On the wikipedia page for the Clerk of the US House of Representatives, there is a passage:

To preserve the legal continuity of the House, the existence of the House is vested in the Clerk at the end of each two-year term. Thus, when the newly elected members of the House gather on January 3, it is the Clerk who summons Representatives and convenes the new Congress for the first time. Accordingly, the Clerk gavels the House into session, chairs the body as it adopts its rules of order, and oversees the election of a Speaker under those rules. The Speaker then takes the chair and the House proceeds with its business (which includes electing a Clerk for the new session). Were the House not to vest such personality in the Clerk, there would be no legally empowered authority to convene the session and lead the House in its first few acts.

What are the details of how this problem of properly convening the house is resolved?

In this CRS document, it is described that:

Although no officers of the House will have been elected when the House first convenes, officers from the previous Congress perform certain functions. The previous Clerk of the House calls the House to order and presides over the chamber until the Speaker is elected and sworn in. In the absence of the Clerk, the Sergeant at Arms performs this duty.

Later in the document, the 'officers' are described as being the "Clerk, Sergeant at Arms, Chief Administrative Officer, and Chaplain". Do these officers have the full constitutional power of the House of Representatives before the election of the Speaker? How far could these four officers get if they worked together to function as the house? Additionally, how could the House convene if these four officers were unable to perform their duties?

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    It seems to me that somebody had to convene the first House session, despite there obviously not being any Clerk nor any other officers yet.
    – D M
    Commented Dec 25, 2019 at 4:52
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    @DM Certainly. The thought occurred to me, but I didn't find much on the formal procedures they used, albeit I was more focused on the line of reasoning in my current answer so I didn't look terribly deep. The wikipedia page on it doesn't say anything about its formal procedures for establishment, and just focuses on what they did after that (which did at least include a piece of legislation for swearing in people to Congress after that point). Commented Dec 25, 2019 at 16:14

2 Answers 2


What are the details of how this problem of properly convening the house is resolved?



2. (a) At the commencement of the first session of each Congress, the Clerk shall call the Members, Delegates, and Resident Commissioner to order and proceed to record their presence by States in alphabetical order, either by call of the roll or by use of the electronic voting system. Pending the election of a Speaker or Speaker pro tempore, the Clerk shall preserve order and decorum and decide all questions of order, subject to appeal by a Member, Delegate, or Resident Commissioner.

(g) The Clerk shall provide for the temporary absence or disability of the Clerk by designating an official in the Office of the Clerk to sign all papers that may require the official signature of the Clerk and to perform all other official acts that the Clerk may be required to perform under the rules and practices of the House, except such official acts as are provided for by statute. Official acts performed by the designated official shall be under the name of the Clerk. The designation shall be in writing and shall be laid before the House and entered on the Journal.

While the Rules of the House of Representatives suggest the person designated by rule 2(g) would fill the role of the Clerk, a statute provides for the Sergeant-at-Arms to fill the Clerk's role during the first session of a new Congress.

2 U.S. Code § 26. Roll of Representatives-elect, in part.

In case of a vacancy in the office of Clerk of the House of Representatives, or of the absence or inability of the Clerk to discharge the duties imposed on him by law or custom relative to the preparation of the roll of Representatives or the organization of the House, those duties shall devolve on the Sergeant at Arms of the next preceding House of Representatives.

Do these officers have the full constitutional power of the House of Representatives before the election of the Speaker?

No, the limits of authority are described in the rule 2(a), and are available only to the Clerk or the Sergeant at Arms, when the Clerk is unavailable.

Additionally, how could the House convene if these [...] officers were unable to perform their duties?

While, as far as I can determine, not covered by the current rules, it is likely that the Speaker of the retiring Congress, or in their absence a returning, senior Representative, would ask the House Parliamentarian to rule on how to proceed. Those instructions would be followed and business of the House would proceed.

There was one case of note.

Jefferson' Manual, p 362.

The Clerk having died, and in the absence of the Sergeant-at-Arms, the Doorkeeper of the 79th Congress presided at organization of the 80th Congress (Jan. 3, 1947, p. 33).

However, the office of Doorkeeper of the United States House of Representatives "was abolished during the 104th Congress (Pub.L. 104–186)."


The latter question, on convening a new congress with all officers unavailable, is very untested. Especially in the near-doomsday scenario where the government is essentially wiped out at the same time (including the "designated survivor" etc.). The issue of how and on what authorities each new Congress is convened in a formal legal sense is largely untested in the courts, because such issues rarely come up, and even harder would be for someone to have standing.

But it's not completely untested. The best court precedent would be Powell v. McCormack (1969). This concerned an elected representative, Powell, being denied his seat while the House performed investigations on him. Ostensibly this was done under the constitutional provision that the House (and Senate) would have the power to determine the qualifications of its members, and with a 2/3 vote to expel them. In particular, they were determining his qualifications. The holding of SCOTUS was that this was unconstitutional: that the only action Congress could take subsequent to such a determination was expulsion, a power which attached only after the member(s) had been sworn in and seated, so excluding him was a constitutionally invalid action.

All of that doesn't sound terribly relevant until you get into the nitty gritty of the court's logic. To quote the wikipedia page's summary (emphasis mine):

The Court found that Congress is the whole body of initially candidate members who have been elected by the laws of the several states (in and for each state's apportioned congressional districts), who assemble at the seat of the federal government on the 3rd day of January after the preceding November's congressional elections. On that date, they are sworn in by their individual oaths of office and thereby collectively become the Nth Congress (89th, 95th, 105th, ...).


The challenge to the Court in its analysis and decision was devising a proper course of action that was both coordinate and consonant between the sovereign authorities (the Congress over itself and its members, the people and the states over the Congress) each in their own sphere, over the choosing of members to the Congress. The Court looked at the historical precedent of the House, the history of its candidate members, and the role of the states and their voters in choosing their representatives. The Court concluded that the US Constitution (the word and will of the people), the weight of history (the record of how the people have used their constitution), and the federal structure of the government (the role of the states in organizing and managing elections within their borders) required the Court to decide that the sovereign will of the people, as expressed in the democratic process, and the coordinate role of their states must be made consonant and held supreme, in the responsibility to create candidate members for the Congress.

The people, by their Constitution, affirmatively posited, defined, and delimited all qualifications for standing in elections for membership in the Congress. The states, under the 9th and 10th amendments explicitly retain unto themselves the power to make the laws for the government and regulation of elections for federal offices that are apportioned to them (the states) by the US Constitution. Therefore, the people and the states together have the sole authority for the creation, production, and generation of candidate members of the US Congress through the operation of the laws of the several states and the articles and clauses of the US Constitution. Thus, the Congress itself is become a creation of and subordinate to this process. Congress's processes and procedures for the management, administration, and discipline of members (once they have taken the oath, been sworn, and entered upon the rolls) are constitutionally subordinate to the sovereignty of the people and the states respectively over the creation of the membership of Congress.

The take away from this is that the formal procedures you document for inducting a new Congress are not mandatory for the creation of that new congress. It is via the authority of the states themselves that each Congress is created. All that needs to be done is for the candidate members to take the oath, be sworn in, and entered upon the rolls. The first two require nothing particularly special. Any judge or notary public can administer oaths and have them sworn in—Lyndon Johnson was sworn in as President by a notary public: his own father—, and even in a doomsday scenario there should be one of those somewhere. The "entered upon the rolls" is maybe the only peculiar one, though I imagine a court would accept any entry by anyone as valid as long as the Congressional chamber in question does not itself question their validity.

Thus, the Congressional rules you found simply make the process predictable and uniform: of all the possible ways to be sworn in and entered upon the rolls, this is the particular ways and particular peoples to be normally used. As courts have also held that one Congress cannot bind the next, it also strikes me as unlikely that the courts would force a new Congress to abide by the rules of the previous Congress as regards their induction. Especially since doing so in such a hypothetical nightmare scenario would impinge upon the authority and power of the states to create each new Congress.

This is, however, my opinion.

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