Powell v. McCormack

OF SPEAKER McCORMACK, v. POWELL al. et REPRESENTATIVES, OF THE HOUSE al. et 21, 1969.— Argued April No. 16, 1969.

Decided June Kinoy Arthur and Herbert 0. Reid argued the cause petitioners. With them on the brief were Robert L. Carter, Hubert T. Delany, Kunstler, William Frank D. Reeves, Henry R. Williams. and Bromley

Bruce argued the cause for respondents. With him on the brief were John R. Hupper, Thomas D. Barr, Lloyd Cutler, N. John H. Pickering, Louis F. Ober- dorfer, Truitt, and Max 0. Jr. Angelí, amici curiae were filed Ernest

Briefs of Fraenkel, Ennis, Wulj, Osmond K. Edward J. Melvin L. Eleanor Norton, Holmes Alan H. Levine for the by George American Civil Liberties al., Union et Meader, opinion delivered the

Mr. Justice Chief Warren the Court. Clayton

In petitioner November Adam Powell, Jr., duly elected from the 18th Dis- Congressional trict of New York to serve in the United States House of Representatives However, for the 90th Congress. pursuant to a resolution, permitted he was not (and take his seat. Powell some the voters district) his then filed suit Court, Federal District him claiming only House could exclude if it found he failed requirements to meet standing age, citizenship, I, residence contained in Art. specifi- the House requirements Constitution — cally found Powell met —and thus had excluded him unconstitutionally. The District peti- Court dismissed complaint jurisdiction tioners' “for want of of the sub- ject A panel Appeals matter.” of the Court of affirmed the dismissal, although grounds, somewhat different separate each judge filing opinion. We have determined it was error to dismiss complaint peti- and that tioner Powell is entitled to a declaratory judgment he unlawfully was excluded from 90th Congress. the

I.

Facts. During Special the 89th a Congress, Subcommittee on Contracts of the Committee on House Administration investigation into expenditures conducted an of the petitioner Committee on Education of which Labor, and Special The chairman. was Powell, Jr., Clayton Adam Powell concluding that report issued Subcommittee House au- deceived the had employees staff and certain indicated report also expenses. to travel as thorities salary pay- illegal certain strong evidence there at his direction. Powell’s wife made to been ments had (1966). Sess., 2d 6-7 Cong., 89th 2349, Rep. R. No. H. See Congress. during 89th was taken action formal No Congress, 90th organization to the However, prior voted met in caucus and members-elect the Democratic on the Committee chairman of remove Powell 90th Rep. 27, H. Labor. See R. No. and Education 1-2 Sess., Cong., 1st January organize in Congress met to 90th

When the the oath was step asked to aside while Powell was Following the members-elect. to the other administered remaining members, the oath to the administration procedure to be followed de- discussed eligible Powell was to take his seat. termining whether by a vote of 363 to 65 the House debate, After some provided which House Resolution No. adopted appoint Select Committee to determine Speaker Cong. Although 26-27. eligibility. Powell’s Rec. prohibited taking Powell from his resolution seat acted on report, until the House the Select Committee’s all provide pay he should receive did during period. a member allowances due Committee, composed lawyer-mem- The Select of nine an invitation to Powell testify issued before bers, The invitation letter stated that scope Committee. testimony investigation would include Powell’s age, as to qualifications citizenship, and his residency; (in in a civil suit which involvement he had been held “[mjatters contempt); alleged of . . . official January misconduct since 1961.” Hearings See

491 to Committee Pursuant R. Res. before Select H. No. (1967) (hereinafter Cong., Sess., 1st 1,90th H. R. Res. No. hearing the Committee appeared Hearings). Powell denied in After the Committee February 8,1967. held adversary-type pro- request certain part Powell's would, Powell testified. He how- followed,1 cedures be citizenship, relating only age, information to his ever, give refused residency; upon counsel, the advice he questions. to answer other February 10, Select Committee issued

On invitation to Powell. In the Select letter, another responsibility Committee informed Powell that its under determining only House Resolution extended to standing qualifications whether he met the of Art. I, 2, but also “inquiring] question you to into the of whether or punished expelled pursuant powers should be to the granted I, ... the House under Article Section 5,... In Constitution. other the Select Committee words, is of that at opinion the conclusion of present authority inquiry, report it has back to the House with respect recommendations to . expulsion . . seating, punishment.” other Hearings See 110. Powell did requested (1) given Powell charges that he be notice of the pending against him, including particulars a bill of as to accuser; (2) opportunity any accuser, to confront to attend all committee given, right sessions where evidence was and the witnesses; (3) public (4) cross-examine all hearings; right have the process Select Committee issue its to summon witnesses defense; (5) transcript every his and a hearing. Hearings on H. R. Res. No. before Select Committee Pursuant to H. R. Res. Cong., Sess., No. 90th 1st given Select Committee noted that it had Powell notice of inquire into, matters it would right that Powell had the (which hearings

attend all public) would be counsel, with his the Committee would upon call witnesses Powell’s written Id., request supply transcript hearings. at 59. February 14, held appear hearing, at the next not they informed attorneys present, were and his However, testify that Powell would not about the Committee standing his under eligibility other than matters attorneys 2. Powell’s reas- I, § of Art. qualifications standing qualifica- contention that serted Powell’s for requirements membership, tions were the exclusive they urged punishment expulsion was further a member had See possible until been seated. Hearings 111-113. hearing Committee held one further at which

The attorneys present. his were Then, neither Powell nor February 23, 1967, report, on the Committee issued its finding standing met qualifications that Powell of I, Rep. 2. H. R. 90th Cong., Sess., Art. No. 1st reported the Committee further However, privilege Powell had asserted an unwarranted im- munity processes from the of York; the courts New he wrongfully had diverted House funds the use himself; others and reports that he had made false expenditures foreign currency on to the Committee Id., on House Administration. at 31-32. The Com- mittee recommended that Powell be sworn and seated as a member of 90th but that he be cen- by the House, sured $40,000 fined and be deprived of Id., seniority. his at 33. report

The presented was to the House March 1, 1967, and the House debated Select pro- Committee’s posed resolution. At the conclusion the debate, vote of 222 to 202 the House rejected a bring motion to to a resolution An vote. amendment to the reso- lution was then offered; it called for the exclusion of Powell and a declaration that his seat was vacant. Speaker ruled that a majority vote of the House would be sufficient pass if resolution it were so debate, After further Cong. Rec. 5020. amended. of 248 to 176. by a vote adopted the amendment 307 to 116 House by a vote of adopted the House Then thereby exclud- form, its amended Resolution No. notify the Speaker directing that ing Powell and the seat was vacant. York Governor New District Congressional the 18th 13 voters of Powell and in the this suit subsequently York instituted of New for the District of Columbia. District Court States United were Representatives House of members Five representatives individually and “as defendants named as serving presently are ... of a class of citizens who John W. Representatives.” House members the capacity Speaker, named in his official was McCormack the of the House of Representatives, the Clerk and indi- Doorkeeper Arms and the were named Sergeant at capacities. complaint The vidually their official and 278 violated Con- House Resolution No. the alleged that because the reso- I, 2, 1, § cl. stitution, specifically Art. the mem- inconsistent with the mandate that lution was by people shall the each be elected bers the petitioners alleged, I, 2, which, and cl. State, Art. membership.2 exclusive for qualifications sets forth the of the alleged further the Clerk complaint The perform House threatened to refuse to service duly Congressman entitled, which a elected Powell to his Sergeant pay at Arms refused to Powell deny Doorkeeper threatened to salary, and the House chamber. Powell admission to complaint as a bill of The also attacked the House Resolution punish attainder, post law, ex as cruel and unusual facto hearing procedures Further, petitioners charged that ment. Clause adopted violated the Due Process the Select Committee of the Fifth Amendment. court be con- three-judge that a

Petitioners asked District Court they requested that the Further, vened.3 restraining respondents grant permanent injunction Resolution, enjoining executing from the House refusing oath, administer the the Clerk Speaker from Representa- due a refusing perform the duties from refusing pay at Arms from Powell Sergeant tive, from Doorkeeper refusing to admit salary, his complaint requested also Powell to Chamber.4 The declaratory judgment Powell’s exclusion was unconstitutional. granted respondents’

The District Court motion complaint “for want of jurisdiction dismiss the McCormack, subject Supp. matter.” Powell v. 266 F. (D. 1967).5 C. D. C. for the Appeals Court District of Columbia Circuit affirmed on somewhat dif- judge panel ferent with each grounds, filing a McCormack, separate opinion. Powell App. v. U. S. (1968). D. 395 F. 2d granted C. We certiorari. 393 U. S. While case was on our pending officially the 90th docket, Congress terminated and the In 91st was seated. November Powell again representative elected as of the 18th Con- gressional District of New York and he was seated Congress. the 91st The resolution seating Powell also 3 The three-judge District Court refused to convene a court and Appeals press the Court of affirmed. did Petitioners not this issue petition certiorari, apparently in their recognizing writ of validity Appeals’ ruling. Willis, See Stamler v. the Court 393 (1968). U. S. 217 requested also ordering Petitioners that a writ of mandamus issue perform the named officials the same acts. April 7, The District 1967, Court entered its order and a notice appeal day. April 11, was filed the same 1967, On Powell was Representatives re-elected to the special in a election called to fill his seat. The formal certification of election received by May 1, 1967, again the House but did present Powell not given himself to the House or ask to be the oath of office. 2, Cong., 91st him H. R. Res. No. $25,000. fined See January (daily ed., 3, H21 Cong. Rec. Sess., 1st a of mootness. suggestion 1969). Respondents filed then suggestion of this further consideration postponed We S. hearing a on the merits. 393 U. variety arguments to us a Respondents press upon in the they will be considered below; court support to the (1) occurring subsequent Events following order. this moot. litigation of certiorari have rendered grant Constitution, or Debate Clause of the (2) Speech judicial action from respondents’ I, 6,§ insulates Art. petitioner Powell (3) review. The decision exclude power granted Rep- to the House of supported is lacks expel (4) a member. This Court resentatives action. subject jurisdiction petitioners’ matter over present, if matter is (5) subject jurisdiction Even general litigation justiciable either under a political criteria this Court or because established involved. question is

II.

Mootness. a mem- granted, respondents After certiorari was filed which occurred sub- suggesting orandum that two events grant our of certiorari the case sequent require the House January 3, 1969, be dismissed as moot. On Congress officially of the 90th ter- Representatives minated, petitioner Powell was seated as member Congress. Cong. (daily ed.,. of the 91st Rec. H22 January 1969). grava- Respondents insist petitioners’ complaint men of was the failure. petitioner 90th Powell and’that,- to seat since' Representatives continuing body6 the House of is not 6 Respondents’ authority for this assertion ais footnote contained Gojack States, (1966): United v. 384 U. S. n. 4. “Neither Representatives continuing the House of nor its committees are bodies.”

496 seated, has now claims are Powell been his moot.

Petitioners counter that three issues remain unresolved litigation presents and thus a controversy” this “case or meaning within the of Art. Ill:7 (1) whether Powell unconstitutionally seniority by of his deprived his exclusion from Congress; (2) the 90th whether the reso- lution of the 91st imposing “punishment” fine $25,000 of respondents’ allegedly is continuation unconstitutional H. see R. exclusion, Res. No. 91st Cong., Sess., Cong. 1st 115 (daily Rec. H21 January 3, ed., 1969); (3) whether is salary Powell entitled to with- held after his exclusion from the 90th Congress. We conclude that Powell’s claim for salary back remains though viable even he has been seated 91st Con- gress and find it unnecessary thus to determine whether the other issues have become moot.8

Simply stated, a case moot when the presented issues longer are no parties “live” or the lack a legally cogniz- able interest the outcome. See E. Borchard, Declara-

7The jurisdiction that this rule Court lacks to consider the merits of a moot is a case branch of the constitutional command that judicial power only extends to cases or controversies. See Sibron York, v. New (1968); 392 U. S. 57 R. Kirkham, Robertson & F. Supreme Jurisdiction of the Court of the United States 270-271 §§ (R. 1951); Wolfson & P. Kurland Diamond, ed. Federal Juris diction To Cases, Decide Moot 94 U. (1946); Pa. L. Rev. Note, Appeal: Cases Moot on A Limit on the Power, Judicial (1955). U. Pa. L. Rev. press Petitioners do not claim respondent their McCormack required should be Powell, administer oath to apparently conceding seating of Powell has rendered specific claim moot. Where several requested forms of relief are and one of these requests subsequently moot, becomes the Court has still considered requests. remaining, the. See Standard Magrane- Fashion Co. v. Co., Houston U. S. Respondents argue also seating petitioner that the Powell has mooted the claims of Powell’s constituents. Since this case remanded, will be issue as well as petitioners’ other disposed claims can be the court below. the one of Where 1941). (2d Judgments 35-37 ed. tory remaining moot, the becomes presented several issues of a requirement constitutional supply live issues v. Public Workers controversy. See United case Moore, J. (1947); 6A 86-94 Mitchell, 330 U. S. Despite Powell’s 1966). (2d ed. 57.13 Practice Federal ¶ salary, withheld in his interest continuing obvious Quezon, 271 U. S. Alejandrino v. that insist respondents liti- dismiss but to us no choice leaves (1926), Senator duly appointed Alejandrino, gation as moot. year one for suspended was Islands, Philippine of the deprived Philippine Senate by a resolution for the and emoluments” privileges of all “prerogatives, Court Supreme suspension. period of his By the suspension. enjoin refused to Philippines had suspension Court, reached this time the case Alejandrino’s as moot Court dismissed expired and the sua Then, enjoined. suspension that request possibility considered whether the Court sponte,9 salary required back was entitled to Alejandrino that determining whether purpose the case for the “to retain for this may not have mandamus [Alejandrino] he Id., Characterizing the issue purpose.” claim incident” his salary as a “mere Alejandrino’s noted that the Court suspension improper, was that request issue and that his salary he had not briefed the clarity the did not set out with sufficient for mandamus mandamus against whom the official or set officials Id., therefore re- at 533-534. The Court should issue. entire salary claim and dismissed the treat fused to as moot. action possibility Alejandrino’s did consider either brief not request injunctive whether his relief had become moot or

his for required propriety his salary Court treat claim respondents. No brief was filed on behalf of suspension. salary claim is also believe that Powell’s

Respondents he uncon- his insistence that was a “mere incident” to dismiss stitutionally so that should likewise excluded we grasp argument as moot. This fails to this entire action Alejandrino for the dismissal was the reason insufficiently salary Alejandrino’s deprivation becoming from prevent moot, the case but substantial plead that his failure to sufficient facts to establish rather impossible his mandamus claim made it court to request.10 By contrast, peti- resolve the mandamus complaint responsible tioners’ names the official for the payment congressional salaries and asks for both against an injunction mandamus and official.11 if Futhermore, respondents even are correct petitioners’ injunctive averments as to relief not suffi are ciently definite, it does not follow that this litigation must be dismissed as moot. Petitioner Powell has not been paid salary by his virtue of an allegedly unconstitutional House resolution. That claim is still unresolved and hotly by clearly contested adverse parties. Declaratory relief has been requested, form of relief not available discussing insufficiency Alejandrino's After averments responsible salary, as to the officer for his the Court stated: “Were out, remedy that set of the Senator would seem to be man compel discharge damus to such official in the of his ministerial duty pay salary him S., due . . . .” 271 U. at 534. That the insufficiency Alejandrino’s averments was the reason for dismissal passage: is further substantiated later “As we are not able to petition derive from the upon sufficient properly information which remedy to afford such a [mandamus], we must treat the whole accordingly.” Id., cause as moot and act at 535. 11Paragraph petitioners’ complaint ISb of avers that “Leake W. Johnson, Sergeant-at-Arms responsible the House” is for and pay salary prays refuses to injunction Powell’s for restraining an Sergeant Arms implementing at from the House resolution de priving salary Powell of his as well as mandamus to order that the salary paid. be may grant A court was decided.12 Alejandrino

when an not to issue though it chooses declaratory even relief Public Workers v. United injunction or mandamus. See California, Mitchell, United States v. cf. supra, 93; can declaratory judgment A 332 U. 25-26 S. including relief, to further predicate as a then be used Struc 2202; see Vermont S. C. U. injunction. Co., 253 F. Brothers Slate Co. Tatko Slate v. tural Co. States Lines United 1958); (C. 2d Cir. A. 2d 1952). (C. A. 2d Cir. F. Shaughnessy, 195 2d v. that, where proposition only for the Alejandrino stands are insuffi pleadings and the has moot one claim become entitled to plaintiff is whether cient to determine as moot.13 dismissed remedy, the action should another as to averments petitioners’ no suggestion There is allegedly Powell’s declaratory relief are insufficient unresolved. salary remains deprivation of unconstitutional “wholly inci- argue that Powell’s further Respondents insufficient salary demand and subordinate” dental They becoming moot. from litigation prevent sought relief” “primary principal suggest that 90th Powell in seating petitioner was the worthy secondary claims not presumably rendering his Floyd, 385 S. 116 Bond v. U. consideration. judicial theory that the mootness rejects respondents’ (1966), conclusion that all “sec- requires claim a “primary” a Bond argument At the oral claims are moot. ondary” expiration that session suggested it was Bond had rendered which excluded Georgia Legislature declaratory grant judg empowered to Federal courts were first 955, years Alejandrino in 48 Stat. after filed his ments see complaint. Alejandrino properly pleaded a expressly was stated that It brought, S., 535, impliedly 271 U. mandamus action could salary holding Alejandrino’s claim had been that not mooted suspension. expiration of his

the case moot. replied: We “The State has pressed not this argument, and it could not do so, because the State has stipulated if that Bond succeeds this he appeal will salary receive back for the term from which he was excluded.” S., 385 U. at 128, 4. Bond n. is not con argue trolling, respondents, because the legislative term from which Bond was excluded did not end until De cember 1966,14and our decision was rendered De 5; cember further, when Bond was decided, Bond had yet not as been seated while this case Powell has been.15 Respondents do not tell us, why however, these factual distinctions create a legally significant difference between Bond and this case. We relied in Bond on the outstand ing salary not claim, respondents facts stress, to hold that the case was not moot.

Finally, respondents argue seem to proper Powell’s action to salary recover is a suit the Court of Claims, so that, having brought the wrong a action, dismissal for mootness is appropriate. The short answer argu- to this ment confuses mootness with whether Powell has established right to recover against the Sergeant at Arms, a question which it is inappropriate to treat at stage the litigation.16 14Respondents do supply any not substantiation for their assertion term Georgia Legislature did expire until Decem ber 31. Presumably, they their base upon statement Ga. Code Ann. §§2-1601, (Supp. 1968). 2-1603 15Respondents suggest also Bond applicable is not because parties in Bond stipulated had that Bond would be entitled to salary back if his challenges constitutional were accepted, while there stipulation is no in this case. However, if the claim in Bond moot, stipulation parties could jurisdiction. not confer See, g., e. v. San Pablo & Co., Tulare R. California U. S. 16Since the court disposed below grounds this jus- case ticiability, it did pass upon whether Powell brought had an appropriate action to salary. recover his Where a court

501 III.

Speech Debate or Clause. or Debate Clause Respondents Speech assert that 6,17 bar to Art. is absolute Constitution, I, petitioners’ prior action. This Court has on four occa- Eastland, sions —Dombrowski (1967); 387 82 v. U. S. Johnson, Tenney United States (1966); 383 v. U. S. 169 Brandhove, Kilbourn v. v. (1951); 367 and U. S. Thompson, upon (1881) U. S. called —been allegedly determine if action unconstitutional taken legislators legislative employees judi- is from insulated cial the Speech review or Debate Clause. Both parties respective positions their support insist that find in these cases tender for decision three distinct (1) respondents participating issues: whether in the petitioner exclusion of “acting sphere Powell were Brandhove, Tenney legitimate legislative activity,” v. supra, 376; (2) assuming respondents were so acting, the fact petitioners whether seek neither dam- ages any from respondents prose- nor criminal cution lifts the bar of the if clause;18 (3) even appeals applicable has misconceived the law and therefore failed to pass upon question, general practice our has been to remand the case to for remaining that court consideration of the issues. g., See, Baking Co., e. Utah Pie Co. Continental v. 386 U. S. (1967); Savings Bank America National Trust & Assn. v. Parnell, 352 U. S. We believe that such action is appropriate for litigation resolution of whether Powell in this against Sergeant entitled to mandamus salary at Arms for with pursuant held to the House resolution. I, §6, provides: any Article Speech “for or Debate in either House, they Representatives] questioned shall not be [Senators other Place.” 18Petitioners ask the Court to draw a distinction between declar atory sought against relief members of and either an action damages prosecution, or a criminal emphasizing that our four previous cases concerned “criminal or civil sanctions of a deterrent nature.” Brief for Petitioners 171.

502 Congressman, against a maintained may not be

action merely employees who are respondents whether those it the clause. We find may the bar of plead the House only the of these issues. necessary last to treat by the Consti- Clause, adopted or Speech Debate The finds opposition,19 debate or Convention without tutional and the in between Parliament the conflict its roots of 1688 culminating the Glorious Revolution in Crown Drawing upon of 1689.20 Rights Bill of English and Johnson, in United States v. history, we concluded of this clause was “to purpose at supra, 181, legislators] by the executive intimidation prevent [of accountability possibly judiciary.’' before a hostile and sprang clause from fear of seditious libel Although the punish the Crown to unfavorable actions instituted in have Parliament,21 made we held that speeches protection “narrow view” to confine the would be a spoken or Debate Clause to words in debate. Speech voting act of reports, resolutions, Committee and the are covered, “things generally as are done in a ses- equally one of its in sion of the members relation to supra, before it.” Kilbourn Thompson, the business v. Furthermore, only provides at 204. clause not (J. 5See Debates on the Federal Constitution 406 Elliot ed. 1876); 1787, p. 2 Records of the Federal Convention of 1966) (hereinafter (M. Farrand). Farrand rev. ed. cited as English Rights Bill provision substantially The contained a I, Speech, identical to Art. 6: “That the Freedom of and Debates Proceedings Parliament, ought impeached or to be questioned in Court or Place out of M., Parliament.” 1 W. & English history Sess. c. 2. The and American colonial is traced Celia, Legislative Privilege some detail in The Doctrine of Speech Past, Freedom of Its Debate: Present and Future Courts, as a Bar to Criminal Prosecutions 2 Suffolk U. L. (1968), Yankwich, Rev. 3-16 Immunity Congres Speech Origin, Meaning sional Scope, 99 U. Pa. L. Rev. —Its (1951). 960, 961-966 Johnson, United States v. U. S. 182-183 defense on the merits but also protects a legislator from burden defending himself. Dombrowski v. East land, supra, at 85; see Tenney v. Brandhove, supra,

Our cases make it clear legislative immunity created by the Speech or Debate performs Clause an im- portant function in representative government. It insures that legislators are free represent the interests of their constituents without fear they will be later called to task in the courts for representation. Thus, in Tenney Brandhove, v. supra, at 373, the Court quoted the writings of James Wilson as the reason illuminating for legislative immunity: “In order to enable and en- courage a representative publick to discharge his publick trust with firmness and success, it indispens- ably necessary, that he should enjoy the fullest liberty of speech, and that he should be protected from the resentment of every one, however powerful, to whom the exercise of that liberty may occasion offence.”

Legislative immunity not, does of course, all judi- bar cial review of legislative acts. That issue was settled implication early as as 1803, see Marbury Madison, v. Cranch and expressly in Kilbourn Thompson, v.

the first this Court’s cases interpreting the reach of the Speech or Debate Clause. Challenged in Kilbourn was the constitutionality aof House Resolution ordering the arrest and imprisonment of a recalcitrant witness who had to respond refused to a subpoena issued a House investigating committee. While holding Speech that the or Debate Clause barred Kilboum’s action for false im- prisonment brought against several members of the the House, Court nevertheless reached the merits of Kil- bourn’s attack and that, decided since the House had no punish for contempt, Kilbourn’s imprisonment

22 1 The Works of (R. James Wilson 421 McCloskey 1967). ed. It unconstitutional. resolution

pursuant imprison- false bring his Kilbourn allowed therefore Sergeant House’s Thompson, against action ment for Kilbourn’s warrant executed had Arms, who at arrest. in and followed in Kilbourn first articulated Court although that, doctrine Eastland23 v. Dombrowski by the may barred Congressman against an action par- who employees legislative Clause, Debate Speech responsible are activity unconstitutional ticipated brought petitioners fact Despite acts. their Sergeant employees several against suit —the sev- as well Clerk —as Doorkeeper Arms, Kilbourn argue respondents Congressmen, eral Conceding that distinguishable. are Dombrowski at Arms Sergeant presence Kilbourn subcom- congressional aof presence Dombrowski allowed litigation in the defendants counsel mittee action, congressional challenged of the review judicial affirm- an concerned cases urge both respondents the House employee outside by the performed act ative they Here, citizen. a private upon effect a having direct by taken to actions sought relates the relief continue, Alternatively, House. the solely within agents House prayed Dombrowski Kilbourn insist respondents the asks that Powell petitioner while damages assertedly greater funds, Arms disburse at Sergeant the reject We process. legislative with the interference distinctions. proffered express acting pursuant are employees House

That the of review judicial not bar does the House of orders decision. underlying legislative constitutionality the sought against damages was $500,000 Dombrowski In by chaired a Senate Subcommittee counsel the chief Senator affirmed 1966, pp. 10-11. We O. T. in No. Record that Senator. but reversed to the Senator summary judgment as grant counsel. to subcommittee

Kilbourn since decisively question, settles imprison liable for false Arms was held Sergeant nothing more execute the though he did than ment even impriso Kilbourn be arrested and Resolution that House thus ask us to dis suggestions Respondents’ ned.24 employees affirmative acts of House tinguish between employees the House orders its which and situations damages and claims for act or between actions for not to history salary. can find no basis either We cases for either distinc or Debate Clause or our Speech legislators afforded protection The purpose tion. legislative review of action judicial to forestall from or legislators are not distracted but to insure that legislative of their tasks performance in the hindered A into court to defend their actions. by being called no more or no less hindered or distracted legislator is calling into litigation against legislative employee by affirmative action than he would employee’s question employee’s failure to act. by questioning a lawsuit or hindrance increased because the Nor is the distraction salary damages, rather or because the claim is for than employee action taken within litigation questions legislative Freedom of rather than without the House. Speech or Debate Clause activity purposes if legislators are relieved of burden fully protected are In Kilbourn and Dombrowski defending themselves.25 quoted extensively in Kilbourn from Stockdale v. Court Eng. Rep. 1112, (Q. Hansard, 1, 114, 1839), B. 9 Ad. & E. agents to refute the assertion that were immune because they executing Speaker, were orders the House: “[I]f illegal Act, authority House, though authority of order an the question, exempt justify him from shall his order shall no more the King person levying who executed it than Charles’s warrant justify ship-money eventually could his revenue officer.” Kilbourn against Thompson. Thompson, $20,000 recovered See Kilbourn v. 1883). (Sup. MacArth. & M. Ct. D. C. Congressman Speech A of is not virtue the or Debate Clause filing responsibility absolved of of a motion the to dismiss and the Congress members against the action dismissed we thus as a bar Debate Clause Speech the regard not but did congressional challenged of the reviewing the merits were also sued. employees congressional action since against dismissed may be this action Similarly, though to maintain are entitled petitioners Congressmen judicial employees and against action their peti to exclude of the decision propriety review Kilbourn, in language in was said Powell.26 As tioner dimmed: time has not which for this court proper competent and “Especially is proceedings legislature’s] whether its to consider [the laws, conformity with the Constitution in are no constitution, a written living under because, government supreme; department branch or de- duty judicial province and it is brought regularly in determine cases partment branch powers whether before them, legislature and even those of government, have been exercised laws, in the enactment they if have conformity Constitution; to the S., and void.” 103 to treat their acts as null U. not, at 199.

IV. Expulsion. oe Exclusion excluding petitioner adopted Powell was resolution of two-thirds of the 434 Members of by a vote excess applicability clause to trial court must still determine Tenney Brandhove, plaintiff’s v. S. action. See U. (1951). issue, disposition of this we need decide whether Given our Speech petitioners under or Debate Clause would be entitled solely against maintain this action members of where challenged remedy agents participated no action and no other Thompson, Kilbourn v. was available. Cf. 103 U. S. 204—205 Cong. to 116. 113 Rec. Arti- 5037-5038. —307 I, grants authority cle expel the House to member “with the Respondents Concurrence two thirds.” may assert expel that the House a member for rea- son whatsoever and that, since a vote was two-thirds obtained, procedure by which his Powell was denied seat in the 90th Congress should be regarded as an expulsion, not an Cautioning exclusion. us not to exalt form substance, respondents over quote from the con- curring opinion of Judge McGowan in the below: court

“Appellant Powell’s cause of judi- action cially compelled seating thus my boils down, view, to the narrow issue of whether a member found colleagues his to have engaged ... official mis- must, conduct because of the accidents of timing, formally admitted before he can in- be either vestigated or expelled. sponsor of the motion to exclude on stated the floor that he was proceeding theory on the power expel to included the power to exclude, provided a vote was forthcom- % ing. It was. Therefore, success for Mr. Powell on the merits would mean that the District must Court admonish the House that it is form, not substance, govern should in great affairs, and accordingly command the House members to act aout charade.” 129 U. App. S. D. atC., 383-384, 395 2d, F. 606-607. 27Powell was “excluded” from e., i. Congress, the 90th he was

not administered the oath of prevented office and taking from his If seat. he had been allowed to take subsequently the oath and required had been seat, surrender his the House’s action would have “expulsion.” constituted an Since we conclude that Powell was excluded from Congress, the 90th express we no view on what may Congress’ limitations exist expel or otherwise punish a member once he has been seated. Court urge repeatedly respondents

Although exclusion, for Powell’s reasons as to speculate would expulsion with exclusion equate attempt their have would the House speculation a similar require ques- faced with it been Powell had expel to voted House seated at time not been had Powell tion. passed. After 278 was debated No. Resolution proposed reso- Committee’s the Select bring to a motion an defeated, vote had been immediate lution to an exclu- mandated Powell’s which was offered amendment Committee, Select chairman Celler, Mr. sion.28 whether to determine inquiry parliamentary a posed then resolution necessary pass to vote was a two-thirds to might amount “in sense that if so amended Speaker The Cong. Rec. 5020. expulsion.” an vote would be in by majority “action a replied amend- Ibid. Had the with the rules.” accordance attempt expel Powell, to as regarded ment been constitutionally have been re- vote would a two-thirds voting the House was Speaker The ruled that quired. speculate and we will not what Powell, to exclude if Powell had been might have been seated result subsequently expulsion proceedings instituted. expulsion distinction between exclusion and is the Nor for merely one of form. The which Powell misconduct prior convening occurred charged 90th several occasions the House has Congress. On debated expelled whether a member can be for actions taken dur- Congress ing prior a the House’s own manual of in Congress the 90th procedure applicable states that Houses have distrusted their punish “both Rules of the House of such cases.” Representatives, Doc. 89th Cong., Sess., (1967); H. R. No. 2d provided: adopted, Resolution No. as amended and Clayton said Adam Powell hereby “That ... be and the same membership Cong. excluded from the 90th . . . (Emphasis added.) Rec. 5020. Representatives House of History Galloway, G.

see positions manual reflects House rules example, report For Congresses. prior taken expulsion to consider the appointed the Select Committee the House Langley unequivocally states of John W. committed dur- a member for misconduct expel will not Congress: ing an earlier

“ uniformity practical that with t must be said [I] the effect that such cases are to precedents reprehensible expel the House will not a Member not even prior Member, to his election action May 23, 1884, for conviction for an offense. On the House had no Speaker Carlisle decided that alleged Member for offense right punish previous to time when he have been committed was elected a and 'That has been Member, added, in the House it is no frequently so decided ” longer dispute.’ Rep. a matter of H. 30, R. No. 1-2 Sess., (1925).29 69th 1st Cong., 29 Report Congresses expressed an The Other have identical view. Judiciary concerning proposed expulsion of of the Committee King S. and John Sehumaker informed the House: William G. opinion Representa- “Your committee are of the House of authority jurisdiction has take of violations of law or tives no to against previous Congress. purely a This is a offenses committed entirely legislative body, for unsuited the trial of crimes. fifth article of the Constitution authorizes ‘each section the first proceedings, punish house determine rules of members to its its disorderly two-thirds, behavior, and, for with the concurrence of expel power evidently given a member.' enable each This is to legislation house to exercise its constitutional function of unobstructed. jurisdiction try for It cannot vest in a a member election; member, for a offense committed before his such offense citizen, Rep. like other is amenable to the courts alone.” H. R. Cong., Sess., 2 No. 44th 1st (1884) Cong. (ruling Speaker); 15 4434 also Rec. H. R.

See Cong., Sess., (1873) Rep. (expulsion 42d 3d 8 of James No. Ames); Rep. Cong., Brooks and Oakes H. R. No. 35th 1st (1858) Matteson). Sess., (expulsion of 4r-5 Orsamus B.

510 a having expressed belief House

Members we will expel, its own apply strictures such have would of its members two-thirds not assume that Speaker had the prior his conduct Powell for expelled expul- House Resolution No. announced that exclusion.30 sion rather than which culminated Powell’s proceedings Finally, as- upon respondents’ considerable doubt exclusion cast necessary expel vote the two-thirds sumption that have proceedings been mustered. These would have Congressman Eckhardt: succinctly been described previous ques- 202 votes for the “The House voted leading adoption tion toward the [Select] against report. It voted votes Committee opening the floor for the Curtis previous question, ultimately excluded Powell. Amendment which express ruling no whether would have We view as to such proper. expulsion A been further distinction between and exclusion expulsion contemplated inheres in the a member whose fact that may right fully participate as a matter address apparently in debate while a member-elect does not have similar right. prior expulsion In member cases the whose was under debate long impassioned been has allowed to make a often defense. Cong. Globe, (1873) Cong., Sess., (expulsion See 42d 3d Ames); Cong. Globe, Cong., Sess., 1524^1525, 2d Oakes 41st (1870) (expulsion Whittemore); Cong. Globe, Cong., of B. F. 34th Sess., (1857) (expulsion Gilbert); Cong. 3d 925-926 of William A. Globe, Cong., Sess., (1857) (expulsion 34th 3d 947-951 of William W. Welch); Cong. (1799) (expulsion 9 Annals of 2966 of Matthew Lyon). On at one least occasion the member has been allowed to during cross-examine expulsion other members the 2 debate. A. Hinds, Representatives (1907). Precedents of the House of 1643 question previous 31 A debate-limiting motion for the ais device which, carried, terminating when has the effect of debate and of forcing subject vote at hand. See Rules of the House Representatives, Cong., Sess., H. R. Doc. No. 89th 2d (1967); 804-809 Representa Cannon’s Procedure §§ tives, Cong., Sess,, (1963). H. R. Doc. No. 87th 2d 277-281

“Upon adoption of the Curtis Amendment, again vote fell short of two-thirds, being yeas nays. to 176 Only on the final vote, adopting Resolution as amended, was more than a two-thirds vote obtained, being yeas vote nays. On this last vote, as a practical matter, members who would not have denied Powell a seat if they given were the choice to him punish had to cast aye vote or else record themselves opposed to the only punishment likely to come before House. Had the matter up come through the proc- esses expulsion, appears that the two-thirds vote would failed, have and then members would have been able apply penalty.”32 lesser We express need no opinion as to accuracy of Con- gressman prediction Eckhardt’s that expulsion proceed- ings produced would have a different result. However, the House’s own views of the extent of its to expel 32 Eckhardt, Clayton The Adam Case, Powell 45 Texas L. Rev. Congressman The views of Eckhardt were echoed during the exclusion proceedings. Congressman Cleveland that, although stated he voted favor supported of and the Select Committee’s recommendation, if the exclusion amendment received a favorable vote on the previous motion for the question, then he would support the amendment “on passage.” final Cong. Rec. Congressman Gubser was explicit: even more

“I against shall vote previous question on the Curtis amend- ment simply because I believe future and perfecting amendments should be allowed. if previous question But ordered, then I plaeed will be on the horns impossible of an dilemma. “Mr. Speaker, I expel want to Clayton Adam Powell, by seating him first, but that my will not be choice when the Curtis amend- ment is before us. I will be forced to exclusion, vote for about which I great have doubts, constitutional or to punish- vote for no ment at all. Given this raw and issue, only isolated alternative I can follow is to vote the Curtis I amendment. so, shall do. Speaker, Mr. great with reservation.” Ibid. that analysis counsel Congressman’s with

combined proceedings. fungible are not expulsion exclusion 278 con- No. House Resolution ruled that Speaker re- reject We must proceeding. an exclusion templated Speaker overrule suggestion that we spondents’ intent an manifested although the House that, hold by whatever be tested action should Powell, its exclude expulsion. may govern standards

V. Subject Jurisdiction. Matter Carr, S. 369 U. Baker in v. pointed As we out deter- between significant difference there is a (1962), of “jurisdiction has a federal court mining whether a cause determining whether matter” and subject jurisdiction subject matter a has over which court “to Court determined The District “justiciable.” a clear . . constitute case . would merits decide powers” of separation violation doctrine jurisdiction “for want complaint then dismissed McCormack, 266 F. Powell v. subject matter.” 1967). However, (D. C. C. 354, 359, 360 D. Supp. correctly recognized, the doctrine Appeals Court of properly considered is more separation powers agree We “justiciable.” case is determining whether the Appeals of the Court of conclusion the unanimous with subject over the jurisdiction had the District Court set forth However, for reasons case.33 matter of this Appeals’ infra, disagree we with the Court VI, Part justiciable. case is not that this conclusion Carr, district supra, v. we federal In Baker noted subject (1) matter if the jurisdiction over the court lacks judge panel separate opinion, all Although each wrote subject stating possessed the District Court matter clear were McCormack, App. D. Powell S. C. jurisdiction. v. U. 577, 591, 607, 384, 385, 2d 395 F.

cause does not “arise under” the Federal Constitution, laws, (or or treaties fall within one of the other enumer- categories Ill); (2) ated of or it is a Art. if not “case or controversy” meaning within the of that phrase if Ill; (3) Art. is the cause not one described Carr, any jurisdictional And, statute. as in Baker v. supra, our determination Part B (see VI, (1) infra) presents that this cause justiciable “political no non ques- disposes respondents’ tion” of contentions34 this that a controversy.”35 cause is not “case or Respondents first contend that is not a case “aris- ing under” meaning the Constitution within the of They emphasize Art. III. I, 5, assigns § that Art. to each House of Congress judge to the elections qualifications of its own punish members and to its disorderly members for Respondents behavior. also note that under I, 3,§ Art. the Senate has power” the “sole try impeachments. to all Respondents argue that these delegations (to “judge,” “punish,” “try”) and to Legislative Branch are explicit grants “judicial power” to the specific and constitute exceptions have II, We determined that the case is not moot. See Part supra. 35Indeed, respondents’ argument jurisdic the thrust of on this tional issue is similar to presents their contentions that this case a nonjusticiable question.” “political They urge that it would have been “unthinkable” to the Framers of the Constitution for courts legislature to review the decision of a to exclude a member. How ever, previously we have alleging determined that claim legislature abridged has rights by an individual’s constitutional refus ing representative to seat an elected constitutes a “case or contro versy” over which jurisdiction. federal courts have Bond See v. Floyd, (1966). 385 U. S. To expectations the extent of the Framers are they discernible and case, relevant to this must special problem therefore relate to of review courts federal legislature. actions This problem course a federal separation powers and is to be determining considered in justiciability. Carr, See Baker v. 369 U. S. “judicial Ill Art. mandate of general

to the re- Thus, courts. the federal be vested shall power” on the courts conferred “power maintain, spondents any- this Court to do authorize III by article does jurisdiction lack of its than declare thing more proceed.” III, 1, provides Article reject We this contention. in one su- . . shall be vested “judicial Power . the Congress inferior Courts as in such preme Court, and § mandates may Further, . . . establish.” arising all Cases . . . Power shall extend “judicial long been held . .” It has Constitution. . under this petition- if a the Constitution that a “arises under” suit if Constitution . . sustained . er’s claim “will be [is] if will be defeated construction and given [it is] one Hood, Bell 327 U. 685 another.”37 v. S. given County Seattle School District (1946). King v. See (1923). Osborn v. No. 363-364 Cf. U. S. States, 9 Wheat. 738 See Bank United of (1963). Thus, Courts 48-52 generally C. Federal Wright, “arising the Constitu- clearly is one under” this case interpreted phrase. Any that has tion the Court made reviewing federal courts the judgments bar in a member arises excluding the House Senate powers of between the two branches from the allocation (a question justiciability), of the Federal of Government failure to state claim petitioners’ and not from the on federal law. based Appeals next contend that the Court of

Respondents ruling petitioners’ in is authorized erred suit e., 28 (a). § i. U. S. C. jurisdictional statute, Respondents Brief for alia, inter complaint predicated, on several sec Petitioners' I, III, Con tions of Article and several amendments to the Article Respondents challenge substantiality stitution. do not of these claims. (a) courts shall have provides

Section that district jurisdiction in civil wherein the matter “all actions . controversy . . arises under the Constitution . . . Respondents may even “arise urge though a case purposes under for of Art. Ill, Constitution” does not necessarily “arise under the Constitution” purposes of 1331 (a). Although they recognize there is little of legislative history concerning the enactment (a), respondents § 1331 argue history period when the section was enacted indicates that first the drafters did not intend to questioning include suits Congressmen exclusion of “federal grant jurisdiction. question” claim

Respondents passage that the of the Force Act38 support 1870 lends their in- interpretation scope tended gives § 1331. Force Act the district jurisdiction courts over “any pos- civil action to recover session of office . . appears wherein it . question right

sole . . . arises out denial of the vote ... on account of race, previous color or condition However, servitude.” the Act specifically excludes concerning Congressman. Respondents suits the office of maintain that this exclusion demonstrates in- Congress’ to prohibit tention federal courts from entertaining suits regarding seating of Congressmen.

We have noted of grant jurisdiction in 1331 in (a), language Ill, § while made used Art. respects is not in all potential co-extensive with the Zwickler jurisdiction for federal found in III. Art. See Koota, 389 S. 8 241, 246, (1967). v. U. n. Never- theless, generally recognized it has been the intent provide of the drafters was to jurisdictional broad g., e. grant to the federal See, courts. The Mishkin, “Question” in Federal the District Courts, 53 Col. L. 38 May 31, 1870, 23, Act 16 Stat. 146. The statute is now § 1344. U. S. C. § Original Levin, & Chadbourn (1953); 157,

Rev. L. Rev. 90 U. Pa. Questions, of Federal Jurisdiction the reso noted (1942). And, above, 639, 644-645 directly on construction depends this case lution of held consistently The has Constitution. Court Hood, Bell v. such suits are authorized the statute. District No. supra; King County Seattle School v. Meridian, g., Nat. Bank supra. See, Gully e. v. First Die (1936); Fair v. Kohler & 299 U. S. Co., Specialty (1913). 228 U. S. word respondents nothing

As there is in the recognize, ing history § of 1331 or in the decisions legislative this Court which would indicate that there is basis interpretation they give would that section. Nor passage do we think the of the Force Act indicates that jurisdiction 1331 does § not confer this case. The Force Act is limited to election a denial challenges where to vote in right violation the Fifteenth Amend alleged. ment is See 28 S. C. Further, § U. years Act was five passed original before the version of 1331 was enacted. While it be in might ferred that give intended to each House the exclusive to decide congressional election chall there is no enges,39 absolutely indication that passage Act impose this evidences intention to other grant jurisdiction restrictions on the broad in § 1331.

VI.

Justiciability. Having Appeals correctly concluded that the Court of ruled that jurisdiction District Court had over the subject matter, we turn to the question whether the case justiciable. Two determinations must be made in regard. First, we must decide whether the claim Cong. Globe, Cong., See 41st 2d Sess., 3872 type which the relief are presented sought determine we must judicial Second, resolution. admit renders Federal Government whether the structure ques- a “political is, presented question” the issue a —that because justiciable is not federal court tion which the Constitution. separation powers provided by General Considerations. A. deciding generally justiciable,

In whether a claim is duty can be whether “the asserted court must determine determined, judicially and its breach judicially identified right judi- can be protection whether for the asserted Carr, Baker 198. Re- cially supra, molded.” v. seriously duty not asserted spondents do contend its determined. alleged judicially breach cannot petitioners duty If are the House had a to seat correct, standing require- Powell once it determined he met the undisputed It is set forth the Constitution. ments that he met and that he was never- requirements those theless excluded. do is

Respondents maintain, however, this case they for a justiciable because, assert, impossible resolving effective relief for federal court “mold this Respondents emphasize petitioners case.” asked against for coercive officers House, and, relief they contend, federal courts cannot issue or mandamus injunctions compelling employees officers or of the House perform specific rely official Respondents pri- acts. marily Speech on the support Debate Clause to this contention. express opinion

We need no appropriateness about the coercive relief case, petitioners sought a declaratory a form of judgment, relief the District Court could have issued. Declaratory Judgment The Act, provides U. S. C. may district court rights “declare the ... party interested . . . whether or not further relief sought.” is or could be declaratory

availability depends relief on whether a live between the Golden v. dispute parties, there is Zwickler, 394 S. 103 and a (1969), request U. declaratory may independently relief considered appropriate. whether other forms relief are See Mitchell, Public Workers United v. S. U. (1947); 6A J. Moore, Federal Practice ¶ 57.08 ^[3] (2d California, 1966); ed. cf. United States v. U. S. 25-26 We thus conclude that terms of the general of justiciability, criteria is justiciable. case Question Political

B. Doctrine. Textually Demonstrable Constitutional Commitment. Respondents maintain that even if this case is other- justiciable, presents only wise it political question. It is well established that the federal courts will not ad- judicate See, political questions. g., Miller, e. Coleman v. (1939); Oetjen U. S. 433 Co., v. Central Leather 297 (1918). Carr, U. S. In Baker v. supra, we noted political questions are justiciable primarily be- cause of separation powers within the Federal Government. After reviewing our decisions in this area, we concluded that on the surface of case in- held a political volve question atwas least one of the following formulations:

“a textually demonstrable constitutional commit- ment of the issue to a coordinate political de- partment; or a lack of judicially discoverable and manageable standards for resolving it; or the im- possibility of deciding without an initial policy de- termination of a clearly kind for nonjudicial discre- tion; or the impossibility of a court’s undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or an unusual need for unquestioning adherence to a political decision already made; or the potentiality from pronounce- of embarrassment multifarious departments ments question.” various one S., 369 U. at 217. contention

Respondents’ presents first is that this case political question under Art. there has I, 5,§ because “textually been a demonstrable constitutional commit- ment” to the of the “adjudicatory power” to de- argued termine Powell’s qualifications. Thus House, alone, and the House has to determine who is qualified be member.40

In order to determine whether there has been a textual comtnitment to a department co-ordinate of the Gov- ernment, interpret we must the In Constitution. other words, we must determine power first what the Con- upon stitution confers the through House I, 5,§ Art. before we can determine to what if the exer- extent, any, power subject cise of that to judicial review. Re- 40Respondents rely Barry Cunningham, v. on United States ex rel. (1929). Barry 279 U. S. 597 power involved the of the Senate testimony to issue arrest warrant give summon a witness to concerning a senatorial election. The Court ruled that issuance of constitutional, relying the warrant was power on the of the Senate I, judge under Art. to be the elections its § members. Respondents particularly rely language the in Court used dis cussing power I, the conferred Art. 5. The Court noted that § judgment under 5 the Senate could beyond “render a which is § authority any Id., other tribunal to review.” at 613. Barry provides support respondents’ no argument for justiciable, First, Barry case is not however. the Court reached controversy, the merits of indicating thus allegedly that actions pursuant I, taken automatically to Art. are not immune from § judicial Second, quoted review. dictum; statement is and, later opinion, in the same may the Court noted that the Senate exercise power subject its imposed by “to the restraints impli- found in the Id., cations of the Third, Constitution.” course, at 614. Barry open particular question statement leaves that must be first resolved this case: scope the existence and of the textual judge qualifications commitment to the House to of members. power has maintain that the House broad spondents may determine they argue, the House 5, and, § under necessary membership. for qualifications which are the allege that the Constitu- hand, petitioners the other On may be representative that an elected provides tion only if he not meet his seat the House finds does denied standing qualifications expressly prescribed one of the by the Constitution.

If examination of 5 disclosed that the Constitution § gives judicially power unreviewable to set membership judge pros- and to whether qualifications qualifications, members meet those further review pective might House determination well be barred doctrine. On the other if the political question hand, gives only the House to judge Constitution whether possess standing qualifications members the three elected set in the Constitution,41 forth further consideration necessary to determine would whether political question other formulations of the doctrine are qualifications I, §2, In addition to the three forth in Art. set disqualification any person I, 3, Art. cl. authorizes the con impeachment proceeding “any honor, in victed an from of Office States”; I, 2, or 6, provides Trust Profit under the United Art. cl. § any holding States, that “no Person Office under the United shall during Office”; be a of Member either House his in Continuance disqualifies any “who, 3 of person having the 14th Amendment § previously support taken oath ... the Constitution of the States, engaged in against United shall have insurrection or rebellion same, given the aid or comfort to the enemies thereof.” It has argued provisions, been that each of these as well as the Guarantee requirement of VI, Clause Article IV and the oath of Art. cl. is “qualification” meaning no less a I, §5, within the of Art. than I, Dionisopoulos, Commentary those set forth in Art. A the Constitutional in Cases, Issues the Powell and Related 17 J. Pub. L. 111-115 question, need reach We this however, agree ineligible since both sides that Powell was not under any provisions. of these Carr, Baker v. case from the at bar.”42

“inextricable supra, at 217. “textually demon- a whether there is words,

In other a co- of issue commitment the constitutional strable what of department” government political ordinate must we questions are of such commitment scope is the pointed as we For, case.43 the time this resolve for first Carr, a matter “[djeciding whether supra, v. in Baker out by Constitution committed any been measure has the action of or whether government, to another branch com- authority has been whatever exceeds of that branch in constitutional in- a delicate exercise is itself mitted, this a Court responsibility terpretation, Id., at 211. of the Constitution.” interpreter ultimate “textual scope determine the In order necessarily must I, 5,§ we under Art. commitment” Judge to “be the meaning phrase of the determine the Petitioners own Members.” Qualifications its during Constitu- debates records argue commentary post- from the available Convention; tional early congres- period; and Convention, pre-ratification support their construction I, 5,§ of Art. applications sional a care- Respondents insist, however, of the section. pre-Convention practices ful examination assemblies and American colonial Parliament English legislature’s power judge demonstrates under- generally of its members was qualifications might interpretation, courts still be with this federal Consistent question reviewing House’s political doctrine from barred a member did not meet one factual determination that qualifications. presented in case standing This is an issue not this express no view as to its resolution. and we respondents’ arguments Indeed, force of other question depends great on the presents political measure case question. VI, Part of the textual commitment See resolution (2),infra. B encompass

stood to exclusion or expulsion ground on the that an past individual’s character or conduct rendered him unfit serve. When the Constitution and the adoption debates over its are thus viewed historical perspective, argue respondents, it becomes clear that the “qualifications” forth in expressly set the Constitution were meant to limit long-recognized legislative power to expel will, exclude or merely but establish “standing incapacities,” which could be altered only by a constitutional amendment. Our examination of the relevant historical materials leads us to the conclusion are petitioners correct and that the Constitution leaves the House44 without authority to exclude any person, duly elected his constituents, who meets all the requirements membership expressly prescribed in the Constitution. The

a. Pre-Convention Precedents. rejection our respondents’ Since interpretation of in significant § results measure from a disagreement with their historical analysis, we must consider the rele- vant historical antecedents in considerable detail. As do we respondents, begin with the English and colonial precedents. English earliest precedent exclusion appears to be

a declaration the House of Commons in 1553 “that Nowell, e., Alex. being Prebendary a clergyman] [i. Westminster, and thereby voice having in the Convo- House, cation cannot be a member of this House . . . .” Tanner, J. Tudor Constitutional Documents: A. D. 1485- p. (2d 1603, 1930). ed. This decision, however, I, 1, applies Since Art. cl. Congress, both § Houses scope Judge qualifications of the Senate’s of its members necessarily scope is identical to the power, the House’s with the exception, course, I, that Art. cl. age establishes different requirements citizenship for membership in the Senate.

523 a long-established clergy consistent with tradition who participated representative in their own or assemblies convocations were for ineligible membership the House 1 Commons.45 See E. The Porritt, Unreformed House (1963); of Commons 125 T. Taswell-Langmead’s English History (11th Constitutional 142-143 ed. T. Plucknett 1960). The ineligibility traditional of clergymen was recognized standing as a incapacity.46 1See W. Black- stone’s Commentaries exclusion, *175. Nowell’s there- fore, present irrelevant to the case, petitioners for concede—and we if agree had not met one Powell —that of the standing qualifications set forth in the Constitu- he tion, could have been excluded under I, § Art. 5. The earliest colonial support exclusions also fail respond- theory.47 ents’ Henry reign Since (1399-1413), clergyman IV no had Porritt,

sat the House Commons. E. Unreformed House of Commons constitution, Because the British do standing not have a written incapacities disqualifications or membership for in Parliament are derived from “the parliament.” custom law of 1 Blackstone’s W. *162; id., disqualified groups

Commentaries see at *175. The thus aliens; minors; as of 1770 included judges who sat in the House Lords; clergy represented who convocation; were in their own persons felony”; “attainted of or mayors, treason sheriffs, and bailiffs representatives jurisdictions; for their own taxing and certain Id., officials officers of the Crown. at *175-176. Not until the Wilkes, infra, exclusion of John discussed did Blackstone subscribe theory that, addition, ineligible the Commons could declare particular an individual “in [unspecified] circumstances for ... parliament” if him grounds deemed unfit to serve on not encompassed by recognized standing incapacities. explain, As we infra, position subsequently repudiated by was the House in 1782. A Clerk of the House of Commons later referred to cases theory in which this upon was relied examples “as of an excess jurisdiction by .of . . Commons; for one house of Parliament disability cannot create a unknown to May’s the law.” T. Parlia mentary (13th Practice 67 1924). ed. T. Webster In Virginia Burgesses challenged eligi bility delegates of certain ground they did not hold their English century and 17th 16th remaining Respondents’ were some although expulsion, cases are all precedents standing recognized within encompassed misdeeds expulsions time at either existing incapacities in 1787.48 drafted Constitution time the occasionally con orders expulsion early Although these expelled the individual suggesting statements tained for the at re-election, least for ineligible thereafter was expelled,49 he was which from Parliament of the duration in Company Virginia from the patents proper plantations under Constitutions, State The Federal and generally 7 England. See Thorpe (F. Organic Laws 3783-3810 Charters, and Other Colonial Captain them, a of Thorpe). One (hereinafter cited 1909) ed. necessary obtain the that he on condition Warde, admitted plan- Brandon from Martin’s representatives others, patent. The planta- owner ground that tation, were excluded on colony’s exempted him from the patent his had claimed tion Virginia: 1619— Burgesses of of of the House Journals See laws. Parliamentary Privilege in the Clarke, (1915); M. pp. 4-5 1658/59, presented questions (1943). The 133-134 Colonies American nature; jurisdictional in therefore, cases, seem to two these plantations representation for over gain is, was made attempt Thus power to act. viewed assembly may no have had which comply for failure to analogous to exclusions cases are these precedents certainly They are not qualifications. standing with body could exclude mem- legislative that a the view support which disapproved prior misconduct defects mere character for bers supra, 132-204; generally Clarke, assembly. See by the Assembly of Houses Quest Power: The Lower Greene, for J. 1689-1776, pp. 171-204 Royal Colonies: in the Southern Parry expelled a Doctor the Commons example, in 1585 For Votes, Compleat A Journal unspecified misbehavior. for House of Commons and the House Lords Debates of Speeches and Queen Elizabeth, Mem Reign Glorious Throughout the Whole Sawyer was 1708); in 1628 Sir Edmund (S. and ory D'Ewes ed. suppress sought a witness to induce expelled he had because testimony H. C. the House. against Sir before Edmund evidence Jour. Sawyer the Commons declared expelling Sir Edmund In a Member of this House.” unworthy ever to serve as to be “him there is no indication that were and there re-elected after Respondents’ excluded. colonial precedents during this a similar period pattern.50 follow

Apparently expelled the re-election of an member first occurred 1712. The expelled House Commons had Robert Walpole receiving for kickbacks contracts relating to “foraging Troops,” 17 C. H. Jour. him committed to the Tower. Nevertheless, two months later he was re-elected. The thereupon resolved Walpole, Robert Esquire, having “[t]hat been, this Session Parliament, committed to the Prisoner Tower London, expelled House, . . [from] . is, incapable of being elected Member to serve in this present Id., Parliament. . . (Second at 128. empha added.) sis A new election was ordered, Walpole was not re-elected. At least two similar exclusions after an initial expulsion were effected in the American col onies during the first half of the 18th century.51 Ibid. Almost language identical was expulsion used in the id., H. Benson in 1641. 2 at 301. But the had formula changed been to longer “disabled to serve in this Parliament as a Member Id., this . . . .” (Emphasis added.) at 703. By century the 18th it was apparently well established an that expulsion by the House of longer Commons could last no than the duration the Parliament from which the expelled. member was 1See W. Blackstone’s Commentaries *176. example, For Virginia the Burgesses House of expelled two prior for members disapproved by conduct assembly, the Jour supra, nals of the House of Burgesses, 85; at in 1683, Rhode expelled Island a member acting “from present in this Assembly” refusing for answer court 1 Arnold, summons. S. History of the State Rhode Island and Providence (1859). Plantations 289 generally supra, See Clarke, at 173-204. In the Massachusetts Representatives House of excluded Woodle, Gershom who had expelled been previous on three occasions “unworthy as to be a Member.” 7 Journals of the Rep House of resentatives of Massachusetts 1726-1727, pp. 4-5, 15, 68-69 In 1758, North expelled Carolina Francis perjury. for Brown He provides case Walpole the urge

Respondents pre-Conven conclusion for their support strong members- was that practice and colonial English tion at the misdeeds prior for their excluded could elect they had which body to legislative discretion sole an overlooks conclusion However, elected. been Walpole case limiting characteristic important respondents which cases on exclusion colonial of both expelled. previously had been member rely: the excluded only remainder for the excluded was Walpole Moreover, expelled. been he had from which of the Parliament lasted expulsion have been theory seems “The supra, . . Taswell-Langmead, parliament. long as the Commen Blackstone’s Accord, W. 584, n. at only the justifies Thus, Walpole’s exclusion *176. taries remainder expulsion lasted that an proposition member expelled Parliament, and particular if re subsequent exclusion subject was therefore two election. The general the next prior elected prin broader arguably support somewhat colonial cases e., permanently expel. i. assembly could ciple, consistently adhere to did not the colonies Apparently only until election expulsion theory that lasted Privilege Parliamentary assembly. Clarke, M. of a new (1943).52 Clearly, Colonies 196-202 in the American supports respondents’ cases con none of these however, century English Parliament by the 18th tention that occasions; how- on both twice in and excluded re-elected elections, general he was ever, when he was elected of North Carolina his seat. 5 Colonial allowed to take Records id., (1888). (1887); 375, 474, 662-663, at 672-673 1057-1058 in 1710 may exclusions two men elected There have been similar supra, Assembly. Jersey Clarke, at 197-198. to the See New expul assumption Significantly, of this the occasional broader supra, go unchallenged, Clarke, 196-202; power did not sion only parliamentary precedent, supported and it was not Walpole case.

and colonial assemblies had assumed absolute discretion exclude they member-elect deemed unfit to serve. they Rather, seem to demonstrate that member could only excluded if he had first expelled. been Even if cases these could be support construed to re- spondents’ contention, precedential their value was nulli- prior fied to the Constitutional By 1782, Convention. after a long struggle, the arbitrary exercise of the power to exclude was unequivocally repudiated by a House of Commons resolution which ended most English notorious election dispute of the century— 18th the John Wilkes case. While serving a member of Parliament Wilkes published an attack on a peace recent treaty with France, calling it a product of “ bribery and condemning the Crown’s ministers as ‘the ” tools of despotism and corruption.’ Postgate, R. That Devil Wilkes (1929). Wilkes and others who were involved with the publication in which the ap- attack peared were arrested.53 Prior to Wilkes’ trial, the House expelled Commons him for publishing “a false, scanda- lous, and seditious libel.” 15 Hist. (1764). Pari. Eng. Wilkes then fled to France and was subsequently sen- tenced to exile. L. Gipson, The British Empire Before the American Revolution 37 (1956).

Wilkes returned to England in 1768, year the same which the Parliament from which he had expelled been was dissolved. He was elected to the next Parliament, and he then surrendered himself to the King’s Court of Bench. was Wilkes convicted of seditious libel and sen- tenced to 22 months’ imprisonment. The new Parlia- 53Pursuant general warrant, Wilkes was arrested, his home ransacked, private papers his seized. In his later election campaigns, Wilkes denounced general the use of warrants, asserting fighting he for liberty itself. 11 Gipson, See L. The British Empire Before American Revolution 213-214

528 membership and ordered ineligible for him declared

ment Eng. 16 Hist. Pari. House.” this “expelled he be fill to re-elected was Wilkes Although (1769). 545 Parlia- the same time each times, seat three the vacant to him. refused seat ineligible and him ment declared at 207-215.54 supra, Gipson, See again in 1770 and was prison from was released Wilkes next several For the in 1774. to Parliament elected have the resolu to unsuccessfully campaigned he years, of re incapable him declaring him and expelling tions in Finally, record. from the expunged election resolving them, to expunge voted Commons House of of the “subversive actions were prior kingdom.” body of electors whole rights Eng. (1782). 22 Parl. Hist. long and of Wilkes’ resolution the successful

With British electorate right struggle for bitter it is evident choice, own men their represented Eng- Convention, Constitutional eve of the on the that, that “the law for the proposition precedent lish stood regulated members qualifications had of the land were qualifications those parliament” to serve Eng. 589, Hist. fixed.” 16 but Pari. “not occasional did not nor Certainly English practice support, respondents’ assertion that supported, had it ever generally understood qualifications was judge for right members-elect encompass exclude standing qualifications. within misconduct not general only in 1782 of the two repudiation precedents With the the Commons was clear: Could the Commons The before issue any disqualification, put the law of the “put 1841). (J. Wright Debates 384 ed. land.” H. Cavendish’s resounding. After somewhat less than answer affirmative opponent re-election, motion to seat his carried Wilkes’ third 197 to 143. excluding member-elect who had been previously

expelled,55 appears that the House of Commons also repudiated eligibility “control over the of candidates, except in the administration of the laws define which [standing] their qualifications.” May’s T. Parliamen- tary 66 (13th Practice ed. T. 1924). Webster See supra, 585.56 Taswell-Langmead, The resolution of the Wilkes case similarly undermined precedential the value of the earlier colonial exclusions, principles the upon they which had been were based repudiated by the very body the colonial assemblies sought to imitate precedents and whose they generally followed. Clarke, supra, See at 54, 59-60, 196. Thus, in 1784 the Council of Censors of Pennsylvania the Assembly57 prior denounced the expulsion of an unnamed assemblyman, ruling that expulsion his had not been conformity effected with recently Pennsyl- enacted vania In Constitution.58 the course of its report, validity of the against House’s action Wilkes rested to a large validity on the extent precedent. of the Walpole Taswell- Langmead, supra, at Thus, Commons resolu expunging, tion rights as subversive to the electorate, of the whole against action taken repudiation Wilkes was also a tacit of the against similar taken Walpole action in 1712. 56English apparently law is today. May’s the same See T. Parlia mentary (17th Practice 1964). 105-108 ed. B. Cocks 57The Council of Censors was Pennsyl established the 1776 vania body Constitution. It was elected specifically that was charged duty enquire with the “to whether the constitution has been preserved part; in every inviolate and legislative whether the government executive branches of performed have duty their guardians people, of the or assumed themselves, or exercised other greater powers they than are intitled to the constitution.” Const, Pa. §47, Thorpe Pennsylvania 3091. See Con Proceedings: vention 1776 and Introduction, p. (1825). iv 58 discussing In case, respondents characterize the earlier action as an exclusion. The Council Censors, however, stated that the Parliamentary exclu- by name denounced

Council they stating that Wilkes, Walpole of both sions these authors none but dishonor “reflected Proceedings: 1776 Pennsylvania Convention violences.” 89p. sig had a victory and his ultimate struggle Wilkes’ advocacy colonies. His American in the impact nificant right to pursuit and his causes of libertarian expelled from “is assembly the member had resolved that general supra, Proceedings, at 89. Pennsylvania Convention seat.” his suggests dissenting committee members The account February They note that used. expulsion properly term Comptroller General assembly letter from received September 9, assemblyman until with fraud. Not charging the Presumably, held his expel him. he 1783, assembly vote to did the arguably excluded, been But, even if he had time. seat until standing incapacity, meeting a since the for not he was excluded required assemblymen to be Pennsylvania 1770 Constitution 7, 1776, virtue.” and Pa. Const. for wisdom “most noted added.) fact, dissenting In members Thorpe (Emphasis 5 ineligible expelled member was argued that of the Committee Pennsylvania Proceedings, very provision. Convention under this supra, at 89. during period exclusion between

Respondents cite one other Convention Independence and the the Declaration of Constitutional Virginia Assembly years In excluded John Breck- later. 1780 the course, Minority, of was a tra- enridge he was a minor. because appears standing and Charles therefore incapacity, ditional Warren concluding probably exclusion was to have been correct in this requirement interpretation upon an of the state constitutional based qualified Const., duly according to law. Va. that members must be Warren, Making Thorpe C. The of the Constitution 3816. See (1928). upon misinterpretation Respondents, based their 1n. just discussed, Pennsylvania case criticize Charles Warren only concluding during had one there been exclusion for research, however, period. has no other cases. Our disclosed reputation England in and had established both Wilkes elections, arbitrary champion of free freedom from Colonies as a seated Parliament became a cause célebre for the col onists. cry “[T]he ‘Wilkes echoed Liberty' loudly across the Atlantic Ocean wide publicity given to every step of public Wilkes’s career in the colonial press .... The reaction in America took on significant proportions. Colonials tended identify their cause with that of They Wilkes. him saw as a popular hero martyr and a to the liberty. struggle . . They . named towns, counties, and even children in his honour.” 11 Gipson, supra, at 222.60 It is within this historical context that we must examine Convention debates just years five after Wilkes’ final victory. arrest seizure, press. and freedom of the supra, 11 Gipson, See at 191-222. Postgate, See R. That Devil 171-172, (1929). Wilkes 173-174 During the House of Commons debates in a member remarked expelling great Wilkes had been “one of the causes which had separated . [England] . . from America.” Eng. 22 Pari. Hist. (1781). 100-101 writings pamphleteer widely “Junius” reprinted were newspapers colonial and lent support considerable to the revolu- tionary cause. Dictionary See 3 History of American

Letter XVIII of the “Letters of bitterly Junius” attacked the exclu- sion of letter, Wilkes. Blackstone, This addressed to asserted: “You know, sir, cannot but that what yester- was Mr. Wilkes's case day may yours or mine to-morrow, that, consequently the right every subject common of realm is invaded it. . . . expulsion If the of member, a any legal not under disability, of itself creates in him incapacity elected, to ready I way see a marked out, by majority which may, the any time, at remove the honestest and ablest men happen who opposition to be in say to them. To they that will not this extravagant make power use of their would be language a unfit for a man so learned in you the By laws as are. your doctrine, sir, they have the power: laws, you and know, are guard against intended to may do, what men not to trust to what they will do.” Junius, Letters of p. Letter XVIII, Debates. Convention

b. analysis61 of Warren’s heavily on Charles Relying pro- debates, petitioners argue the Convention to intention unequivocal the Framers’ manifest ceedings authority to add Congress of deny either branch membership qualifications vary the to or otherwise We do in the Constitution. set forth expressly subject are to other for the agree, debates completely we have concluded that However, interpretations. bitter in the context of the debates, of viewed records right freely representatives choose struggle for the England light in recently had concluded which power Framers made between the distinction the peti- indicate exclude, and the expel is correct. tioners’ ultimate conclusion opened By in late May The Convention a delegates adopted, with minimum July, end membership both age requirements debate, appointed House. The Convention then Senate incorpo- a of Detail to draft constitution Committee during the adopted and other resolutions rating these days after months. Two the Committee preceding George Mason, Virginia, moved appointed, “ certain ‘requiring quali- Committee consider clause ” property citizenship’ & and dis- fications of landed who membership persons from qualifying accounts or who were had indebted to the unsettled vigorous 121. A States. Farrand debate ensued. United Pinckney General Pinckney, Charles Charles C. both Carolina, incapacities moved to extend these South judicial both the and executive branches of the new But John government. Dickinson, Delaware, op- the inclusion of posed qualifications statement of argued “im- in the Constitution. He would be supra, Warren, See 399-426. possible to make a a compleat one, partial one would by implication up Legislature tie the hands of the from Id., supplying the omissions.” at 123.62 Dickinson’s argument rejected; and, eliminating was after the dis- qualification of debtors and the limitation to “landed” adopted Convention Mason’s property, proposal instruct Committee of Detail a property to draft Id., qualification. at 116-117. reported early

The Committee August, proposing change age no in the requirement; however, did recom- adding mend citizenship residency requirements for membership. After debating first what the precise requirements be, should on August 8, 1787, the dele- gates unanimously adopted the three qualifications Id., in Art. I, § embodied 2. at 213.63 August On 10, the Convention considered the Com- proposal mittee of Detail’s “Legislature authority United States shall have to establish such uniform qualifications of the members of each House, with regard to property, as to the Legislature said shall Id., seem expedient.” at 179. The pro- debate on this posal discloses much about the views of the Framers on qualifications. issue of For example, Madison James urged rejection, stating its the proposal would vest improper

“an dangerous & Legislature. The qualifications of electors and elected were funda- Govt, mental in Republican articles a ought be fixed If Constitution. the Legislature 62Dickinson also said that a built-in veneration for wealth would republican inconsistent with the ideal that merit alone should determine public who holds the trust. Farrand 123. 63 August 10, On delegate moved to reconsider citizenship qualification. delegate proposed three-year to substitute requirement seven-year requirement already agreed upon. Id., passed. The motion However, when proposal August considered Id., rejected. it was at 265-266. degrees can either, it of those regulate

could con- may Republic A Constitution. the subvert as well oligarchy or aristocracy into verted as the being elected, of capable number limiting power It was a ... elect. to authorised number views to the subservient made might be which also, founded Qualifications another. agst. faction one of by the devised, may be distinctions artificial partizans weaker] keep to out in order stronger [a 249-250.64 at Id., faction.” at not aimed was argument Madison’s Significantly, rather such, but property qualification aof imposition discretionary of the delegation to be- parallel any qualifications. establish power in Wilkes’ made and those arguments Madison’s tween striking.65 behalf legis judges, President, and Pinckney proposed that Charles they possessed that required to swear States be the United

lators of Benjamin Franklin property. unincumbered specified amount of observing strong opposition, “[s]ome expressed his with, richest acquainted were the rogues ever greatest he was require property Id., fear that He voiced the rogues.” at 249. removing this people “discourage from the common would ment Pinkney was Thereafter, Motion of Mr. Country.” [sic] “the Ibid. Ibid. no, were not called.” the States rejected by general a so original.) (Emphasis in represented by men to be right of the electors “That preservation their for the of all choice, so essential their own sacred ought considered as one the most rights, it to be other of the land had That the law constitution. . . . parts our parliament, and to serve in qualifications of regulated the members indisputable right whom to return had an freeholders . . . that the disqualified by provided not they thought proper, he was to rule They but fixed: are occasional laws. . . . those known arise; up on a question not to start govern as it shall day caprice side, sudden, as the and shift from side Eng. 589-590 party Hist. shall direct.” Parl. the fluctuation In view of what followed speech, appears Madison’s that on day critical the Framers facing were then rejecting the possibility legislature would have to usurp “indisputable right peo [of ple] to they return whom thought proper” to the legis lature. Oliver Ellsworth, of Connecticut, noted that a legislative power to establish property qualifications was exceptional “dangerous because 'it would be much more Id., liable abuse.” at 250. Gouverneur Morris then moved to strike “with regard to property” from the proposal. Committee’s His intention was “to leave the Legislature entirely large.” at Ibid. Hugh Williamson, of North Carolina, expressed concern that if a majority legislature the should happen to “composed be of any particular description of men, lawyers for example,. .. the future might elections be secured to their body.” own Ibid.67 Madison then referred to the British Parlia ment’s assumption of the power regulate to quali the fications of both electors the elected and noted that “the they abuse had made itof was a lesson worthy of our attention. They had made the changes in both cases subservient to their own views, or to the politi views of cal or Religious parties.” Ibid.68 Shortly thereafter,

66 Id., at 589. 67 Wilkes had essentially made argument the same in one of early attempts his to have the denying resolutions him a seat expunged: “This usurpation, acquiesced if under, would be attended with the alarming most consequences. you If can reject disagreeable those to a majority, and expel you whom please, the House of Commons will be self-created self-existing. may You expel you till ap prove, and you thus effect original nominate. The idea of this being representative the of the Commons of realm the will be lost.” Eng. Parl. Hist. 68Charles Warren concluded that “Madison’s reference was undoubtedly to the famous election case of John Wilkes . . . .” supra, at 420, n. 1. Warren, It is also possible, however, he referring was to the Parliamentary Test Act, 30 Car. Stat. motion Morris’ Gouverneur both rejected Convention day, the same Later proposal. Committee’s provision debate without adopted the Convention quali- . .. judge “the be to each House authorizing Id., at members.” own of its fications impor- very day is same made the decision other One 5. When I, meaning of Art. determining tant pro- Detail’s Committee reached delegates Mad- members, its expel House to each empower posal . . was too . expulsion right of ison “observed quo- of a majority a bare exercised to be important might be dan- faction emergencies [one] rum: and moved Id., therefore 254. He abused.” gerously inserted. be of two-thirds” the concurrence “with was delegation whose of one exception State, With without unanimously approved motion divided, opposition. his Morris noted although Gouverneur debate, over-empha- cannot decision of this importance disputes suit to this parties sized. None qualifica- powers judge legislative to 1787 prior vote. by majority were exercised expel tions and colonial ante- English and exception, the without Indeed, conclu- 2, support els. 1 this 5, § I, Art. to cedents the increase decision Thus, Convention’s sion. was “too power that expel, because required vote at while by majority,” a bare to be exercised important restricting power to similarly time same they that evidence compelling qualifications, judge standing by the already limited the latter considered adopted.69 previously qualifications serving group from a Catholics as had excluded (1678), which c. Parliament. interpretation of these events Warren, upon whose Charles reject Convention’s decision rely, that concluded petitioners proposal more limited proposal Morris’ Gouverneur adoption implicit of Madison’s was of Detail Committee Respondents urge, however, that these events must considered in light they regard what very as a sig- change nificant made I, by Art. cl. the Com- mittee Style. When the Committee reported of Detail the provision to the Convention, it read:

“Every member House of Representatives shall be of age twenty years five at least; have shall been a citizen of the United States [in] for at years least three before his election; and shall be, at the time of his election, resident of the State in which he shall be Id., chosen.” at 178. finally However, by drafted the Committee of Style, these qualifications were stated their present negative form. Respondents note that there are no records of the “deliberations” of the Style. Committee of Neverthe- less, they speculate particular change de- signed to provision make the correspond to form by used Blackstone in listing the “standing incapacities” for membership in the Commons. See W. Blackstone’s Commentaries *175-176. who Blackstone, was an apologist for the anti-Wilkes forces in Parlia- position qualifications of the elected “were fundamental Govt, Republican articles ain ought to be fixed the Con- stitution.” 2 Farrand supra, Warren, 249-250. See at 420-421. Certainly, Warren argued, action “[s]uch would seem to make it clear that did grant Convention not intend to single to a branch of Congress right . . . the qualifications establish for its members, other qualifications than those established the Con- stitution itself .... For certainly it did not single intend that a branch of possess should which the Convention expressly had refused to vest in the Id., Congress.” whole 421. See 1 J. Story, Commentaries on the Constitution of the United §625, States at 445 Although Professor Chafee argued congressional precedents do not support this construc- tion, he nevertheless stated forbidding any additions to the qualifications expressed in the Constitution was “the soundest policy.” Chafee, Z. Speech Free in the United (1941). States 256 Wilkes’ after to his Commentaries added

ment,70 had were who individuals that assertion the exclusion standing incapaci- under the the Commons ineligible for if Commons seat their be denied still could ties Black- Since for other reasons.71 unfit them deemed widely circulated was Commentaries stone’s the Com- speculate further respondents Colonies, provision qualifications rephrased Style mittee “only to intention delegates’ clarify the to negative imposing incapacities without standing prescribe judge to each house power historic limit on the other by case basis.”72 case on a qualifications however, weak, inherently argument Respondents’ historically bodies legislative assumes because case-by- aon qualifications to judge possessed for conclusion basis above, the As noted basis. case by the time which, cases, Wilkes and Walpole was the House been denounced had Convention, gov- one State by at least repudiated of Commons misrepre- argument respondents’ Moreover, ernment. Style. It was of the Committee the function sents arrange of and stile only “to revise appointed Farrand . . .” agreed had . been which articles English History Law 540-542 Holdsworth, A 10 W. See of Blackstone’s the first edition notes that Holdsworth incapacities and then various Blackstone enumerated Commentaries disquali standing restrictions “subject to these concluded membership in eligible subject realm is every [for fications, Com right.” 1 W. Blackstone’s of common House of Commons] upon in defend Commons called was *176. Blackstone mentaries quoted against him. Black passage and the exclusion Wilkes’ making additions two writing pamphlet retaliated stone justify the in an effort Commentaries his to later editions supra, Holdsworth, at 540-541. decision of Parliament. Respondents 52. Appendix D Brief Committee authority . . had no “[T]he . from the Con- vention to make of alterations substance the Con- by stitution as voted Convention, nor purport did it so; certainly do and the Convention had no belief . .. change that important was, fact, made in the provisions as qualifications adopted by it on Au- gust 10.”

Petitioners also argue that post-Convention debates over the Constitution’s ratification support their inter- pretation of § 5. For example, they emphasize Ham- reply ilton’s to the charge antifederalist new Constitution favored the wealthy and well-born:

“The truth is there no method of securing to the the preference rich apprehended but pre- scribing qualifications of property either for those who may elect or be elected. But this forms no part of the power to be upon conferred the national government. Its authority would be expressly re- regulation stricted to the times, places, the manner of elections. The qualifications persons may who choose or chosen, he as has been re- marked upon occasions, other are and defined fixed in the Constitution, and are unalterable by the legislature.” The Papers Federalist 371 (Mentor ed. 1961). (Emphasis in last added.) sentence 73Warren, supra, 422, n. 1. Charles Warren buttressed his noting conclusion the Massachusetts Constitution qualifications “contained affirmative Representatives for and exactly negative qualifications similar for Senators.” Ibid. Ap parently, provisions these were not substantively considered different, empowered each house was in identical language “judge elections, qualifications returns and their own members, pointed out in the constitution.” Const., pt. 2, Mass. I, c. § IV, Art. Thorpe X, Thorpe Art. (Emphasis added.) supra, at 422-423, n. 1. Warren, See an earlier views similar expressed had Madison no leave Convention at the arguments his essay74 this issue. Hamilton with agreement his about doubt actually ad- Hamilton counter Respondents author- which 4,§I,Art. criticism himself to dressing manner places, times, regulate Congress to izes prom- They note that Congress. of electing members of be this could that argued had antifederalists inent well-born, all honours.” rich and on the “confer used to (Em- 1787, p. 7. Journal, Nov. Y. IV, N. No. Brutus however, contention, Respondents’ original.) phasis immutability reliance on the express Hamilton’s ignores forth the Constitution.75 set qualifications the of also demonstrate conventions at the state The debates for qualifications that the understanding Framers’ the the Constitution. fixed in had been of members convention, example, for Hamilton York the New Before republic is, aof principle true emphasized: “[T]he Federalist, Madison stated: 52 of The In No. prop- carefully elected, being and qualifications of the less “The time constitutions, being the at same by erly the State defined very properly uniformity, been considered have susceptible of more quali- then enumerated the regulated convention. the [He Under these . . . representatives Senators.] both fications for govern- part the federal limitations, door this the reasonable adop- or every description, whether native open to merit of ment is wealth, regard poverty old, or young and without tive, or whether Federalist religious profession faith.” any particular or to 1961). (Mentor ed. Papers 326 “qualifica Madison’s assertion Respondents dismiss susceptible being more elected, the same time . . . tions of the regulated very considered and uniformity, properly have been charge nothing convention,” more than a refutation by the as establish addi legislature would be free to new national However, conclusion “standing incapacities.” cannot tional history question, on this pre-Convention with reconciled delegates’ particular, themselves, and, in debates Convention require expulsion. a two-thirds vote decision to should people they choose whom please govern Representation them. is imperfect proportion as the current popular favor great checked. This source of free government, popular election, should be perfectly pure, and the most liberty unbounded allowed.” De- bates on the Federal (J. Constitution 257 Elliot ed. 1876) (hereinafter cited as Elliot’s Debates).76 In Vir- where the ginia, Federalists powerful faced opposition popular advocates of democracy, Carey Wilson Nich- olas, future member both the House and Senate and later Governor of the State, met the arguments the new Constitution violated democratic prin- ciples with the following interpretation of I, 2,§ Art. cl. respects qualifications of the elected: “It has been great ever considered a security to liberty, that very few should be excluded from right of being legislature. chosen This Constitution amply has attended to this idea. We find no qualifications required except those of age and residence, which create a cer- tainty of judgment their being matured, and being of attached to their state.” Elliot’s Debates 8.

c. Post-Ratification. As clear as these statements appear, respondents dis- miss “general them as statements .. . directed to other 77 They issues.” suggest that far more relevant is Con- gress’ own understanding of its to judge qualifica- tions as manifested in post-ratification exclusion cases. Unquestionably, both the House and the Senate have excluded members-elect for reasons other than their 76At convention, the same Livingston, Robert one of new the Constitution’s supporters most ardent and one of the State’s most landowners, substantial endorsed this same fundamental principle: people “The are the judges best ought who represent to To them. dictate and them, control to tell them they whom shall elect, abridge to their rights.” natural 2 Elliot’s Debates 292-293. 77Appendix D to Respondents Brief for standing qualifications. Constitution’s the to meet failure however, existence, its years of the first For almost quali- judge power to strictly limited its Congress in the enumerated those to its members fications Constitution. 1807,78 issue with the confronted was first

Congress chal- McCreery was of William eligibility when residency meet additional did not he lenged because Maryland. In by imposed the State requirements Committee House seated, the he be recommending that reasoned: Elections Con- examine proceeded committee “The them, submitted case to the relation with stitution, are therein of members that qualifications and find authority to any reserving without determined, or diminish to, change, add Legislatures State instrument, by that that, qualifications; those quali- judge sole is constituted obliged to decide are it, prescribed fications . . .” rules . Constitutional to the agreeably Cong. Annals of for the of the basis misunderstanding there

Lest debate ensuing during recommendation, committee’s the com- which principles explained the chairman governed: mittee was quali- Elections considered the

“The Committee unalterably de- have been fications members con Session, Congress, 1st during 5th In Republican, for sedition. Lyon, a expelling Matthew sidered along largely broke down and however, 49 to expel, was to vote Federalists, retained Lyon’s opponents, Although partisan lines. re-elected, Lyon and was Congress, which majority in the 6th trying gained from advantages political although were there seat, effort made there was no taking his prevent him from Commentary on the Con A Dionisopoulos, See to exclude him. Pub. L. Cases, 17 J. Related Powell Issues in the stitutional (1968). 103, 123-127 by

termined the Federal changed unless Convention, by authority an equal to that which framed the Constitution at first; that neither the nor the State Legislatures Federal authority are vested with add to those so qualifications, change as to . them. .. Congress, the Federal Constitution, are not au- prescribe thorized to qualifications of their own they members, but are judge authorized to of their qualifications; doing so, they however, must be governed by prescribed by the rules the Federal Constitution, only. them These are principles on which Election Committee have up made report, upon their their which reso- Id., lution is founded.” at 872.

The chairman emphasized that the committee’s narrow construction power of the House to judge qualifi- cations was compelled by principle the “fundamental id., a free government,” at 873, that upon restrictions people to choose their representatives own must be limited to “absolutely those necessary for safety society.” Id., at 874. At the conclusion of a lengthy debate, which tended to center on the more narrow issue of the of the States to add to the standing qualifications set forth in the Constitution, agreed by House a vote of to 18 to seat Congressman McCreery. Id., at 1237. See A. Hinds, Precedents of Representatives of the United States (1907) §414 (hereinafter cited as Hinds). significant

There was no challenge to these principles for the next several They decades.79 came heavy under Maryland representative Another unsuccessfully challenged grounds in 1808 on almost identical to those asserted in challenge McCreery. Cong. See 18 Annals (1808). 1848-1849 In the Senate declined to Niles, exclude John M. who was accused being mentally incompetent, special after a reported committee competent. Cong. him Globe, Cong., 28th Sess., 564-565, 1st rejected In the House attempt to exclude Samuel 544 ini- war of civil [but “during the stress however,

attack, exercise declined to Representatives of House tially] the circumstances even under exclude], power [to Repre- House Rules great provocation.”80 Sess., 2d Cong., 89th 529, R. Doc. No. H. sentatives, restraint, of such The abandonment 7p. 12,§ up- general the casualties among was however, House 1868, In wake. in war’s produced heaval a history exclude member- the first time its for voted representatives duly to seat two elected refused elect. It Confederacy. See to the aid and comfort giving for by the produced “This was change 449-451.81 §§ 1 Hinds support who failed to enmity those toward bitter North’s by the was effected war, and during the cause Union awas Congress. It Republican domination Radical power and urgency naked brought about shift Legislative support.” Comment, doctrinal given little was Powell, 35 Clayton and Adam Julian Bond Exclusion: time until (1967).82 From that 151, Rev. Chi. L. U. judges from violating prohibiting law state an Illinois for Marshall year, 1 Hinds 415. That same running other offices. § for violating Lyman same Trumbull for exclude Senate refused Ibid. law. Illinois 1867, and resisted 1862 and both the House Senate Between who were accused attempts members-elect several to exclude id., during See, being disloyal the Civil War. to the Union §§ Cases, Election, Doc. 455, 458; Expulsion Censure S. Senate (1962) (hereinafter Cong., Sess., 21 cited as Senate 2d No. 87th Cases). year supporter Senate also That same excluded others Confederacy. 40. The excluded Senate two Cases selling offense, shortly thereafter, same and another one for the Military 1 Hinds Academies. See appointments to the Naval ; 2 Hinds §§ power previous departure from House construction of its This emphasized by Congressman P. William Fessenden: exclude judge of the under the Constitution to which we have “[T]he congressional the present, practice has been erratic;83 on the few occasions when member-elect was excluded although he met all the qualifications set forth in the qualifications body arbitrary members power, is not a mere to according be exerted to the will may of the individuals who vote upon subject. ought It power subject to be a to certain rules upon and founded principles. certain up very itSo was to a late period, until simply rebellion. The rule was, if a man came presented proper here State, credentials from his allow him ordinary to take the oath, took, which we all support the Con- stitution, admitted, and be and if any objection there was himto try question Cong. Globe, afterward.” Cong., 40th 2d Sess., (1868). 685 83For example, the House refused to exclude a Texas Congressman variety accused of a acts, §465; criminal 1 Hinds again but in 1882 and House excluded a for member-elect practicing polygamy. §§473, Hinds Thereafter, ap 477-480. parently excluding anyone did not consider shortly until after World I,War when it twice Berger, excluded Victor Socialist, L. an avowed giving for aid enemy. comfort to the Significantly, the House committee investigating Berger ineligible concluded that he was express provision under the 3 of the Fourteenth § Amendment. Cannon, 6 C. Precedents of the Representatives House of (1935) (hereinafter United States Cannon). cited §§56-59 Berger, person last to be excluded from prior the House Powell, later finally re-elected and admitted after his criminal conviction was reversed. Cong. (1923). Rec. 7 The House problem next considered the in 1925 when it contem- plated excluding John Langley W. alleged for his misconduct. Langley resigned losing after a criminal appeal, and the House there- upon fore never question. voted 6 Cannon The most §238. recent attempt prior exclusion to Powell’s occurred in 1933, when the House Representative refused to exclude a from Minnesota who had been sending convicted of defamatory through matter the mail. Cong. See 77 73-74, (1933). Rec. 131-139 The Senate has not anyone excluded 1929; year since in that it refused to seat a member-elect improper because of campaign expenditures. 6 Cannon In concerted effort was made to exclude Senator Theodore G. Mississippi Bilbo of allegedly accepting gifts from war illegally contractors and intimi- dating Negroes in primaries. Democratic Cong. See 93 3-28 Rec. (1947). died, He however, before a decision was reached. vigorous dissents.84 frequently were there Constitution, procedure official manual to the annotations Even the House's as to the doubt manifest 90th for the con- has met the who member-elect exclude power to See Rules qualifications. stitutionally prescribed 89th Doc. R. No. H. Representatives, 7-8 pp. Sess., 12,§ 2d Cong., been precedents exclusion congressional these Had value still would precedential their consistent, more Con- of a House of Power Note, limited. See quite Members, of its Qualifications Judge the gress to That unconstitu- (1968).85 673, 679 Harv. L. Rev. 278, Congressman No. H. R. Res. During debates over Judiciary and the Committee Celler, both the Select chairman “unalterably the Constitution Committee, forcefully insisted membership in qualifications for defines” the fixes and “improper be I, would of Art. any construction other and that Rep. R. No. See H. Cong. dangerous.” Rec. Rep. minority); R. (views of H. (1874) Sess., 11-15 Cong., 1st 43d minority). (views (1900) Sess., Cong., 1st 53-77 85, 56th No. major partisan argued: “A small report, dissenters In the latter majority arbitrarily exclude, a to might desire ity render the power, securely itself in irresistible. intrench vote, order to more in expulsion, by legal In case of rules. controlled is Hence its exercise exer had, motive for be requisite can two-thirds when the partisan two-thirds longer exists, as arbitrary power no a cise of power of exclu every purpose. . The . . majority for is sufficient majority vote, in accord a law, be to exercised sion is a matter only a member-elect legal principles, and where exists ance with Id., required by the Constitution.” qualifications lacks some 76-77. at diffi congressional action is itself “Determining for a the basis judicial decision, reported action, unlike a congressional cult; a since must fall disposition, one for the of the reasons no statement contains one reports. If more than committee debates and the on the back on what basis debates, can never sure in be raised one issue is court, presumed to predicated. Unlike which action in house is effect disinterested, the concerned in an exclusion case adjudicate. Consequently, controversy must that it party to the surely not render tional action has been taken before does any at a later that same action less unconstitutional date. in those Particularly Congress’ in view of the own doubts we are members-elect, few cases where did exclude give controlling weight. to precedents inclined its relevancy prior largely limited exclusion cases is insight they correctly ascertaining to the afford Obviously, preceden- draftsmen’s intent. therefore, tial value of these cases in proportion tends to increase Myers to proximity their to the Convention in 1787. See States, v. United U. what And, S. evidence we of Congress’ early understanding have con- firms our conclusion the House is without any exclude member-elect who meets the Constitution’s requirements membership.

d. Conclusion. Had the intent of emerged Framers from these with materials less clarity, we would nevertheless have compelled been ambiguity resolve favor of a narrow construction of the scope Congress’ power exclude members-elect. A principle fundamental of our representative democracy is, Hamilton’s “that words, people should they please choose whom govern them.” Elliot’s Debates 257. As Madison pointed out the Convention, principle is undermined as much limiting whom people can select limiting the franchise itself. In apparent agreement with this basic philosophy, adopted Convention his suggestion limiting the power expel. to To allow essen- tially power that same be guise to exercised under the judging qualifications, ignore would be to Madison’s warning, borne out the Wilkes case and some of Con- may some members be though they inclined to for vote exclusion strongly constitutionality.” doubt its Rev., Harv. L. at 679. against “vest- cases, exclusion War post-Civil own gress’ Legislature.” in the dangerous power & ing improper nullify effectively Moreover, it would Farrand vote for a require to two-thirds decision Convention’s has an interest Congress Unquestionably, expulsion. in most cases integrity, but its institutional preserving by the exer- sufficiently safeguarded interest can be disorderly its members power punish to cise of its a with expel to member cases, in extreme and, behavior In inten- short, both the of two-thirds. the concurrence it can determined, extent Framers, tion of the of our demo- principles basic an examination not the Constitution does system persuade us cratic deny discretionary a Congress vest in the membership by majority a vote. I, 5,§ reasons, we have concluded Art.

For these “textually a demonstrable commitment” is at most only qualifications expressly set judge the “textual com- Therefore, forth in the Constitution. political question mitment” formulation of the doctrine adjudicating petitioners’ from does not bar federal courts claims.

2. Other Considerations. alternate contention is case Respondents’ pre- political question judicial sents a because resolution of produce “potentially claim would embar- petitioners’ between rassing confrontation coordinate branches” of But, interpretation Federal Government. as our petitioner a determination of I, 5, discloses, Art. Powell’s right require interpretation to sit would no more than an of the Constitution. Such determination falls within role interpret the traditional accorded courts to the law, involve a “lack of the respect and does due co- [a] government,” ordinate nor does it involve an [branch] policy “initial determination of a clearly kind for non-

549 Carr, Baker judicial 186, discretion.” v. 369 S. at 217. U. system government Our requires that federal courts occasion in a manner at var- interpret Constitution given by iance with the construction the document alleged another branch. The ad- conflict that such an judication may avoiding cause justify cannot the courts’ their States responsibility.86 constitutional See United Brown, v. 381 (1965); Youngstown U. S. 462 Sheet 437, & Sawyer, Tube Co. (1952) v. 343 U. S. 613-614 States, (Frankfurter, J., concurring); Myers v. United 272 (1926) dissenting). U. S. 52, (Brandéis, J.,

Nor are a political other formulations of question “inextricable from the case at Baker bar.” v. Carr, supra, at 217. Petitioners seek determination that the without to exclude Powell from the 90th Congress, which, we have requires inter- seen, pretation of the Constitution —a determination for which clearly “judicially there are . manageable . . standards.” Finally, judicial resolution of petitioners’ claim will not result pronouncements “multifarious by various de- partments question.” on one as we For, noted Baker Carr, v. supra, at it is responsibility Court to act as the interpreter ultimate of the Constitution. Marbury Madison, v. 1 Cranch (1803). Thus, we conclude that petitioners’ claim barred political question and, having doctrine, determined that the claim generally is otherwise we justiciable, hold that justiciable. case is

VII.

Conclusion. To summarize, we have following: determined the (1) This case has not been mooted seating Powell’s fact, In the Court has noted that it is sug an “inadmissible gestion” might that action disregard judicial taken in of a determination. McPherson Blacker, v. U. S. be action should Although this (2) Congress.

the 91st may Congressmen, respondent against dismissed Congress’ (3) The 90th agents. their against sustained cannot be treated to Powell membership denial subject over the jurisdiction have (4) We expulsion. justiciable. The case is controversy. (5) matter of commitment” under analysis the “textual Further, B has demonstrated that (1)), Part (see VI, § 5 I,Art. of its members the qualifications in judging prescribed standing qualifications is limited to Powell Respondents concede that the Constitution. no need remand this case Thus, met there to these. is was determine whether he entitled be seated Congress. we hold Therefore, that, the 90th since Adam duly Clayton Powell, elected Jr., voters Congressional District of New York 18th and was not any provision ineligible serve under the Constitu- power the House was without to exclude him from tion, membership. its equitable

Petitioners seek additional forms of relief, including petitioner mandamus for the release of Powell’s pay. propriety back such is remedies, however, appropriately more considered the first instance Therefore, the courts below. as to respondents Mc- Cormack, Albert, Ford, Celler, Moore, judgment of Appeals the Court for the District of Columbia respondents Circuit is affirmed. As to John- Jennings, son, Miller, judgment of the Court of Appeals for the District of Columbia Circuit reversed and the case is remanded United States District Court for of Columbia with District instructions to enter a declaratory judgment and for further proceedings con- sistent this opinion. with

It is so ordered. Douglas. Mr. Justice

IWhile join opinion Court, I add a few words. As the Court says, the important constitu tional question is whether the Congress has to deviate from or alter the qualifications for member ship as a Representative contained in I, § Art. cl. Up Constitution.1 to now the understanding has quite been clear to the effect such authority does exist.2 To be sure, § Art. 5, provides I, that: “Each Const., I, 1 U. S. Art. el. 2: “No Representative Person shall be a who shall not have attained age twenty the of Years, five and been seven Years a Citizen of States,

the United not, and who shall elected, when be an Inhabitant of that State in which shall be he chosen.” 2The Constitutional Convention had the occasion to consider proposals giving several for shape discretion to its own qualifications for rejected oifiee and explicitly them. James Madison opposition by led the arguing that such discretion would improper “an dangerous & power in Legislature. the quali The fications of electors and elected were fundamental articles Govt, Republican ought to be fixed by the Constitution. If Legislature the regulate could either, those of by it can degrees 2 ML Farrand, Records of the Federal subvert the Constitution.” 1787, pp. Convention of 249-250

Alexander Hamilton echoed that same conclusion: qualifications “The persons of the may who chosen, choose or be as has been upon remarked occasions, other are defined fixed Constitution, in the and are by unalterable legislature.” the The Federalist Papers, 60, p. (Mentor No. 371 1961). ed. so, too, early And the Congress of 1807 decided Repre- to seat sentative-elect McCreery William ground on the its “judge” by was limited the qualifications. enumerated “The Committee of Elections qualifications considered the of mem- bers to have been unalterably determined the Federal Convention, changed by unless authority an equal to that which framed the Constitution at first .... Congress, by the Federal Constitution, are not prescribe authorized to qualifications of their own mem- bers, they but are authorized judge of their qualifications; doing so, however, they governed must be by the prescribed rules

552 Elections, Returns Judge be the shall

House Contests . . . Members its own of Qualifications meets elected official whether over arise may event which Constitution, “qualifications” not is the House But judge.3 sole is House are which added are “qualifications” when judge sole Constitution.4 in the specified only.” Annals 17 by them Constitution, and Federal of House Findley, Chairman Rep. (remarks (1807) Cong. 872 Elections). Committee principle have reaffirmed centuries of two scholars Constitutional members its qualifications of “judge” the power to congressional Story, Com- 1 J. in the Constitution. enumerated those limited to Warren, 1891); C. (5th ed. on the Constitution mentaries also remarks (1928). See 420-426 Making Constitution The Committee Select the House Celler, Chairman by Emmanuel Jr., Powell, Clayton Adam qualifications inquired into which seating him: recommended and which enter one to qualifications lays three down Constitution “The all Powell satisfies citizenship. inhabitancy, Mr.

Congress age,— Cong. qualifications.” these add to cannot three. Rec. concurring). J., (Douglas, n. Carr, U. S. v. Baker Consti authority under Congress has question whether The a federal is itself qualifications for office enumerated add to tution to v. Baker Court. of expertise particular question within exceeded, authority has been 211. Carr, S. Where 369 U. Madison, Marbury 1 Cranch v. sought here. may properly be redress Rep. deciding exclude in no suspected less Congress itself 137. Powell: of a House action where the readily postulated may be

“[Cjases upon rights directly may impinge expelling a Member excluding or cases, In such of the Constitution. provisions under other for Suppose, may less be certain. judicial review unavailability of his of expelled or because excluded example, a Member making clause, equal or contrary protection race, religion or .... [Ex- the first amendment protected speech unpopular an citizenship, age, grounds other than Member-elect of clusion issue.” equally constitutional serious inhabitancy raise an could or Sess., (1967). Cong., 1st 27, 90th Rep. No. R.H. Cong. 4994. Rec. See also

A man is not seated he is a because or Socialist Communist.5

Another is not seated in his because district members of a minority are systematically excluded from voting.6

Another is not seated spoken because he has out opposition to the inwar Vietnam.7 possible

The list long. is Some will have cases racist present overtones one. may

Others reflect religious ideological clashes.8 At the root of all these cases, is the however, basic integrity of the process. electoral Today we proclaim principle constitutional of “one man, one vote.” When principle is followed and the electors choose person who repulsive is to the Establishment Con- by what gress, authority constitutional can that group electors disenfranchised? By I, Art. § House may “expel a Member” a vote of two-thirds. And if expulsion this were an case I would think justiciable that no controversy would be presented, the vote being House two-thirds or more. But it is not expulsion case. Whether it could have expulsion been won as an case, no one Expulsion knows. for “misconduct” may well raise questions, different different considerations. Policing conduct mem- bers, problem a recurring in the Senate and House as well, quite different from the initial decision whether an elected official should be seated. It well might be easier to bar expel admission than to one already seated. Representative-elect excluded Powell from the 90th Congress allegedly for public misappropriating funds and for incurring the contempt of New York Berger, Case of Cannon, Victor 6 C. Precedents the House Representatives United States § 6Id., 7 g., Floyd, e. Bond v. See, 385 S.U. 116. 8 Hinds, 1 A. Precedents of the Representatives House of (1907). United States 481§

554 upper earlier, members years Twenty-six

courts.9 William Senator-elect exclude to attempted chamber first Langer reasons.10 like for Dakota of North Langer North County, Morton Attorney for State’s became as State then served 1916, and from Dakota, Gov- He became 1920. 1916 to from Attorney General January in office took in 1932 and of the State ernor with interfere conspiring indicted In he was soliciting illegally law of federal enforcement suit and employees, from federal political contributions him to remove Court Supreme State was filed he called pending, that suit office.11 While from When it became special session.12 into Legislature State signed he ouster, his order court would clear that law, martial invoked Independence, a Declaration his Nonetheless, when Guard.13 out National called legal head him as the recognize own officers refused Adam As with July 1934. left office he state, still of the State people however, the Clayton Powell, him Governor they re-elected In him. wanted States to the Senate. they sent him United and, 1940, Barkley ceremonies, Senator swearing-in During Langer against filed complaints certain drew attention to he be yet Dakota, asked North citizens oath of office to take the allowed proposi- ais two-sided prejudice, which “without to the Senator without prejudice tion —without Cong. Rec. 4997. 9 113 Cases Election, Expulsion and Censure No. 71 on Senate S. Doc. Cong., Sess., 140 2d 87th from 1789 Langer, before Seating Hearings on A Protest to the William Cong., Elections, 1st Privileges 77th Committee Senate 1941) (hereinafter Hearings). (Nov. Sess., 12Hearings 821. 13Hearings 820.

prejudice to the Senate in the exercise of its right exclude [to him].” The matter Langer’s of qualifications to in serve Senate was referred to committee which held confidential hearings January on 9 and 16, 1941, open and hearings November 1941. 18, By a of 14 vote 2, to the committee reported that majority a of the Senate jurisdiction had under Art. I, § 5, cl. of the Constitution to and, exclude Langer; by a vote of 13 to it reported its recommendation that Langer not be seated.15 charges against Langer were various. As with they Powell, included claims that he had misappropriated public funds16 and that he had interfered with the judicial process in a way that beclouded the dignity of Congress.17 Reference was also made to professional his ethics as a lawyer.18

Langer enjoyed powerful advocacy of Senator Murdock from Utah. The Senate debate raged itself 14 Cong. (1941). Rec.3-4 15 Rep. S. No. Cong., 77th 2d Sess. alleged It was conspired that he had as Governor to have munici pal county bonds sold to a friend of his profit who made a of $300,000 on the purchase, purportedly rebated as much as $56,000 Langer Hearings himself. 822-823. 17At the retrial his conviction for conspiring to interfere with the enforcement of law, federal he was paid said to money have a his, Judge have friend of Wyman, given control of the liti gation, and to have “meddled” jury. with Hearings 20-42, 120-130. 18He was charged lawyer as a having with accepted $2,000 from boy mother of prison a promise on the that he would obtain his pardon, when knew, he in fact, pardon was out question. He was also said to have counseled a defendant-client marry his to prosecution’s chief witness in prevent order to her from testifying against him. And finally, it suggested he bought once policy insurance during trial from jurors one of the sitting judgment of his client. Hearings 820-830. factual purely it related year.19 Much

for over a however, it, Some turpitude.” “moral allegations I, under Art. Senate was addressed lacking qualifica- member-elect 1, to exclude cl. 5,§ I, § Art. enumerated tions not the Senator's . . . “Mr. MURDOCK. [U]nder qualifi- to add right has the that the Senate theory Constitution, in the specified are not cations which a rule adopt could believe Senate the Senator does 20 qualifications? and moral intellectual specifying it anything can do The Senate “Mr. LUCAS. deny can Yes; the Senate . to do ... wants like the it does not simply because his seat person 21 to.” if it wishes jaw, of his cut only qualifications argued Murdock Senator in the enumerated were those in the Senate service to review power had the Constitution; it not— could qualifications; but those enumerated “judge” qualifications those purporting while —in reality to them. add I, to article The Senator LUCAS. referred

“Mr. he the framers of does think section 5. What they gave to each House meant when Constitution judge qualifications, or to power determine its own Members?22 forth, so I term ‘judge’ construe the “Mr. MURDOCK. ordinary mean common, it is held to in its mean what understanding of the definition of the usage. My 19 (1941); Cong. 822, 828, Cong. 460 88 Rec. 3-4, Rec. 2472, 2564, 2630, 2699, 2239, 2328, 2382, 2412, 1253, 2077, 2165, 2914, 2917, 2959, 2972, 2989, 3038, 2801, 2842, 2858, 2759, 2791, 20 Cong. Rec. 21Ibid. 22 Cong. Rec. 2474. ‘judge’

word as a verb is this: When we judge of a is thing supposed rules are laid out; the law is there for tous look at and to apply the facts.

“But whoever heard the ‘judge’ word used meaning to add to what already law?”23

It was suggested also from the floor that the enumerated qualifications in minimum which the only were Senate could supplement; and that Founding Fathers so by using intended words of the negative. which To Senator Murdock replied—

“Mr. I President, think it is the very distin- guished and able Senator from Georgia makes who the contention that provisions constitutional relating to qualifications, because they are stated in the negative is, ‘no person shall be a —that merely Senator’ —are prohibitions restrictions or the State; I but —and shall read it later on—when we read what Madison said, when we read what Hamilton said, when we read what the other framers of the Constitution on said question, can- there not a doubt be as to what they intended and what they meant.24

“Madison knew that qualifications the should contained the Constitution and not left to the whim caprice of the legislature.25

“Bear that mind, that the positive affirmative phraseology was not changed to the negative by debate or amendment but it convention, 23Ibid. 24Ibid.

25 Cong. Rec. 2483. Madison which committee by changed

was style.” committee member, a was suggestion by troubled nonetheless The Senate anyone accept it to compelled Constitution egregious how no matter elect, might people whom said worry, to No need his behavior. criminal even its invoke cannot the Senate true that It is Murdock. cl. 5,§I, Art. under “judge” to power majority who people by the men elected excluding for a device by the Constitu- enumerated qualifications possess cl. I, § under Art. power have it does But tion. vote. by a two-thirds designates anyone expel bypass the urged the Senate Nonetheless, he in- wrongfully expulsion requirement two-thirds to exclude.27 its voking from the Senator position . . LUCAS. . “Mr. any difference not make it does is that takes Utah when- way crime, in the does a Senator what comes State, his people of by the he is elected ever no fraud there is credentials, and fide with bona here him give refuse cannot the Senate election, in the takes? the Senator position That is the oath. position; yes.28 my That MURDOCK. “Mr. right not have the we is that do “My position with the clothed here who comes anyone exclude constitutional possessing credentials proper we do not have is that My position qualifications. 26 Cong. Rec. Clayton Powell over Adam Although House excluded the only assumption that the operating on vote, it two-thirds could the House suggestion majority For was needed. a on the basis of a Powell to exclude the votes rallied never have (1968); Note, 162 Note, 14 How. L. J. rule, ground see two-thirds Rev. 716 U. L. 42 N. Y. 28 Cong. 2488. 88 Rec. of the Constitution provision right under referred, to add from Florida the Senator

to which is that State My position qualifications. to the the moral of the intellectual judge is the sole it sends representatives qualifications Congress.” Philander Senator [quoting “MR. MURDOCK plain rule ‘I know of no defect Knox]. . . contending. I am . for which Constitution lies in any danger to the Senate I see that cannot be ex- improper character cannot the fact that requires vote. It cluded without two-thirds man accused jury vote of a to convict a unanimous I it believe that require, it should crime; eject a two-thirds vote to Senator require, does he power, to which position from his honor and ” 30 sovereign elected aby has been State.’ 27, 1942, on March Thus, year debate, after a of its committee overruled the recommendation Senate Langer. and voted 52 to 30 to seat correct I Murdock stated the believe that Senator present case. principle governing constitutional Stewakt, dissenting. Me. Justice since place which have taken I believe that events granted case on November certiorari was Court should there- moot, have and that the rendered deciding novel, difficult, from and delicate fore refrain case at its presented which the questions constitutional inception.

29 Cong. Rec. 2490. Pennsylvania Knox of had de Cong. 2488. Senator Rec. charges against Reed Smoot of Utah fended Senator-elect group ought because of his affiliation with a that he excluded (Mormons) polygamy. S. Doc. No. 87th that countenanced Sess., Cong., 2d

I. by Congressman of lawsuit purpose this The essential regain constituency towas of his and members Powell Congress. 90th barred the he was the seat from which of attainment impossible however, became purpose, That into Congress passed 90th when the January 1969, 3, on being. into On Congress came 91st history and the decree restrain- judicial a prayer for petitioners’ the date, com- 278 and No. of House Resolution ing enforcement Powell Congressman to admit respondents the manding incontest- Congress 90th became membership in the ably moot. of actions of the House assert petitioners the prolonged have the 91st of

Representatives preserved exclusion and controversy by Powell’s raised I be- this case. judicial a declaration need for the present the of the contrary, conduct lieve, to the of the mootness Representatives confirms Congress. 90th Had Powell against suit petitioners’ might argue Congress, 91st he excluded from the been controversy” concerning “continuing there was argu- in this case.1 And such the exclusion attacked though present House of might sound even ment body legislative rather than Representatives is distinct though griev- predecessor,2 a continuation of its Phosphate Export Assn., g., See, e. United States Concentrated v. Carroll v. President and Commissioners 202-204; 199, 393 U. S. Anne, Princess 175, 393 U. S. 178-179. Gojack States, (“Neither v. United 702, 707, 384 U. S. n. 4 See bodies”); Representatives continuing nor House of its committees are Daugherty, Forty-one McGrain v. 273 U. S. present House were not members of the 90th members action, Congress; named defendants Messrs. and two longer Curtis, Repre are no members of Moore and the House Moreover, officer-employees House, such as sentatives. Arms, Sergeant Congress. re-elected each are new See n. infra. Congress is not 91st by conduct of the

anee caused January 1969, in this action. But redressable Congress admitted 91st Representatives House of he now sits as membership, and Powell to Congressman District of Congressional 18th Representative York. With the 90th terminated New seriously 91st, now a member of the it cannot Powell controversy judicial there remains a be contended that parties power these over the of the House between Representatives exclude Powell and the him Understandably, court order reseated. neither petitioners wholly nor the advance the un- Court proposition tenable that the continuation of this case infinitely can on the possibility be founded remote that Congressman or Powell, Representative, may other someday be excluded for the same reasons or in the same manner. And because no possibility foreseeable of such future conduct respondents exists, have met their heavy burden of that showing “subsequent events made it clear absolutely that the allegedly wrongful behavior could not reasonably to recur.” United expected be States Phosphate Assn., v. Concentrated Export 393 U. S. 199, 203.3 petitioners further argue case that this cannot

be deemed moot because of the principle that “the volun- tary practice abandonment of a does relieve a court of adjudicating its legality Sanders, Gray . . . .” v.

3 See United Co., States v. W. T. Grant also 633; 629, S.U. United States v. Aluminum America, Co. 2d 148 F. only recently The Court has concluded that there was no “contro Zwickler, versy” in Golden v. 394 U. S. because of “the fact unlikely that it was most Congressman again would be a Id., Congress.” for candidate hardly at 109. It can be maintained the likelihood of Representatives’ again House of excluding any greater. Powell is this however, manifest, it I 376.4 think u. S. applica no have enunciating the cases principle case does place, In the first case. present tion to practice.” aof voluntary abandonment “the not involve which an event over because moot it became Rather expiration control —the no had respondents relied cases unlike Moreover, Congress. 90th ongoing course no been has here there petitioners, per against which duration of indefinite conduct said it cannot necessary. Thus, injunction is manent was of the as it case, in this actions respondents’ Gray, example, enjoined sought to be conduct ibid., standing,” long rooted and practice deeply “the would respondents relief, the judicial that, without States United ways.” old to return [their] be “free Finally, Co., 632.5 629, S. T. Grant 345 U. v. W. Co., 629, 632- U. S. T. Grant v. W. States also United See NLRB, v. Carpenters Joiners & 74, Bro. United 633; Local Payne, Inc., Walling 323 U. S. & 715; v. Helmerich 341 U. S. v. 327; States Bowles, United S. v. 321 U. 37, 43; Hecht Co. Freight 307-330. Assn., 166 U. S. Trans-Missouri controversy” cases Gray, “continuing exception the With the by or its the Government by petitioners were the actions relied on by example, defendants, and, illegal of the agencies halt conduct supra, cited, conduct. See cases engaged in similar of others voluntary of an abandonment principle that 1, 3, The nn. especially, if not an action moot is make illegal practice will not public suits. exclusively, applicable such law enforcement any time, and may settle their parties controversies “Private may the com- plaintiff have had at the time of rights a which may judgment obtained before action terminate mencement the court, appeal, and in such case the case is on or while facts, proceed will no further the action. being of the informed rights extinguishment no of the . . . Here, however, there been has of which the Government has public, the enforcement by judgment of a court .... The de- procure endeavored rights prevent nor foreclose those the assertion cannot fendants public by as a substantial trustee for the the Government thereof does “voluntary rule abandonment” most important, continuing con of a requirement with the dispense not judicial nor it under the definition troversy, could Voluntary III of the Constitution. Article does make a case moot cessation of unlawful conduct rea “if can that ‘there is no the defendant demonstrate ” expectation wrong repeated.’ sonable will be Id., here, at 633.6 Since that is the situation the case if would be moot even it could be said that it became by “voluntary so House’s abandonment” its “practice” excluding Congressman Powell. petitioners’ proposition

The that conduct of the 91st perpetuated controversy has is based on the fact that House Resolution No. 2—the same resolu- tion which the House voted to seat Powell —fined him provided $25,000 seniority that his was to com- mence as of the date he became member of the 91st Congress.7 That punishment, said, it is “arises out Congress, by under [voluntary the act of challenged cessation of the Freight United States Assn., v. Trans-Missouri conduct].” S.,U. at 309. public statutory considerations of regula- enforcement of a tory scheme which inhere in present those cases are not in this

litigation. 6 Certainly every decision relied on petitioners reject Court did argument solely ground mootness on the illegal practice had voluntarily been In terminated. each proceeded to determine that there was in continuing fact a controversy. provided House Resolution pertinent part: No. in

“(2) punishment Clayton That as Adam Powell be and he hereby is fined $25,000, the sum of paid said sum to be to the Clerk disposed by to be of him according Sergeant to law. The at Arms of the House is $1,150 per directed to deduct month from the salary otherwise due Clayton the said Adam Powell, pay the same to said Clerk $25,000 until fully said paid. fine is

“(3) punishment That as further seniority the of the said Adam this impelled originally which House

prior actions however, punishment that indisputable, It is action.” entirely issues constitutional involves member a House of pun- that exclusion,8 by raised those from distinct a “continua- sense legal in no is Congress in one ishment A Congress. previous from the an exclusion of tion” improper was exclusion the that determination judicial constitutionality the of the bearing on no have would impact practical any conceivable nor punishment, clear It is thus Congress. 91st the status Powell’s the by exclusion the only connection between the by 91st is the punishment Congress 90th asserted derelic- the same based on evidently they were action was But this Powell. Congressman of tions legislative expunge or to Powell exonerate brought re- towas only purpose its wrongdoing; of his findings findings— of those consequence action taken strain exclusion. Powell’s petitioners’ conten- is substance without

Equally by application mootness from saved this case is tion that alleg- challenging that a case “principle” the asserted moot cannot be rendered conduct edly unconstitutional Representatives commence House of Clayton Powell Congress.” a Member of the 91st oath as he takes the the date by Powell’s kept alive argument the case is petitioners’ ante, 496, is on the mistaken seniority, founded see loss of seniority to the is attributable exclusion assumption the loss automatically be seniority Congress would and that from 90th But unconstitutional. were declared if that exclusion restored seniority stripped the action that Powell fact which this case and is not involved in Congress, action which 91st judicial review of the exclusion from not be affected would Moreover, if of the 91st Congress. even the conduct 90th clearly case, Court would have no challenged in were propriety of internal affairs pass upon the such whatsoever Representatives. House empowers specifically each §5, I, of the Constitution Article disorderly Behaviour.” “punish Members its conduct of the defendants. by further unconstitutional it is said that the “Court can not hypothesis, this Under January the conduct the House on determine controversy inferentially, has mooted this without day least, holding that the action of the House of that If legal constitutionally permissible.” there is any jurisprudence remotely resembling our doctrine petitioners’ theory they offer without refer- —which any authority ence to has no conceivable relevance —it January this case. For the 3, 1969, events of that made this case moot were the termination of the 90th seating and Powell’s 91st, punishment which the petitioners allege to have been unconstitu- tional. punishment That wholly is to the irrelevant question of mootness is in no wise before the Court in this case.

II. passage The of time and intervening events have, impossible made it therefore, to afford petitioners principal relief they sought this If case. aspect of the case alive, only Congressman remains is Powell’s salary individual claim for of which he was deprived by his absence from the Congress.9 90th But if even that claim can be prevent said to controversy from being moot, I which doubt, there is no need to reach

the fundamental constitutional issues that the Court today undertakes to decide.

This Court has not in past found that an incidental claim pay for back preserves the controversy between a legislator legislative and the body which evicted him, once the term of his eviction has expired. Alejandrino Quezon, v. 271 U. S. 528, was a case nearly identical salary personal claim Congressman Powell, and the petitioners other clearly therefore have no further interest in this lawsuit. was a today. petitioner The the Court before had been Philippines who of the of the Senate

member He colleague. assaulting for year for one suspended Philip- of in Court the Supreme the an brought action and of Senate10 members the the elected against pines Secretary, President, employees (the officers and its of seeking a writ Paymaster), Arms, and at Sergeant restoring him to his seat injunction and mandamus The of office. and emoluments privileges all the and action dismissed the Philippines of the Court Supreme brought case Alejandrino and the for of jurisdiction want authorized suspension the was not arguing that here,11 which Autonomy a statute incor- by Philippine Act, I of Article of the provisions of the United porated most States Constitution.12

10 Senators, 22 Philippines composed of Senate was of appointed by the Gov elected, and two of whom were whom were appointees. Alejandrino See was one of the two ernor General. S., at 531-532. U. Autonomy Act, Philippine 39 Stat. this Court Under the by judgments jurisdiction writ of error the final had to examine Supreme Philippine of the Court of the Islands cases and decrees A of the States. subse under the Constitution statutes United quent statute substituted the writ certiorari. Stat. Autonomy provides Senate “Section 18 [of Act] respectively judges elections, and House shall be the sole of the qualifications members, and of their and each House returns elective may proceedings, punish determine the rules its its members behavior, expel disorderly and with the concurrence of two-thirds Representatives and an elective member. The Senators shall receive compensation an annual for their services to be ascertained law Treasury paid Philippine and out of the Islands. Senators felony Representatives cases, except treason, in all shall peace, privileged during from arrest their attend breach respective going ance at the session their Houses and to and same; any returning speech from and for or debate in either they questioned place.” S., not be shall other 271 U. at 532. period

Because the while suspension expired had pending case certiorari, Court, unanimous opinion in an Taft, judg- Chief Justice vacated the ment and remanded the case with directions to dismiss as Alejandrino’s moot. To claim right that his back pay kept the case fol- alive, gave Court lowing answer, particular which, pertinency because its to this I case, quote length: may

“It be suggested, objection as an to our vacating directing the action of the court below, petition having dismissal become a case, that, lapse moot while the of time has made unnecessary and futile a writ of to mandamus restore Alejandrino Senator to the Island Senate, there still a right part remains on his recovery to the of his emoluments, which were during withheld his sus- and pension, ought that we to retain the case for the purpose of determining whether may he not have a mandamus for purpose. ... It is diffi- cult for the Court to deal with this the feature of case, really which is only a mere incident to the question main petition made the and considered in the able and extended brief of counsel for the petitioner, only the brief before us. That brief any part not in of it directed to the subject of nor emoluments, does it refer us to or statute to the rules of the Senate which the method of paying Senators’ salaries is provided, or a definite way describe the duties of the officer or officers or committee charged with the ministerial function of paying them. remedy

. . the of the Senator would seem to be by mandamus compel to such official discharge in the ministerial duty his pay to him salary the due, presence and the of the party Senate as a would be the rely upon official unnecessary. Should refusing to a reason Senate of the resolution validity the Senators, pay duty to his with comply the resolution validity of a defense of such per- affecting question judicial a might become properly Senator, complaining right of sonal requiring not action, but inof such disposed to be adjudi- for its party Senate as of the presence salary his to petitioner right cation. The issue very serious involve therefore does Philip- toas petition in this raised one mandamus compel Court Supreme pine legisla- constituting the bodies legislative the two a resolu- rescind of the Government tive branch discipline lawful in asserted by it adopted tion priv- breach of for disorder members, one of its as to question the main now that think, We ilege. moot, has become suspension validity of the sus- remedy which as to issue incidental his emolu- recovery may have Senator pended tried properly be withheld, should illegally if ments, officer against an executive proceeding separate ain able derive As are not we described. officers as which upon information sufficient petition from the treat the we must remedy, afford such properly This accordingly. moot and act as cause whole prejudice is without of course part on our action proper against the Alejandrino by Senator suit by way of mandamus or committee officer executive salary which payment obtain otherwise him.” unlawfully withheld from have been may S., 534-535.13 U. at following passage from Bond v. rely on the petitioners dispositive 4, as of their Floyd, n. contention U. S. being moot: salary prevents this case from claim the that argument in to whether this case oral question was raised “A of the House which excluded since the session might not be moot Both of the factors on which the in Alejan- Court relied drino are present in this case. Indeed, salary the claim even more incidental and aspect subordinate of this case than it was Alejandrino.14, And the avail- ability effective relief for that claim against any the present respondents is far from in Alejan- certain. As drino, the briefs and memoranda submitted by parties the in this case contain virtually no discussion of ques- this tion —the only question of remedy remaining in the case. It appears from provisions relevant of law, however, that the Sergeant at Arms of the House —an official newly longer Bond was no in existence. pressed The State has not this argument, and it could so, not do because the stipulated has State if that Bond appeal succeeds on salary he will receive back the from term which he was excluded.” I do not believe that this offhand dictum Bond is determinative in of the issue of in mootness this case. In place, the first as the Bond noted, Court it was not by any party there contended the case was Moreover, moot. contrary implication to the statement, the legislative term from which Bond was excluded had not ended at the time of the (The Court’s decision. Court’s decision was announced on 5, 1966; December Bond’s term of office expired on 31, 1966.) December In event, had he not been subsequent seated in a term, so continuing controversy had not been clearly rendered by any moot action of Georgia House, as it has here Representatives House of Congress. the 91st suggested No one in Bond money claim only issue left in the Furthermore, case. governed considerations which Alejandrino the Court’s decision simply were present in Bond. Because stipulation, State’s there doubt, was no as there is infra, here, see 570-571, the Court’s decision would lead to effective respect relief with salary Bond’s claim. finally, And there suggestion was no that Bond had an alternative remedy, as Powell infra, here, has see at 571-572, which he could obtain full relief requiring without the Court to decide novel and delicate constitu- tional issues. 14Alejandrino Avas only petitioner case, and since he appointed was an Senator, appears there was no group of who voters representation remained without of their choice in the during suspension. Senate his 570 reten- for the Congress15 responsible by each

elected —is the funds Congressmen and disbursement tion payable are salaries. These funds for their appropriated Treasury16 pre- upon requisitions from the United States with at who is entrusted Sergeant Arms, sented compensation accounts “for the books and keeping the has Congressman A who of Members.”17 mileage office18 taken the oath of his credentials and presented of certificates monthly on the basis paid entitled to be is Powell’s Speaker of the House.20 of the Clerk19 and against injunction a mandamus and an prayer for statutory presumably at Arms is based Sergeant scheme. unanswered, how- important remain questions

Several only at Arms the ever, Sergeant on this record. Is the moot so, surely If necessary defendant? case mem- the House respondents, including other on that parties be dismissed as bers, they should than after resolution of difficult consti- ground rather Speech under the or Debate Clause. questions tutional an appropriate far from clear that Powell has But it is respondents. remedy against remaining adequate does not issue the certificates Speaker requisite For if the House does not rescind Resolution No. can and the enjoined to act in direct contraven- agents the House employers? Moreover, orders of their tion of the Congress at Arms of the 90th has now Sergeant office of present serves the 91st Sergeant and the Arms expired, party capacity, If he were made a in that Congress. could the 91st authority he have would —or 15 1, 1890, 6, 26 Act of Stat. U. S. C. 83. Oct. § § 6; Const., I, S. C. 47. U. S. Art. U. § § 80, 78. C. U. S. §§ 182 U. S. C. 35.§ S. C. 34. U. 202 U. S. C. 48.§ salary money for a authority the disburse confer —to par- previous Congress, in the Representative to a owed Pre- of office? who never took the oath ticularly one to the 91st appropriated funds have not been sumably Arms for its at requisitioned by Sergeant or Congress prior Congresses. to members of payment of salaries money record whether it ascertainable from this Nor is if salary by Congress, the 90th for Powell’s appropriated current House and its disposal remains at the any, Sergeant Arms.21 whether, as to are, questions

There then substantial relief against Powell could obtain salary claim, on his if hand, other respondents. or of these On the any all a member of the 90th Con- salary he was entitled to as a remedy completely satisfactory gress, he has a certain United judgment against for a money an action of Claims.22 While court could States the Court that declaratory or entered not have ordered Powell a seated constitutionality exclusion,23 on the judgment his allege Sergeant respondents contradiction without pay Congressman Powell’s at Arms does not have sufficient funds appropriations salary Separate for the salaries back claims. g., year, see, e. 80 Stat. Congressmen are made in each fiscal according respondents, to the “it is 398, and, 81 Stat. 82 Stat. Treasury unex- Sergeant turn to the all the custom of the back only year.” Thus, funds pended funds at the end of each fiscal appropriated Sergeant said to those still held are be year commencing July present fiscal 1968. judg- jurisdiction render shall have “The Court Claims upon upon any against founded either ment claim the United States Constitution, 28 U. S. C. Act 1491. § jurisdiction claims have concurrent over such The district courts only in than 28 U. S. C. amounts less $10,000. ante, King, petitioners suggest p. v. 1. The United States inability grant might of Claims to such relief that the of the Court inadequate. only any remedy in court But since Powell’s make money judg salary, remaining in the case is to collect his interest just good as, probably would be ment in the Court Claims him grant of Claims could disputed the Court is not on the salary ground for lost money judgment the Constitution. discharge from the violated his remedy, Powell to that Congressman I would remit the avail- of the serious doubts about simply because if manda- pursues. of the one he now Even ability appropriate relief Powell is and could tory sought salary be that the claim effective, Court should insist clearly in a that would obviate the litigated context questions need to decide some of the constitutional with which the Court and avoid them grapples today, might In in for altogether.24 an action the Court of Claims the United there would money judgment against States, impact Speech no of question concerning be or Clause on a suit members of the against Debate Representatives House of and their and agents, questions justiciability of if jurisdiction would, all, raised at vastly be in a different and more conventional form. In of Powell’s short, against leg- dismissal action in prejudice islative branch would not his slightest money claim,25 necessity and it would avoid the of decid- than, mandatory against agents better relief of the House. petitioners suggest also the Court of Claims would be grant pendency unable to relief because of the of Powell’s claim court, 1500, course, in another would, U. S. C. but if, suggest, constitute no obstacle Ias the Court should order this grounds action dismissed on of mootness. possible, example, It for the United States in such an deny action would not salary Powell’s entitlement to the would but against seek to offset that sum the amounts which Powell found appropriated the House to unlawfully have from Government coffers to his own use. 25 Relying on Bank England, Marin v. 99, 101, U. S. petitioners complain impose that would hardship it undue on Powell again” force him to all “start over now that he has come this far present in the In suit. view of the Court’s remand of this ease proceedings for further respect with remedy, to Powell’s is at words, petitioners’ which, constitutional issues ing strike system political the bedrock of our [and] ‘‘touch If the representative government.” very at the heart unneces courts from principles restraining fundamental grave to decide reaching out sarily prematurely retain perhaps unsettling questions constitutional A, 346-348 Ashwander TV 297 U. S. vitality, see v. been few surely there have (Brandéis, J., concurring), than this one. application more of their demanding cases respect principles special are entitled to And those relief, declaratory injunctive suits, suit, like this to with a court’s broad discretion which it is within declaratory judg against “We have cautioned hold. public moment, falling even short ments on issues Public constitutionality, speculative situations.” Af Rickover, “Especially Press 369 U. 112. v. S. fairs should involved, action is courts governmental where clear, need for relief is equitable intervene unless the speculative.” Peoples Eccles v. Bank not remote or Village, Lakewood 333 U. S. very I at the prolonged,

If lawsuit is would ascertaining without that least not reach merits effective relief. The Court’s decision can lead to some implicitly question for determination of that remand controversy no may remaining there be recognizes any respond- Powell and of these petitioner between today court, opinion its ents redressable wholly advisory. I see no reason for may good But availability any pass question even to on the court remitting Court of him to an action least doubtful delay much than will be involved Claims would entail more cost litigants present case. And inconvenience to of further in the justify delay litigation departure from has never been deemed to Constitution, important principle, in the issues the sound rooted only necessary law if and in of constitutional should be decided presenting living controversies. cases concrete and respondents. Because the against relief of these against longer of the action them is no purpose essential and far more fully adequate attainable and Powell has a back-pay claim, for his incidental appropriate remedy I relief for and discretionary prayed would withhold claim, salary this lawsuit now. Powell’s terminate dead, against respond- not be but this case all these may I truly Accordingly, moot. would vacate the ents below and remand the directions to judgment case with complaint. dismiss the

Case Details

Case Name: Powell v. McCormack

Court Name: Supreme Court of the United States

Date Published: Oct 13, 1969

Citation: 395 U.S. 486

Docket Number: 138

Court Abbreviation: SCOTUS