Expulsion Clause

Expulsion vs. exclusion

Powell v. McCormack (1969) drew the definitive line. The House excluded Representative Adam Clayton Powell Jr. for misconduct discovered during the prior Congress. The Court held the exclusion unconstitutional: Congress may exclude only for failure to meet the enumerated qualifications (age, citizenship, inhabitancy). The Court emphasized that "exclusion and expulsion are not fungible proceedings" — the vote to exclude Powell, though exceeding two-thirds, could not substitute for expulsion.

The distinction matters because expulsion has no enumerated substantive limits, while exclusion is confined to the three qualifications. A chamber that wants to remove a seated member for misconduct must use the expulsion route and its two-thirds threshold.

British origins and the Wilkes case

The English House of Commons exercised an inherent expulsion power by simple majority, used "at the body's absolute discretion" with few limitations. Hundreds of members were expelled before the nineteenth century on grounds ranging from slanderous writings to treason.

The case of John Wilkes proved decisive for American constitutional design. Wilkes, expelled repeatedly from Parliament after criticizing the King's peace treaty (1763), was reelected each time — and each time Parliament excluded him, ultimately declaring him ineligible. Only in 1774 was Wilkes permitted to serve; the House of Commons later expunged his expulsions, conceding they were "subversive of the rights of the whole body of electors."

The Wilkes episode likely produced two constitutional safeguards: fixed qualifications for membership and the two-thirds supermajority for expulsion. The Framers imposed no substantive standard for what conduct warrants expulsion — the two-thirds vote itself was the safeguard against abuse.

Convention debate over the two-thirds threshold

The 2/3 requirement was not in the Committee of Detail's original draft; it was added on the floor on 10 Aug. 1787. Madison moved the addition, arguing "the right of expulsion... was too important to be exercised by a bare majority of a quorum: and in emergencies of faction might be dangerously abused." Randolph and Mason backed the motion. Gouverneur Morris argued the other way, that a simple majority sufficed and a supermajority could itself be abused: "This power may be safely trusted to a majority. To require more may produce abuses on the side of the minority. A few men from factious motives may keep in a member who ought to be expelled." The Convention sided with Madison, 10–0–1 (Pennsylvania divided).

Story's Commentaries confirm the vote and supply the rationale that has governed ever since: "This clause, requiring a concurrence of two thirds, was not in the original draft of the constitution, but it was inserted by a vote of ten states, one being divided." He explains why: a discipline power "so summary, and at the same time so subversive of the rights of the people... might be exerted for mere purposes of faction or party, to remove a patriot, or to aid a corrupt measure". Story's own example of the power's original-era breadth is Senator William Blount, expelled in July 1797 for conduct that "was not a statuteable offence; nor was it committed in his official character; nor was it committed during the session of congress; nor at the seat of government" — yet the Senate expelled him "by an almost unanimous vote". Story reads this as settling "that expulsion may be for any misdemeanour, which, though not punishable by any statute, is inconsistent with the trust and duty of a senator."

Judicial treatment

The Supreme Court has never decided a case directly on congressional expulsion, but dicta indicate a broad view of the power. In In re Chapman, 166 U.S. 661 (1897), the Court stated that the 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" — even if the offense was not statutory, not committed in official capacity, and not committed during the session.

In United States v. Brewster, 408 U.S. 501 (1972), the Court observed that Congress exercises "almost unbridled discretion" over expulsion standards, and that expelled members are "judged by no specifically articulated standards" by a body "from whose decision there is no established right of review."

Expulsion is likely nonjusticiable. Justice Douglas stated in his Powell concurrence that "if this were an expulsion case I would think that no justiciable controversy would be presented." Lower courts have consistently declined to review expulsion decisions on separation-of-powers grounds.

No double-jeopardy bar

In United States v. Traficant, 368 F.3d 646 (6th Cir. 2004), the Sixth Circuit held that a member convicted of criminal charges and then expelled by the House could not invoke double jeopardy. Legislative discipline and criminal prosecution serve distinct purposes under separate constitutional grants of authority. "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."

Historical record of expulsions

Twenty members have been expelled in congressional history: five from the House, fifteen from the Senate. Eighteen of the twenty were expelled for disloyalty — seventeen during the Civil War (Confederate sympathizers who had not formally resigned) and one in 1797 (Senator William Blount, who conspired to transfer Spanish territories to Britain).

Post-Civil War, only two members have been expelled, both from the House, both for criminal conduct related to official duties: one in 1980 (ABSCAM bribery) and one in 2002 (Traficant — bribery, racketeering, tax fraud). In several other cases, members facing expulsion proceedings resigned before a vote.

The unresolved question: prior misconduct

Whether a chamber may expel a member for conduct occurring entirely before an intervening election remains unsettled. Practice is "less than consistent" in both chambers.

House precedents. The House is conflicted. A special committee investigating the Crédit Mobilier scandal (1872) concluded the Constitution placed "no qualification [on] the power" and assigned no temporal restriction. The committee reasoned that even if inappropriate, "if two-thirds of the House shall see fit to expel a man ... without any reason at all ... they have the power." The House Judiciary Committee reached the opposite conclusion in the same scandal: a member who "does nothing which is disorderly or renders him unfit to be in the House while a member thereof" is beyond the expulsion power. Speaker Carlisle stated in 1884 that "this House has no right to punish a Member for any offense alleged to have been committed previous to the time when he was elected." A 1925 select committee reported "with practical uniformity the precedents ... are to the effect that the House will not expel a Member for reprehensible action prior to his election."

Senate precedents. The Senate is similarly unsettled. In 1807, John Quincy Adams wrote in a committee report that "[b]y the letter of the Constitution the power of expelling a Member is given to each of the two Houses of congress, without any limitation other than that which requires a concurrence of two-thirds." But the same report suggested that whether the public was aware of the misconduct was "significant" — expulsion was most appropriate when misconduct was "suddenly and unexpectedly revealed to the world."

Later Senate precedents applied a case-by-case approach. When Senator-elect Arthur Gould faced pre-election bribery allegations in 1927, a Senate committee concluded that "expulsion of a Member of the Senate for an offense alleged to have been committed prior to his election must depend upon the peculiar facts and circumstances of the particular case." The Senate disregarded all charges.

In the Langer case (1942), a Senate committee took the most restrictive view yet: "expulsion cannot occur unless the offender is a member at the time when the injury to the Senate insides." The committee reserved only the Senate's right to expel a Member for unknown prior misconduct, concluding the Constitution "does not contemplate expulsion for any crime or violation of rules... except such as occurred either during membership or was first disclosed during membership to the impairment of the honor of the Senate." Both expulsion and exclusion votes for Langer failed.

The Packwood case (1995) swung back toward a broader view. The Senate Ethics Committee voted unanimously to recommend expulsion of Senator Robert Packwood for sexual misconduct stretching back to 1969 — much of which was not uncovered until after his 1992 reelection. The Committee acknowledged SCOTUS had "implied an unqualified authority of each House of Congress to discipline a Member for misconduct, regardless of the specific timing of the offense," while noting only that "there have been indications" the Senate might not exercise its disciplinary discretion over conduct predating membership. Packwood resigned before the Senate voted.

The constituency-deference principle. The strongest argument against expulsion for prior conduct is deference to the electorate: if voters knew of the misconduct and elected the member anyway, the chamber substitutes its judgment for the people's. As a 1914 House Judiciary Report stated, expelling a member for known prior conduct would "substitute [the House's] standards and ideals for the standards and ideals of the constituency of the Member who had deliberately chosen him to be their Representative." But the same report affirmed the House possessed the power to expel in such cases — it cautioned only against exercising it except in "extreme cases."

Synthesis. The key factors across both chambers are: (1) whether the member's constituency had knowledge of the misconduct when they last voted; and (2) whether the misconduct, though pre-election, occurred during one of the member's previous terms in office. Restraint in exercising the expulsion power for prior conduct "generally does not appear to be due to a constitutional restriction; rather, it is a policy choice based on respect for the democratic system."

Practical resolution. The distinction often turns on voter knowledge. In the Lederer case (1981), a committee recommended expulsion for pre-reelection ABSCAM conduct because the conviction came after the election — voters "did not have full knowledge of the offenses" at the time they voted. The member resigned before the House acted.

The Supreme Court in Powell specifically declined to rule on the House's authority to expel for past misconduct, noting only that members had "expressed a belief that such strictures apply to its own power."

Alternative discipline

Expulsion is the most severe sanction. Short of expulsion, each chamber may censure, reprimand, or fine members by simple majority. See Impeachment power of the House for the parallel executive/judicial removal mechanism.