Powell and the Law

The 90th Congress has consistently shown its lack of interest in new civil rights legislation and the anti-poverty program. Meanwhile, the people of Harlem continue to have no voice in the House of Representatives. This situation is unlikely to change in the foreseeable future.

Adam Clayton Powell has made it clear that he will wait for the House to invite him to assume the seat to which he was overwhelmingly reelected, but his erstwhile colleagues are in no hurry to do so. The issue will probably have to be resolved, if anywhere, in the courts.

As the case drags on, rational men are likely to become increasingly dismayed by the seeming inability of the judicial machinery to deal with the question. Aside from the political ramifications, the legal complexity of the case is formidable.

The House of Representatives does not operate with the rigor of a court of law, and neither the decision to investigate Powell's eligibility nor the resolution that excluded him specified any reason why he might not be qualified. Basically, however, members cited Powell's misuse of Congressional funds and privileges, and the contempt charges arising from a libel suit against him in New York.

It is not clear that either objection was grounds for exclusion. The Constitution, which allows each house to "be the judge of the elections, returns, and qualifications of its own members," explicitly enumerates these qualifications. Under Article I, section 2, a representative must be at least 25-years old, a citizen for seven years, and an inhabitant of the state he represents. The Fourteenth Amendment excludes those who have fought against the United States or given aid or comfort to her enemies.

Since the inhabitance requirement has always been loosely interpreted, Powell undoubtedly fulfills all of these conditions. The question then becomes whether the House may add its own requirements to those of the Founding Fathers. Justice Story, moreover, has written that "it would seem but fair reasoning, upon the plainest principles of interpretation, that when the Constitution established certain qualifications as necessary for office, it meant to exclude all others as prerequisites." Congress has nevertheless successfully added new requirements by statute, such as the Edmunds Act of 1882 excluding polygamists.

There is no reason to believe, however, that the House is justified in establishing ad hoc, and unspecified, requirements each time it considers barring a member-elect. When the Senate was debating the exclusion of a Utah polygamist, Sen. Knox of Pennsylvania maintained that moral qualifications should remain the province of the electorate, as it expresses itself at the polls, and insisted that Congress restrict itself to objective criteria. But Congress has excluded such unpopular personages as the polygamist; Victor Berger, a Wisconsin Socialist opposed to American participation in World War I; and assorted sympathizers with the South during the Civil War. At least all of these exclusions were supported, however tenuously, by statute or the Constitution. In Powell's case, no such support was cited by the House.

Instead, representatives have justified the action as an extension of their constitutional right to expel members of the House. This extension seems unjustified. As one Law School professor has pointed out, exclusion only requires a majority vote and assumes a preliminary judgement by the electorate; expulsion requires two thirds and seems intended to allow members to deal with a colleague who has acted wrongly once elected. The power of expulsion is lumped together in the Constitution with each chamber's right to "punish its members for disorderly behavior," suggesting that it is intended to protect the regular operation of each session of Congress rather than to impose any moral judgments. Hence the lack of specified grounds for expulsion.

This view is supported by precedent in the history of the House. Rule 238 of Cannon's Precedents states that it "is the custom of the House to defer final action against members under criminal charges pending disposition in the court of last resort." Thus, even if the powers of exclusion and expulsion were not maintained distinct -- giving Congress dangerously broad discretionary power -- the treatment of Powell, if based on his legal troubles in New York, remains unjustified. His libel case is still under appeal.

Compared to the libel suit and attending contempt charges, Powell's alleged misuse of funds provides Congress with stronger grounds for expelling him but a much weaker basis for excluding him. Even the moderate alternative proposed by the House investigating committee, which included fining Powell, could be contested as an unconstitutional bill of attainder. Congress's soundest action against Powell would have been to sue him in court.

Despite his strong legal position, it is not at all clear that Powell can be helped by the courts in his struggle to regain his seat. Certainly Congressional precedent, although without the status of law, would have to be taken into account in any Supreme Court judgment. However, a confrontation between the highest judicial and legislative bodies in the nation would pose special difficulties.

In ruling on Julian Bond's right to sit in the Georgia legislature, which had excluded him for his anti-Vietnam posture, the Supreme Court for the first time overruled such an attempt by a legislature. Unlike Congress, however, state institutions are clearly subordinate under the Constitution to the Federal judiciary. The Supreme Court has been understandably reluctant to try to extend such power to directly oppose Congress, which has control over the Court's appropriations, membership, and jurisdiction. In Kilbourn v. Thompson, it acknowledged that it could not consider charges against Senators for actions performed in their official capacity, but it did allow the Sergeant-at-Arms of the Senate to be sued. Presumably, the Court could order the Clerk of the House to inscribe Powell's name on the list of members, but it would be powerless to force the House to stop treating him as a non-member.

A confrontation might be eased if the Supreme Court simply chose to say that any exclusion based on constitutional qualifications would not be reviewable by the judiciary. The way would then be open for the House to find that Powell is not an inhabitant of New York State, or to admit and then expel him. Regardless of the justice of such action, Powell would have no recourse to the courts; but it would be harder to muster the required majority in the House for such a decision.

The law does not always provide a remedy of injustice. Nor does the law always make allowances for irrational behavior. The House of Representatives found that out when it tried to deal severely with Powell, and the members chose to go beyond their legal powers. Now it may well be Powell's turn to discover that the law makes no allowance for his case.