Swearing in the Phoenix: Toward a More Sensible System for Seating Members of the House of Representatives At Organization

73 Pages Posted: 18 May 2021

See all articles by Brian C. Kalt

Brian C. Kalt

Michigan State University College of Law

Date Written: May 18, 2021

Abstract

Under U.S. House precedent, any member-elect can challenge the right of any other member-elect to take the oath of office at the beginning of a new term. The uncontested members-elect then swear in and decide the fate of those who were forced to stand aside. If the House is closely divided and there are disputed elections at the margins, a minority party could exploit this procedure to try to seize control of the House.

This would be outrageous and damaging, even if the effort failed. Contending for ultimate control, both sides could level motions, appeals, and tit-for-tat pre-oath challenges. The proto-House would degenerate into a chaotic mass of votes, meta-votes (about who gets to vote), and meta-meta-votes before anyone has even been sworn in. Instead of the House being controlled by the party that won the most seats in the election, it might go instead to the party that is most disciplined and unified—or, failing that, to the party that is more adept at parliamentary machinations.

This nightmare is not completely hypothetical; the House once witnessed a power grab much like this—and it succeeded. But even an unsuccessful attempt could worsen the national partisan divide, weaken the House’s legitimacy, and threaten the House’s already dangerously low levels of comity. So could an attempt by a majority to bolster its advantage by a seat or two.

This Article proposes to avoid this danger by rejecting this precedent. The House used a sensible “Oaths First” process for many decades, starting with the First Congress in 1789. The current, problematic “Step Aside” process only arose in the 1860s, for reasons that were either ill-considered, are no longer applicable, or both. The House has not used the Step Aside process in recent decades, but given the way House precedent functions, the Step Aside needs to be discarded, not just disused. This Article seeks to nudge the House into a more careful, considered, and consistent practice, re-embracing the Oaths First procedure officially and definitively.

Keywords: Congress, House of Representatives, Constitutional Law, History, Oaths, House Organization

JEL Classification: [comma separated]K00

Suggested Citation

Kalt, Brian C., Swearing in the Phoenix: Toward a More Sensible System for Seating Members of the House of Representatives At Organization (May 18, 2021). Marquette Law Review, Forthcoming, Available at SSRN: https://ssrn.com/abstract=3848257

Brian C. Kalt (Contact Author)

Michigan State University College of Law ( email )

318 Law College Building
East Lansing, MI 48824-1300
United States
517-432-6987 (Phone)
517-432-6879 (Fax)

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