Article I, Section 5, Clause 2:

Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behaviour, and, with the Concurrence of two thirds, expel a Member.

Article I, Section 5, Clause 2, expressly grants each house of Congress the power to discipline its own Members for misconduct, including through expulsion. Expulsion is the process1 by which a house of Congress may remove one of its Members, after the Member has been duly elected and seated.2 Expulsion, which is expressly provided for in the Expulsion Clause, is often confused with exclusion, which is an implied power of Congress that stems from the Qualifications Clauses for the House and Senate.3 Exclusion occurs when a body of Congress refuses to seat a Member-elect.4 Unlike the two-thirds majority requirement of the expulsion power, a body of Congress may exclude a Member-elect with a simple majority.5

While exclusion and expulsion both bar an individual from holding a seat in Congress, the two actions exist for different purposes and occur at different times. For example, in Powell v. McCormack, the Court explored the constitutionality of Representative Adam Clayton Powell’s exclusion from the House of Representatives.6 The impetus for the case was an investigation of expenditures authorized by Powell during the 89th Congress, which concluded that, as chairman of a House committee, the Member had engaged in improper activities, including deceiving House authorities with regard to travel expenses and directing illegal payments to his wife.7 The House took no formal action with regard to those findings during that Congress but refused to administer the oath of office to Powell at the start of the 90th Congress the following year.8 Subsequently, a Select Committee, which was appointed at the outset of the 90th Congress to determine Powell’s eligibility to be seated as a Member, recommended that Powell be sworn into office as a Member and subsequently disciplined.9 However, the House rejected that recommendation and instead adopted a resolution that would exclude Powell, which it approved by a vote of 307 to 116.10

Powell sued to be reinstated, and on appeal the Supreme Court held that Powell’s exclusion was unconstitutional, explaining that “exclusion and expulsion are not fungible proceedings.” 11 While the Court recognized that the Constitution grants broad authority to each of the houses of Congress regarding expulsion and other discipline,12 it explained that Congress’s authority regarding exclusion was limited to the enumerated qualifications requirements.13 Because of the distinct nature of each action, the Court emphasized that the vote to exclude Powell, despite exceeding a two-thirds majority, could not substitute for his expulsion.14

Footnotes

1

Expulsions generally begin with an investigation by the body’s ethics committee, which may follow the introduction of a resolution proposing expulsion. See William Brown, House Practice: A Guide to the Rules, Precedents, and Procedures of the House, ch. 25, § 21 (2011). The ethics committees have jurisdiction to investigate the conduct of Members who may be deemed to reflect upon the body of Congress in which they serve. See Senate Select Comm. on Ethics, 115th Cong., 1st Sess., Rules of Procedure 24 (Comm. Print 2015), >https://www.ethics.senate.gov/public/index.cfm/files/serve?File_id=551b39fc-30ed-4b14-b0d3-1706608a6fcb.

2

Expulsion, as a form of legislative discipline, exists separate from any individual criminal or civil liability of Members for particular actions. See United States v. Traficant, 368 F.3d 646, 649–652 (6th Cir. 2004) ( “Because it would thwart the constitutional separation of powers if Congress could shield its members from criminal prosecution by the Executive Branch, we cannot read the Double Jeopardy Clause to include Congress’s disciplining its own members.” (emphasis omitted)), cert. denied, 543 U.S. 1055 (2005); United States v. Rose, 28 F.3d 181, 189–90 (D.C. Cir. 1994) (holding that separation of powers doctrine does not preclude a Member of Congress from being subject to investigation by both legislative and executive authorities). See also Punishment by the House of Representatives No Bar to an Indictment to the President of the United States, 2 Op. Att’y Gen. 655, 655–56 (1834). That is, Members of Congress are subject to both legislative discipline by their respective body as well as potential criminal or civil prosecution of any misconduct that constitutes a violation of federal, state, or local law.

3

U.S. Const. art. I, § 2, cl. 2 ( “No Person shall be a Representative who shall not have attained to the Age of twenty five Years, and been seven Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State in which he shall be chosen.” ); id. art. I, § 3, cl. 3 ( “No Person 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.” ).

4

Powell v. McCormack, 395 U.S. 486, 492–32 (1969).

5

Id.

6

Id. at 506. Prior to the Court’s decision in Powell, there are some examples in which Members-elect were expelled, although commentators have observed that such classification may have been used because “no one [had] raised the point that he had not been sworn in.” 3 Lewis Deschler, Deschler’s Precedents of the United States House of Representatives ch. 12, § 13 (1979) (hereinafter Deschler’s Precedents) (citing 2 Asher C. Hinds, Hinds’ Precedents of the House of Representatives of the United States § 1262 (1907) (hereinafter Hinds’ Precedents) and 1 Hinds’ Precedents § 476).

7

Powell, 395 U.S. at 489–90.

8

Id. at 490.

9

Id. at 492.

10

Id. at 492–93.

11

Id. at 512.

12

See United States v. Brewster, 408 U.S. 501, 519 (1972).

13

Powell, 395 U.S. at 522 ( “[T]he Constitution leaves the House without authority to exclude any person, duly elected by his constituents, who meets all the requirements for membership expressly prescribed in the Constitution.” ).

14

Id. at 510.