Could the Se­nate keep Moore out if he were elected?

We tend to pay def­er­ence ‘to the pop­u­lar choice and elec­tion will of the peo­ple.’

Los Angeles Times - - OP-ED - By Eric J. Segall oy Moore,

Rthe Repub­li­can can­di­date for the va­cant Se­nate seat left by Atty. Gen. Jeff Ses­sions, has been ac­cused of sex­ual mis­con­duct with sev­eral teenagers. So far, he has stri­dently main­tained that he will not with­draw from the race, lead­ing to spec­u­la­tion about whether the Se­nate could refuse to seat him or ex­pel him if he were to win the spe­cial elec­tion Dec. 12.

Most con­sti­tu­tional law ex­perts agree that un­der the Supreme Court de­ci­sion Pow­ell vs. Mc­Cor­mack, the Se­nate can’t refuse to seat Moore. There is much more un­cer­tainty, how­ever, over whether he could be ex­pelled af­ter he takes his seat.

In 1967, the House ex­cluded New York Rep. Adam Clay­ton Pow­ell Jr. at the be­gin­ning of the 90th Congress be­cause Pow­ell had been ac­cused of mis­ap­pro­pri­at­ing pub­lic funds. He chal­lenged the House’s de­ci­sion, and the Supreme Court held that, be­cause Pow­ell met the Con­sti­tu­tion’s age, res­i­dency and cit­i­zen­ship re­quire­ments, he had to be given his seat.

The jus­tices re­jected the House ar­gu­ment that it had ex­pelled Pow­ell as al­lowed by the Con­sti­tu­tion. Ar­ti­cle I, Sec­tion 5 states that “each House [of Congress] may de­ter­mine the Rules of its pro­ceed­ings, pun­ish its mem­bers for dis­or­derly be­hav­ior, and, with the con­cur­rence of two- thirds, ex­pel a mem­ber.” Two-thirds of the House had voted against Pow­ell, but be­cause the con­gress­man had never for­mally been seated, it didn’t count as ex­pul­sion.

The jus­tices fur­ther pointed out that the mis­con­duct at is­sue oc­curred prior to the con­ven­ing of the 90th Congress, and that the House’s own man­ual of pro­ce­dure at the time stated that “both Houses have dis­trusted their power to pun­ish in such cases.”

In the Se­nate, there have been 15 ex­pul­sions. Dur­ing the Civil War, 14 se­na­tors were un­seated for co­op­er­at­ing with the Con­fed­er­acy. An­other was ex­pelled in 1797 for trea­son. Th­ese ac­tions seem jus­ti­fied, even ob­vi­ous. But how far does the power to ex­pel ex­tend?

Imag­ine if one po­lit­i­cal party con­trolled two-thirds of the Se­nate or the House; could that party ex­clude a mem­ber solely for par­ti­san rea­sons? The an­swer surely should be no. If the power to ex­pel is lim­ited un­der those cir­cum­stances, it is not hard to imag­ine other lim­i­ta­tions as well.

Take Roy Moore. As de­spi­ca­ble a fig­ure as he is (be­sides the al­le­ga­tions of sex­ual mis­con­duct, he has twice had to leave ju­di­cial of­fice for re­fus­ing to obey the law), the peo­ple of Alabama may want him in the Se­nate. Is it fair to al­low se­na­tors from other states to ex­clude him and, given the court’s comments in Pow­ell, for con­duct that he en­gaged in long ago?

In the Pow­ell de­ci­sion, the court un­der­lined its doubts about the reach of the ex­pul­sion power: A “fun­da­men­tal prin­ci­ple of our rep­re­sen­ta­tive democ­racy is, in Hamil­ton’s words, ‘that the peo­ple should choose whom they please to gov­ern them.’ … As Madi­son pointed out at the [Con­sti­tu­tional] Con­ven­tion, this prin­ci­ple is un­der­mined as much by lim­it­ing whom the peo­ple can se­lect as by lim­it­ing the fran­chise it­self.” Al­low­ing the Se­nate to ex­pel a sit­ting mem­ber for con­duct prior to win­ning the elec­tion may ap­pear to the court to also deny peo­ple the right to “choose whom they please to gov­ern them.”

The cur­rent Con­gres­sional Re­search Ser­vice man­ual for the House has sim­i­lar lan­gauge: “The ret­i­cence of the House to ex­pel a Mem­ber for past mis­con­duct af­ter the Mem­ber has been re­elected by his or her con­stituents, with knowl­edge of the Mem­ber’s con­duct, ap­pears to re­flect the def­er­ence tra­di­tion­ally paid in our her­itage to the pop­u­lar will and elec­tion choice of the peo­ple.” Of course, other le­gal and po­lit­i­cal con­sid­er­a­tions could come into play should this is­sue ever reach the court.

Lead­ing fig­ures in the Repub­li­can Party, such as Se­nate Ma­jor­ity Leader Mitch McCon­nell and South Carolina Sen. Lind­sey Gra­ham, have pub­licly said Moore should with­draw from the race. They should use all the pres­sure they can muster to con­vince Moore to end his run. Oth­er­wise, the peo­ple of Alabama may well get their way, for an en­tire six-year term or more.

Eric J. Segall, a law pro­fes­sor at Ge­or­gia State Univer­sity, is the au­thor of “Supreme Myths: Why the Supreme Court Is Not a Court and Its Jus­tices Are Not Judges.”

Al­bert Ce­sare AP

REPUB­LI­CAN Roy Moore faces calls to with­draw from the Se­nate race in Alabama.

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