The Gift That Keeps On Giving
posted by Helen Norton
For those teaching Constitutional Law this semester, then-Governor Blagojevich’s Senate appointment of Roland Burris is a gift that keeps on giving (for Illinois citizens, not so much). The Washington Post is reporting that Senator Burris “has acknowledged trying to raise money for ousted Gov. Rod Blagojevich before being appointed to the Senate. According to a transcript posted on the Chicago Tribune’s Web site, Burris told reporters Monday night in Peoria that after the ex-governor’s brother called him, he talked to some friends about putting together a fundraiser.”
This offers a terrific opportunity to introduce students to the Constitution’s little-discussed Article I, section 5, clause 2, which provides simply that each House may “with the Concurrence of two thirds, expel a Member.” So long as two thirds of the Senate were to agree, expulsion could be premised on any reason — including, but not limited to, suspicion of a quid pro quo for the Senate seat — or even no reason at all, since the Constitution does not delineate permissible justifications for expulsion. In other words, members of Congress serve at the will of their colleagues –protected only by the supermajority’s extremely high political bar.
The more contentious constitutional question remains whether the Senate could have refused to seat Burris as an initial matter, citing the provision that “Each House shall be the Judge of the Elections, Returns, and Qualifications of its own Members.” For a reminder of some of the arguments pro and con, see here, here, and here.
February 17, 2009 at 4:21 pm
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Responses (2)
Josh Chafetz - February 17, 2009 at 5:43 pm
I’m not quite sure that I would say that “expulsion could be premised on any reason.” I would argue (indeed, have argued) that expulsion for any reason would be nonjusticiable. But I take it that it would still be unconstitutional to expel Burris because he’s black, even if the courts couldn’t do anything about it. A constitutionally conscientious Senate is bound by equal protection.
Moreover, assuming you read (as I do) the expulsion power as a subset of the punishment power (as opposed to a separate power granted immediately after the punishment power), then it requires a finding of “disorderly Behaviour.” The fact that a finding by the Senate that Burris had engaged in disorderly behavior would be unreviewable by the courts does not mean that it would be lawless. Presumably, a constitutionally conscientious senator would be obliged to vote against an expulsion resolution premised on policy disagreements.
Or, put differently, the fact that the Senate is the final judge in cases of expulsion does not mean that Senators “serve at the will of their colleagues,” any more than the fact that a state supreme court is the final judge in state criminal cases means that we all “walk free at the will of the state supreme court.”
Helen Norton - February 17, 2009 at 6:00 pm
Thanks for the very thoughtful comments. I agree that the Senate could not (should not) expel on the basis of race or some other ground that offends equal protection and should have added a qualifier to that effect (and I wonder whether evidence that the Senate had expelled on those grounds would invite the Court to reconsider the nonjusticiability principle).
But I’m not yet persuaded that the expulsion power is necessarily triggered only by a determination of disorderly behavior. The full clause reads: “Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behavior, and, with the Concurrence of two thirds, expel a Member.” Although your reading is certainly plausible, it seems to me that each of those clauses could also be read as fully independent — i.e., that expulsion is one form of punishment available to the Senate, but that it is not necessarily contingent on disorderly behavior.
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