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Grounds for Expulsion?

Gerard Magliocca

Gerard N. Magliocca is the Samuel R. Rosen Professor at the Indiana University Robert H. McKinney School of Law. Professor Magliocca is the author of three books and over twenty articles on constitutional law and intellectual property. He received his undergraduate degree from Stanford, his law degree from Yale, and joined the faculty after two years as an attorney at Covington and Burling and one year as a law clerk for Judge Guido Calabresi on the United States Court of Appeals for the Second Circuit. Professor Magliocca has received the Best New Professor Award and the Black Cane (Most Outstanding Professor) from the student body, and in 2008 held the Fulbright-Dow Distinguished Research Chair of the Roosevelt Study Center in Middelburg, The Netherlands. He was elected to the American Law Institute (ALI) in 2013.

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8 Responses

  1. Joe Miller says:

    A bit of a bone-headed question, with the general election date less than 4 months away. His bosses – not other members, his bosses – are going to have a chance to vote him out *very soon*. And I hope the press keeps trying to get to the bottom of it, and keeps reporting on it, so that voters can make a better informed decision.

  2. Joe says:

    It’s a political question — whenever time the 2/3 decide.

    Dems in Il are starting to get antsy though it sounds like something serious is going on from various vague reports.

    With the elections coming up, the clear and convincing evidence required here to override voter decision does not seem to be there. But, it’s not my call.

  3. Jon says:

    I’m curious about the motivation for this question. Is it because (1) you don’t believe Rep. Jackson actually is unwell (ie you think he is malingering), or (2) that you think all ill Representatives can or should be removed from office by the House after some period of absence, or (3) you think there is a Constitutional duty to explain an absence, punishable by removal; or (4) you distinguish among disabling conditions, thinking some less meritorious than others and thus justifying forced removal?

    How would you compare this 1 month+ absence to the longer ones of Rep. Gabrielle Giffords (wounded in attempted assassination) or Sen. Tim Johnson (extended absence due to stroke) or for that matter Sen. Strom Thurmond (who rumor had it was basically out of it for many of his final years)?

  4. Gerard Magliocca says:

    Well, I think when you know the illness that’s different. Nobody thinks that you should be expelled from Congress for being shot or having a stroke. (Strom — well that’s another matter.) In this case, it’s not clear what’s going on.

  5. Brett Bellmore says:

    Sure, you should be expelled from Congress for being shot, or having a stroke, if it renders you mentally incompetent, or even if it’s going to deny your district/state representation for a really long time. They’re there to actually do a job, aren’t they?

  6. Joe says:

    How about if the people of the district don’t want the person expelled? The voters did elect the person, right? And, if a fraction of two years is a “really long time,” I guess the term is relative.

    But, this is another episode of “nobody” being very few people & very few people can be found to support a lot of stuff. Esp. on blogs.

  7. Ken Rhodes says:

    If the President is sick, to the extent that he cannot perform his duties, there is a law in place for the orderly transition of his duties to the next-in-line, and for the restoration of the President’s authority when he is ready.

    Since there is no next-in-line succession for Senators and Representatives, the removal (by resignation or other) is permanent. This, BTW, seems more extreme for Senators, since their normal term is six years. Perhaps what we need is a law (Oh no, not another law!) establishing a similar procedure, so that a representative could declare himself “temporarily unable to perform,” thereby allowing his state, by its usual mechanism, to assign a temporary replacement until the originally elected representative declared himself “ready to resume.”

  8. Joe says:

    A ‘temporary replacement’ for members of Congress is less important since there are 435/100 members and even in the House, most states have more than one representative. And, there have been few cases where the person involved has been out for that long. But, Ken’s idea is reasonable though it would seem to require an amendment — the ‘law’ cited for executives authorized by the Constitution.

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