ArtI.S5.C2.2.3 Judicial Interpretations of Expulsion Clause

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.

The Supreme Court has not decided a case directly bearing on the expulsion of a Member of Congress, although judicial discussions of the expulsion power have developed in dicta.1 The Court has stated, for example, that Congress’s expulsion power “extends to all cases where the offence is such as in the judgment of the Senate is inconsistent with the trust and duty of a member.” 2 The Court highlighted that a Member’s conduct could be subject to legislative discipline even if “[i]t was not a statutable offence nor was it committed in his official character, nor was it committed during the session of Congress, nor at the seat of government.” 3 The Court has also emphasized that the House and Senate may exercise the expulsion power exclusively, such that any prosecution by the Executive of related offenses by the Member does not interfere with Congress’s power to expel.4 These relatively few statements suggest the Court has a broad view of the expulsion power.

The lack of judicial precedent directly addressing the Expulsion Clause may be due to the political question doctrine, a principle stemming from the Constitution’s separation of powers.5 Under the doctrine, courts have declined to decide cases involving “political questions,” which are controversies where there is a “textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it.” 6 In this vein, courts have been cognizant that the expulsion power, as a form of legislative discipline, exists separately from civil or criminal liability and empowers the respective houses of Congress to maintain the integrity and dignity of the legislature and its proceedings.7

The Supreme Court has reflected this reasoning in some of its cases touching on the Expulsion Clause. For example, in 1897, the Court discussed the Expulsion Power in a case of a petitioner convicted of criminal contempt for refusing to answer questions during a congressional investigation of potential misconduct of Members of Congress.8 Acknowledging that the houses of Congress had broad power to discipline Members and discretion in exercising that power, the Court declined to “encroach upon the province of that body.” 9 In a criminal case against a Senator involving congressional privileges, the Court recognized that Congress has “almost unbridled discretion” over the standards for expulsion.10 The Court observed that Members who are subject to legislative discipline are “judged by no specifically articulated standards,” but by a body “from whose decision there is no established right of review.” 11 The Court also discussed justiciability in Powell v. McCormack after determining that the House’s attempt to bar a Member’s service constituted an exclusion rather than expulsion.12 In Powell, the Court generally recognized that the exclusion at issue was justiciable because “the 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.” 13 In a concurring opinion, however, Justice William O. Douglas noted that, “if this were an expulsion case I would think that no justiciable controversy would be presented.” 14

Members of Congress who were expelled do not appear to have challenged the expulsion decision itself in court. Some Members who have faced disciplinary proceedings under the Expulsion Clause have attempted to challenge the disciplinary measures through judicial review, but lower courts have consistently declined to consider the claims, citing separation of powers concerns.15 For example, in United States v. Traficant, a Member of the House of Representatives was convicted by a jury of criminal charges related to his service in Congress and then found by the House Ethics Committee to have violated the House’s internal rules of conduct, resulting in his eventual expulsion.16 The U.S. Court of Appeals for the Sixth Circuit rejected the Member’s claim that he could not be punished through both a criminal trial and legislative discipline because of the Fifth Amendment’s Double Jeopardy prohibition,17 concluding that both branches have distinct authority to punish behavior of Members that can be exercised independent of the other.18

See In re Chapman, 166 U.S. 661, 669–671 (1897) (discussing expulsion authority of Congress in the context of a petitioner convicted of criminal contempt for refusing to answer questions during a congressional investigation); Powell v. McCormack, 395 U.S. 486, 506–11 (1969) (discussing the distinction between the exclusion of Members-elect based on qualifications for office and the expulsion of seated Members based on misconduct). back
In re Chapman, 166 U.S. at 669–70 (citations omitted). One scholar has examined the relationship between the removal authority conferred by the Constitution for purposes of impeachment to the removal authority conferred by the Expulsion Clause, discussing arguments for and against holding the separate branches of government accountable to similar standards of conduct. See Gerald T. McLaughlin, Congressional Self-Discipline: The Power to Expel, To Exclude and To Punish, 41 Fordham L. Rev. 43, 50 (1972). back
In re Chapman, 166 U.S. at 670. back
Burton v. United States, 202 U.S. 344, 368–70 (1906). back
See Baker v. Carr, 369 U.S. 186, 210 (1962) ( “The nonjusticiability of a political question is primarily a function of the separation of powers.” ). back
Id. at 217.See generally CRS Report R43834, The Political Question Doctrine: Justiciability and the Separation of Powers, by Jared P. Cole. back
See In re Chapman, 166 U.S. at 668 (noting that the power of houses of Congress to discipline their Members through expulsion or other means constitutes an exercise of their “inherent power of self-protection” that may be used to prevent Members’ behavior from “destroy[ing] public confidence in the body” ). back
Id. at 664. back
Id. at 670. back
United States v. Brewster, 408 U.S. 501, 519 (1972). back
Id. back
Powell, 395 U.S. at 516. back
Id. at 522. back
Id. at 553 (Douglas, J., concurring) (noting the difference in justiciability of a case of exclusion of a Member-elect compared to a case of expulsion of a Member for misconduct). back
See United States v. Traficant, 368 F.3d 646, 652 (6th Cir. 2004); Rangel v. Boehner, 20 F. Supp. 3d 148, 167–68 (D.D.C. 2013), aff’d on other grounds by 785 F.3d 19 (2015) (noting that the district court dismissed the complaint on numerous jurisdictional grounds and recognizing that it needed only to affirm one of those grounds, relying upon the Speech and Debate Clause as “the simplest ground” upon which to affirm). back
Traficant, 368 F.3d at 648–49. back
Id. at 649 (The Member argued that “he was twice placed in jeopardy: first, when the House of Representatives initiated hearings that included the possibility of his imprisonment [ . . . ] and second, after Congress had already expelled him, when the district court ordered his imprisonment.” (citation omitted)). back
Id. at 650–52 (noting Supreme Court precedent recognizing that the Expulsion Clause grants Congress exclusive authority to discipline its members) (citing Burton v. United States 202 U.S. 344, 369 (1906)). back