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H.Doc.107-285 Reproduced with the permission of The Washington Post, 2002, http://www.washingtonpost.com/wp-srv/nation/specials/attacked/remembrance/vic--list.html ...
Department calling in question words uttered by a Member in debate was criticized as a breach of privilege and withdrawn (III, 2684). An explanation having been demanded of a Member by a person not a Member for a question asked of the latter when a witness before the House, the matter was considered but not pressed as a breach of privilege (III, 2681). A letter from a person supposed to have been assailed by a Member in debate, [[Page ]] asking properly and without menace if the speech was correctly reported, was held to involve no question of privilege (III, 2682). Unless it be clear that a Member has been questioned for words spoken in debate, the House declines to act (II, 1620; III, 2680). For assaulting a Member, Charles C. Glover was arrested, arraigned at the bar of the House, and censured by the Speaker by direction of the House, although the provocation of the assault was words spoken in debate in the previous Congress (VI, 333). Decisions <<NOTE: Sec. 95. Decisions of the Court.>> of the Supreme Court of the United States: Kilbourn v. Thompson, 103 U.S. 168 (1881); Tenney v. Brandhove, 341 U.S. 367 (1951); United States v. Johnson, 383 U.S. 169 (1966); Dombrowski v. Eastland, 387 U.S. 82 (1967); Powell v. McCormack, 395 U.S. 486 (1969); Gravel v. United States, 408 U.S. 606 (1972); United States v. Brewster, 408 U.S. 501 (1972); United States v. Helstoski, 442 U.S. 477 (1979); Hutchinson v. Proxmire, 443 U.S. 111 (1979). \2\ No Senator or <<NOTE: Sec. 96. Restriction on appointment of Members to office.>> Representative shall, during the Time for which he was elected, be appointed to any Civil Office under the Authority of the United States, which shall have been created, or the Emoluments whereof shall have been encreased during such time; * * *. In a few cases questions have arisen under this paragraph (I, 506, footnote; and see 42 Op. Att'y Gen. 36 (1969); see also Deschler, ch. 7). <<NOTE: Sec. 97. Members not to hold office under the United States.>> * * * and no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office. The meaning of the word ``office'' as used in this paragraph has been discussed (I, 185, 417, 478, 493; II, 993; VI, 60, 64), as has also the general subject of incompatible offices (I, 563). The Judiciary Committee <<NOTE: Sec. 98. As to what are incompatible offices.>> has concluded that members of commissions created by law to investigate and report, but having no legislative, executive, or judicial powers, and visitors to academies, regents, directors, and trustees of public institutions, appointed under the law by the Speaker, are not officers within the meaning of the Constitution (I, 493). Membership on joint committees created by the statute is not an office in the contemplation of the constitutional provision prohibiting Members of Congress from holding si [[Page ]] multaneously other offices under the United States (VII, 2164). A Member of either House is eligible to appointment to any office not forbidden him by law, the duties of which are not incompatible with those of a Member (VI, 63) and the question as to whether a Member may be appointed to the Board of Managers of the Soldiers' Home and become local manager of one of the Homes, is a matter for the decision of Congress itself (VI, 63). The House has also distinguished between the performance of paid services for the Executive (I, 495), like temporary service as assistant United States attorney (II, 993), and the acceptance of an incompatible office. The House has declined to hold that a contractor under the Government is constitutionally disqualified to serve as a Member (I, 496). But the House, or its committees, have found disqualified a Member who was appointed a militia officer in the District of Columbia (I, 486) and in various States (VI, 60), and Members who have accepted commissions in the Army (I, 491, 492, 494). But the Judiciary Committee has expressed the opinion that persons on the retired list of the Army do not hold office under the United States in the constitutional sense (I, 494). A Member-elect has continued to act as governor of a State after the assembling of the Congress to which he was elected (I, 503), but the duties of a Member of the House and the Governor of a State are absolutely inconsistent and may not be simultaneously discharged by the same Member (VI, 65).- The House decided <<NOTE: Sec. 99. Appointment of Memberselect to offices under the United States.>> that the status of a Member-elect was not affected by the constitutional requirement (I, 499), the theory being advanced that the status of the Member-elect is distinguished from the status of the Member who has qualified (I, 184). A Member-elect, who continued in an office after his election but resigned before taking his seat, was held entitled to the seat (I, 497, 498). However, when a Member-elect held an incompatible office after the meeting of Congress and his taking of the oath, he was held to have disqualified himself (I, 492). In other words, the Member-elect may defer until the meeting of Congress and his taking of the oath, his choice between the seat and an incompatible office (I, 492). As early as 1874 the Attorney General opined that a Member-elect is not officially a Member of the House, and thus may hold any office until sworn (14 Op. Att'y Gen. 408 (1874)). The House has <<NOTE: Sec. 100. Relation of contestants to incompatible offices.>> manifestly leaned to the idea that a contestant holding an incompatible office need not make his election until the House has declared him entitled to the seat (I, 505). Although a contestant had accepted and held a State office in violation of the State constitution, if he were really elected a Congressman, the House did not treat his contest as abated (II, 1003). Where a Member had been appointed to an incompatible office a contestant not found to be elected was not admitted to fill the vacancy (I, 807). [[Page ]] Where a Member <<NOTE: Sec. 101. Procedure of the House when incompatible offices are accepted.>> has accepted an incompatible office, the House has assumed or declared the seat vacant (I, 501, 502; VI, 65). In the cases of Baker and Yell, the Elections Committee concluded that the acceptance of a commission as an officer of volunteers in the national army vacated the seat of a Member (I, 488), and in another similar case the Member was held to have forfeited his right to a seat (I, 490). The House has seated a person bearing regular credentials on ascertaining that his predecessor in the same Congress had accepted a military office (I, 572). But usually the House by resolution formally declares the seat vacant (I, 488, 492). A Member- elect may defer until the meeting of Congress and his taking of the oath of office his choice between the seat and an incompatible office (I, 492). But when he retains the incompatible office and does not qualify, a vacancy has been held to exist (I, 500). A resolution excluding a Member who has accepted an incompatible office may be agreed to by a majority vote (I, 490). A Member charged with acceptance of an incompatible office was heard in his own behalf during the debate (I, 486). Where it was held in Federal court that a Member of Congress may not hold a commission in the Armed Forces Reserve under this clause, the U.S. Supreme Court reversed on other grounds, the plaintiff's lack of standing to maintain the suit. Reservists Committee to Stop the War v. Laird, 323 F. Supp. 833 (1971), aff'd, 595 F.2d 1075 (1972), rev'd on other grounds, 418 U.S. 208 (1974). Section 7. \1\ All Bills <<NOTE: Sec. 102. Bills raising revenue to originate in the House.>> for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur with Amendments as on other Bills. This provision has been the subject of much discussion (II, 1488, 1494). In the earlier days the practice was not always correct (II, 1484); but in later years the House has insisted on its prerogative and the Senate has often shown reluctance to infringe thereon (II, 1482, 1483, 1493). In several instances, however, the subject has been matter of contention, conference (II, 1487, 1488), and final disagreement (II, 1485, 1487, 1488). Sometimes, however, when the House has questioned an invasion of prerogative, the Senate has receded (II, 1486, 1493). The disagreements have been especially vigorous over the right of the Senate to concur with amendments (II, 1489), and while the Senate has acquiesced in the sole right of the House to originate revenue bills, it has at the same time held to a broad power of amendment (II, 1497-1499). The House has frequently challenged the Senate on this point (II, 1481, 1491, 1496; Sept. 14, 1965, p. 23632). When the House has perceived an invasion of its prerogative, it has ordered the bill or Senate amendment to be returned to the Senate (II, 1480-1499; VI, 315, 317; Mar. 30, 1937, p. 2930; July 2, 1960, p. 15818; Oct. 10, 1962, [[Page ]] p. 23014; May 20, 1965, p. 11149; June 20, 1968, p. 22127; Nov. 8, 1979, p. 31518; May 17, 1983, p. 12486; Oct. 1, 1985, p. 25418; Sept. 25, 1986, p. 26202; July 30, 1987, p. 21582; June 16, 1988, p. 14780; June 21, 1988, p. 15425; Sept. 23, 1988, p. 25094; Sept. 28, 1988, p. 26415; Oct. 21, 1988, pp. 33110-11; June 15, 1989, p. 12167; Nov. 9, 1989, p. 28271; Oct. 22, 1991, p. 27087; Oct. 31, 1991, p. 29284; Feb. 25, 1992, p. 3377; July 14, 1994, p. 16593; July 21, 1994, p. 17280; July 21, 1994, p. 17281; Aug. 12, 1994, pp. 7642, 7643; Oct. 7, 1994, p. 29136, 29137; Mar. 21, 1996, p. 5950; Apr. 16, 1996, pp. 7642, 7643; Sept. 27, 1996, p. 25542; Sept. 28, 1996, p. 25931; Mar. 5, 1998, p. ----; Oct. 15, 1998, p. ----; July 15, 1999, p. ----; Nov. 18, 1999, pp. ----; Oct. 24, 2000, p. ----; Sept. 20, 2001, p. ----), or declined to proceed further with it (II, 1485). Among the measures the House has returned to the Senate: a Senate-passed bill providing for the sale of Conrail and containing provisions relating to the tax treatment of the sale, notwithstanding inclusion in that bill of a disclaimer section requiring all revenue provisions therein to be contained in separate legislation originating in the House (Sept. 25, 1986, p. 26202); a Senate-passed bill prohibiting the importation of commodities subject to tariff (July 30, 1987, p. 21582); a Senate-passed bill banning all imports from Iran, a tariff measure as affecting revenue from dutiable imports (June 16, 1988, p. 14780); a Senate-passed bill dealing with the tax treatment of income derived from the exercise of Indian treaty fishing rights (June 21, 1988, p. 15425); a Senate-passed bill creating a tax-exempt government corporation (June 15, 1989, p. 12167); a Senate-passed bill addressing the tax treatment of police-corps scholarships and the regulation of firearms under the Internal Revenue Code (Oct. 22, 1991, p. 27087); a Senate-passed bill including certain import sanctions in an export administration statute (Oct. 31, 1991, p. 29284); a Senate-passed bill requiring the President to impose sanctions including import restrictions against countries that fail to eliminate largescale driftnet fishing (Feb. 25, 1992, p. 3377); a Senate amendment to a general appropriation bill prohibiting funds for the Internal Revenue Service to enforce a requirement to use undyed diesel fuel for use in recreational boats (July 14, 1994, p. 16593); a Senate-passed bill proposing to regulate toxic substances by prohibiting the import of products containing more than specified level of lead (July 21, 1994, p. 17280); a Senate amendment to a general appropriation bill proposing a user fee raising revenue to finance broader activities of the agency imposing the levy, thereby raising general revenue (Aug. 12, 1994, p. 21656); a Senate-passed bill proposing to repeal a fee on electricity generated by nuclear energy that otherwise would raise revenue (Mar. 5, 1998, p. ----); a Senate-passed bill proposing new import restrictions on products containing any substance derived from rhinoceroses or tigers (Oct. 15, 1998, p. ----); Senate-passed bills proposing an amendment to the criminal code that would make it unlawful to import certain assault weapons (Oct. 22, 1991, p. 27087) or to import large capacity ammunition feeding devices (July 15, 1999, p. ----); Senate-passed bills prescribing the tax treatment [[Page ]] of certain benefits to members of the Armed Forces (Nov. 18, 1999, p. -- --) or of public-sector retirement plans (Nov. 18, 1999, p. ----); a Senate-passed bill proposing to create a new basis for applying import restrictions on bear viscera or products derived therefrom (Oct. 24, 2000, p. ----); a Senate amendment proposing to enact by reference a Senate bill providing for a ban on (dutiable) imports of diamonds from certain countries (Sept. 20, 2001, p. ----). The House laid on the table a resolution asserting that a conference report (on which the House was acting first) accompanying a House bill originated provisions in derogation of the constitutional prerogative of the House and resolving that such bill be recommitted to conference (July 27, 2000, p. ----). A bill raising revenue incidentally was held not to infringe upon the constitutional prerogative of the House to originate revenue legislation (VI, 315). Discussion of differentiation between bills for the purpose of raising revenue and bills which incidentally raise revenue (VI, 315). A question relating to the invasion of the constitutional prerogatives of the House by a Senate amendment may be raised at any time when the House is in possession of the papers, but not otherwise; thus, the question has been presented pending the motion to call up a conference report on the bill (June 20, 1968, Deschler, ch. 13, Sec. 14.2; Aug. 19, 1982, p. 22127), but has been held nonprivileged with respect to a bill already presented to the President (Apr. 6, 1995, p. 10700). On January 16, 1924, p. 1027, the Senate decided that a bill proposing a gasoline tax in the District of Columbia should not originate in the Senate (VI, 316). Former clause 5(b) (current clause 5(a)) of rule XXI, added in the 98th Congress, prohibits consideration of any amendment, including any Senate amendment, proposing a tax or tariff measure during consideration of a bill or joint resolution reported by a committee not having that jurisdiction (H. Res. 5, Jan. 3, 1983, p. 34). For discussion as to the prerogatives of the House under this clause, and discussion of the prerogatives of the House to originate appropriation bills, see Deschler, ch. 13. Decisions <<NOTE: Sec. 103. Decisions of the Court.>> of the Supreme Court of the United States: Field v. Clark, 143 U.S. 649 (1892); Twin City Bank v. Nebeker, 167 U.S. 196 (1897); Flint v. Stone Tracy Co., 220 U.S. 107 (1911); Millard v. Roberts, 202 U.S. 429 (1906); Rainey v. United States, 232 U.S. 310 (1914); United States v. Munoz-Flores, 495 U.S. 385 (1990). \2\ Every Bill <<NOTE: Sec. 104. Approval and disapproval of bills by the President.>> which shall have passed the House of Representatives and the Senate, shall, before it become a Law, be presented to the President of the United States; If he approve he shall sign it, but if not he shall return it, with his Objec [[Page ]] tions to that House in which it shall have originated, who shall enter the Objections at large on their Journal, and proceed to reconsider it. If after such Reconsideration two thirds of that House shall agree to pass the Bill, it shall be sent, together with the Objections, to the other House, by which it shall likewise be reconsidered, and if approved by two thirds of that House, it shall become a Law. But in all such Cases the Votes of both Houses shall be determined by Yeas and Nays, and the Names of the Persons voting for and against the Bill shall be entered on the Journal of each House respectively. * * *. Under the usual <<NOTE: Sec. 105. The act of approval.>> practice, bills are considered to have been presented to the President at the time they are delivered to the White House. In 1959, bills delivered to the White House while the President was abroad were held for presentation to the President upon his return to the United States by the White House. The United States Court of Claims held, in Eber Bros. Wine and Liquor Corp. v. United States, 337 F.2d 624 (1964), cert. denied, 380 U.S. 950 (1965), that where the President had determined, with the informal acquiescence of leaders of Congress, that bills from the Congress were to be received at the White House only for presentation to him upon his return to the United States and the bill delivered to the White House was so stamped, the Presidential veto of the bill more than 10 days after delivery to the White House but less than 10 days after his return to the country was timely. The second session of the 89th Congress adjourned sine die while President Johnson was on an Asian tour and receipts for bills delivered to the White House during that time were marked in like manner. The approval of a bill by the President of the United States is valid only with his signature (IV, 3490). Prior to the adoption of the 20th amendment to the Constitution, at the close of a Congress, when the two Houses prolonged their sessions into the forenoon of March 4, the approvals were dated on the prior legislative day, as the legislative portion of March 4 belonged to the term of the new Congress. In one instance, however, bills signed on the forenoon of March 4 were dated as of that day with the hour and minute of approval given with the date (IV, 3489). The 20th amendment to the Constitution changed the date of meeting of the Congress to January 3d. The act of President Tyler in filing with a bill an [[Page ]] exposition of his reasons for signing it was examined and severely criticized by a committee of the House (IV, 3492); and in 1842 a committee of the House discussed the act of President Jackson in writing above his signature of approval a memorandum of his construction of the bill (IV, 3492). But where the President has accompanied his message
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