What can the House do about George Santos?
Conn Carroll
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After reports that incoming Rep. George Santos (R-NY) did not attend the college he claims, does not have the Jewish ancestry he claims, and may have even been married to a woman despite claiming to be gay, incoming House Minority Leader Hakeem Jeffries (D-NY) is now questioning whether he should be allowed in Congress.
“We’ll see what happens on Jan. 3,” Jeffries said at a press conference Wednesday. “It’s an open question to me as to whether this is the type of individual that the incoming majority should welcome to Congress. That’s a question for Kevin McCarthy at this point in time.”
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But there is not a lot McCarthy can do on Jan. 3, even if he does win the speaker election that same day.
Article I, Section 5 of the Constitution does say that “each House shall be the Judge of the Elections, Returns and Qualifications of its own Members.” And in 1967, Speaker of the House John William McCormack used this authority to refuse to administer the oath of office to Rep. Adam Clayton Powell (D-NY), who had kept his former third wife on his staff’s payroll in contravention of House rules. The House would later pass a resolution excluding Powell from Congress.
But Powell sued to be seated, and the Supreme Court eventually held that the House could only use its Article I, Section 5, Clause 1 powers to exclude a member from being seated if that member failed to meet the specific criteria for membership in the House as enumerated by Article I, Section 2, Clause 2: “No Person shall be a Representative who shall not have attained to the Age of twenty five Years, and been seven Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State in which he shall be chosen.”
In a concurrence to the majority opinion, however, Justice William O. Douglas noted that “if this were an expulsion case I would think that no justiciable controversy would be presented.”
In other words, Douglas was signaling that if the House had expelled Powell under its Article I, Section 5, Clause 2 “expulsion” power instead of its Article I, Section 5, Clause 1 “exclusion” power, then the Supreme Court would not have interfered in the case. That’s because the expulsion of House members is a political question best left to the electorally accountable House, not the electorally unaccountable Supreme Court.
Article I, Section 5, Clause 2 reads, “Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behavior, and, with the Concurrence of two thirds, expel a Member.”
Five members of the House and 15 members of the Senate have been expelled pursuant to this clause. None successfully challenged their expulsions in court. But expulsion requires a vote from two-thirds of House members, and it is extremely unlikely that enough Republicans would join with the Democrats to reach the necessary two-thirds requirement.
Unlike senators, who face voters only every six years, House members face voters every two years. If the voters have a problem with Santos, they can punish him at the ballot box in 2024.
For his part, Powell’s constituents clearly didn’t care that he violated House rules by using taxpayer funds to pay off his ex-wife. He was reelected in 1968 and served in Congress through 1971.
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