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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 ...
(I, 239). At the time of organization, while the Clerk of the preceding House was yet officiating, and after the Speaker had been elected, the House proceeded to legislation and other business before electing a Clerk (I, 242, 244). But in one case it was held that the Act of June 1, 1789 (2 U.S.C. 25) bound the House to elect the Clerk before proceeding to business (I, 241). <<NOTE: Sec. 31. House of Representatives alone impeaches.>> * * * and [the House of Representatives] shall have the sole Power of Impeachment. In 1868 the Senate ceased in its rules to describe the House, acting in an impeachment, as the ``grand inquest of the nation'' (III, 2126). See also art. II, sec. 4 (Sec. 173, infra); Deschler, ch. 14. A Federal court having subpoenaed certain evidence gathered by a committee of the House in an impeachment inquiry, the House adopted a resolution granting such limited access to the evidence as would not infringe upon its sole power of impeachment (Aug. 22, 1974, p. 30047). Until the law expired on June 30, 1999, an independent counsel was required to advise the House of any substantial and credible information that may constitute grounds for impeachment of an officer under his investigation (28 U.S.C. 595(c)). For a description of impeachment proceedings prompted by a communication from an independent counsel, see Sec. 176, infra. Section 3. \1\ [The Senate <<NOTE: Sec. 32. Numbers, terms, and votes of Senators.>> of the United States shall be composed of two Senators from each State, chosen by the Legislature thereof, for six Years; and each Senator shall have one Vote.] [[Page ]] This provision has now been changed by the 17th amendment to the Constitution. \2\ Immediately <<NOTE: Sec. 33. Division of the Senate into classes.>> after they shall be assembled in Consequence of the first Election, they shall be divided as equally as may be into three Classes. The Seats of the Senators of the first Class shall be vacated at the Expiration of the second Year, of the second Class at the Expiration of the fourth Year, and of the third Class at the Expiration of the <<NOTE: Sec. 34. Filling of vacancies in the Senate.>> sixth Year, so that one-third may be chosen every second Year; [and if Vacancies happen by Resignation, or otherwise, during the Recess of the Legislature of any State, the Executive thereof may make temporary Appointments until the next Meeting of the Legislature, which shall then fill such Vacancies.] That part of the above paragraph in brackets was changed by the 17th amendment. \3\ No Person <<NOTE: Sec. 35. Qualifications of Senators.>> shall be a Senator who shall not have attained to the Age of thirty Years, and been nine Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State for which he shall be chosen. In 1794 the Senate decided that Albert Gallatin was disqualified, not having been a citizen nine years although he had served in the war of Independence and was a resident of the country when the Constitution was formed (I, 428); and in 1849 that James Shields was disqualified, not having been a citizen for the required time (I, 429). But in 1870 the Senate declined to examine as to H. R. Revels, a citizen under the recently adopted 14th amendment (I, 430). As to inhabitancy the Senate seated one who, being a citizen of the United States, had been an inhabitant of the State from which he was appointed for less than a year (I, 437). Also one who, while stationed in a State as an army officer had declared his intention [[Page ]] of making his home in the State, was admitted by the Senate (I, 438). A Senator who at the time of his election was actually residing in the District of Columbia as an officeholder, but who voted in his old home and had no intent of making the District his domicile, was held to be qualified (I, 439). \4\ The Vice <<NOTE: Sec. 36. The Vice President and his vote.>> President of the United States shall be President of the Senate, but shall have no Vote, unless they be equally divided. The right of the Vice President to vote has been construed to extend to questions relating to the organization of the Senate (V, 5975), as the election of officers of the Senate (V, 5972-5974), or a decision on the title of a claimant to a seat (V, 5976, 5977). The Senate has declined to make a rule relating to the vote of the Vice President (V, 5974). <<NOTE: Sec. 37. Choice of President pro tempore and other officers of the Senate.>> \5\ The Senate shall chuse their other Officers, and also a President pro tempore, in the Absence of the Vice President, or when he shall exercise the Office of President of the United States. In the 107th Congress the Senate elected two Presidents of the Senate pro tempore for different periods when the majority of the Senate shifted after inauguration of the Vice President (S. Res. 3, Jan. 3, 2001, p. ----). - \6\ The Senate <<NOTE: Sec. 38. Senate tries impeachment and convicts by twothirds vote.>> shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two thirds of the Members present. For the exclusive power of the Senate to try impeachments under the United States Constitution, see Ritter v. United States, 84 Ct. Cls. 293 (1936), cert. denied, 300 U.S. 668 (1937). See also Mississippi v. Johnson, 71 U.S. (4 Wall.) 475 (1867) (dictum). For the nonjusticiability of a claim that Senate Rule XI violates the impeachment trial clause by delegating to a committee of 12 Senators the responsibility to receive evidence, hear testimony, and report to the Senate thereon, see Nixon v. United States, [[Page ]] 506 U.S. 224 (1993). For a discussion of Senate impeachment procedures, see Sec. Sec. 608-20, infra. \7\ Judgment in <<NOTE: Sec. 41. Judgment in cases of impeachment.>> Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law. There has been discussion as to whether or not the Constitution requires both removal and disqualification on conviction (III, 2397); but in the case of Pickering, the Senate decreed only removal (III, 2341). In the case of Humphreys, judgment of both removal and disqualification was pronounced (III, 2397). In the Ritter case, it was first held that upon conviction of the respondent, judgment of removal required no vote, following automatically from conviction under article II, section 4 (Apr. 17, 1936, p. 5607). In the 99th Congress, having tried to conviction the first impeachment case against a Federal district judge since 1936, the Senate ordered his removal from office (Oct. 9, 1986, p. 29870). In the 101st Congress, two other Federal district judges were removed from office following their convictions in the Senate (Oct. 20, 1989, p. 25335; Nov. 3, 1989, p. 27101). For a further discussion of judgments in cases of impeachment, see Sec. 619, infra. Section 4. \1\ The Times, <<NOTE: Sec. 42. Times, places, and manner of elections of Representatives and Senators.>> Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the places of chusing Senators. The relative powers of the Congress and the States under this graph have been the subject of much discussion (I, 311, 313, 507, footnote); but Congress has in fact fixed by law the time of elections (I, 508; VI, 66; 2 U.S.C. 7), and has controlled the manner to the extent of prescribing a ballot or voting machine (II, 961; VI, 150; 2 U.S.C. 9). When a State delegated to a municipality the power to regulate the manner of holding [[Page ]] an election, a question arose (II, 975). A question has arisen as to whether or not a State, in the absence of action by Congress, might make the time of election of Congressmen contingent on the time of the State election (I, 522). This paragraph gives Congress the power to protect the right to vote in primaries where they are an integral part of the election process. United States v. Wurzbach, 280 U.S. 396 (1930); United States v. Classic, 313 U.S. 299 (1941). Congress may legislate under this paragraph to protect the exercise of the franchise in congressional elections. Ex parte Siebolt, 100 U.S. 371 (1880); Ex parte Yarbrough, 110 U.S. 651 (1884). The meaning of <<NOTE: Sec. 43. Functions of a State legislature in fixing time, etc., of elections.>> the word ``legislature'' in this clause of the Constitution has been the subject of discussion (II, 856), as to whether or not it means a constitutional convention as well as a legislature in the commonly accepted meaning of the word (I, 524). The House has sworn in Members chosen at an election the time, etc., of which was fixed by the schedule of a constitution adopted on that election day (I, 519, 520, 522). But the House held that where a legislature has been in existence a constitutional convention might not exercise the power (I, 363, 367). It has been argued generally that the legislature derives the power herein discussed from the Federal and not the State Constitution (II, 856, 947), and therefore that the State constitution might not in this respect control the State legislature (II, 1133). The House has sustained this view by its action (I, 525). But where the State constitution fixed a date for an election and the legislature had not acted, although it had the opportunity, the House held the election valid (II, 846). Decisions <<NOTE: Sec. 44. Decisions of the Court.>> of the Supreme Court of the United States: Ex parte Siebold, 100 U.S. 371 (1880); Ex parte Clark, 100 U.S. 399 (1880); Ex parte Yarbrough, 110 U.S. 651 (1884); In re Coy, 127 U.S. 731 (1888); Ohio v. Hildebrant, 241 U.S. 565 (1916); United States v. Mosley, 238 U.S. 383 (1915); United States v. Gradwell, 243 U.S. 476 (1917); Newberry v. United States, 256 U.S. 232 (1921); Smiley v. Holme, 285 U.S. 355 (1932); United States v. Classic, 313 U.S. 299 (1941); Smith v. Allwright, 321 U.S. 649 (1944); Roudebush v. Hartke, 405 U.S. 15 (1972); Storer v. Brown, 415 U.S. 724 (1974); Buckley v. Valeo, 424 U.S. 1 (1976); U.S. Term Limits, Inc., v. Thorton, 514 U.S. 779 (1995); and Foster v. Love, 522 U.S. 67 (1997). In Public Law 91-285, Congress lowered the minimum age of voters in all Federal, State, and local elections from 21 to 18 years. In Oregon v. Mitchell, 400 U.S. 112 (1970), the Supreme Court upheld the power of Congress under article I, section 4 and under section 5 of the 14th amendment to the Constitution to fix the age of voters in Federal elections, but held that the tenth amendment to the Constitution reserved to the States the power to establish voter age qualifications in State and local elections. The 26th amendment to the Constitution extended the right of persons 18 years of age or older to vote in elections held under State authority. [[Page ]] \2\ [The Congress <<NOTE: Sec. 45. Annual meeting of Congress.>> shall assemble at least once in every Year, and such Meeting shall be on the first Monday in December, unless they shall by Law appoint a different Day.] This provision of the Constitution has been superseded by the 20th amendment. In the later but not the earlier practice (I, 5), prior to the 20th amendment, the fact that Congress had met once within the year did not make uncertain the constitutional mandate to meet on the first Monday of December (I, 6, 9-11). Early Congresses, convened either by proclamation or law on a day earlier than the constitutional day, remained in continuous session to a time beyond that day (I, 6, 9-11). But in the later view an existing session ends with the day appointed by the Constitution for the regular annual session (II, 1160); see Sec. 84, infra. Congress has frequently appointed by law a day for the meeting (I, 4, 5, 10-12, footnote; see also Sec. 243, infra). Section 5. \1\ Each <<NOTE: Sec. 46. House the judge of elections, returns, and qualifications.>> House shall be the Judge of the Elections, Returns and Qualifications of its own Members, * * *. In judging the qualifications of its Members, the House may not add qualifications to those expressly stated in the United States Constitution. Powell v. McCormack, 395 U.S. 486 (1969). This phrase allows the House or Senate to deny the right to a seat without unlawfully depriving a State of its right to equal representation. Barry v. United States ex rel Cunningham, 279 U.S. 597 (1929). But a State may conduct a recount of votes without interfering with the authority of the House under this phrase. Roudebush v. Hartke, 405 U.S. 15 (1972). For discussion of the power of the House to judge elections, see Deschler, ch. 8 (elections) and ch. 9 (election contests); for discussion of the power of the House to judge qualifications, see Deschler, ch. 7. The House has the same authority to determine the right of a Delegate to his seat that it has in the case of a Member (I, 423). The House may not delegate the duty of judging its elections to another tribunal (I, 608), and the courts of a State have nothing to do with it (II, 959). The House has once examined the relations of this power to the power to expel (I, 469). As nearly all <<NOTE: Sec. 47. Power of judging as related to State laws as to returns.>> the laws governing the elections of Representatives in Congress are State laws, questions have often arisen as to the relation of this power of judging to those laws (I, 637). The House decided very early that the certificate of a State executive issued in strict accordance [[Page ]] with State law does not prevent examination of the votes by the House and a reversal of the return (I, 637). The House has also held that it is not confined to the conclusions of returns made up in strict conformity to State law, but may examine the votes and correct the returns (I, 774); and the fact that a State law gives canvassers the right to reject votes for fraud and irregularities does not preclude the House from going behind the returns (II, 887). The highest court in one State (Colorado) has ruled that it lacked jurisdiction to pass upon a candidate's allegations of irregularities in a primary election and that the House had exclusive jurisdiction to decide such questions and to declare the rightful nominee (Sept. 23, 1970, p. 33320). When the question <<NOTE: Sec. 48. Power of judging as related to State laws as to acts of the voter.>> concerns not the acts of returning officers, but the act of the voter in giving his vote, the House has found more difficulty in determining on the proper exercise of its constitutional power. While the House has always acted on the principle of giving expression to the intent of the voter (I, 575, 639, 641; II, 1090), yet it has held that a mandatory State law, even though arbitrary, may cause the rejection of a ballot on which the intent of the voter is plain (II, 1009, 1056, 1077, 1078, 1091). See Deschler, ch. 8, Sec. 8.11, for discussion of distinction between directory State laws governing the conduct of election officials as to ballots, and mandatory laws regulating the conduct of voters. Where the State <<NOTE: Sec. 49. Power of House as related to constitutionality of State laws.>> courts have upheld a State election law as constitutional the House does not ordinarily question the law (II, 856, 1071). But where there has been no such decision the House, in determining its election cases, has passed on the validity of State laws under State constitutions (II, 1011, 1134), and has acted on its decision that they were unconstitutional (II, 1075, 1126), but it is not the policy of the House to pass upon the validity of State election laws alleged to be in conflict with the State constitution (VI, 151). The courts of <<NOTE: Sec. 50. Effect of interpretation of State election laws by State courts.>> a State have nothing to do directly with judging the elections, qualifications, and returns of Representatives in Congress (II, 959), but where the highest State court has interpreted the State law the House has concluded that it should generally be governed by this interpretation (I, 645, 731; II, 1041, 1048), but does not consider itself bound by such interpretations (VI, 58). The House is not bound, however, by a decision on an analogous but
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