The 118th Congress Still Hasn’t Been Sworn In. Is That Constitutional?
After failing to elect a new Speaker of the House for the third straight day, the members‐elect of the 118th Congress remain in limbo. Have the members‐elect become U.S. Representatives yet? The predominant view is that they have not, because they have not yet been sworn in. As explained in reports by the Congressional Research Service and the House Parliamentarian, federal law requires that members‐elect must be sworn into office by the Speaker of the House. So without a Speaker, that swearing‐in ceremony has yet to take place.
But a federal statute cannot supersede the Constitution when there is a conflict between the two. And the Constitution’s language seems categorical. The Twentieth Amendment states that
The terms of the President and Vice President shall end at noon on the 20th day of January, and the terms of Senators and Representatives at noon on the 3rd 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. (emphasis added)
The Constitution thus mandates that at noon on January 3rd of odd‐numbered years, the terms of the Representatives of the previous Congress end and the terms of the Representatives elected to the new Congress begin. Since January 3rd has come and gone, how can the members‐elect of the 118th Congress not yet be full‐fledged Representatives?
The purported reason is that the Constitution also requires members of Congress to swear an oath. Specifically, Article VI demands that “The Senators and Representatives … shall be bound by oath or affirmation, to support this Constitution.” Federal statutes flesh out this constitutional command, prescribing the text of the oath and requiring that it be administered by the Speaker for all House members (other than the Speaker him‐or‐herself).
The election of a Speaker has not extended past the first day of a new Congress since 1923,a decade before the Twentieth Amendment was enacted and before the Constitution first mandated a specific date for the commencement of congressional terms. That means we are now in uncharted and unprecedented constitutional territory: What happens when members‐elect cannot take the oath mandated by the Constitution on the day their terms should begin under the Constitution?
House precedent considers members‐elect to become full‐fledged members only after they have taken the oath, no matter how far into their term that oath may be. Whether that interpretation is correct is a difficult question. For comparison, the Constitution prescribes an oath for the President, which must be taken “Before he enter on the Execution of his Office.” The most common interpretation of this constitutional text is that the oath is only a prerequisite to the President exercising the powers of the presidency, not a prerequisite to the President occupying the office and assuming the title of President. That is why a short delay in taking the presidential oath at the beginning of a term does not, under the generally accepted view, create a temporary vacancy in the office of the presidency itself.
If the oaths for members of Congress function in the same way as the oath for President, then members whose terms have begun but who have not yet taken the oath should be considered U.S. Representatives, not members‐elect. But in that case, they would most likely be U.S. Representatives who cannot yet exercise their constitutional authorities, such as voting to pass legislation. On the other hand, it is possible that the difference in constitutional text between the oath requirements for the presidency and for members of Congress is meaningful. “The Senators and Representatives … shall be bound by oath or affirmation” may set out a prerequisite for holding a title, not just for exercising authority.
But whatever may be the answer to the tricky question of the status of the 118th Congress, there is a more fundamental problem with the barrier that federal law has set up to its members’ swearing in. The members‐elect were present, credentialed, otherwise qualified, and ready and willing to take the oath on January 3rd, the first day of their term. The reason they have not yet taken the oath is not any unwillingness to do so, but rather a statute that limits who can administer the oath. Until a new Speaker is elected, no one is legally authorized to administer the oath. When a federal statute effectively blocks duly elected federal officials from assuming the duties of their office, there is strong reason to believe that statute is unconstitutional.
Consider, by analogy, whether a similar legal barrier would be acceptable for administration of the presidential oath. Although it is traditional for the President to be sworn in by the Chief Justice of the United States, this is not a legal requirement. When Vice Presidents have been sworn in as President on short notice after the death of a President, the presidential oath has been administered by a variety of lower court federal judges, a state‐court judge, and even a notary public.
Could Congress pass a federal statute eliminating these other options and mandating that only the Chief Justice may administer the presidential oath? If the office of Chief Justice happens to be vacant on Inauguration Day, could such a statute actually block the President‐Elect from assuming the powers of the presidency? If so, is there any limit to the restrictions Congress could place on the administrator of the oath? Could Congress intentionally make taking the oath inconvenient or even impossible as a means of blocking an unpopular President‐Elect from power?
Common sense says this can’t be so, and constitutional text and structure support that common‐sense view. Nothing in the Constitution itself suggests that it should matter who administers an oath. Rather, what matters is the content of the oath (either a precise text, which the Constitution prescribes for the presidential oath, or a more general requirement for all other offices that the oath must be “to support this Constitution”). The identity of an oath’s administrator does not affect the oath’s meaning or its binding nature. While spelling out the exact text of the congressional oath by statute permissibly fleshes out a gap in the Constitution, further limiting who can administer that oath is inconsistent with the spirit of the oath requirement’s purpose.
At the very least, a situation like the current one, where no one is legally authorized to administer an oath, is incompatible with the Constitution’s limited and defined set of eligibility criteria for membership of the House. By blocking duly elected and qualified members‐elect from taking the oath, the statute effectively creates an additional hurdle (indeed, a temporarily insurmountable hurdle) to assuming the full powers of the office that is found nowhere in the Constitution.
In all likelihood, the current impasse will be resolved relatively soon and no member‐elect will need to mount a legal challenge to this temporary delay. But in principle, a member‐elect could put the oath‐administration law to the constitutional test by simply taking the oath from any notary public today and then requesting the full powers of their congressional office immediately. If that were to happen, it would present a fascinating case that could finally answer whether a federal statute may temporarily block any path to entering a constitutional office.