 1943). Federal courtsaccord a presumption in favor of reg-ularity to the proceedings of Con-gress. See Yellin v U.S., 374 U.S.109, 146 (1963); Barry v U.S. ex relCunningham, 279 U.S. 597, 619(1929).

Whether Congress was in sessionat a particular time may become ajustifiable controversy when the ef-

quirement distinguishes the open-ing of a session from the assemblyof Congress during a session,where a quorum is not requiredunless the lack thereof is chal-lenged.(15) There are, of course,other proceedings on the openingday of a session which do notoccur at regular daily meetings,such as the notification to thePresident of the assembly of Con-gress.(16)

The point in time at which theelected Congress becomes theCongress ‘‘assembled’’ has been asubject of much discussion, as thedetermination of that questionmay define the authority of Con-gress to act in an official capac-ity.(17) The language of the Con-stitution, in empowering eachHouse to determine the rules ofits proceedings and to elect its of-ficers, clearly contemplates the as-sembly as being a ‘‘House’’ beforethe adoption of rules or election ofofficers.(18) No definitive rule can,however, be laid down as to theauthority of Congress to act before

organization, without looking spe-cifically at the act in question andat the stage of organization, fac-tors which receive detailed anal-yses elsewhere in this chapter. Asa rule, only housekeeping resolu-tions are considered during orga-nization, although a major billmay on occasion be acted upon be-fore organization is completed bythe adoption of rules.(19) A relatedquestion, whether Congress wasin session at a particular time,may become a justifiable con-troversy when the effectiveness ofa congressional or Presidential actdepends on the determination.(20)


10


fectiveness of a Presidential veto de-pends on the determination. Wrightv U.S., 302 U.S. 583 (1938); PocketVeto Case, 279 U.S. 655 (1929). Gen-erally, see Ch. 24, infra.

21. 81 CONG. REC. 9678, 75th Cong. 1stSess.

22. 82 CONG. REC. 7, 75th Cong. 2dSess.





Extra Sessions; PresidentialProclamation

§ 2.1 On two occasions since1936, Congress has heldthree sessions, the second, orspecial session, being con-vened by Presidential procla-mation following the sine dieadjournment of the first ses-sion.Following the sine die adjourn-

ment of the first session of the75th Congress on Aug. 21,1937,(21) Congress was convenedfor its second session on Nov. 15,1937, before the constitutional dayof meeting, by Presidential procla-mation.(22) The third session of the75th Congress met on the con-stitutional day, Jan. 3, 1938,(23)following the final adjournment ofthe second session.

Similarly, the second session ofthe 76th Congress was convenedby Presidential proclamation onSept. 21, 1939,(24) before the con-

stitutional day of meeting for thesecond session, Jan. 3, 1940. Thethird session of the 76th Congressconvened on Jan. 3 subsequent tothe final adjournment of the sec-ond session.(25)

§ 2.2 When the House con-venes, pursuant to Presi-dential proclamation, fol-lowing the sine die adjourn-ment of a session, the Speak-er calls the House to orderand the Clerk reads the proc-lamation of the Presidentconvening the extraordinarysession.On Nov. 15, 1937,(26) following

the sine die adjournment of thefirst session on Aug. 6, 1937,Speaker William B. Bankhead, ofAlabama, called the House toorder and directed the Clerk toread the following proclamation:

CONVENING THE CONGRESS IN EXTRASESSION BY THE PRESIDENT OF THEUNITED STATES OF AMERICA

A PROCLAMATION

Whereas public interests requirethat the Congress of the United Statesshould be convened in extra session at12 o’clock noon on the 15th day of No-vember 1937, to receive such commu-nication as may be made by the Execu-tive:


11



28. For other instances where one ses-sion of Congress followed anotherwithout appreciable interval, see 5Hinds’ Precedents § 6690; 8 Cannon’sPrecedents § 3375.

1. 86 CONG. REC. 14059, 76th Cong. 3dSess. The House had adjourned pur-suant to a simple motion to adjournon Jan. 2, 1941.

2. U.S. Const. art. I, § 4, clause 2, pro-viding for annual assembly on thefirst Monday in December, was su-perseded by the twentieth amend-

Now, therefore, I, Franklin D. Roo-sevelt, President of the United Statesof America, do hereby proclaim and de-clare that an extraordinary occasionrequires the Congress of the UnitedStates to convene in extra session atthe Capitol in the City of Washingtonon the 15th day of November 1937, at12 o’clock noon, of which all personswho shall at that time be entitled toact as Members thereof are hereby re-quired to take notice. . . .

§ 2.3 When Congress is con-vened by the President for aspecial and additional ses-sion, it may provide appro-priations, by joint resolution,for extra mileage expenses ofMembers and additionalwages of House employeesthereby incurred.On Sept. 25, 1939,(27) the House

agreed to a joint resolution appro-priating payment for expenses in-cident to the second and extraor-dinary session of the 76th Con-gress, convened by Presidentialproclamation. The appropriationscovered mileage expenses incurredby the Members, Delegates, andCommissioners of Congress andby the Vice President, and wagesfor the pages of the Senate andthe House during the term of thesecond session.

Interval Between Sessions

§ 2.4 On one occasion since1936, the Senate stayed in

session until the date andhour when one Congress ex-pired and the next one beganpursuant to the twentiethamendment.(28)

On Jan. 3, 1941,(1) the Senate ofthe 76th Congress, 3d session,convened at 11:30 a.m. At 11:43a.m. the Senate took a recessuntil 11:55 a.m. Further pro-ceedings were carried as follows inthe Record:

The third session of the Seventy-sixth Congress expired automatically,under constitutional limitation, whenthe hour of 12 o’clock arrived.

§ 3. Time of Meeting

The Constitution requires thatthe Congress assemble at leastonce a year on either the datespecified by the Constitution—January 3—or on a date ap-pointed by the Congress.(2) Since


12


ment, ratified Feb. 6, 1933, requiringin section 2 that Congress assembleon the third day of January, unlessotherwise provided.

Laws appointing a different dayfor assembling since ratification ofthe twentieth amendment, see HouseRules and Manual § 279 (1973) (com-ment). Time of convening for a ses-sion, see Everett S. Brown, The Timeof Meetings of Congress, AmericanPolitical Science Review 955–960(Nov. 1931).

3. 1 Hinds’ Precedents § 3; 8 Cannon’sPrecedents § 3371.

4. 8 Cannon’s Precedents § 3371.5. 8 Cannon’s Precedents § 3371.

6. U.S. Const., art. II, § 3. The Presi-dent has often convened the Con-gress, and on one occasion reassem-bled Congress on a day earlier thanCongress itself had provided for. 1Hinds’ Precedents §§ 2, 10–12. Con-gress provided in the concurrent res-olution adjourning sine die the 1stsession of the 93d Congress (H. Con.Res. 412) that the leadership couldcall the Houses back into session.

7. Ratified Feb. 23, 1967.8. On at least one occasion Congress

has changed the date for the elec-toral count. Act of Mar. 24, 1956, Ch.92, 70 Stat. 54. For the procedure ofthe count, see Ch. 10, infra.

the First Congress, the Senateand House have frequently pro-vided by law for a convening datedifferent than that designated bythe Constitution: by resolution ofthe Continental Congress the firstsession of the First Congress con-vened on Mar. 4, 1789,(3) up toand including May 20, 1820, 18acts were passed altering the con-stitutional day;(4) between 1820and 1934 Congress met regularlyfor a new session on the firstMonday in December.(5) SinceJanuary of 1934 the Congress hasconvened pursuant to the twen-tieth amendment, requiring theCongress to meet on the third dayof January unless otherwise pro-vided.

The twentieth amendment isnot the only law relating to thetime of meeting. Not only the

Congress, but also the Presidenthas constitutional authority toconvene the Congress earlier thanon the constitutional day; (6) in ad-dition, the twenty-fifth amend-ment to the Constitution requiresCongress to assemble to deter-mine the President’s ability, whenchallenged, to discharge the pow-ers and duties of his office,(7) andsection 15 of title III, UnitedStates Code, appoints the sixthday of January for the count ofthe electoral vote by the Senateand the House of Representa-tives.(8)

The constitutional provisions re-lating to the time of meeting andto the annual assembly were con-strued by early Congresses to per-mit them to convene early, eitherby resolution or by proclamation,and then to continue the same


13


9. The majority of the first 15 Con-gresses held only two legislative ses-sions. 1 Hinds’ Precedents §§ 5–11;see also 8 Cannon’s Precedents§ 3371, describing the first instancewhere four sessions were convened.

10 2 Hinds’ Precedents § 1160; 5 Hinds’Precedents § 6690; 8 Cannon’s Prece-dents § 3375. See § 2.4, supra.

11. A second session of the 75th Con-gress was convened by the Presidenton Nov. 15, 1937, between the sinedie adjournment of the first sessionand the convening of the third ses-sion on the constitutional day, Jan.3, 1938. 82 CONG. REC. 7, 75th Cong.2d Sess. The second session of the76th Congress was convened in likemanner on Sept. 21, 1939. 85 CONG.REC. 7, 76th Cong. 2d Sess. See § 2.1,supra.

12. 2 Hinds’ Precedents § 1160; 5 Hinds’Precedents § 6690.

13. Ashley v Keith Oil Corporation, 7F.R.D. 589 (D. Mass. 1947) held thatthe first session of the 80th Congresswas not terminated by a Presidentialproclamation convening Congresswhile adjourned to a day certain,where the Congress itself had con-strued the reconvention as a continu-ation of the first session and wherethe Presidential proclamation didnot refer to an extra or additionalsession. (The issue before the courtwas the effective date of amend-ments to the Rules of Civil Proce-dure, to become law three monthsafter the termination of the first reg-ular session of Congress.) Ashley de-parted from the early view expressedin Jefferson’s Manual (House Rulesand Manual § 588 [1973]) that theconvening of Congress by the Presi-dent automatically begins a new ses-sion, a theory formerly propoundedin the House. 1 Hinds’ Precedents§ 12.

See also the remarks in the Senateof Sen. Alexander Wiley. (Wis.) onthe Ashley issue, 93 CONG. REC.10575, 10576, 80th Cong. 1st Sess.,Nov. 17, 1947, and a Library of Con-

session up to and beyond the dayappointed by the Constitution forannual assembly.(9) The ambiguityof that construction and the ex-tension of power over the time ofmeeting to the President led tothe current practice under whichan existing session necessarilyterminates with the day appointedby the Constitution for the regularannual session.(10)

Since the adoption of the twen-tieth amendment, Congress hasmet either on Jan. 3 or shortlythereafter, maintaining two ses-sions per Congress with the excep-tion of the 75th and 76th.(11) Inthe event that Congress adjournssine die and the President con-venes an extraordinary session,

an entirely new session is begun,and is terminated by the arrivalof the constitutional day.(12)Where, however, the Presidentconvenes Congress while ad-journed to a day certain, the exist-ing session is maintained; nolonger is the presidentially-con-vened session necessarily an extraor additional one.(13)


14


gress memorandum inserted by himin the Record at 10576, concludingthat the Congress was reconveningpursuant to the Presidential procla-mation to resume the first regularsession.

14. A joint committee of the First Con-gress determined that under the res-olution of the Continental Congressand under art. I, § 2, clause 1, of theU.S. Constitution, the terms of Rep-resentatives and Senators of the firstclass commenced on the fourth ofMarch, to terminate with the third ofMarch of the odd-numbered years. 1Hinds’ Precedents § 3. That construc-tion was followed until the adoptionof the twentieth amendment. See theact of Jan. 22, 1867, Ch. 10, § 1, 14Stat. 378, cited at 1 Hinds’ Prece-dents § 11.

15. Section 1 of the twentieth amend-ment. The amendment was ratifiedon Feb. 6, 1933. For commentary,see House Rules and Manual § 6(1973). See also 2 USC § 34 (salarybegins for Representatives-elect at

beginning of term, even if beforeCongress assembles).

16. The House may provide for Sundaysessions, although Sunday is a diesnon in the regular practice of theHouse. 5 Hinds’ Precedents §§ 6728–32, 7245.

17. 5 Hinds’ Precedents §§ 5360–63. Foradjournments for a specified timeand adjournments for a specifiedpurpose, see Ch. 40, infra.

18. 119 CONG. REC. 26, 27, 93d Cong.1st Sess., Jan. 3, 1973.

19. Rule XVI clause 4, House Rules andManual § 782 (1973).

The opening date of the FirstCongress operated to fix not onlythe start of a session, but also thebeginning of the terms of theMembers of the House and of theSenate; thus the term of Congressbegan on the fourth of March ofodd numbered years and extendedthrough two years.(14) Under thetwentieth amendment, however,the terms of the Members beginon January 3 of the odd-numberedyears, regardless of an alternateconvening date.(15)

In addition to the authority ofCongress to set the conveningdate of a session or of a new Con-gress, each House has plenarypower over the time of its meet-ings during the session. By simpleday-to-day adjournment, theHouse meets on the next followingday, with the usual exclusion ofSaturday and Sunday;(16) simi-larly, an adjournment to a daycertain fixes the next meeting dayof the House. If the time of meet-ing has not been previously set byeither a standing order or by aresolution, the simple resolutionto adjourn may be amended to setthe convening time.(17)

By a new procedure adopted atthe opening of the 93d Con-gress,(18) a privileged and non-de-batable motion may be made atany time to provide for adjourn-ment to a day and time certain.(19)On some occasions, particularly


15


20. 5 Hinds’ Precedents § 6675; 8 Can-non’s Precedents § 3369.

1. 4 Hinds’ Precedents § 4325; see alsoRule XI, House Rules and Manual§ 715, and comment thereto, § 717(1973).

2. Rule XI clause 13, House Rules andManual §§ 707, 708 (1973); 4 Hinds’Precedents § 4077. Formerly, pro-posed constitutional changes as tothe terms of Congress and as to thetime of annual meetings were consid-ered by the Committee on the Elec-tion of the President, Vice President,and Representatives in Congress. 7Cannon’s Precedents 2026.

3. 1 Hinds’ Precedents §§ 4, 210.In 1784 the first order of the

House fixing the time of meetingprovided that the House meet at 9 inthe morning, adjourn at 2 in theafternoon, meet again at 4 o’clockp.m., and adjourn at 8 o’clock p.m. inthe evening. Beginning with theEighth Congress, a standing orderwas adopted for the daily hour ofmeeting, and since 1816 the hourhas been fixed at 12 o’clock merid-ian. For the history of the hour ofdaily meeting, see the remarks ofMr. George A. Dondero (Mich.), onMar. 4, 1946, 92 CONG REC. 1855,79th Cong. 2d Sess. See also 1Hinds’ Precedents §§ 4, 6, and 10.

4. 1 Hinds’ Precedents § 104; see alsoHouse Rules and Manual § 6 (1973)(comment).

5. 1 Hinds’ Precedents §§ 104–109.6. 5 Hinds’ Precedents §§ 5362–63.

when the Senate does not acqui-esce in the request of the Housefor an adjournment for more thanthree days, the House may pro-vide that meetings be held only onspecified days of the week, oftenfor merely pro forma sessionswithout transaction of legislativebusiness.(20)

Any proposition relating to thedays on which the House shall sitis within the jurisdiction of theCommittee on Rules; (1) the Com-mittee on the Judiciary considersproposed bills to change the con-vening date of Congress or toamend the constitutional provi-sions as to the time of meeting.(2)

On the opening day of a newCongress, or on the opening day ofa new session of an existing Con-gress, the House meets at 12o’clock meridian time. That hourof meeting, a practice dating from

1816, has come to have the forceof common law.(3)

On the opening day of a newCongress, one of the first steps inorganization is the adoption of astanding order fixing the hours ofdaily meeting for the remainder ofthe session; (4) that order expireswith the termination of the firstsession, and a new order must beadopted at the beginning of eachnew session of the same Con-gress.(5) While a motion to adjourndoes not usually fix the hour ofthe next meeting, it may so fix thehour where no standing order hasyet been adopted.(6) In early Con-gresses, a motion to change the


16


7. 1 Hinds’ Precedents §§ 110–112.8. 1 Hinds’ Precedents §§ 110, 113–116.9. See House Rules and Manual § 182

(1973). For debate on the measurewhen first proposed, see 119 CONG.REC. 26, 27, 93d Cong. 1st Sess.,Jan. 3, 1973.

For the former practice, requiringunanimous consent to change thehour of meeting, see § 3.11, infra. Ifthe Committee of the Whole is sit-ting when the time for the dailymeeting of the House arises, theCommittee and not the Chairmandecides whether the Committee willrise. 5 Hinds’ Precedents § 6736.

10. 4 Hinds’ Precedents § 4325.11. Where a special order so provides,

the House meets at the specific houronly on days when consideration ofthe bill is in order. 7 Cannon’s Prece-dents § 763.

12. A general rule of statutory construc-tion is that the acts of a legislaturemeeting at an unauthorized timemay be invalidated. Sutherland,Statutes and Statutory Construction§ 401 (3d ed. 1943). Federal courts donot, however, question the regularityof the proceedings of Congress as ageneral rule. Barry v U.S. ex relCunningham, 279 U.S. 597, 619(1929); Yellin v U.S., 374 U.S. 109,146 (1963).

The Senate has on occasion met inregular session more than once onthe same day. 91 CONG. REC. 5470,79th Cong. 1st Sess., June 4, 1945.(A quorum having failed at the noonsession, the Senate adjourned, toawait the arrival of absentees, until2:30 p.m., when a new sessionbegan.) See 5 Hinds’ Precedents§ 6724 for a similar instance, in theHouse, occurring in 1793.

In one instance, the Senate met atan earlier hour than that providedfor at adjournment, adopted a reso-lution, and then met at the hour towhich it had originally adjourned toratify the earlier ultra vires action.109 CONG. REC. 22697–99, 88thCong. 1st Sess., Nov. 25, 1963. (TheSenate amended the previous ad-journment resolution in order to au-thorize the earlier meeting.)

hour of daily meeting was madeat any time as a privileged mo-tion; (7) later rulings characterizedthe resolution fixing the hour as astanding order rather than as arule.(8) The new section of RuleXVI clause 4, provides for a privi-leged motion to adjourn, subject tomajority vote, which may fix theday and hour to which the Housemay adjourn.(9) In current prac-tice, a resolution to fix the hour ofmeeting or to change the hour ofmeeting is offered by the Com-mittee on Rules (10) (the committeemay also provide for the con-vening of daily sessions at a spe-cific hour while a certain bill isunder consideration).(11)

The exercise by the House of itsformal rule-making power overthe time of meeting is strictly con-strued.(12) In this regard, the lead-ership of the House has extensiveinformal authority over the timeof meeting during a session sub-ject to approval by the Houseitself. For example, the leadership


17


13. See, e.g., announcement of MajorityLeader Carl Albert (Okla.) on Jan. 9,1969, 115 CONG. REC. 368, 91stCong. 1st Sess.

14. For procedure in relation to jointmeetings, see Ch. 35 and 36, infra.For ceremonial procedure, see Ch.36, infra.

15. The House may require the giving ofnotice, issued by the Clerk, for re-suming regular business. 8 Cannon’sPrecedents § 3369.

16. 5 Hinds’ Precedents § 6686. For asine die adjournment resolution con-taining such a provision, see H. Con.Res. 412.

On one occasion, the congressionalleadership has exercised authoritywith respect to a joint resolutionchanging the meeting day of a newCongress; the resolution was pocketvetoed by the President at the re-quest of the leaders, since the dateprovided for conflicted with the con-stitutionally required day for thecount of the electoral vote. The vetomessage, alluding to the request ofthe congressional leadership, ap-pears at 102 CONG. REC. 15152, 84thCong. 2d Sess., July 27, 1956. (Themessage was dated Aug. 8, 1956.)

17. 116 CONG. REC. 40803, 91st Cong. 2dSess.

may propose, in advance, the timeof each adjournment to a day cer-tain for the entire session,(13) andmay propose times for ceremonies,joint sessions, and joint meetings,whose scheduled dates are an-nounced to the Members by theSpeaker or by the Majority Leaderor whip. (Such assemblies must bedistinguished from regular meet-ings to conduct legislative busi-ness; the House usually stands inrecess for attendance at jointmeetings and ceremonies.) (14) TheHouse on occasion authorizes theSpeaker or the congressional lead-ership to determine the date onwhich a meeting shall be held.Likewise, authority may be vestedin the Speaker to designate a dateon which the regular routine ofthe House should be resumed.(15)Similarly, a resolution of adjourn-ment to a day certain or a sine dieadjournment resolution may pro-vide that the congressional lead-ers may recall the Congress, on a

date earlier than that adjournedto, when in their opinion legisla-tive expediency warrants such ac-tion.(16)

Setting the Hour or Date ofMeeting; Preliminary Matters

§ 3.1 When the legislative dayof the House extends beyondthe calendar day, the Housethen adjourns to meet atnoon of the same calendarday on which it has ad-journed, unless otherwiseprovided.On Dec. 9, 1970,(17) Mr. Wilbur

C. Daniel, of Virginia, moved thatthe House adjourn. The Houseagreed to the motion at 1 o’clock


18



1. Sam Rayburn (Tex.).

2. 114 CONG. REC. 26488, 90th Cong.2d Sess.

3. Mr. Daniel D. Rostenkowski (Ill.)was the Speaker pro tempore.


and 3 minutes a.m., Thursday,Dec. 10, 1970, and adjourned to12 o’clock noon on Dec. 10.

§ 3.2 Enactment of a joint reso-lution changing the con-vening date of the secondsession of Congress does notaffect the status of pendinglegislative matters of thefirst session.On Dec. 19, 1945,(18) Mr. John

W. McCormack, of Massachusetts,asked for immediate considerationof a joint resolution convening thesecond session of Congress on Jan.14, 1946. After some debate onthe request, Mr. John H. Folger,of Georgia, arose to state a par-liamentary inquiry:

MR. FOLGER: I have a discharge peti-tion on the desk, No. 10, in which I amvery, very much interested. I have noobjection to this adjournment until the14th unless I have to go back and getthat signed anew. Will that carry over?

THE SPEAKER: (1) It will carry over.MR. FOLGER: If it will I am all right.THE SPEAKER: Everything remains

on the calendar just as it is now.

§ 3.3 The Speaker may take thefloor to ask unanimous con-sent that the House meet atan early hour on the fol-lowing day.

On Sept. 11, 1968,(2) SpeakerJohn W. McCormack, of Massa-chusetts, took the floor to state aunanimous-consent request:

MR. MCCORMACK: Mr. Speaker,(3) Iask unanimous consent that when theHouse adjourns today it adjourn tomeet tomorrow at 11 a.m.

THE SPEAKER PRO TEMPORE: Is thereobjection to the request of the gen-tleman from Massachusetts?

There was no objection.

§ 3.4 The Congress provides byconcurrent resolution for ajoint session to hear thePresident deliver a messagein person.On Jan. 3, 1936,(4) Speaker Jo-

seph W. Byrns, of Tennessee, laidthe following Senate resolution be-fore the House:

Resolved by the Senate (the House ofRepresentatives concurring), That thetwo Houses of Congress assemble inthe Hall of the House of Representa-tives on Friday, the 3d day of January,1936, at 9 o’clock p.m. for the purposeof receiving such communications asthe President of the United Statesshall be pleased to make to them.

The House agreed to the resolu-tion.


19



6. 5 USC 87 (c); Executive Order 10358of June 11, 1952.

7. 109 CONG. REC. 25496, 88th Cong.1st Sess.

8. Ch. 753, § 132, 60 Stat. 812, asamended, Act of Oct. 26, 1970, Pub.L. No. 91–510, § 461, 84 Stat. 1140.

9. 95 CONG. REC. 10290, 81st Cong. 1stSess.

§ 3.5 The House began con-vening under the twentiethamendment to the Constitu-tion with the 74th Congress.On Jan. 3, 1935,(5) the Clerk of

the House, South Trimble, of Ken-tucky, addressed the opening ses-sion as follows:

This is the first time in 146 yearsthat an old Congress dies and a newone is born on the 3d day of January.

Since the birth of the First Congressin 1789 this historical event has takenplace every two years on the 4th day ofMarch.

Today we inaugurate the first ses-sion of the Seventy-fourth Congress,convened under the provision of thetwentieth amendment of the Constitu-tion of the United States.

§ 3.6 Any legal holiday, such asChristmas day,(6) is a regularmeeting day of the House ofRepresentatives unless theHouse adjourns over byunanimous consent (or bymotion under Rule XVIclause 4).On Dec. 23, 1963,(7) in response

to a parliamentary inquiry by Mr.Charles A. Halleck, of Indiana,Speaker John W. McCormack, of

Massachusetts, ruled that unani-mous consent was required to ad-journ over Christmas.

Resolutions to Set the Date ofMeeting

§ 3.7 No concurrent resolutionis necessary to authorizemeetings of Congress beyondthe end of July where a con-tinuing national emergencyprevents statutory adjourn-ment under the LegislativeReorganization Act of 1946.(8)

On July 27, 1949,(9) Mr. JosephW. Martin, Jr., of Massachusetts,arose to state a parliamentary in-quiry as to the continuation of thesession of Congress beyond July31, 1949. Mr. Martin stated thatunder § 132 of the Legislative Re-organization Act of 1946, the Con-gress could continue to legallymeet through either the passageof a concurrent resolution so pro-viding or the proclaiming by thePresident of a national emer-gency; he proposed that there wasdoubt as to the actual continu-ation of the national emergenciesdeclared by the President on Sept.8, 1939, and May 27, 1941. Speak-er Sam Rayburn, of Texas, held


20



11. Sam Rayburn (Tex.).12. 95 CONG. REC. 12287, 81st Cong. 1st

Sess.

that the national emergencies de-clared by the President on thosedates were still in existence, de-spite the cessation of actual hos-tilities. He then ruled that it wasnot necessary to pass a concurrentresolution for the continued meet-ing of Congress beyond the first ofAugust.

§ 3.8 A joint resolution chang-ing the convening date of anew Congress may be amend-ed, subsequent to passage, bypassage of another joint reso-lution substituting a newlyagreed upon date.On Dec. 14, 1942,(10) Mr. John

W. McCormack, of Massachusetts,addressed the Speaker (11) to askfor immediate consideration of thefollowing joint resolution:

Resolved, etc., That the joint resolu-tion entitled ‘‘Joint resolution fixingthe dates of meeting of the second ses-sion of the Seventy-seventh Congressand of the first session of the Seventy-eighth Congress,’’ approved January 2,1942, is amended by striking out‘‘Monday, January 4, 1943’’ and insert-ing in lieu thereof ‘‘Wednesday, Janu-ary 6. 1943.’’


§ 3.9 The Committee on Ruleshas jurisdiction to report a

House resolution providingfor pro forma meetings ononly specified days of theweek, for a certain period oftime.On Aug. 25, 1949,(12) Mr. Ed-

ward E. Cox, of Georgia, of theCommittee on Rules, submittedthe following resolution:

Resolved, That until Wednesday,September 21, 1949, the House shallmeet only on Tuesday and Friday ofeach week unless otherwise ordered.

The House agreed by a two-thirds vote to consider the resolu-tion the same day, and the resolu-tion itself was then agreed to.Speaker Sam Rayburn, of Texas,announced that no business wouldbe transacted on the Tuesday andFriday meetings provided for inthe resolution. He also alluded tothe failure of the Senate to passthe concurrent resolution seekingadjournment of the House untilSept. 21, which motivated theHouse leadership to submit theresolution.

Fixing the Hour of Daily Meet-ing

§ 3.10 On the convening day ofa new session of Congress asimple House resolution es-tablishes the daily hour ofmeeting.


21



14. 109 CONG. REC. 25498, 88th Cong.1st Sess.

15. John W. McCormack (Mass.).16. 119 CONG. REC. 26, 27, 93d Cong.

1st Sess.

On Jan. 15, 1968,(13) Mr. Ray J.Madden, of Indiana, offered thefollowing resolution and asked forimmediate consideration:

Resolved, That until otherwise or-dered, the daily hour of meeting of theHouse of Representatives shall be at12 o’clock meridian.

The resolution was agreed to anda motion to reconsider was laid onthe table.

§ 3.11 Where the House met bystanding order at noon,unanimous consent was re-quired to meet at a differenthour, before the adoption ofrules changes by the 93dCongress authorizing a privi-leged motion to adjourn to atime certain.On Dec. 23, 1963,(14) after an

announcement by the Speaker (15)that funeral services would beheld the next day for a late Mem-ber of Congress, Mr. Thomas P.O’Neill, Jr., of Massachusetts,arose to state a parliamentary in-quiry:

MR. O’NEILL: Would it be in order tomove that the House meet forthwithwhen we adjourn today?

THE SPEAKER: Will the gentlemanadvise the Chair what he means by‘‘forthwith’’?

MR. O’NEILL: When we adjourn wewill have a new legislative day. Canwe then meet at the call of the Chair?

THE SPEAKER: It would requireunanimous consent to meet at anyhour other than 12 o’clock noon.

Mr. Carl Albert, of Oklahoma,then obtained unanimous consentto address the House for oneminute.

MR. ALBERT: Mr. Speaker, of courseany meeting of the House at any hourfor the consideration of this matterother than at 12 o’clock noon tomorrowwould require unanimous consent, as Iunderstand it. May I inquire of theSpeaker, so as to have the matter offi-cial, would not any meeting of theHouse other than 12 o’clock noon to-morrow require unanimous consent?

THE SPEAKER: The gentleman hasmade a correct statement.

On Jan. 3, 1973,(16) the Houseagreed to several amendments tothe rules of the 92d Congress, in-cluding the following:

In Rule XVI, insert at the end ofclause 4 the following:

It shall be in order at any timeduring a day for the Speaker, in hisdiscretion, to entertain a motion thatwhen the House adjourns it standadjourned to a day and time certain.Such a motion shall be of equalprivilege with the motion to adjournprovided for in this clause and shallbe determined without debate.

Changing the Hour of Meeting

§ 3.12 The House may agree byunanimous consent to meet,


22



18. Id.19. 111 CONG. REC. 22496, 89th Cong.

1st Sess.20. John W. McCormack (Mass.).


2. Jack Brooks (Tex.).

for the remainder of theweek, at an hour earlier thanthat provided for in thestanding order of the hour ofmeeting.On July 25, 1956,(17) Mr. John

W. McCormack, of Massachusetts,requested unanimous consent thatfor the balance of the week theHouse meet at 10 o’clock a.m.when adjourning from day to day.There was no objection.(18)

§ 3.13 The House may vacate,by unanimous consent, a pre-vious order that the Houseconvene at an early hour onthe following day.On Sept. 1, 1965,(19) the House

agreed to a unanimous-consent re-quest offered by Mr. Carl Albert,of Oklahoma, that the House con-vene at 11 o’clock the followingmorning. Later on the same dayMr. Albert addressed the Speak-er (20) to request unanimous con-sent to vacate the order providingfor an earlier meeting on the nextday. There was no objection.

Parliamentarian’s Note: The re-quest to rescind the early orderwas undertaken by the leadership

because several committees hadnotified the Speaker that con-flicting committee sessions werescheduled for the morning of thenext day.

§ 3.14 A unanimous-consent re-quest that the House meet atan earlier hour is not enter-tained in the Committee ofthe Whole.On Sept. 26, 1966,(1) following

agreement on the limit of debatefor an appropriations bill to beconsidered the following day, Mr.Sam M. Gibbons, of Florida, stat-ed that the remaining questionwas to obtain unanimous consentto convene at 11 o’clock the fol-lowing morning. The Chairman (2)responded:

As to any agreement as to when theHouse comes back tomorrow, that willbe settled, of course, when the Com-mittee rises.

The Committee then rose andthe House agreed by unanimousconsent to convene the followingmorning at 11 o’clock a.m.

Construction of ‘‘Noon’’ (Sen-ate Decision)

§ 3.15 A standing order of theSenate providing for daily


23


3. 94 CONG. REC. 5167–68, 80th Cong.2d Sess.


meeting at 12 o’clock merid-ian was construed to permitmeeting at 12 o’clock noonwhen daylight savings timeis in effect.On Apr. 30, 1948,(3) Senator

John H. Overton, of Louisiana,arose to make the point of orderthat the Senate was not legally insession, since the meeting wasconvened at 12 o’clock noon, day-light savings time, and the Senatehad formerly provided that thehour of daily meeting be at 12o’clock meridian unless otherwiseordered. President pro temporeArthur H. Vandenburg, of Michi-gan, stated that the Senate hadagreed to recess from Apr. 30,1948, to May 3, 1948, to meet at12 o’clock ‘‘noon’’, and not 12o’clock ‘‘meridian.’’ The Presidentpro tempore stated further:

Under such circumstances, the realquestion submitted to the Chair is this:What is ‘‘noon’’ in the Senate when theDistrict Commissioners, acting underauthority of a law passed by this Con-gress, advance standard time by 1hour by an order effective yesterday;particularly when the District Commis-sioners are acting under a law favor-ably acted upon by the Senate withinthe last 60 days which it itself assertsthat when daylight-saving time is es-tablished by the District Commis-sioners for the period for which it is

applicable, it shall ‘‘be the standardtime for the District of Columbia.’’

In the opinion of the Chair, Congressis bound by its own legislation in thisrespect, and any statutes or rules mustbe read in this interpretation. There isa vast body of precedent—as, for exam-ple, when the Senate recognized so-called daylight-saving time all throughthe first session of the present Eight-ieth Congress and consistently fixed itsmeeting time as 12 o’clock noon in-stead of 12 o’clock meridian. In theopinion of the Chair, borne out by theclocks in the Senate Chamber, it isnow 12 o’clock noon, which is the hourto which the Senate recessed.

The point of order is overruled.

Authorizing the Leadership toReassemble Congress

§ 3.16 The two Houses may au-thorize, in the concurrentresolution to adjourn to aday certain, that the Speakerof the House and the Presi-dent of the Senate, or theparty leaders of both Houses,convene the Houses on adate prior to that set in theresolution, on the grounds oflegislative expediency.On July 8, 1943,(4) the House

agreed to the following resolution:Resolved by the Senate (the House of

Representatives concurring), That whenthe two Houses adjourn on Thursday,July 8, 1943, they shall stand ad-


24




journed until 12 o’clock meridian onTuesday, September 14, 1943, or until12 o’clock meridian on the third dayafter their respective Members are no-tified to reassemble in accordance withsection 2 of this resolution, whicheverevent first occurs.

Sec. 2. The President of the Senateand the Speaker of the House of Rep-resentatives shall notify the Membersof the Senate and House, respectively,to reassemble whenever in their opin-ion legislative expediency shall war-rant it or whenever the majority leaderof the Senate and the majority leaderof the House, acting jointly, or the mi-nority leader of the Senate and the mi-nority leader of the House, acting joint-ly, file a written request with the Sec-retary of the Senate and the Clerk ofthe House that the Congress reassem-ble for the consideration of legislation.

§ 3.17 Form of announcementof congressional leaders call-ing for reassembly of Con-gress on an earlier date thanthat to which it was ad-journed.On Sept. 5, 1945,(5) the House

met at 12 o’clock noon and wascalled to order by Speaker SamRayburn, of Texas. After prayerwas offered and the Journal wasread and approved, the Speakerlaid before the House the formalnotification, sent to the Membersof the House on Sept. 1, 1945, ofthe reassembling of Congress:

In our opinion legislative expediencywarrants the reassembly of Congress

and therefore, pursuant to the author-ity granted us by House ConcurrentResolution 68, Seventy-ninth Congress,you are hereby notified that Congresswill reassemble in Washington at 12o’clock meridian on Wednesday, Sep-tember 5, 1945.

The notification was signed bythe Speaker, the President protempore of the Senate, and theMajority and Minority Leaders ofboth Houses.

Leadership Authority OverTime of Joint Meetings

§ 3.18 The Majority Leader ofthe House may announce tothe House the time and theplace of an informal jointmeeting of the Members ofboth Houses.On May 23, 1950,(6) House Ma-

jority Leader John W. McCor-mack, of Massachusetts, made thefollowing announcement:

. . . On Wednesday [May 31, 1950],at the auditorium of the Library ofCongress, at 12:30 p.m., the Membersof both Houses of Congress, as on pre-vious occasions when General Marshallhas addressed us, will have the oppor-tunity and the pleasure of having Sec-retary of State Acheson address us.. . . This will be a very important talk.After the Secretary of State has fin-ished his remarks, Members will be ina position to and may ask him ques-tions.


25


7. James P. Priest (Tenn.).8. 91 CONG. REC. 9756, 79th Cong. 1st

Sess.9. Sam Rayburn (Tex.).

10. A general rule of statutory construc-tion is that the acts of a legislativebody meeting at an unauthorizedplace may be invalidated. Suther-land, Statutes and Statutory Con-struction § 401 (3 ed. 1943). Federalcourts do not, however, generallyquestion the regularity of the pro-ceedings of Congress. Barry v U.S. exrel Cunningham, 279 U.S. 597, 619(1929); Yellin v U.S., 374 U.S. 109,146 (1963).

11. See the Act of Mar. 3, 1790, Ch. 28,1 Stat. 30, establishing the seat inthe District of Columbia and locatingit temporarily in Philadelphia. 4USC §§ 71–72 now locates the per-

The House then granted unani-mous consent for the Speaker protempore (7) to declare a recess,subject to the call of the Chair, onthe scheduled date.

§ 3.19 By unanimous consentthe House may authorize theSpeaker, in advance, to de-termine the date of the jointmeeting to hear a guest.On Oct. 17, 1945,(8) Mr. Brooks

Hays, of Arkansas, arose to statea unanimous-consent request:

Mr. Speaker,(9) I have learned thatGen. Douglas MacArthur will shortlyreturn to this country. I am sure thatall the Members of the House willwant to hear him address the Con-gress. I therefore ask unanimous con-sent, having discussed the matter withthe Speaker and having consulted boththe majority and minority leaders, thatit be in order for the Speaker to de-clare a recess subject to the call of theChair, at a date to be later named,during which period a joint meetingshall be held in this Chamber, atwhich time General MacArthur willaddress us.

Mr. Hays later added that ac-cording to his request, the jointmeeting be held on a date agree-able to General MacArthur and tothe Speaker. There was no objec-tion.

§ 4. Place of Meeting

A constitutional provision relat-ing to the location of the meetingsof Congress (article I, section 5,clause 4) requires that eitherHouse obtain the consent of theother to sit in ‘‘any other Placethan that in which the twoHouses shall be sitting.’’ However,in none of its provisions does theConstitution direct where the an-nual assembly under the twen-tieth amendment is to takeplace.(10)

Congress has appointed by stat-ute a seat of the federal govern-ment for the location of public of-fices and for the place of its meet-ings. Congress has affirmed itsauthority, as an attribute of na-tional sovereignty, to establish apermanent seat of government,(11)


26


manent seat of government in theDistrict.

12. Act of Mar. 3, 1790, Ch. 28, 1 Stat.30. See also the post-Civil War de-bates on the authority of Congress toremove the seat of government, 28ANNALS OF CONG. 346–75, 13thCong. 3d Sess., Oct. 5–6, 1814.

13. The President is authorized under 2USC § 27 to convene Congress else-where than the seat of governmentin the case of contagious disease orother hazardous conditions. He mayalso remove all public offices fromthe seat of government in the eventof disease. 4 USC § 73. The SixthCongress authorized the Presidentby the Act of Apr. 24, 1800, Ch. 37,2 Stat. 55, to accelerate preparationsfor the establishment of the seat ofgovernment in the District of Colum-bia.

14. Resolution of Sept. 13, 1788, 4 Jour-nal of Continental Congress 866(1823 ed.), cited at 3 Hinds’ Prece-dents § 3.

15. Ch. 28, 1 Stat. 30.16. Congress had originally provided to

begin meeting in the District of Co-lumbia on the first Monday in De-cember, 1800. Act of Mar. 3, 1790,Ch. 28, § 6, 1 Stat. 30. By the Act ofMay 13, 1800, Ch. 67, 2 Stat. 85, theeffective date was moved forward tothe third Monday in November, Nov.17, 1800. On that date a quorum ofthe House was not present in Wash-ington and the House adjourned tobegin legislative business on Nov.18. 10 ANNALS OF CONG. 782, 6thCong. 2d Sess.

17. 28 ANNALS OF CONG. 346–75, 13thCong. 3d Sess., Oct. 5–6, 1814. TheSenate bill was defeated in theHouse.

18. In New York City the Congress satin Federal Hall, Broad and WallStreets, and in Philadelphia it occu-pied Congress Hall, 6th and Chest-

to change the seat of govern-ment,(12) and to permit the Presi-dent to remove public offices orCongress itself under specifiedconditions.(13)

Congress therefore convenes foran opening session at the placedetermined by law to be the seatof government. The first two ses-sions of the First Congress assem-bled in New York City pursuantto a resolution of the ContinentalCongress.(14) By the Act of Mar. 3,1790, the First Congress providedfor the permanent seat of govern-

ment to be located in the Districtof Columbia as of December 1800,and designated Philadelphia asthe interim seat between 1790and 1800.(15) Since Nov. 17, 1800,the opening of the second sessionof the Sixth Congress, Congresshas met in Washington, D.C.,(16)although there was extended de-bate after the War of 1812 on aSenate bill to move the seat ofgovernment elsewhere.(17)

Although the Congress has hadbut three seats of government, ithas occupied numerous structuresor buildings. The New York andPhiladelphia Chambers were lo-cated in public halls,(18) and Con-


27


nut. Guide to the Congress of theUnited States 370 (1971), Congres-sional Quarterly, Inc.

19. Guide to the Congress of the UnitedStates 373 (1971), CongressionalQuarterly, Inc.

20. A Presidential message appointedthe ‘‘public building heretofore allot-ted for the Post and other public of-fices.’’ 28 ANNALS OF CONG. 10, 13thCong. 3d Sess., Sept. 19, 1814 (mes-sage dated Sept. 17, 1814).

1. See 29 ANNALS OF CONG. 10 14thCong. 1st Sess., Dec. 4, 1815.

2. Act of Dec. 8, 1815, Ch. 1, 3 Stat.251 (authorizing the President tolease the new building on CapitolHill pending repairs to the Capitolbuilding).

3. The first occasion lasted from Nov.22, 1940, 86 CONG. REC. 13715, 76thCong. 3d Sess., until Jan. 2, 1941.See the letter of Mr. David Lynn, Ar-chitect of the Capitol, at 13715, rec-ommending that the entire roof con-struction over both Chambers betaken down and replaced by modernfire-proof construction. From July 1,1949, to Jan. 2, 1950, Congress onceagain left its Chambers pending re-pairs. See House resolution, June 28,1949, 90 CONG. REC. 8571, 81stCong. 1st Sess. The last period of re-pairs requiring the removal of theHouse lasted from Sept. 1, 1950 toJan. 1, 1951. See House resolutionreturning the House to its Chamber,Dec. 28, 1950, 96 CONG. REC. 17021–22, 81st Cong. 2d Sess.

4. See, e.g., Senate resolution of Nov.22, 1940, 86 CONG. REC. 13709, 76thCong. 3d Sess.

5. See, e.g., House resolution of June28, 1949, 95 CONG. REC. 8571, 81stCong. 1st Sess.

gress has frequently been forcedto vacate the Capitol building inWashington due to repairs. Since1800, the longest period duringwhich Congress has absenteditself from the Capitol buildingwas because of the War of 1812,when the British Army nearly de-stroyed the Capitol by fire.(19) Forover a year following the war,Congress sat in a makeshiftChamber located in another publicbuilding appointed by Presidentialproclamation for the use of Con-gress.(20) For another five yearsboth Houses sat at a temporaryCapitol built on Capitol Hill byprivate citizens for the expressuse of Congress,(1) and leased bythe federal government.(2) Onthree occasions during the 20th

century, the House and the Sen-ate have vacated their respectiveChambers in the Capitol buildingpending repairs or remodeling.(3)Although the Senate remainedduring those periods within theCapitol, occupying the former Su-preme Court Chamber,(4) theHouse moved across the street tothe caucus room of the NewHouse Office Building.(5) Neitherthe House nor the Senate con-strued those temporary shifts inthe place of meeting, which al-tered the structural location but


28


6. See § 4.1, infra. Compare the re-marks of Mr. Clare E. Hoffman(Mich.), at 90 CONG. REC. 11683,81st Cong. 1st Sess., Aug. 17, 1949,contending that the House was not acompetent, legal tribunal since itwas sitting in the caucus room with-out having obtained prior Senateconsent. Mr. Hoffman argued in hisremarks that the ‘‘over-whelmingweight of legal authority . . . is tothe effect that, as to courts and legis-lative bodies, the word ’place’ cannotbe stretched to cover the territoriallimits of the city, township, county,or state.’’ He concluded that a jointresolution was required to ratify theotherwise ultra vires action of theHouse.

7. A simple House resolution providedfor the removal of the House fromthe old Chamber to the new Hall inthe south wing of the extension ofthe Capitol on Dec. 14, 1857. 5Hinds’ Precedents § 7271.

8. For attendance of the House in theCommittee of the Whole at impeach-ment proceedings in the SenateChamber, see 3 Hinds’ Precedents§ 2351. See Ch. 36, infra, for jointmeetings.

9. See §§ 4.3–4.5, infra.10. The House does not attend cere-

monies outside the Capitol buildingas an organized body. 5 Hinds’Precedents §§ 7061–64. The Househas discussed but not settled thequestion as to its power to compel aMember to attend an occasion ofceremony outside the Hall. 2 Hinds’Precedents § 1139.

11. Rule XXXI, House Rules and Manual§ 918 (1973), requires that the Hallof the House be used only for legisla-tive business and caucus meetings,except where the House by resolu-tion agrees to participate in cere-monies therein. Rule XXIX, HouseRules and Manual § 914 (1973), pro-vides for secret sessions to be held inthe Hall of the House.

12. For an instance where the House at-tended funeral services in the SenateChamber without an adjournment orrecess, see 5 Hinds’ Precedents§ 7045.

13. See § 4.7, infra.

not the place of the seat of govern-ment, to require the consent ofthe other House.(6) Therefore, asimple House resolution sufficesto adjourn the House to meet inanother structure at the seat ofgovernment.(7)

On occasion the House providesfor meetings elsewhere than in itsChamber for reasons other thanrepair. Joint meetings may beheld in the Senate Chamber,(8)

and informal meetings may beheld in other facilities, such as theLibrary of Congress.(9) Thosetypes of assemblies, as well asceremonies and processions heldoutside the House Chamber,(10) donot usually constitute official ses-sions of the House,(11) whichstands in recess in order to at-tend.(12) The House is, however,officially in session for inauguralceremonies at the east front of theCapitol, as reflected by the tradi-tional form of the resolution toparticipate in inaugural cere-monies.(13)


29


14. 95 CONG. REC. 11651, 81st Cong. 1stSess.

15. Sam Rayburn (Tex.).16. The Speaker had ruled on Aug. 1,

Aug. 2, Aug. 4, and Aug. 5, 1949,

that the House was legally in sessiondespite the provisions of the Legisla-tive Reorganization Act of 1946, Ch.753, § 132, 60 Stat. 812, requiringadjournment by the end of July; hebased his ruling on the decision thata continually existing national emer-gency precluded the operation of theLegislative Reorganization Act. 95CONG. REC. 10486, 10591, 10777,10858, 81st Cong. 1st Sess. See also§ 3.7, supra.

17. Mr. Hoffman’s extension of remarks,at 95 CONG. REC. 11683, 81st Cong.1st Sess., proposed that the term‘‘place’’ in art. I, § 5, clause 4 of theConstitution could not be stretchedto include the territorial limits of acity, and that Senate consent was re-quired for the House to sit as an au-thorized tribunal in the caucus roomof the House office building.

18. 96 CONG. REC. 17021–22, 81st Cong.2d Sess.

Meeting in a Structure OtherThan the Capitol

§ 4.1 The House may, withoutthe consent of the Senate,provide for a meeting of theHouse in the caucus room ofa House office building with-out violating the constitu-tional prohibition againstmeeting in another placewithout the consent of theother House.On Aug. 17, 1949,(14) Mr. Clare

E. Hoffman, of Michigan, stated apoint of order, as follows;

MR. HOFFMAN: Mr. Speaker, I makea point of order. My point of order isthat inasmuch as the House is now sit-ting in the committee room of theWays and Means Committee in theNew House Office Building and thatthe Senate has not consented to the ac-tion which the House took some timepreviously, the House is not a com-petent, legal tribunal, qualified underthe Constitution to act. I want to beheard.

THE SPEAKER: (15) The Chair is readyto rule. The Chair overrules the pointof order.

MR. HOFFMAN: May I not cite theprovision of the Constitution?

THE SPEAKER: The Chair is ready torule and has ruled on that questionfour times.(16) The Chair does not de-

sire to hear the gentleman on the pointof order.

MR. HOFFMAN: May I cite the sec-tion?

THE SPEAKER: The gentleman mayextend his remarks to do that.(17)

§ 4.2 A resolution is necessaryto authorize the House to re-sume sitting in its Chamberafter sitting in another struc-ture.On Dec. 28, 1950,(18) Mr. Albert

Thomas, of Texas, offered a reso-lution to adjourn, as follows:

MR. THOMAS: Mr. Speaker, I askunanimous consent for the immediateconsideration of House Resolution 894.


30


19. Wilbur D. Mills (Ark.).20. Mr. Leslie C. Arends (Ill.).1. Compare Rule XXIX, House Rules

and Manual § 914 (1973) which pro-vides for secret sessions to be held inthe House Chamber.

2. 89 CONG. REC. 8433, 78th Cong. 1stSess. 3. Sam Rayburn (Tex.).

The Clerk read the resolution, as fol-lows:

Resolved, That when the Houseadjourns Thursday, December 28,1950, it adjourn to meet on Monday,January 1, 1951, at 12 o’clock merid-ian in the Hall of the House.

THE SPEAKER PRO TEMPORE: (19) Isthere objection to the request of thegentleman from Texas?

MR. ARENDS: (20) Reserving the rightto object, Mr. Speaker, will the gen-tleman explain the resolution to theHouse? I am sure we are interested init.

MR. THOMAS: This resolution simplymakes it legal for the House to moveback into the Hall of the House, in theCapitol. It will be ready Monday.


Secret Meetings

§ 4.3 An off-the-record meetingon war progress has beenruled not an executive ses-sion of the House required tobe held in the House Cham-ber.(1)

On Oct. 18, 1943,(2) MajorityLeader John W. McCormack, ofMassachusetts, announced that

the Members of the House wouldmeet with the Chief of Staff of theArmy and other generals in theauditorium of the Library of Con-gress, for an off-the-record meet-ing of the status of the war. Mr.John E. Rankin, of Mississippi,then addressed the Speaker as fol-lows:

MR. RANKIN: Mr. Speaker, If I re-member correctly, the statement of thegentleman is that this would be an ex-ecutive session?

MR. MCCORMACK: Yes.MR. RANKIN: Now, if we are going to

hold executive sessions of the House,there is only one place that we are au-thorized by law to hold them, and thatis in this Hall.

MR. MCCORMACK: This is not an ex-ecutive session of Congress.

MR. RANKIN: It is going to be a se-cret session, and it ought to be, and itought to be held in the Hall of theHouse of Representatives.

MR. MCCORMACK: This is not an ex-ecutive session of Congress.

MR. RANKIN: It is unnecessary forthe Congress of the United States to begoing off to some other building to hearthese leaders report on the war whenwe have the Hall of the House of Rep-resentatives built and equipped forthat purpose.

Will not the gentleman modify hisrequest to have that meeting here inthis Hall?

THE SPEAKER: (3) The Chair wouldnot recognize the gentleman for thatpurpose and the gentleman would notmake such a request.

The time of the gentleman has ex-pired.


31





§ 4.4 The Majority Leader ofthe House, in setting thetime of a secret briefing ofMembers of Congress, didnot state the place of meet-ing, where the place was tobe kept confidential.On Jan. 23, 1945,(4) Speaker

Sam Rayburn, of Texas, recog-nized Majority Leader John W.McCormack, of Massachusetts, tomake the following announce-ment:

Mr. Speaker, I desire again to an-nounce to the Members of the Housethat there will be a meeting held to-morrow morning at 9 o’clock. . . .

I am sure it will be a meeting wewill all be pleased to attend as GeneralMarshall and Admiral King will bethere. I am unable to say who else willhe there but these two outstandingleaders of our armed forces will bethere to speak to us, as I have said, inan off-the-record discussion.

Parliamentarian’s Note: TheMembers of the House were askedto keep the place of the meetingsecret; it was held in the CoolidgeAuditorium of the Library of Con-gress. The meeting, which dealtwith the progress of the war, wasattended by 316 House Members,the Commissioners from the Phil-ippines and from Puerto Rico, theDelegate from Alaska, and 60Members of the Senate.

Joint Meetings and CeremoniesOutside the House Chamber

§ 4.5 The Majority Leader ofthe House announced an in-formal joint meeting of theMembers of the two Houses,to be held in the Library ofCongress.On May 23, 1950,(5) Majority

Leader John W. McCormack, ofMassachusetts, announced that onWednesday next, May 31, 1950,the Members of the House wouldmeet informally at the auditoriumof the Library of Congress to hearSecretary of State Dean Achesonin connection with the meetings ofthe foreign ministers of the Atlan-tic Pact countries. The Speakerwas authorized to declare a recesssubject to the call of the Chair onWednesday, May 31.

§ 4.6 A joint meeting has beenheld in the Senate Chamberpursuant to an informal Sen-ate invitation to the House,the unexpectedness of aguest’s arrival precludingformal arrangements.On Dec. 26, 1941,(6) the Speaker

pro tempore, William P. Cole, Jr.,


32


7. Sen. Alben W. Barkley (Ky.).8. 107 CONG. REC. 730, 87th Cong. 1st

Sess.

9. 1 Hinds’ Precedents §§ 64–65.10. For a description of the organiza-

tional steps over which the Clerkpresides, see § 5.1, infra. See also 1Hinds’ Precedents § 81. For detail onthe preparation of the Clerk’s roll,see Ch. 2, infra.

11. 1 Hinds’ Precedents §§ 65, 67, 70,204. In those instances, difficulties

of Maryland, made the followingannouncement:

. . . On Wednesday last the major-ity leader of the Senate informed theChair that he had, in the name of theSenate, extended an invitation to theRight Honorable Mr. Winston Church-ill, Prime Minister of Great Britain, toattend the session of the Senate todayat 12:30 o’clock p.m. and address them.Senator Barkley,(7) on behalf of theSenate, asked me to extend to theMembers of the House an invitation tobe present in the Senate Chambertoday at that time to hear the PrimeMinister. Owing to the shortness of thetime, it was found impossible to makeany formal arrangements. The Chairhas informally accepted for the Housethe invitation of Senator Barkley, andthose Members of the House who wishto hear the Prime Minister will form inline in the middle aisle, after thepresent occupant of the chair and themajority and minority leaders, andproceed to the Senate Chamber.

The House then recessed to attendthe joint meeting in the SenateChamber.

§ 4.7 Pursuant to resolution,the House stands in sessionwhile attending the inau-gural ceremonies on the eastfront of the Capitol.On Jan. 16, 1961,(8) the House

agreed to the following resolution,offered by Mr. John W. McCor-mack, of Massachusetts:

Resolved, That when the House ad-journs on Wednesday, January 18,

1961, it stand adjourned until 11 a.m.Friday, January 20, 1961; that uponconvening at that hour the House pro-ceed to the east front of the Capitol forthe purpose of attending the inauguralceremonies of the President and VicePresident of the United States; andthat upon the conclusion of the cere-monies the House stand adjourneduntil Monday, January 23, 1961.

§ 5. Clerk as Presiding Of-ficer; Authority

On the opening day of the firstsession of a new Congress, theelected Clerk of the precedingCongress calls the House to orderand presides until the election ofa Speaker.(9) The main duties ofthe Clerk at the organization ofthe House are ascertaining aquorum through a call of theClerk’s roll, and presiding overthe election of a Speaker.(10) Incurrent practice, the organiza-tional steps over which the Clerkpresides consume only a smallportion of opening day. The prac-tice has not always been so, asClerks have presided at someCongresses for a period of daysand even weeks.(11)


33


in the call of the roll and in the elec-tion of the Speaker kept the Clerk inthe chair for long periods of time.

12. See also Rule III clause 1, HouseRules and Manual § 637 (1973).

13. 1 Hinds’ Precedents §§ 187, 188, 235,244.

14. 1 Hinds’ Precedents §§ 187, 235; 5Hinds’ Precedents § 6743.

15. 5 Hinds’ Precedents § 6747.16. 2 USC § 26. See also § 5.2, infra.

17. See 2 USC § 79. Like Rule III of theHouse Rules and Manual, § 637(1973), Rule IV clause 1, § 648, per-taining to the Sergeant at Arms’ du-ties pending the election of a Speak-er, and Rule V clause 1 § 651, relat-ing to the Doorkeepers’ duties pend-ing the election, are not technicallyin effect at the time those duties areperformed.

18. See 1 Hinds’ Precedents §§ 68–72.19. Rule III clause 1, House Rules and

Manual § 637 (1973).20. For the history and effect of the rule,

see 1 Hinds’ Precedents § 64. Whencoupled with the former provisionthat rules of one House applied tothe organization of its successor (5Hinds’ Precedents §§ 6743–46), RuleIII gave the Clerk explicit authority

The authority of the Clerk topreside at the assembly of a newCongress is derived from customas well as statutory sources.(12)Unlike the Speaker, whose termceases with the assembly of a newCongress, the Clerk continues inoffice by tradition until the elec-tion of new officers.(13) In earlyCongresses, the House providedby a special rule that the Clerkshould continue in office until an-other should be chosen,(14) butlater constructions determinedthat one House could not by rulebind its successor.(15) In requiringthe Clerk of the preceding Houseto prepare the roll of Representa-tives-elect for the new Congress,Title 2 of the United States Codeprovides for the functioning of theClerk beyond the term of office forwhich elected; similarly, the codeprovides for the Sergeant at Arms,and in his absence the Doorkeeperof the preceding House, to performthe Clerk’s functions in the case ofvacancy in his office.(16) The Code

also enumerates duties of the Ser-geant at Arms, under the direc-tion of the Clerk of the precedingCongress, at the assembly of anew House.(17)

At the beginning of early Con-gresses, the Clerk of the precedingHouse refused to decide manyquestions of order, referring theminstead to the House.(18) Begin-ning in 1860, however, Rule III ofthe House rules (19) took on in sub-stance its present form, author-izing the Clerk to decide questionsof order subject to appeal; al-though not binding while theClerk is presiding, the rule exertspersuasive effect on the construc-tion of the Clerk’s authority to de-cide points of order.(20) As pre-


34


to decide points of order (1 Hinds’Precedents §§ 76–77). In 1890, how-ever, the theory that one Housecould by rule bind its successor wasoverthrown (5 Hinds’ Precedents§ 6747).

1. See, in general, 1 Hinds’ Precedents§§ 68–80.

As to the capacity of the House totransact general legislative businesswhile the Clerk is presiding and be-fore the election of a Speaker, theHouse has determined such proce-dure to be foreclosed by the Act of1789, Ch. 1, § 2, 1 Stat. 23, asamended, 2 USC § 25 (1948), requir-ing the administration of the oath tothe Speaker, Members, and the re-elected Clerk before the House en-ters into other business. See 1 Hinds’Precedents §§ 6647–49 (rulings bythe House that the Clerk could re-ceive a message from the Presidentbut could not read it, as reading themessage constituted business). Forother rulings on the requirementthat legislative business await theelection of officers and the swearingin of Members and of the Clerk, see1 Hinds’ Precedents §§ 130, 241, 243;contra (allowing business before theelection of the Clerk), 1 Hinds’Precedents §§ 242, 244, 245.

2. 1 Hinds’ Precedents § 80.3. 1 Hinds’ Precedents § 78.4. See 1 Hinds’ Precedents § 67. Ac-

cording to Alexander, History of Pro-

cedure of the House of Representa-tives 14 (1916), the Clerk of theHouse attempted in one instance(cited at 1 Hinds’ Precedents § 67) touse his powers and duties at theopening of the new Congress to de-termine which political party wouldcontrol the House of Representatives.In 1839, Clerk Hugh A. Garland‘‘discovered that by omitting thenames of contestants from New Jer-sey the roll would stand 118 in favorof his own party, a sufficient numberto elect a Speaker. Accordingly,when New Jersey was reached in theroll call, Garland cunningly ex-plained that as he had no authorityto settle contests he would completethe call and then submit the NewJersey matter to the House for itsdecision.’’

5. 1 Hinds’ Precedents §§ 66–67.6. See 1 Hinds’ Precedents § 67.7. See 1 Hinds’ Precedents § 234.

siding officer, the Clerk has con-sistently refused to entertainpropositions not consistent withthe organization of the House; (1)he has refused, for example, to en-tertain protests,(2) and has de-clined to hear motions referring asubject to committee (3) or relatingto contested election cases.(4)

The House may, in lieu of hav-ing the Clerk presi

Assembly of Congressbudgetcounsel.files.wordpress.com/2016/11/deschlers-v1-ch-1-ch-6.pdf5 Assembly...

Documents

Transcript of Assembly of Congressbudgetcounsel.files.wordpress.com/2016/11/deschlers-v1-ch-1-ch-6.pdf5 Assembly...