POWERS OF THE CONGRESS OR NOT
I was going to write about the powers of the Congress this month but, because of the continued outrageous actions during the State of the Union Address as well as other congressional meetings, I decided to look specifically at Section 5 of Article 1 regarding powers of Congress. It didn’t take long before I felt I was falling down a deep, dark well of legal wrangling. I could just stop and go with my first thought, but once I start chasing the rabbit, I usually don’t quit.
Article 1, Section 5 of the U.S. Constitution establishes the procedural rules for Congress, granting the House and Senate authority to govern their own internal operations. Key provisions include defining a quorum (majority) to conduct business, establishing the power to create procedural rules, punishing members for disorderly behavior, expelling members with a two-thirds vote, and requiring the publication of a journal (Journal of Proceedings).
My interest, of course, was in Clause 2 which states, “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.”
This Clause expressly grants each house of Congress the power to discipline its own members for misconduct, including through expulsion. Expulsion is the process by which a house of Congress may remove one of its members, after the member has been duly elected and seated. 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. Exclusion occurs when a body of Congress refuses to seat a member-elect. Unlike the two-thirds majority requirement of the expulsion power, a body of Congress may exclude a member-elect with a simple majority.
Well, this seemed simple enough and could eliminate the lack of decorum in congressional proceedings. But then as I explored details regarding “expulsion” and “exclusion” I ran into the problem of judicial oversight.
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. The reason 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.
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. 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. 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.
Paul 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. While the Court recognized that the Constitution grants broad authority to each of the houses of Congress regarding expulsion and other discipline, it explained that Congress’s authority regarding exclusion, was limited to the enumerated qualifications requirements. Because of the distinct nature of each action, the Court emphasizes that the vote to exclude Powell, despite exceeding a 2/3 majority, could not substitute for his expulsion.
Well, if you understood all that in the first reading, you are doing better than me and this becomes the problem with the legalese of our government. It takes lawyers that speak this language and sometimes even they don’t know what they are talking about. Consequently, it takes judges, Supreme or not, to make decisions. Obviously, Powell was guilty of some impropriety, but because of language or opinion, the majority vote didn’t count.
Even though the Congress has the ability to discipline rowdy members, they choose not to get involved with court proceedings, especially when our judicial system is so filled with partisan politics. If a particular party has a majority and wants to expel a person of the other party, they have to consider the party affiliation of the judge to determine the possible outcome. Thus, we have to put up with the insanity because there is no discipline or authority.
Give this a thought. When you fill out your ballot and you have to vote for judges, what do you know about these people? How available is the information? How much time will you have to spend to research their rulings? Or do you just vote the party, unfortunately like I do? So, we are not voting for the most qualified, the most intelligent, the most just, or the most questionable. We are forced to vote party. Why should judges be party affiliated in the first place? Maybe they should be required to be Independents or Unaffiliated.
Just my thoughts.
kln
The way of peace they do not know,
and there is no justice in their paths;
they have made their roads crooked;
no one who treads on them knows peace.
Isaiah 59:8
ESV