Powell v. McCormack
|Powell v. McCormack|
Supreme Court of the United States
|Argued April 21, 1969
Decided June 16, 1969
|Full case name||Powell, et al. v. McCormack, Speaker of the House of Representatives, et al.|
|Citations||395 U.S. 486 (more)
89 S. Ct. 1944; 23 L. Ed. 2d 491; 1969 U.S. LEXIS 3103
|Prior history||Cert. to the United States Court of Appeals for the District of Columbia Circuit|
|Congress may not in any way alter the qualifications of its members from the exclusive list given in the Constitution (age, length of citizenship, and inhabitant of state where elected). Therefore, "excluding" a Congressman by a two-thirds majority vote is not allowed although the Constitution allows expulsion by a two-thirds vote.|
|Majority||Warren, joined by Black, Brennan, Douglas, Harlan, Marshall, and White|
|Wikisource has original text related to this article:|
Powell v. McCormack, 395 U.S. 486 (1969) was a United States Supreme Court case decided in 1969. It answered the question of whether Congress has the authority to exclude from being sworn in and enrolled upon its rolls a person who has been duly elected or appointed by the people or the executive authority of his/her district or state and who otherwise meets the requirements set forth in the United States Constitution for serving in Congress.
Background of the case 
Adam Clayton Powell, Jr., a senior member of the United States House of Representatives, was embroiled in scandal, specifically around allegations that he had refused to pay a judgment ordered by a New York court, misappropriated congressional travel funds, and illegally paid his wife a congressional staff salary for work she had not done.
Powell was re-elected in the 1966 election. In January 1967, the 90th Congress convened, Speaker of the House John William McCormack asked Representative Powell to abstain from taking the oath of office. The House adopted H.Res. 1, which stripped Powell of his House Committee chairmanship, excluded him from taking his seat, and created a select committee to investigate Powell's misdeeds. After the select committee conducted its investigation and hearings, in March 1967, the House adopted H.Res. 278 by a vote of 307 to 116, which excluded Powell from Congress and also censured him, fined him $25,000, took away his seniority, and declared his seat vacant.
Suit filed 
Powell, along with 13 of his constituents, filed suit in the United States District Court for the District of Columbia, naming McCormack and five other members as defendants. He also named the Clerk of the House, the Sergeant at Arms, and the Doorkeeper. Most of these parties were named in an effort to get injunctions barring the enforcement of H.Res.278:
The suit claimed that excluding Powell amounted to an expulsion, but that an expulsion would not have garnered the necessary two-thirds vote.
The district court dismissed the case for lack of subject-matter jurisdiction. An appellate court overturned the ruling, stating that the federal courts have subject-matter jurisdiction but dismissed the case for a lack of justiciability.
While the suit was making its way through the court system, Powell was re-elected in the 1968 election, and was ultimately re-seated in the 91st Congress. It adopted H.Res. 2, fining him $25,000. Because he was seated when his federal case came to court, the defendants argued that the case was moot.
In the aftermath of the decision, Congress passed the Federal Contested Elections Act to formalize the process for contesting elections in light of the Court ruling.
Constitutional issues of the case 
- Congressional power to develop qualifications other than those specified (Art. I, § 2, cl. 1-2)
- Congressional power to exclude rather than impeach or expel (Art. I, § 2, cl. 5; Art. I, § 5, cl. 2)
- Judicial review versus Congressional power to be the judge of its qualifications (Art. I, § 5, cl. 1) Supreme Court Jurisdiction and Justiciability (Art. III)
- Rights of the electorate to elect their Representative
Court's decision 
Warren's majority opinion 
The opinion stated that the case was justiciable; that it did not constitute a political question that pit one branch of government against another. Rather, it required "no more than an interpretation of the Constitution".
The opinion stated furthermore that Congress being the sole judge of its members’ qualifications (Art. I, § 5, cl. 1) and the Speech and Debate Clause (Art. I, § 6) do not preclude judicial review of Constitutional issues raised in this case (e.g., in this particular case, but not necessarily in all cases touching upon the subject of speech and debate, or Congress's judging the qualifications of its members) because "no branch is supreme" and it is the duty of the court to ensure that all branches conform to the Constitution.
The majority opinion held that Congress does not have the power to develop qualifications other than those specified in Art. I, § 2, cl. 1-2.
Article I, section 5, of the U.S. Constitution states that "Each house shall be the judge of the . . . qualifications of its own members," but then immediately states that each House has the authority to expel a member "with the Concurrence of two thirds." The Court found that it had a "textually demonstrable commitment" to interpret this clause. And, in the instant case, the Court so did. The Court's interpretation was that the subject clause meant that the process leading to the expulsion of a Member, duly sworn and enrolled upon the body's rolls; was the only method for a House to give effect to its power to determine the qualification(s) of its members.
The Court reasoned that the authority of Congress in this matter was post facto, i.e., after a member elect had been so created by his/her election under the laws of the state in which the congressional district resided; after his/her qualification for standing in such an election according to the qualifications specified in the U.S. Constitution; and after accepting the oath of office and enrollment upon the rolls of the Congress, determine the qualification(s) of its members. It was unclear whether a vote of two-thirds would have been reached if the House resolution had specified expulsion (Art. I, § 2, cl. 5; Art. I, § 5, cl. 2) rather than exclusion. Thus, the Court found that Powell was wrongfully excluded from his seat.
The Court found that Congress is the whole body of initially candidate members who have been elected by the laws of the several states (in and for each state’s apportioned congressional districts), who assemble at the seat of the Federal Government on the 3rd day of January after the preceding November’s congressional elections. On that date they are sworn in (through their individual oaths of office) and thereby they collectively become the Nth Congress (e.g., 89th, 95th, 105th).
The Court did not reach (because it determined it did not need to in order to definitively rule in this case) the question of which Congress the Constitution was referring to that had the power to expel one of its members. The Court determined in this case that no Congress could exclude a not-yet member (i.e., a candidate member) from being sworn in and taking their seat in the House. The Court found that if the Congress went beyond a determination that a candidate member had satisfied the Constitution’s qualifications for membership (and had been duly chosen by, and through the laws of their state) it could not (under the Constitution) go further in examining and possibly rejecting a candidate member before administering the oath of office, and seating them.
The Court did not explicitly decide whether a particular Congress (105th, 106th, etc.) had the power to prospectively expel an individual from a future Congress without encumbering that future Congress from having, after the re-election, re-swearing in, and re-seating of a formerly expelled member, to expel the member all over again. Because the Court in effect did decide that the states were not prohibited from putting on their congressional district ballots, nor were the voters prohibited from electing, an individual who had been expelled from a previously existent or an existing Congress. Once the Congress had satisfied itself that a candidate member had been presented to it from a Congressional District in accordance with the Congressional District’s State constitution and laws and was also not in conflict with the Congressional qualifications set down in the U.S. constitution, the U.S. Congress had an affirmative constitutional duty to administer the oath to, swear in, and enroll upon the rolls, the candidate member as a Member of Congress.
The challenge to the Court in its analysis and decision was devising a proper course of action that was both coordinate and consonant between the sovereign authorities (the Congress over itself and its members, the people and the states over the Congress) each in their own sphere, over the choosing of members to the Congress. The Court looked at the historical precedent of the House, the history of its candidate members, and the role of the states and their voters in choosing their representatives. The Court concluded that the Constitution (which is the word and will of the people), the weight of history (the record of how the people have used their constitution), and the Federal structure of our Government (i.e., the role of the states in organizing and managing elections within their borders) required the Court to decide that the sovereign will of the people (as expressed in the democratic process), and the coordinate role of their States, must be made consonant and held supreme in the responsibility to create candidate members for the Congress.
The people, through their Constitution, affirmatively posited, defined, and delimited, in toto, the qualifications for standing in elections for membership in the Congress. The states, under the 9th and 10th Amendments to the Constitution, explicitly retain unto themselves the power to make the laws for the government and regulation of elections for Federal offices that are apportioned to them (the states) by the U.S. Constitution. Therefore, the people and the states together have the sole authority for the creation, production, and generation of candidate members of the U.S. Congress through the operation of the laws of the several states, as well as the Articles and Clauses of the U.S. constitution. Under this scheme, the Congress itself is become a creation of, and subordinate to, this process. And the Congress' processes and procedures for the management, administration, and discipline of Members (Members, once they have taken the oath, been sworn, and entered upon the rolls) are constitutionally subordinate to the sovereignty of the people and the states respectively over the creation of the membership of the Congress.
Douglas's concurring opinion 
Justice Douglas wrote the only concurring opinion of this case. It stated that qualifications that are not part of the Constitution may not be added except through constitutional amendment. Therefore, Congress cannot exclude a member except through a two-thirds vote to expel.
Stewart's dissenting opinion 
Justice Stewart wrote a dissenting opinion that said that the case should not have been heard by the U.S. Supreme Court because the case was moot because Powell had already been seated in the 91st Congress by the time the case was appealed to the U.S. Supreme Court.
Non-voting justice 
Justice Fortas was embroiled in his own scandal at the time, and did not vote on this case.
See also 
- List of United States Supreme Court cases, volume 395
- Unseated members of the United States Congress
- Federal Contested Elections Act