Constitution of the United States/Art. I/Sec. 5/Clause 1 Authority

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Constitutional Law Treatise
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Constitutional Law Outline
The Preamble
Article I Legislative Branch
Art. I, Section 1 Legislative Vesting Clause
Art. I, Section 2 House of Representatives
Art. I, Section 3 Senate
Art. I, Section 4 Congress
Art. I, Section 5 Proceedings
Art. I, Section 6 Rights and Disabilities
Art. I, Section 7 Legislation
Art. I, Section 8 Enumerated Powers
Art. I, Section 9 Powers Denied Congress
Art. I, Section 10 Powers Denied States
Article II Executive Branch
Art. II, Section 1 Function and Selection
Art. II, Section 2 Powers
Art. II, Section 3 Duties
Art. II, Section 4 Impeachment
Article III Judicial Branch
Art. III, Section 1 Vesting Clause
Art. III, Section 2 Justiciability
Art. III, Section 3 Treason
Article IV Relationships Between the States
Art. IV, Section 1 Full Faith and Credit Clause
Art. IV, Section 2 Interstate Comity
Art. IV, Section 3 New States and Federal Property
Art. IV, Section 4 Republican Form of Government
Article V Amending the Constitution
Article VI Supreme Law
Article VII Ratification
First Amendment: Fundamental Freedoms
Establishment Clause
Free Exercise Clause
Free Speech Clause
Freedom of Association
Second Amendment: Right to Bear Arms
Third Amendment: Quartering Soldiers
Fourth Amendment: Searches and Seizures
Fifth Amendment: Rights of Persons
Sixth Amendment: Rights in Criminal Prosecutions
Seventh Amendment: Civil Trial Rights
Eighth Amendment: Cruel and Unusual Punishment
Ninth Amendment: Unenumerated Rights
Tenth Amendment: Rights Reserved to the States and the People
Eleventh Amendment: Suits Against States
Twelfth Amendment: Election of President
Thirteenth Amendment: Abolition of Slavery
Thirteenth Amend., Section 1 Prohibition on Slavery and Involuntary Servitude
Thirteenth Amend., Section 2 Enforcement
Fourteenth Amendment: Equal Protection and Other Rights
Fourteenth Amend., Section 1 Rights
Fourteenth Amend., Section 2 Apportionment of Representation
Fourteenth Amend., Section 3 Disqualification from Holding Office
Fourteenth Amend., Section 4 Public Debt
Fourteenth Amend., Section 5 Enforcement
Fifteenth Amendment: Right of Citizens to Vote
Fifteenth Amend., Section 1 Right to Vote
Fifteenth Amend., Section 2 Enforcement
Sixteenth Amendment: Income Tax
Seventeenth Amendment: Popular Election of Senators
Eighteenth Amendment: Prohibition of Liquor
Eighteenth Amend., Section 1 Prohibition
Eighteenth Amend., Section 2 Enforcement of Prohibition
Eighteenth Amend., Section 3 Ratification Deadline
Nineteenth Amendment: Women's Suffrage
Twentieth Amendment: Presidential Term and Succession
Twentieth Amend., Section 1 Terms
Twentieth Amend., Section 2 Meetings of Congress
Twentieth Amend., Section 3 Succession
Twentieth Amend., Section 4 Congress and Presidential Succession
Twentieth Amend., Section 5 Effective Date
Twentieth Amend., Section 6 Ratification
Twenty-First Amendment: Repeal of Prohibition
Twenty-First Amend., Section 1 Repeal of Eighteenth Amendment
Twenty-First Amend., Section 2 Importation, Transportation, and Sale of Liquor
Twenty-First Amend., Section 3 Ratification Deadline
Twenty-Second Amendment: Presidential Term Limits
Twenty-Second Amend., Section 1 Limit
Twenty-Second Amend., Section 2 Ratification Deadline
Twenty-Third Amendment: District of Columbia Electors
Twenty-Third Amend., Section 1 Electors
Twenty-Third Amend., Section 2 Enforcement
Twenty-Fourth Amendment: Abolition of Poll Tax
Twenty-Fourth Amend., Section 1 Poll Tax
Twenty-Fourth Amend., Section 2 Enforcement
Twenty-Fifth Amendment: Presidential Vacancy
Twenty-Fifth Amend., Section 1 Presidential Vacancy
Twenty-Fifth Amend., Section 2 Vice President Vacancy
Twenty-Fifth Amend., Section 3 Declaration by President
Twenty-Fifth Amend., Section 4 Declaration by Vice President and Others
Twenty-Sixth Amendment: Reduction of Voting Age
Twenty-Sixth Amend., Section 1 Eighteen Years of Age
Twenty-Sixth Amend., Section 2 Enforcement
Twenty-Seventh Amendment: Congressional Compensation

Article I Legislative Branch

Section 5 Proceedings

Clause 1 Authority

Clause Text
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; but a smaller Number may adjourn from day to day, and may be authorized to compel the Attendance of absent Members, in such Manner, and under such Penalties as each House may provide.

Congressional Authority over Elections, Returns, and Qualifications[edit | edit source]

Each House, in judging of elections under this clause, acts as a judicial tribunal, with like power to compel attendance of witnesses. In the exercise of its discretion, it may issue a warrant for the arrest of a witness to procure his testimony, without previous subpoena, if there is good reason to believe that otherwise such witness would not be forthcoming.[1] It may punish perjury committed in testifying before a notary public upon a contested election.[2] The power to judge elections extends to an investigation of expenditures made to influence nominations at a primary election.[3] Refusal to permit a person presenting credentials in due form to take the oath of office does not oust the jurisdiction of the Senate to inquire into the legality of the election.[4] Nor does such refusal unlawfully deprive the state that elected such person of its equal suffrage in the Senate.[5]

Quorums in Congress[edit | edit source]

The quorum principle--that a certain number of members of a governing body be present at a given meeting for the body to exercise its powers--was well established in parliamentary practice by the time of the Constitutional Convention.[6] The debate then was not over whether to have a quorum requirement, but instead where to set it.[7] Some felt a majority requirement was too high and would result in "great delay" and "great inconvenience" if either house consistently struggled to obtain a quorum.[8] But others, including George Mason, believed that setting the quorum requirement any lower would be "dangerous to the distant parts to allow a small number of members of the two Houses to make laws," as the "Central States could always take care to be on the Spot and by meeting earlier than the distant ones . . . ."[9] The Framers, apparently recognizing that too high a quorum requirement could debilitate Congress, but that too low a requirement would risk undue influence by the states in close proximity to the capital, set the quorum requirements at a majority of Members. In the Federalist Papers, James Madison explained the Framers' choice of a majority as balancing the risk of either requiring too many or too few Members of Congress to establish a quorum.[10] He noted:

It has been said that more than a majority ought to have been required for a quorum; and in particular cases, if not in all, more than a majority of a quorum for a decision. That some advantages might have resulted from such a precaution, cannot be denied. It might have been an additional shield to some particular interests, and another obstacle generally to hasty and partial measures. But these considerations are outweighed by the inconveniences in the opposite scale.Id.

For many years the view prevailed in the House of Representatives that it was necessary for a majority of the members to vote on any proposition submitted to the House in order to satisfy the constitutional requirement for a quorum. It was a common practice for the opposition to break a quorum by refusing to vote. This was changed in 1890, by a ruling made by Speaker Thomas Brackett Reed of Maine and later embodied in Rule XV of the House, that Members present in the chamber but not voting would be counted in determining the presence of a quorum.[11]

After an 1890 law was adopted with a majority of Members present in the chamber, but not a majority voting, Speaker Reed's rule was challenged. The case, United States v. Ballin, provided the Supreme Court with an opportunity to construe not just the Constitution's quorum requirement, but also the breadth of the House's authority to determine how the presence of a quorum is determined.[12] After establishing that it had authority to consider the rule's "validity," the Court examined the quorum requirement, holding that "[a]ll that the Constitution requires is the presence of a majority, and when that majority are present the power of the house arises."[13] The Court then granted significant deference to the House in deciding how to determine the presence of a majority, concluding that because "[t]he Constitution has prescribed no method of making this determination," it is "within the competency of the house to prescribe any method which shall be reasonably certain to ascertain . . . the presence of a majority, and thus establishing the fact that the house is in a condition to transact business."[14] Thus, under Ballin, each chamber may determine a method for counting a quorum provided that method is "reasonably certain to ascertain" the "presence of a majority" such that the chamber is, constitutionally speaking, "in a condition to transact business."[15]

While Ballin established that the Court should generally defer to House and Senate rules on when a quorum exists, the Court's 1949 case Christoffel v. United States[16] suggest that such deference is not proper when the existence of a quorum is made an element of a cirminal offense.[17] In Christoffel, a witness who denied under oath before the House Committee on Education and Labor that he was a Communist was subsequently convicted of perjury in federal court. The Court reversed his conviction because the Committee did not have a quorum at the time the witness made the perjurious statements, and consequently, the witness's testimony had not been before a "competent tribunal," as required by the District of Columbia Code.[18] Although the Committee had a quorum when the hearing commenced, some of the Members had stepped away during the hearing so that the number of Members in attendance at the time the witness testified was below the number required to establish a quorum.[19] Under House practice, a quorum once established is presumed to continue until a Member raises "a point of no quorum and a count [reveals] the presence of less than a majority."[20] No such point of order had been raised during the hearing. Nevertheless, the Court held that in order "to convict, the jury had to be satisfied beyond a reasonable doubt that there were 'actually physically present' a majority of the committee."[21] To hold that the quorum requirement was satisfied "by a finding that there was a majority present two or three hours before the defendant offered his testimony, in the face of evidence indicating the contrary, is to rule as a matter of law that a quorum need not be present when the offense is committed."[22] "This," the Court concluded, "not only seems to us contrary to the rules and practice of the Congress, but denies petitioner a fundamental right. That right is that he be convicted of crime only on proof of all the elements of the crime charged against him."[23]

  1. Barry v. United States ex rel. Cunningham, 279 U.S. 597, 616 (1929).
  2. In re Loney, 134 U.S. 372 (1890).
  3. 6 Cannon's Precedents of the House of Representatives §§ 72-74, 180 (1936). Cf. Newberry v. United States, 256 U.S. 232, 258 (1921).
  4. Barry v. United States ex rel. Cunningham, 279 U.S. 597, 614 (1929).
  5. 279 U.S. at 615. The existence of this power in both houses of Congress does not prevent a state from conducting a recount of ballots cast in such an election any more than it prevents the initial counting by a state. Roudebush v. Hartke, 405 U.S. 15 (1972).
  6. 2 Joseph Story, Commentaries on the Constitution of the United States § 832 (1833)
  7. 2 Records of the Federal Convention of 1787, at 251-52 (Max Farrand ed., 1911).
  8. Id. at 251 (statement of Nathaniel Gorham of Massachusetts). See also id. at 251 (statement of John Mercer of Maryland).
  9. Id. at 251-52 (statement of George Mason). See also id. at 253 (statement of Oliver Ellsworth of Connecticut).
  10. The Federalist No. 58 (James Madison).
  11. Hinds' Precedents of the House of Representatives §§ 2895-2905 (1907).
  12. 144 U.S. 1 (1892).
  13. Id. at 6.
  14. Id. (emphasis added).
  15. Id.
  16. 338 U.S. 84 (1949).
  17. Art. I, Sec. 5, Cl. 2: Congressional Proceedings and the Rulemaking Clause.
  18. Christoffel, 338 U.S. at 87-90.
  19. Id. at 89-90 ("An element of the crime charged in the instant indictment is the presence of a competent tribunal . . . . [T]o charge, however, that such a requirement is satisfied by a finding that there was a majority present two or three hours before the defendant offered his testimony, in the face of evidence indicating the contrary, is to rule as a matter of law that a quorum need not be present when the offense is committed. . . . A tribunal that is not competent is no tribunal, and it is unthinkable that such a body can be the instrument of criminal conviction.").
  20. Id. at 88.
  21. Id. at 89.
  22. Id. at 90.
  23. Id.