Nancy Pelosi has just been re-elected to the Speakership in the US House of Representatives, and will be serving her fourth and final term as Speaker there from now until, presumably, the third of January 2023. She was sworn in as Speaker, then administered the oath of office en masse to the Members-Elect. Given that Article 1, Section 2, Clause 5 of the Constitution states "The House of Representatives shall chuse [sic] their Speaker and other Officers; and shall have the sole Power of Impeachment," and that, being members-elect, they aren't yet members and thus aren't part of the House of Representatives, why is it they can on vote and elect the Speaker?
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1Note that the next step which happens on the same day is for the Speaker-elect to swear in the Members-Elect. I guess you're arguing the order of the steps should be reversed.– FizzJan 4, 2021 at 15:43
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1@Damila the terms of senators and representatives begin at noon on 3 January. But it is doubtful that a senator or representative can act as such before swearing or affirming to uphold the constitution. Certainly the president cannot, but the language for others is less clear. It only says that they "shall be bound," not that they must swear or affirm before they "enter on the Execution of [their] Office.”– phoogJan 4, 2021 at 16:22
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2@Damila in that case I would question the designation of the recipients of the oath as "members elect." In other words, the premise of the question is flawed, because as your comment notes they were already members, not members elect.– phoogJan 4, 2021 at 16:58
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2@ phoog I agree with you. but that term is used in the summary of floor proceedings by the Clerk of The House. Notes: The nomination for Speaker started at 2:00 pm on January 3. She is referred to as the Speaker-elect even when she speaks at 5:29 PM, before she is sworn in. She "administered the Oath of Office to the Members-elect of the 117th Congress" at 6:37:02 PM live.house.gov/?date=2021-01-03– DamilaJan 4, 2021 at 17:05
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3For what it's worth, the same is true in the UK House of Commons. MPs elect a Speaker, then later the Speaker takes the oath, followed by all other MPs. MPs become MPs as soon as they are elected, but they have to take the oath (or affirmation) before they can sit in the Commons or get paid.– Steve MelnikoffJan 4, 2021 at 19:35
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3 Answers
They are already Representatives before they take the oath.
The House of Representatives shall be composed of members chosen every second year by the people of the several states,
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...the terms of Senators and Representatives [end] at noon on the 3d day of January, ... and the terms of their successors shall then begin.
There is nothing in Section 1 about "members-elect". There is nothing about oaths (except that senators take an oath when sitting in impeachment trials). So Members are already Members from noon on the third.
Article 6 requires:
The Senators and Representatives before mentioned, and the members of the several state legislatures, and all executive and judicial officers, both of the United States and of the several states, shall be bound by oath or affirmation, to support this Constitution
So they have to take an oath, though no particular form of words is defined. It is clear from precedent and practices over 200 years that members take the oath before they can begin any external matter, such as creating new laws.
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2Note that this is also true of the president and vice president; it is a common misconception that they "take office" when they take the oath: their term begins at midday on inauguration day, regardless. However, they cannot perform the duties of said office until the pesky oath is out of the way, so it's convenient to get it out of the way up-front. Jan 5, 2021 at 2:40
Per the 20th Amendment of the Constitution
The terms of the President and the Vice President shall end at noon on the 20th day of January, and the terms of Senators and Representatives 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.
Yesterday was Jan 3, when Session 1 of the 117th Congress began, meaning that the new Representatives are now technically in office, minus the oath. Per the House website, the order of the new House is thus
Representatives usually take their oath during the first day of a new Congress, when the House organizes itself. After the Speaker is elected, the Member with the longest continuous service (the Dean of the House) administers the oath to the Speaker. This tradition originated in the British House of Commons, and has been the practice in the U.S. House since at least the 1820s (the Oath Act of 1789 did not mandate it). The Speaker, in turn, administers the oath to the rest of the Members en masse. The Speaker or Speaker Pro Tempore must swear in members who miss the mass swearing-in ceremony on the first day afterward; on rare occasions, the House has authorized other Members or local judges to swear-in absent Representatives.
answered Jan 4, 2021 at 16:07
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But now the link isn't particularly helpful :-). Presumably it will be within the next day or two.– phoogJan 4, 2021 at 16:29
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Yesterday ended the 116th Congress. At noon, the 117th Congress, session one, began.– DamilaJan 4, 2021 at 16:38
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@Damila but the linked page does not yet reflect the end of the 116th congress or the beginning of the 117th.– phoogJan 4, 2021 at 16:59
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@phoog My comment was for the answerer. Saying that session 2 of the 116 began yesterday is inaccurate. It ended. Relevant to this question, the 117th session one started the next moment.. Anyway, this link was the blow by blow of what started at noon (but does not have what happened before noon): live.house.gov/?date=2021-01-03– DamilaJan 4, 2021 at 17:09
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@Damila but by the time you posted your comment the post had been edited to remove the reference to the 116th congress. I had already offered that correction, but someone deleted my comment and Machavity's reply some time before you posted your comment (however, thanks to Stack Exchange's horrible faddish design, I cannot tell you precisely how much time).– phoogJan 5, 2021 at 6:41
Every representative (delegate or resident commissioner) having a certificate of election is a member unless and until they are expelled (or later excluded).
The Clerk of the House from the previous session assumes the chair and calls the House to order, a roll call is taken, then the Speaker is elected. The Speaker assumes the chair and continues the business of the House.
The detailed procedure used for the 116th Congress is available in the Congressional Record (PDF 218 pages) January 3, 2019.
RULE II Other Officers and Officials
Elections
- There shall be elected at the commencement of each Congress, to continue in office until their successors are chosen and qualified, a Clerk, a Sergeant-at-Arms, a Chief Administrative Officer, and a Chaplain. Each of these officers shall take an oath to support the Constitution of the United States, and for the true and faithful exercise of the duties of the office to the best of the knowledge and ability of the officer, and to keep the secrets of the House. Each of these officers shall appoint all of the employees of the department concerned provided for by law. The Clerk, Sergeant-at-Arms, and Chief Administrative Officer may be removed by the House or by the Speaker.
Clerk
- (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, and in the absence of a Member acting as Speaker pro tempore pursuant to clause 8(b)(3)(A) of rule I, the Clerk shall preserve order and decorum and decide all questions of order, subject to appeal by a Member, Delegate, or Resident Commissioner.
answered Jan 4, 2021 at 15:59
