The Punishment and Expulsion Clause

Each House may . . . punish its Members for disorderly Behaviour, and, with the Concurrence of two thirds, expel a Member.

—Michael Stern

Introduction

The British Parliament, colonial assemblies, and early state legislatures claimed and exercised the power to discipline and expel members of their respective bodies for a variety of offenses or causes. The Punishment and Expulsion Clause of the Constitution vests each house of Congress with this power with respect to its own members but limits it in two ways. First, the power of punishment is limited to “disorderly Behaviour.” The meaning of this term has been subject to longstanding debate. In modern times, both houses have construed “disorderly Behaviour” to encompass a wide range of misconduct found to be inconsistent with the public trust or to reflect discredit upon Congress.

Second, the power of expulsion, while not expressly limited to disorderly behavior, may be exercised only by a two-thirds vote. This structural limitation has ensured that expulsion is employed only in the most serious of cases. There have been only six expulsions in the House and fifteen in the Senate, and the vast majority of those expelled were members who supported the Confederacy during the Civil War.

History Before 1787

Since the mid-sixteenth century, the English Parliament has exercised the power to punish its own members, often in retaliation for unpopular or intemperate speech in parliamentary debate. For example, in 1621, Thomas Sheppard, a member of Parliament, was expelled because of “his vehement opposition to a bill for keeping the Sabbath,” which angered the Puritan sponsors of the legislation.¹ Parliament also had the general power to punish private citizens and others for perceived breaches of parliamentary privilege, although only members could be expelled. By the eighteenth century, internal parliamentary discipline had developed into a distinct practice that targeted members who accepted bribes or otherwise violated parliamentary rules or norms.² This discipline most often entailed expulsion, sometimes combined with other punishment such as imprisonment in the Tower of London.³

In America, colonial assemblies often asserted and exercised the power to punish or expel members.⁴ Although there was little if any formal authority for this power, it was claimed as an inherent legislative function and was only occasionally challenged by royal governors.⁵

American attitudes toward parliamentary discipline were strongly influenced by the mid-eighteenth-century case of John Wilkes, a radical and controversial member of Parliament. The House of Commons repeatedly expelled or refused to seat him for various offenses, mostly offenses involving libelous or inflammatory speech and writings. However, his constituents, despite knowing the accusations against him, continued to reelect him to Parliament.⁶ American colonists were outraged by the treatment of Wilkes, which reminded them of their own grievances against the British government. Joseph Warren of the Boston Sons of Liberty, for example, wrote to Wilkes in 1769 that “your expulsion from the seat in the House of Commons to which you was so Honorably elected and for which you are so eminently qualified has filled America with Grief.”⁷

Although the Wilkes case did not cause Americans to reject the power of legislative punishment and expulsion altogether, it influenced a number of early state constitutions to limit the power of re-expulsion.⁸ For example, Pennsylvania provided that its house of representatives “may expel a member, but not a second time for the same cause.”⁹

Under the Articles of Confederation, the national legislature lacked the power to punish or expel delegates. Instead, states retained the power to recall delegates at will: “[D]elegates shall be annually appointed in such manner as the legislature of each State shall direct . . . with a power reserved to each State, to recall its delegates, or any of them, at any time within the year, and to send others in their stead for the remainder of the year.”¹⁰

The Constitutional Convention

During the Constitutional Convention, a draft from the Committee of Detail stated that “[t]he house of delegates shall have power over its own members” but raised for discussion the question of “how far the right of expulsion may be proper.”¹¹ Another draft stated that “[e]ach House shall have Authority . . . to punish its own Members.” Alterations were made in the text: The words “for disorderly and indecent Behaviour” were added after “own Members,” but the words “and indecent” were later crossed out.¹² The same draft also stated that “[e]ach House may expel a Member, but not a second Time for the same Offence.”¹³ However, the prohibition on repeat expulsions, designed to prevent the type of abuse decried by supporters of Wilkes, did not advance. The Committee of Detail’s report to the Convention simply stated that “[e]ach House . . . may punish its members for disorderly behaviour; and may expel a member.”¹⁴

When the proposed language came before the Convention, James Madison of Virginia objected that expulsion could be “dangerously abused” and “was too important to be exercised by a bare majority of a quorum.”¹⁵ Gouverneur Morris of Pennsylvania countered that a majority could be trusted with the power of expulsion and that a supermajority requirement might lead to abuse by the minority. However, the Convention overwhelmingly supported Madison’s amendment to require a two-thirds vote for expulsion.¹⁶ With that revision, the clause was approved in its final form.

There is no record of further debate about the Punishment and Expulsion Clause either during the Convention or during ratification.¹⁷

Defining “Disorderly Behaviour”

There has been long-standing debate over the scope of “disorderly Behaviour” punishable under the clause. Justice James Wilson explained in his 1791 Lectures on Law that “indecency or licentiousness of language, in the course of debate” was an example of “disorderly behavior” punishable under the clause.¹⁸ The Speech or Debate Clause prevents a member from being “questioned in any other Place” for his “Speech or Debate.” (See Essay No. 32.) The member can be punished for “Speech or Debate” in his own house, but what of misconduct outside of debate? William Rawle, an early constitutional commentator, asserted that “misbehaviour out of the walls of the house or within them, when it is not in session, would not fall within the meaning” of disorderly behavior as that term is used in the Constitution.¹⁹

Justice Joseph Story wrote that Congress’s power to make rules about misconduct would be ineffective unless Congress also had “a power to punish for disorderly behavior, or disobedience [of] those rules.”²⁰ However, Story did not necessarily accept Rawle’s narrow view of what constituted “disorderly behavior.” Story contended that the scope of “disorderly Behaviour” does “not appear to have been settled by any authoritative adjudication of either house of congress.”²¹

In 1797, the Senate expelled Senator William Blount for his participation in a conspiracy involving Aaron Burr. Story contended that this precedent established that “expulsion may be for any misdemeanor, which, though not punishable by any statute, is inconsistent with the trust and duty of a senator.”²² One century later, the Supreme Court later adopted a similar position: “The right to expel extends to all cases where the offense is such as in the judgment of the Senate is inconsistent with the trust and duty of a member.”²³ Story did not take a firm position on how to define this standard, but he doubted the practicability of trying “to draw a clear line of distinction between the right to inflict the punishment of expulsion, and any other punishment upon a member, founded on the time, place, or nature of the offence.”²⁴

A narrow construction of the term “disorderly behavior” might exclude conduct that did not directly disrupt legislative proceedings or was committed outside the halls of Congress or at a time when it was not in session. But Congress has not taken this narrow view of the expulsion power. According to the Congressional Research Service, “[e]ach house of Congress has disciplined its own Members for conduct which has not necessarily violated any specific rule or law, but which was found to breach its privileges, demonstrate contempt for the institution, or which was found to discredit the House or Senate.”²⁵ As a general matter, purely personal conduct is sometimes said to be beyond the scope of congressional discipline. Nevertheless, even nonofficial acts can be punished if the body considers that they are reprehensible or discredit the institution.²⁶

Types of Punishment a House Can Impose

Historically, the primary punishment imposed on members has been in the form of a formal rebuke by the legislative body. In the Senate, this can take the form of a censure by the full body or, in the case of lesser infractions, a letter of admonition from the Ethics Committee.²⁷ A censure in the House is imposed by the full body and generally requires the censured member to stand in the well of the House to be verbally rebuked by the Speaker.²⁸ A reprimand is a less severe rebuke that is also imposed by a vote of the House but does not include the ignominy of a verbal rebuke.²⁹ For infractions that do not merit action by the full House, the Ethics Committee may issue a letter of reprimand.³⁰

Other possible sanctions include fines and monetary assessments.³¹ These are imposed infrequently and often have been in the nature of restitution rather than fines of a punitive nature.³²

Punishing or Expelling a Member for Misconduct Before His Current Term Began

Early precedents of the House found that there was no constitutional power to punish or expel for misconduct in a prior Congress.³³ Powell v. McCormack (1969) Court cited these precedents without expressing a view on the issue.³⁴ Powell’s dicta may reflect a constitutional limitation on the power to punish or expel.³⁵ However, in modern practice, both the House and the Senate have clearly asserted disciplinary jurisdiction over offenses committed in prior Congresses.

In 2023, the House of Representatives expelled first-term Congressman George Santos for conduct that largely preceded his election, although the investigatory subcommittee noted that his “misrepresentations and lack of transparency continued during his tenure in Congress.”³⁶ The subcommittee rejected the argument that the conduct was beyond its jurisdiction, stating that the Ethics Committee “has determined on several occasions that misconduct that occurs in connection with a successful election to the House is subject to review by the Committee and may be the basis for a finding that a Member has violated the Code of Official Conduct.”³⁷ Thus, acts committed before a member’s first election may constitute disorderly behavior subject to congressional discipline, at least if the misconduct relates to the election and particularly if it involves deceiving the electorate (as in Santos’s case).

Furthermore, even if a member’s misconduct does not constitute disorderly behavior, the member might nonetheless be subject to expulsion. Read literally, the constitutional text does not limit the grounds for expulsion to disorderly behavior or any particular conduct; it merely requires a two-thirds vote. Professor David Currie has observed that “it is hard to imagine why the House should be licensed to employ only the extreme sanction of expulsion, and not lesser penalties, in other cases [not involving disorderly behavior].”³⁸ One possible explanation is that punishment is simply designed to deter behavior that actually disrupts the legislative process, while expulsion aims to remove members who are deemed unfit to serve.

The Applicability of Judicial Review

The courts have rarely had occasion to pass on congressional discipline matters. Expulsion, the most serious penalty, is uncommon. Powell v. McCormack did not involve expulsion. Rather, Representative Adam Clayton Powell was “excluded” based on the House’s authority to judge qualifications. However, dicta in Powell and in other cases suggest that a congressional expulsion would present a nonjusticiable political question.

Other punishments, while they may not raise political questions, present different justiciability challenges. Censure and reprimand, the most common punishments, likely do not present injuries that can be redressed by a court. Under the Speech or Debate Clause and separation of powers principles, courts lack the power to order Congress to rescind these measures. Other punishments, like fines, present closer justiciability issues.³⁹

Open Questions

• Could the House or Senate impose a suspension on members that would prohibit them from voting or performing other legislative functions for a period of time? Would such a punishment unconstitutionally deprive the member’s constituents of representation (without the two-thirds vote required for expulsion)?
• Could a member be expelled for conduct that does not amount to disorderly behavior or for any reason (or no reason) at all? Could such an expulsion be subject to judicial review?
• Could the House or Senate impose punitive fines or even imprisonment as a punishment of members? Could members challenge such punishments in court?

1. Josh Chafetz, Congress’s Constitution: Legislative Authority and the Separation of Powers 234 (2017). ↩︎
2. Josh Chafetz, Congress’s Constitution, supra at 232–38; Josh Chafetz, Democracy’s Privileged Few: Legislative Privilege and Democratic Norms in the British and American Constitutions 193–96 (2007). ↩︎
3. 6 William Cobbett, The Parliamentary History of England 1071 (1810). ↩︎
4. Mary Patterson Clarke, Parliamentary Privilege in the American Colonies 173–204 (1943). ↩︎
5. Id. at 200–01. ↩︎
6. Benjamin Cassady, “You’ve Got Your Crook, I’ve Got Mine:” Why the Disqualification Clause Doesn’t (Always) Disqualify, 32 Quinnipiac L. Rev. 209, 223–37 (2014). ↩︎
7. Pauline Maier, John Wilkes and American Disillusionment with Britain, 20 Wm. & Mary Q. 373, 383 & n.31 (1963). ↩︎
8. Cassady, supra at 238–39. ↩︎
9. Pa. Const. of 1776, § 9; Cassady, supra at 230, 237–42; Chafetz, Congress’s Constitution, at 238–39. ↩︎
10. Articles of Confederation, art. V, § 1. ↩︎
11. 2 Farrand’s 140. ↩︎
12. Id. at 156. ↩︎
13. Id. ↩︎
14. Id. at 180; Chafetz, Congress’s Constitution, at 240. ↩︎
15. 2 Farrand’s 254. ↩︎
16. Id. ↩︎
17. Chafetz, Democracy’s Privileged Few, at 208 & n.9. ↩︎
18. James Wilson, Lectures on Law: Part Two: Of the Constitutions of the United States and of Pennsylvania—Of the Legislative Department (1791). ↩︎
19. 2 William Rawle, A View of the Constitution of the United States of America, ch. IV (2d ed. 1829). ↩︎
20. 3 Story’s Commentaries § 835. ↩︎
21. Id. at § 836. ↩︎
22. Id. ↩︎
23. 166 U.S. 661, 669–70 (1897). ↩︎
24. 3 Story’s Commentaries § 836. ↩︎
25. Jack Maskell, Cong. Rsrch. Serv., RL31382, Expulsion, Censure, Reprimand, and Fine: Legislative Discipline in the House of Representatives 2 (2016), https://perma.cc/2SMH-GWHU. ↩︎
26. Id. at 10–11. ↩︎
27. Senate Ethics Manual 15 (2003), https://perma.cc/HJT8-JZAJ. ↩︎
28. Maskell, supra at 10. ↩︎
29. Id. at 12. ↩︎
30. Id. at 16. ↩︎
31. Id. at 13–15. ↩︎
32. Id. at 15. Senate Ethics Manual 15. ↩︎
33. Powell v. McCormack, 395 U.S. 486, 508–09 & n.29 (1969). ↩︎
34. Id. ↩︎
35. The Constitutional Framework for Congress’s Ability to Uphold Standards of Member Conduct, Hearing Before Subcomm. on the Const., Civil Rights, and Civil Liberties of the Comm. on the Judiciary, U.S. H. of Rep., 117th Cong., 1st Sess., 43–45 (Mar. 11, 2021). ↩︎
36. In the Matter of Allegations Relating to Representative George Santos, Report of an Investigative Subcomm. of the House Comm. on Ethics 11 (Nov. 9, 2023), https://perma.cc/TB2A-MFY4. ↩︎
37. Id. at 15. ↩︎
38. David P. Currie, The Constitution in Congress: Democrats and Whigs 1829–1861, at 218 (2005); Michael Stern, George Santos, the Expulsion Power, and Fun with Textualism, Point of Order Blog (May 10, 2023), https://perma.cc/F7HX-C2X4. ↩︎
39. Massie v. Pelosi, 72 F.4th 319 (D.C. Cir. 2023). ↩︎