Drew Angerer/Getty Images Law And Order Why the Law Might Not Allow the Senate to Expel Roy Moore

Stan Brand is a distinguished fellow at Penn State Dickinson School of Law and former general counsel for the U. S. House of Representatives.

President Donald Trump might be defending GOP Senate candidate Roy Moore against multiple allegations of sexual misconduct, but many Senate Republicans leaders have lined up in opposition to him. “I believe the women,” declared Senate Majority Leader Mitch McConnell last week, calling for Moore to withdraw from the race. GOP senators are even openly discussing the possibility of expelling Moore if he is elected—a Senate power not exercised since the Civil War.

But expelling Moore might not be as easy as many Republicans seem to think, at least from a legal perspective.


One Supreme Court case provides a clue about the limits that may be placed on the Senate if it attempts either to deny Moore a seat or to expel him once he has been seated. In 1967, a special House committee determined that New York Rep. Adam Clayton Powell’s staff had falsified travel expenses and caused illegal payments to his wife. Rather than censure and fine Powell for this misconduct, the House voted by a simple majority to exclude—meaning, refuse to seat—Powell after his reelection. Powell sued, and when Powell v. McCormack made it to the Supreme Court, the court held that the House had acted illegally. The court held that while, according to Article I, Section 5 of the U.S. Constitution, “each House shall be the judge of the ... qualifications of its Members,” those qualifications are limited to age, citizenship and residency, as stipulated by Article I, Section 2. In other words, as long as Powell fit the age, citizenship and residency criteria for serving in Congress, the House had no right to refuse to grant him his seat.

The court did allow, however, that the House could have tried to exercise its power to “punish its Members for disorderly behavior and with the concurrence of two thirds expel a Member,” under the separate power conferred on Congress by Article I, Section 5. But that, of course, would have required a two-thirds vote.

This is what the Senate appears to be contemplating if Moore is elected—to seat him first and then commence an ethics investigation based on the allegations of sexual misconduct, which if proved could form the basis for expulsion.

But the power of the Senate to proceed in this manner is doubtful for several reasons. Even though Powell dealt with exclusion rather than expulsion, in that case the court was clear that the framers intended age, citizenship and residency to be the exclusive qualifications for office—and that the legislative branch could not alter or add to those qualifications. In following English parliamentary practice, the founders believed that fixing the qualifications would prevent the will of the electorate from being thwarted by an “improper and dangerous power in the Legislature,” as Madison put it. While the legislature was empowered to enforce these specific qualifications, it was for the most part not permitted to “judge” any other criteria. That was up to the people electing their representatives.

There is one exception. The Constitution does allow Congress to to expel a senator or congressman for “disorderly behavior.” And yet the Senate has a problem here when it comes to Moore. That power has not been thought to extend to conduct that occurs before the offending member enters Congress—or even that took place during a previous congressional session.

Several historical precedents illustrate this principle. In 1798, the Federalists passed the Sedition Act, and Rep. Matthew Lyon, a fierce Anti-Federalist from Vermont, was prosecuted for accusing the president of an “unbounded thirst for ridiculous pomp, foolish adoration and selfish avarice.” He was convicted and sentenced to four months in prison and a $1,000 fine, but he was reelected while inside his cell. Upon Lyon’s triumphant return to Congress, the federalists moved to expel him. They failed to muster two thirds, however, the minority arguing that his constituents elected him with full knowledge of his conviction, which the House must respect. Similarly, Orsamus Matteson—deemed guilty of soliciting bribes—resigned from the 34th Congress 1858 to escape expulsion but was reelected to the 35th and seated whereupon a motion to expel was offered. Yet the majority report of the committee considering the matter concluded that the proceedings in the previous Congress constituted no disqualification, since he had committed no offense against the present Congress and the people of his district knew the charges when they elected him.

Can the Senate get away with expelling Moore regardless of these precedents? Maybe. Courts do not weigh in easily to matters “textually committed” to another branch, absent some countervailing constitutional right. Moore might have a tough legal case to make. But so would the Senate. The Powell case looms as an important warning that the power to expel might not be expansive enough to empower the Senate to disregard the will of the electorate—however distasteful it finds the conduct at issue.