The Corner

Removing Congressman: Exclusion Versus Expulsion

After my article last week on whether Congress could expel, rather than impeach, Congressman Jefferson, a number of readers have brought up the Adam Clayton Powell Jr. precedent.   That case, though related, is importantly different.

Adam Clayton Powell Jr. was excluded by the House in 1966.  He was not expelled.  That is to say, he was not allowed in 1967 to take his seat in the 90th Congress after being elected; he was not removed from a seat already taken.  The difference was significant for the Supreme Court, which ruled in Powell v. McCormack, 395 U.S. 486 (1969), that the basis for proper exclusion is limited to the prospective member’s failure to meet the qualifications expressly set out in the Constitution. 

The Court took pains to emphasize that it was rendering no opinion about the standards for expulsion of a sitting member (including whether the Court would have jurisdiction to review a decision by the House to expel one of its own members).  Id., 395 U.S. at 507 & n.27 (“Powell was ‘excluded’ from the 90th Congress, i. e., he was not administered the oath of office and was prevented from taking his seat. If he had been allowed to take the oath and subsequently had been required to surrender his seat, the House’s action would have constituted an ‘expulsion[,]’ [which, the Court had noted, is expressly provided for by Article I, 5 of the Constitution.]  Since we conclude that Powell was excluded from the 90th Congress, we express no view on what limitations may exist on Congress’ power to expel or otherwise punish a member once he has been seated.”)

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