Can’t Sleep. Parliamentary Procedure Will Eat Me.
Journal of the House of Representatives of the United States, 1789-1793 WEDNESDAY, APRIL 1, 1789:
And a quorum, consisting of a majority of the whole number, being present, Resolved, That this House will proceed to the choice of a Speaker by ballot.
An Act to regulate the Time and Manner of administering certain Oaths
Chapter 1.Sec. 2. And be it further enacted, That at the first session of Congress after every general election of Representatives, the oath or affirmation aforesaid, shall be administered by any one member of the House of Representatives to the Speaker; and by him to all the members present, and to the clerk, previous to entering on any other business; and to the members who shall afterwards appear, previous to taking their seats. The President of the Senate for the time being, shall also administer To each Senator. the said oath or affirmation to each Senator who shall hereafter be elected, previous to his taking his seat: and in any future case of a President of the Senate, who shall not have taken the said oath or affirmation, the same shall be administered to him by any one of the members of the Senate.
The very first House resolved to elect its own Speaker first; then it did so. Then, the first Congress passed a law that said oaths have to happen before any other business (implying that the business of electing a Speaker happens before that) but also in US v Ballin the Supreme Court held:
The power to make rules is not one which once exercised is exhausted. It is a continuous power, always subject to be exercised by the house, and within the limitations suggested, absolute and beyond the challenge of any other body or tribunal.
So, when it comes to their own rules, the House and Senate can pretty much do whatever they want, not being bound by previous versions of themselves.
Hooray! Contradictions! Should the Oath act apply? Can the House do what it wants?
I’m fascinated by how parliamentary bodies bootstrap things more or less from scratch each time.