Constitution Could Prohibit Congress From Denying Seat to Congressman-Elect Santos — Even If He Did Lie

As Congress wrestles with what to do about Representative-elect George Santos and his reams of fabrications, the biggest stumbling block may be the Constitution he could soon be asked to swear to uphold. Article I, Section 5 of the national parchment grants Congress a healthy measure of self-government: “Each House shall be the judge of the elections, returns and qualifications of its own members.” Voters elect representatives, but the chambers police themselves. That scope, however, was narrowed in Adam Clayton Powell v. McCormack, a 1969 case that held that if a duly elected member satisfies the age, citizenship, and residence requirements laid out in Article I, Section 2, his colleagues are powerless to exclude him. No matter the sin, the seat is his. That important guardrail against lawmakers nixing the will of the people is in sharp relief in the wake of Mr. Santos’s blizzard of fabrications. Reporters at the New York Times uncovered lies about his education, his work experience, his sexuality, his religion, and his claims to be a descendent of Holocaust survivors. All of this has come to light after Mr. Santos convinced Long Islanders to send him to Congress by a nearly double-digit margin over his Democratic opponent, Robert Zimmerman. In an interview with the Post, Mr. Santos as much as admitted that his paper trail is rife with forgery, admitting to “résumé embellishment.” He nevertheless tells WABC radio, “I will be sworn in. I will take office.” More than half a century ago, Adam Clayton Powell, the one-time doyen of Harlem politics, faced an effort to bar him from the seat he won. The old-school politician was dogged by allegations of corruption, racially motivated or otherwise. He would eventually win at the high court, only to lose an election the next year to Charles Rangel, who would go on to be a powerful figure in his own right as chairman of Ways and Means. In the words of Chief Justice Warren, Powell’s fellow Democrats concluded that “Powell and certain staff employees had deceived the House authorities as to travel expenses” and found “strong evidence that certain illegal salary payments had been made to Powell’s wife at his direction.” They decided to boot him. Not so fast, the court warned. Powell was eventually seated in the next Congress, and an effort was made to declare his suit moot. He was able to press the case anyhow because, as the chief justice explained, the “Sergeant at Arms refused to pay Powell’s salary” and the “Doorkeeper threatened to deny Powell admission to the House chamber.”The Constitution does provide Congress with authority to “punish its members for disorderly behavior, and, with the concurrence of two thirds, expel a member.” Should Mr. Santos refuse to resign, the only way to toss him would be via a super-majority of the Republican-controlled 118th Congress.The Powell court drew a sharp distinction between “exclusion” and “expulsion,” meaning that blocking an elected member from sitting is forbidden, while expulsion is allowed, albeit difficult. Powell had not been seated, and the court refused to “speculate what the result might have been if Powell had been seated and expulsion proceedings subsequently instituted.”Chief Justice Warren, siding with Powell and providing Mr. Santos with a powerful precedent, explained that a “fundamental principle of our representative democracy” is — as Alexander Hamilton said during New York’s constitutional ratifying session — “that the people should choose whom they please to govern them.”

Constitution Could Prohibit Congress From Denying Seat to Congressman-Elect Santos — Even If He Did Lie

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