I saw another view that said if the Constitution does require swearing in (and like I said above, I may have missed it but I don’t think so) it certainly doesn’t require the Speaker to do so. So at 12:01pm on Jan 3rd, a member could get sworn in by a notary public and take office.
I think the confusion comes from the Constitution says each house can make their own rules. True but under US Term Limits v. Thornton laws cannot make eligibility more strict. I believe saying you have to take an oath to take your seat in Congress would fall under that. The President having to take an oath to exercise power is a separate issue as it is Constitutionally mandated. I think if push came to shove that distinction is critical.
House Rules would not overrule the Constitution. Specifically, eligibility to hold office.
If the Republicans made a rule that to be seated, every member must sign a pledge of loyalty to Lord Trump in their own blood, are you saying they could refuse to seat the Democrats who refuse because “House Rules”?
Note: I even covered that above in my first paragraph before I saw your post.
tl;dr Rules do not override the Constitution. Read the Ballin decision regarding quorum.
If there’s a legal precedent that requiring someone to take an oath of office is unconstitutional, I’m not aware of it.
I suppose they could try and we can see how the court proceedings play out. I expect it would run afoul of the Speech or Debate Clause and/or the ban on religious tests. Of course, if they had the two-thirds majority necessary to make such a rule they could just hold expulsion votes on each and every Democrat one-by-one instead.
ETA: Article VI states “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”, which certanly sounds to me like it’s saying they have to be sworn in.
Has it ever been challenged? Has it ever needed to be challenged?
Remember that since this is a constitutional requirement issue we are limiting our sample to members of Congress and the Vice-President specifically. Since SCOTUS Justices and cabinet member eligibility is more nebulous, you might be able to claim that advice and consent of the Senate requires the oath passed by Federal Law, but that is a completely different discussion.
Except that’s not the precedent. Like I said, SCOTUS has held that the constitutional eligibility for office cannot be made more strict. According to the Constitution (and the Federal law stating terms begin at noon on Jan 3rd which is allowed) if I am elected Representative and I am
25 years or older
A citizen of the United States for at least 7 years
A resident of the state i was elected for.
Then I am a Representative. Period. End of discussion. Done.
You seem to think that House Rules or federal law can do an end around but it can’t. It simply cannot add more requirements like taking an oath, not being a ginger or being 6’0" or taller.
“But Saint Cad …” NO! Stop right there and read up on Powell v McCormack that directly says you are wrong.
From Oyez
Chief Justice Warren concluded that since Powell had been lawfully elected by his constituents and since he met the constitutional requirements for membership in the House, that the chamber was powerless to exclude him.
Question for you. Is taking the oath as a member of Congress constitutionally required?
You might have missed my ETA. Article VI states that “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”.
In all fairness, I did say I may have missed it. I was looking in Article I similarly to the Presidential Oath being in Article II.
I stand absolutely corrected. Thank you for finding that.
But that doesn’t say that only the Speaker can administer the oath.
Just like the President must swear an oath, but nothing says the prez must be sworn in by the Chief Justice of the US. Teddy Roosevelt and LBJ were sworn in by federal District Court judges. Washington was sworn in by a NY state judge.
Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members, and a Majority of each shall constitute a Quorum to do Business;
Nothing there that says a Speaker is necessary to do business.
Here’s an idea. A member of Congress gets sworn in by a notary at 12:01 and as the only sworn-in member they nominate and vote for themselves as Speaker.
Coolidge was initially sworn in as president by his father, a notary public, when word arrived that Harding had died in California.
He was later re-sworn in by a judge of the DC District Court, after questions arose whether a notary public could administer the oath.
However, Coolidge entered into the duties of his office on the strength of the initial oath, and exercised the powers of president for two weeks based on that initial oath.
I do think all of this “they can’t be sworn in!!!” is “angels dancing on a pinhead” levels of navel-gazing. The precedents and procedures of the House (not rules – their rules expired with the end of the last session) are that the Speaker swears in the members, but precedents and procedures only last as long as it’s in most Members’ interest that they do so. The House will elect a Speaker or find another way to accommodate the electoral count. Democrats don’t have any interest in preventing the count from going forward. As long as most members are OK with whatever procedural kludge allows them to proceed, it’ll happen.
I will conjecture that there are no rules until the House is assembled and someone moves to adopt the old rules.
I would also conjecture that the elected and certified members are members before they have taken the oath; else how could they elect a speaker?
When JFK was shot, I remember reading somewhere that LBJ became president the instant Kennedy died. Yes he took the oath on the plane from Dallas to DC, but he was president even before that.
I think a few want to sit back, watch the Pubs implode (again) and somehow that translates into the EV count not being certified by noon on January 20th. I mean, that won’t happen but don’t stop the Dems from hoping. Actually, even if not having a Speaker only leads to a clusterfuck on 1/6 and the votes can’t be certified that day, I’m sure the Dems will find it fitting.
I dont think the Dems are hoping for that. What they are hoping for is evidence that this GOP House will again implode and not be able to do any of the 'wonderful" crap that the GOP has promised.
If they need to, they will just bring in a SCOTUS judge to swear them in.
Which is why I think as a party, they would be happy (not hoping for) if the Pubs can’t get their act together in time for 1/6. But I also said that scenario won’t happen.
And once they’re sworn in, they just show up for the joint session on January 6 and, per law, provide two members to act as “tellers” and count the electoral votes, those members being selected by… (checks notes) …the Speaker.