Legislative Powers

Qualifications and Privileges

Powell v. McCormack (1969)

395 U.S. 486 (1969)

Decision: remanded, reversed in part and affirmed in part
Vote: 8-1
Majority: Warren, joined by Black, Douglas, Harlan, Brennan, White, and Marshall
Concurrence: Douglas
Dissent: Stewart

MR. CHIEF JUSTICE WARREN delivered the opinion of the Court.

In November, 1966, petitioner Adam Clayton Powell, Jr., was duly elected from the 18th Congressional District of New York to serve in the United States House of Representatives for the 90th Congress. However, pursuant to a House resolution, he was not permitted to take his seat. Powell (and some of the voters of his district) then filed suit in Federal District Court, claiming that the House could exclude him only if it found he failed to meet the standing requirements of age, citizenship, and residence contained in Art. I, § 2, of the Constitution — requirements the House specifically found Powell met — and thus had excluded him unconstitutionally.

During the 89th Congress, a Special Subcommittee on Contracts of the Committee on House Administration conducted an investigation into the expenditures of the Committee on Education and Labor, of which petitioner Adam Clayton Powell, Jr., was chairman. The Special Subcommittee issued a report concluding that Powell and certain staff employees had deceived the House authorities as to travel expenses. The report also indicated there was strong evidence that certain illegal salary payments had been made to Powell’s wife at his direction … No formal action was taken during the 89th Congress. However, prior to the organization of the 90th Congress, the Democratic members-elect met in caucus and voted to remove Powell as chairman of the Committee on Education and Labor …

The Select Committee, composed of nine lawyer-members, issued an invitation to Powell to testify before the Committee. The invitation letter stated that the scope of the testimony and investigation would include Powell’s qualifications as to age, citizenship, and residency; his involvement in a civil suit (in which he had been held in contempt), and “[m]atters of … alleged official misconduct since January 3, 1961 … ” Powell appeared at the Committee hearing held on February 8, 1967. After the Committee denied in part Powell’s request that certain adversary-type procedures be followed, Powell testified. He would, however, give information relating only to his age, citizenship, and residency; upon the advice of counsel, he refused to answer other questions …

Then, on February 23, 1967, the Committee issued its report, finding that Powell met the standing qualifications of Art. I, § 2 … However, the Committee further reported that Powell had asserted an unwarranted privilege and immunity from the processes of the courts of New York; that he had wrongfully diverted House funds for the use of others and himself, and that he had made false reports on expenditures of foreign currency to the Committee on House Administration. The Committee recommended that Powell be sworn and seated as a member of the 90th Congress, but that he be censured by the House, fined $40,000, and be deprived of his seniority.

The report was presented to the House on March 1, 1967, and the House debated the Select Committee’s proposed resolution. At the conclusion of the debate, by a vote of 222 to 202 the House rejected a motion to bring the resolution to a vote. An amendment to the resolution was then offered; it called for the exclusion of Powell and a declaration that his seat was vacant. The Speaker ruled that a majority vote of the House would be sufficient to pass the resolution if it were so amended … After further debate, the amendment was adopted by a vote of 248 to 176. Then the House adopted by a vote of 307 to 116 House Resolution No. 278 in its amended form, thereby excluding Powell and directing that the Speaker notify the Governor of New York that the seat was vacant …

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

The District Court granted respondents’ motion to dismiss the complaint “for want of jurisdiction of the subject matter.” The Court of Appeals for the District of Columbia Circuit affirmed on somewhat different grounds, with each judge of the panel filing a separate opinion. We granted certiorari. While the case was pending on our docket, the 90th Congress officially terminated, and the 91st Congress was seated. In November, 1968, Powell was again elected as the representative of the 18th Congressional District of New York, and he was seated by the 91st Congress. The resolution seating Powell also fined him $25,000. Respondents then filed a suggestion of mootness. We postponed further consideration of this suggestion to a hearing on the merits …

As we pointed out in Baker v. Carr, (1962), there is a significant difference between determining whether a federal court has ‘jurisdiction of the subject matter’ and determining whether a cause over which a court has subject matter jurisdiction is ‘justiciable.’

In Baker v. Carr, we noted that a federal district court lacks jurisdiction over the subject matter (1) if the cause does not ‘arise under’ the Federal Constitution, laws, or treaties (or fall within one of the other enumerated categories of Art. III); or (2) if it is not a ‘case or controversy’ within the meaning of that phrase in Art. III; or (3) if the cause is not one described by any jurisdictional statute. And, as in Baker v. Carr, supra, our determination (see Part VI, B(1) infra) that this cause presents no non-justiciable ‘political question’ disposes of respondents’ contentions that this cause is not a ‘case or controversy … ’

Respondents first contend that this is not a case ‘arising under’ the Constitution within the meaning of Art. III …

We reject this contention. Article III, s 1, provides that the ‘judicial Power shall be vested in one supreme Court, and in such inferior Courts as the Congress may establish.’ Further, § 2 mandates that the ‘judicial Power shall extend to all Cases arising under this Constitution.’ It has long been held that a suit ‘arises under’ the Constitution if a petitioner’s claim ‘will be sustained if the Constitution (is) given one construction and will be defeated if (it is) given another … ’ Any bar to federal courts reviewing the judgments made by the House or Senate in excluding a member arises from the allocation of powers between the two branches of the Federal Government (a question of justiciability), and not from the petitioners’ failure to state a claim based on federal law.

Respondents next contend that the Court of Appeals erred in ruling that petitioners’ suit is authorized by a jurisdictional statute, i.e., 28 U.S.C. § 1331(a). Section 1331(a) provides that district courts shall have jurisdiction in ‘all civil actions wherein the matter in controversy arises under the Constitution.’ …

We have noted that the grant of jurisdiction in § 1331(a), while made in the language used in Art. III, is not in all respects co-extensive with the potential for federal jurisdiction found in Art. III … Nevertheless, it has generally been recognized that the intent of the drafters was to provide a broad jurisdictional grant to the federal courts … And, as noted above, the resolution of this case depends directly on construction of the Constitution. The Court has consistently held such suits are authorized by the statute …

… [W]e turn to the question whether the case is justiciable. Two determinations must be made in this regard. First, we must decide whether the claim presented and the relief sought are of the type which admit of judicial resolution. Second, we must determine whether the structure of the Federal Government renders the issue presented a ‘political question’—that is, a question which is not justiciable in federal court because of the separation of powers provided by the Constitution.

In deciding generally whether a claim is justiciable, a court must determine whether ‘the duty asserted can be judicially identified and its breach judicially determined, and whether protection for the right asserted can be judicially molded.’ Baker v. Carr …

Respondents do maintain, however, that this case is not justiciable because, they assert, it is impossible for a federal court to ‘mold effective relief for resolving this case.’ …

We need express no opinion about the appropriateness of coercive relief in this case, for petitioners sought a declaratory judgment, a form of relief the District Court could have issued … The availability of declaratory relief depends on whether there is a live dispute between the parties, Golden v. Zwickler, (1969), and a request for declaratory relief may be considered independently of whether other forms of relief are appropriate … We thus conclude that in terms of the general criteria of justiciability, this case is justiciable.

Respondents maintain that even if this case is otherwise justiciable, it presents only a political question …

Respondents’ first contention is that this case presents a political question because under Art. I, § 5, there has been a ‘textually demonstrable constitutional commitment’ to the House of the ‘adjudicatory power’ to determine Powell’s qualifications. Thus it is argued that the House, and the House alone, has power to determine who is qualified to be a member …

… [W]hether there is a ‘textually demonstrable constitutional commitment of the issue to a coordinate political department’ of government and what is the scope of such commitment are questions we must resolve for the first time in this case …

In order to determine the scope of any ‘textual commitment’ under Art. I, § 5, we necessarily must determine the meaning of the phrase to ‘be the Judge of the Qualifications of its own Members … ’ Our examination of the relevant historical materials leads us to the conclusion that petitioners are correct and that the Constitution leaves the House without authority to exclude any person, duly elected by his constituents, who meets all the requirements for membership expressly prescribed in the Constitution …

The relevancy of prior exclusion cases is limited largely to the insight they afford in correctly ascertaining the draftsmen’s intent. Obviously, therefore, the precedential value of these cases tends to increase in proportion to their proximity to the Convention in 1787. See Myers v. United States, (1926). And, what evidence we have of Congress’ early understanding confirms our conclusion that the House is without power to exclude any member-elect who meets the Constitution’s requirements for membership …

A fundamental principle of our representative democracy is, in Hamilton’s words, ‘that the people should choose whom they please to govern them … ’ As Madison pointed out at the Convention, this principle is undermined as much by limiting whom the people can select as by limiting the franchise itself. In apparent agreement with this basic philosophy, the Convention adopted his suggestion limiting the power to expel. To allow essentially that same power to be exercised under the guise of judging qualifications, would be to ignore Madison’s warning … against ‘vesting an improper & dangerous power in the Legislature.’ Moreover, it would effectively nullify the Convention’s decision to require a two-thirds vote for expulsion. Unquestionably, Congress has an interest in preserving its institutional integrity, but in most cases that interest can be sufficiently safeguarded by the exercise of its power to punish its members for disorderly behavior and, in extreme cases, to expel a member with the concurrence of two-thirds. In short, both the intention of the Framers, to the extent it can be determined, and an examination of the basic principles of our democratic system persuade us that the Constitution does not vest in the Congress a discretionary power to deny membership by a majority vote.

For these reasons, we have concluded that Art. I, § 5, is at most a ‘textually demonstrable commitment’ to Congress to judge only the qualifications expressly set forth in the Constitution. Therefore, the ‘textual commitment’ formulation of the political question doctrine does not bar federal courts from adjudicating petitioners’ claims …

Thus, we conclude that petitioners’ claim is not barred by the political question doctrine, and, having determined that the claim is otherwise generally justiciable, we hold that the case is justiciable.

To summarize, we have determined the following: (1) This case has not been mooted by Powell’s seating in the 91st Congress. (2) Although this action should be dismissed against respondent Congressmen, it may be sustained against their agents. (3) The 90th Congress’ denial of membership to Powell cannot be treated as an expulsion. (4) We have jurisdiction over the subject matter of this controversy. (5) The case is justiciable.

Further, analysis of the ‘textual commitment’ under Art. I, § 5 … has demonstrated that in judging the qualifications of its members Congress is limited to the standing qualifications prescribed in the Constitution. Respondents concede that Powell met these. Thus, there is no need to remand this case to determine whether he was entitled to be seated in the 90th Congress. Therefore, we hold that, since Adam Clayton Powell, Jr., was duly elected by the voters of the 18th Congressional District of New York and was not ineligible to serve under any provision of the Constitution, the House was without power to exclude him from its membership.

Petitioners seek additional forms of equitable relief, including mandamus for the release of petitioner Powell’s backpay. The propriety of such remedies, however, is more appropriately considered in the first instance by the courts below. Therefore, as to respondents McCormack, Albert, Ford, Celler, and Moore, the judgment of the Court of Appeals for the District of Columbia Circuit is affirmed. As to respondents Jennings, Johnson, and Miller, the judgment of the Court of Appeals for the District of Columbia Circuit is reversed, and the case is remanded to the United States District Court for the District of Columbia with instructions to enter a declaratory judgment and for further proceedings consistent with this opinion.

It is so ordered.

MR. JUSTICE STEWART, dissenting.

I believe that events which have taken place since certiorari was granted in this case on November 18, 1968, have rendered it moot, and that the Court should therefore refrain from deciding the novel, difficult, and delicate constitutional questions which the case presented at its inception.

The essential purpose of this lawsuit by Congressman Powell and members of his constituency was to regain the seat from which he was barred by the 90th Congress. That purpose, however, became impossible of attainment on January 3, 1969, when the 90th Congress passed into history and the 91st Congress came into being. On that date, the petitioners’ prayer for a judicial decree restraining enforcement of House Resolution No. 278 and commanding the respondents to admit Congressman Powell to membership in the 90th Congress became incontestably moot.

The petitioners assert that actions of the House of Representatives of the 91st Congress have prolonged the controversy raised by Powell’s exclusion and preserved the need for a judicial declaration in this case. I believe, to the contrary, that the conduct of the present House of Representatives confirms the mootness of the petitioners’ suit against the 90th Congress. Had Powell been excluded from the 91st Congress, he might argue that there was a “continuing controversy” concerning the exclusion attacked in this case. And such an argument might be sound even though the present House of Representatives is a distinct legislative body, rather than a continuation of its predecessor, and though any grievance caused by conduct of the 91st Congress is not redressable in this action. But on January 3, 1969, the House of Representatives of the 91st Congress admitted Congressman Powell to membership, and he now sits as the Representative of the 18th Congressional District of New York. With the 90th Congress terminated and Powell now a member of the 91st, it cannot seriously be contended that there remains a judicial controversy between these parties over the power of the House of Representatives to exclude Powell and the power of a court to order him reseated …

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

This Court has not in the past found that an incidental claim for back pay preserves the controversy between a legislator and the legislative body which evicted him, once the term of his eviction has expired. Alejandrino v. Quezon [1926], was a case nearly identical to that before the Court today. The petitioner was a member of the Senate of the Philippines who had been suspended for one year for assaulting a colleague. He brought an action in the Supreme Court of the Philippines against the elected members of the Senate and its officers and employees (the President, Secretary, Sergeant at Arms, and Paymaster), seeking a writ of mandamus and an injunction restoring him to his seat and to all the privileges and emoluments of office. The Supreme Court of the Philippines dismissed the action for want of jurisdiction, and Alejandrino brought the case here, arguing that the suspension was not authorized by the Philippine Autonomy Act, a statute which incorporated most of the provisions of Article I of the United States Constitution. Because the period of the suspension had expired while the case was pending on certiorari, a unanimous Court, in an opinion by Chief Justice Taft, vacated the judgment and remanded the case with directions to dismiss it as moot …


Gravel v. United States (1972)

408 U.S. 606 (1972)

Decision: vacated and remanded
Vote: 5-4
Majority: White, joined by Burger, Blackmun, Powell, and Rehnquist
Dissent: Stewart (in part)
Dissent: Douglas
Dissent: Brennan, joined by Douglas and Marshall

Opinion of the Court by MR. JUSTICE WHITE, announced by MR. JUSTICE BLACKMUN.

These cases arise out of the investigation by a federal grand jury into possible criminal conduct with respect to the release and publication of a classified Defense Department study entitled History of the United States Decision-Making Process on Viet Nam Policy. This document, popularly known as the Pentagon Papers, bore a Defense security classification of Top Secret-Sensitive. The crimes being investigated included the retention of public property or records with intent to convert (18 U.S.C. § 641), the gathering and transmitting of national defense information (18 U.S.C. § 73), the concealment or removal of public records or documents (18 U.S.C. § 2071), and conspiracy to commit such offenses and to defraud the United States (18 U.S.C. § 371) …

It appeared that, on the night of June 29, 1971, Senator Gravel, as Chairman of the Subcommittee on Buildings and Grounds of the Senate Public Works Committee, convened a meeting of the subcommittee and there read extensively from a copy of the Pentagon Papers. He then placed the entire 47 volumes of the study in the public record. Rodberg had been added to the Senator’s staff earlier in the day and assisted Gravel in preparing for and conducting the hearing. Some weeks later there were press reports that Gravel had arranged for the papers to be published by Beacon Press and that members of Gravel’s staff had talked with Webber as editor of M.I.T. Press …

Agreeing that Senator and aide were one for the purposes of the Speech or Debate Clause, and that the Clause foreclosed inquiry of both Senator and aide with respect to legislative acts, the Court of Appeals also viewed the privilege as barring direct inquiry of the Senator or his aide, but not of third parties, as to the sources of the Senator’s information used in performing legislative duties. Although it did not consider private publication by the Senator or Beacon Press to be protected by the Constitution, the Court of Appeals apparently held that neither Senator nor aide could be questioned about it because of a common law privilege akin to the judicially created immunity of executive officers from liability for libel contained in a news release issued in the course of their normal duties. See Barr v. Matteo,  (1959). This privilege, fashioned by the Court of Appeals, would not protect third parties from similar inquiries before the grand jury …

The United States petitioned for certiorari challenging the ruling that aides and other persons may not be questioned with respect to legislative acts and that an aide to a Member of Congress has a common law privilege not to testify before a grand jury with respect to private publication of materials introduced into a subcommittee record. Senator Gravel also petitioned for certiorari seeking reversal of the Court of Appeals insofar as it held private publication unprotected by the Speech or Debate Clause and asserting that the protective order of the Court of Appeals too narrowly protected against inquiries that a grand jury could direct to third parties. We granted both petitions.

Because the claim is that a Member’s aide shares the Member’s constitutional privilege, we consider first whether and to what extent Senator Gravel himself is exempt from process or inquiry by a grand jury investigating the commission of a crime. Our frame of reference is Art. I, § 6, cl. 1, of the Constitution …

The last sentence of the Clause provides Members of Congress with two distinct privileges. Except in cases of “Treason, Felony and Breach of the Peace,” the Clause shields Members from arrest while attending or traveling to and from a session of their House. History reveals, and prior cases so hold, that this part of the Clause exempts Members from arrest in civil cases only. “When the Constitution was adopted, arrests in civil suits were still common in America. It is only to such arrests that the provision applies.” Long v. Ansell, (1934) …

It is, therefore, sufficiently plain that the constitutional freedom from arrest does not exempt Members of Congress from the operation of the ordinary criminal laws, even though imprisonment may prevent or interfere with the performance of their duties as Members …

Senator Gravel disavows any assertion of general immunity from the criminal law. But he points out that the last portion of § 6 affords Members of Congress another vital privilege they may not be questioned in any other place for any speech or debate in either House. The claim is not that, while one part of § 6 generally permits prosecutions for treason, felony, and breach of the peace, another part nevertheless broadly forbids them. Rather, his insistence is that the Speech or Debate Clause, at the very least, protects him from criminal or civil liability and from questioning elsewhere than in the Senate, with respect to the events occurring at the subcommittee hearing at which the Pentagon Papers were introduced into the public record. To us this claim is incontrovertible.

The Speech or Debate Clause was designed to assure a co-equal branch of the government wide freedom of speech, debate, and deliberation without intimidation or threats from the Executive Branch. It thus protects Members against prosecutions that directly impinge upon or threaten the legislative process. We have no doubt that Senator Gravel may not be made to answer either in terms of questions or in terms of defending himself from prosecution — for the events that occurred at the subcommittee meeting …

Even so, the United States strongly urges that, because the Speech or Debate Clause confers a privilege only upon “Senators and Representatives,” Rodberg himself has no valid claim to constitutional immunity from grand jury inquiry. In our view, both courts below correctly rejected this position …

… [B]oth courts recognized what the Senate of the United States urgently presses here: that it is literally impossible, in view of the complexities of the modern legislative process, with Congress almost constantly in session and matters of legislative concern constantly proliferating, for Members of Congress to perform their legislative tasks without the help of aides and assistants; that the day-to-day work of such aides is so critical to the Members’ performance that they must be treated as the latter’s alter egos; and that, if they are not so recognized, the central role of the Speech or Debate Clause — to prevent intimidation of legislators by the Executive and accountability before a possibly hostile judiciary, United States v. Johnson, (1966) — will inevitably be diminished and frustrated …

The United States fears the abuses that history reveals have occurred when legislators are invested with the power to relieve others from the operation of otherwise valid civil and criminal laws. But these abuses, it seems to us, are for the most part obviated if the privilege applicable to the aide is viewed, as it must be, as the privilege of the Senator, and invocable only by the Senator or by the aide on the Senator’s behalf, and if, in all events, the privilege available to the aide is confined to those services that would be immune legislative conduct if performed by the Senator himself. This view places beyond the Speech or Debate Clause a variety of services characteristically performed by aides for Members of Congress, even though within the scope of their employment. It likewise provides no protection for criminal conduct threatening the security of the person or property of others, whether performed at the direction of the Senator in preparation for or in execution of a legislative act or done without his knowledge or direction. Neither does it immunize Senator or aide from testifying at trials or grand jury proceedings involving third-party crimes where the questions do not require testimony about or impugn a legislative act. Thus, our refusal to distinguish between Senator and aide in applying the Speech or Debate Clause does not mean that Rodberg is for all purposes exempt from grand jury questioning.

We are convinced also that the Court of Appeals correctly determined that Senator Gravel’s alleged arrangement with Beacon Press to publish the Pentagon Papers was not protected speech or debate within the meaning of Art. I, § 6, cl. 1, of the Constitution …

Prior cases have read the Speech or Debate Clause “broadly to effectuate its purposes,” United States v. Johnson, (1966) and have included within its reach anything “generally done in a session of the House by one of its members in relation to the business before it … ”

But the Clause has not been extended beyond the legislative sphere. That Senators generally perform certain acts in their official capacity as Senators does not necessarily make all such acts legislative in nature. Members of Congress are constantly in touch with the Executive Branch of the Government and with administrative agencies — they may cajole, and exhort with respect to the administration of a federal statute — but such conduct, though generally done, is not protected legislative activity …

Here, private publication by Senator Gravel through the cooperation of Beacon Press was in no way essential to the deliberations of the Senate; nor does questioning as to private publication threaten the integrity or independence of the Senate by impermissibly exposing its deliberations to executive influence. The Senator had conducted his hearings; the record and any report that was forthcoming were available both to his committee and the Senate. Insofar as we are advised, neither Congress nor the full committee ordered or authorized the publications. We cannot but conclude that the Senator’s arrangements with beacon Press were not part and parcel of the legislative process …

We must finally consider, in the light of the foregoing, whether the protective order entered by the Court of Appeals is an appropriate regulation of the pending grand jury proceedings.

Focusing first on paragraph two of the order, we think the injunction against interrogating Rodberg with respect to any act, “in the broadest sense,” performed by him within the scope of his employment, overly restricts the scope of grand jury inquiry. Rodberg’s immunity, testimonial or otherwise, extends only to legislative act as to which the Senator himself would be immune. The grand jury, therefore, if relevant to its investigation into the possible violations of the criminal law, and absent Fifth Amendment objections, may require from Rodberg answers to questions relating to his or the Senator’s arrangement, if any, with respect to republication or with respect to third-party conduct under valid investigation by the grand jury, as long as the questions do not implicate legislative action of the Senator. Neither do we perceive any constitutional or other privilege that shields Rodberg, any more than any other witness, from grand jury question relevant to tracing the source of obviously highly classified documents that came into the Senator’s possession and are the basic subject matter of inquiry in this case, as long as no legislative act is implicated by the questions.

Because the Speech or Debate Clause privilege applies both to Senator and aide, it appear to us that paragraph one of the order, alone, would afford ample protection for the privilege if it forbade questioning any witness, including Rodberg: (1) concerning the Senator’s conduct, or the conduct of his aides at the June 29, 1971, meeting of the subcommittee; (2) concerning the motives and purposes behind the Senator’ conduct, or that of his aides, at that meeting; (3) concerning communications between the Senator and his aides during the term of their employment and related to said meeting or any other legislative act of the Senator; (4) except as it proves relevant to investigating possible third-party crime, concerning any act, in itself, not criminal, performed by the Senator, or by his aides in the course of their employment, in preparation for the subcommittee hearing. We leave the final form of such an order to the Court of Appeals in the first instance, or, if that court prefers, to the District Court.

The judgment of the Court of Appeals is vacated, and the cases are remanded to that court for further proceedings consistent with this opinion.

So ordered.


U.S. Term Limits, Inc. v. Thornton (1995)

514 U.S. 779 (1995)

Decision: affirmed
Vote: 5-4
Majority: Stevens, joined by Kennedy, Souter, Ginsburg, and Breyer
Concurrence: Kennedy
Dissent: Thomas, joined by Rehnquist, O’Connor, and Scalia

JUSTICE STEVENS delivered the opinion of the Court.

The Constitution sets forth qualifications for membership in the Congress of the United States. Article I, § 2, cl. 2, which applies to the House of Representatives, provides:

“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 … ” [A similar clause applies to the Senate.]

Today’s cases present a challenge to an amendment to the Arkansas State Constitution that prohibits the name of an otherwise-eligible candidate for Congress from appearing on the general election ballot if that candidate has already served three terms in the House of Representatives or two terms in the Senate. The Arkansas Supreme Court held that the amendment violates the Federal Constitution. We agree with that holding. Such a state-imposed restriction is contrary to the “fundamental principle of our representative democracy,” embodied in the Constitution, that “the people should choose whom they please to govern them.” Powell v. McCormack (1969). Allowing individual States to adopt their own qualifications for congressional service would be inconsistent with the Framers’ vision of a uniform National Legislature representing the people of the United States. If the qualifications set forth in the text of the Constitution are to be changed, that text must be amended.

At the general election on November 3, 1992, the voters of Arkansas adopted Amendment 73 to their State Constitution. Proposed as a “Term Limitation Amendment … ” The limitations in Amendment 73 apply to three categories of elected officials. Section 1 provides that no elected official in the executive branch of the state government may serve more than two 4-year terms. Section 2 applies to the legislative branch of the state government; it provides that no member of the Arkansas House of Representatives may serve more than three 2-year terms and no member of the Arkansas Senate may serve more than two 4-year terms. Section 3, the provision at issue in these cases, applies to the Arkansas Congressional Delegation …

[T]he constitutionality of Amendment 73 depends critically on the resolution of two distinct issues. The first is whether the Constitution forbids States to add to or alter the qualifications specifically enumerated in the Constitution. The second is, if the Constitution does so forbid, whether the fact that Amendment 73 is formulated as a ballot access restriction rather than as an outright disqualification is of constitutional significance. Our resolution of these issues draws upon our prior resolution of a related but distinct issue: whether Congress has the power to add to or alter the qualifications of its Members …

Our decision in Powell and its historical analysis were consistent with prior decisions from state courts …

[A]fter examining Powell’s historical analysis and its articulation of the “basic principles of our democratic system,” we reaffirm that the qualifications for service in Congress set forth in the text of the Constitution are “fixed,” at least in the sense that they may not be supplemented by Congress.

Our reaffirmation of Powell does not necessarily resolve the specific questions presented in these cases. For petitioners argue that whatever the constitutionality of additional qualifications for membership imposed by Congress, the historical and textual materials discussed in Powell do not support the conclusion that the Constitution prohibits additional qualifications imposed by States. In the absence of such a constitutional prohibition, petitioners argue, the Tenth Amendment and the principle of reserved powers require that States be allowed to add such qualifications …

Petitioners argue that the Constitution contains no express prohibition against state-added qualifications, and that Amendment 73 is therefore an appropriate exercise of a State’s reserved power to place additional restrictions on the choices that its own voters may make. We disagree for two independent reasons. First, we conclude that the power to add qualifications is not within the “original powers” of the States, and thus is not reserved to the States by the Tenth Amendment. Second, even if States possessed some original power in this area, we conclude that the Framers intended the Constitution to be the exclusive source of qualifications for Members of Congress, and that the Framers thereby “divested” States of any power to add qualifications …

Contrary to petitioners’ assertions, the power to add qualifications is not part of the original powers of sovereignty that the Tenth Amendment reserved to the States. Petitioners’ Tenth Amendment argument misconceives the nature of the right at issue because that Amendment could only “reserve” that which existed before. As Justice Story recognized, “the states can exercise no powers whatsoever, which exclusively spring out of the existence of the national government, which the constitution does not delegate to them. … No state can say, that it has reserved, what it never possessed … ” 1 Story §627.

Two other sections of the Constitution further support our view of the Framers’ vision. First, consistent with Story’s view, the Constitution provides that the salaries of representatives should “be ascertained by Law, and paid out of the Treasury of the United States,” Art. I, § 6, rather than by individual States. The salary provisions reflect the view that representatives owe their allegiance to the people, and not to the States. Second, the provisions governing elections reveal the Framers’ understanding that powers over the election of federal officers had to be delegated to, rather than reserved by, the States. It is surely no coincidence that the context of federal elections provides one of the few areas in which the Constitution expressly requires action by the States …

In short, as the Framers recognized, electing representatives to the National Legislature was a new right, arising from the Constitution itself. The Tenth Amendment thus provides no basis for concluding that the States possess reserved power to add qualifications to those that are fixed in the Constitution. Instead, any state power to set the qualifications for membership in Congress must derive not from the reserved powers of state sovereignty, but rather from the delegated powers of national sovereignty. In the absence of any constitutional delegation to the States of power to add qualifications to those enumerated in the Constitution, such a power does not exist …

Petitioners attempt to overcome this formidable array of evidence against the States’ power to impose qualifications by arguing that the practice of the States immediately after the adoption of the Constitution demonstrates their understanding that they possessed such power. One may properly question the extent to which the States’ own practice is a reliable indicator of the contours of restrictions that the Constitution imposed on States, especially when no court has ever upheld a state-imposed qualification of any sort. But petitioners’ argument is unpersuasive even on its own terms. At the time of the Convention, “[a]lmost all the State Constitutions required members of their Legislatures to possess considerable property.” Despite this near uniformity, only one because the voters of Arkansas, in adopting Amendment 73, were acting as citizens of the State of Arkansas, and not as citizens of the National Government. The people of the State of Arkansas have no more power than does the Arkansas Legislature to supplement the qualifications for service in Congress. As Chief Justice Marshall emphasized in McCulloch, “Those means are not given by the people of a particular State, not given by the constituents of the legislature, … but by the people of all the States … ”

In sum, the available historical and textual evidence, read in light of the basic principles of democracy underlying the Constitution and recognized by this Court in Powell, reveal the Framers’ intent that neither Congress nor the States should possess the power to supplement the exclusive qualifications set forth in the text of the Constitution …

Petitioners argue that, even if States may not add qualifications, Amendment 73 is constitutional because it is not such a qualification, and because Amendment 73 is a permissible exercise of state power to regulate the “Times, Places and Manner of holding Elections.” We reject these contentions.

Unlike §§ 1 and 2 of Amendment 73, which create absolute bars to service for long-term incumbents running for state office, § 3 merely provides that certain Senators and Representatives shall not be certified as candidates and shall not have their names appear on the ballot. They may run as write-in candidates and, if elected, they may serve. Petitioners contend that only a legal bar to service creates an impermissible qualification, and that Amendment 73 is therefore consistent with the Constitution …

In our view, Amendment 73 is an indirect attempt to accomplish what the Constitution prohibits Arkansas from accomplishing directly. As the plurality opinion of the Arkansas Supreme Court recognized, Amendment 73 is an “effort to dress eligibility to stand for Congress in ballot access clothing,” because the “intent and the effect of Amendment 73 are to disqualify congressional incumbents from further service.” We must, of course, accept the state court’s view of the purpose of its own law: We are thus authoritatively informed that the sole purpose of § 3 of Amendment 73 was to attempt to achieve a result that is forbidden by the Federal Constitution. Indeed, it cannot be seriously contended that the intent behind Amendment 73 is other than to prevent the election of incumbents. The preamble of Amendment 73 states explicitly: “[T]he people of Arkansas … herein limit the terms of elected officials.” Sections 1 and 2 create absolute limits on the number of terms that may be served. There is no hint that § 3 was intended to have any other purpose …

The merits of term limits, or “rotation,” have been the subject of debate since the formation of our Constitution when the Framers unanimously rejected a proposal to add such limits to the Constitution. The cogent arguments on both sides of the question that were articulated during the process of ratification largely retain their force today. Over half the States have adopted measures that impose such limits on some offices either directly or indirectly, and the Nation as a whole, notably by constitutional amendment, has imposed a limit on the number of terms that the President may serve. Term limits, like any other qualification for office, unquestionably restrict the ability of voters to vote for whom they wish. On the other hand, such limits may provide for the infusion of fresh ideas and new perspectives, and may decrease the likelihood that representatives will lose touch with their constituents. It is not our province to resolve this longstanding debate.

We are, however, firmly convinced that allowing the several States to adopt term limits for congressional service would effect a fundamental change in the constitutional framework. Any such change must come not by legislation adopted either by Congress or by an individual State, but rather-as have other important changes in the electoral process through the amendment procedures set forth in Article V. The Framers decided that the qualifications for service in the Congress of the United States be fixed in the Constitution and be uniform throughout the Nation. That decision reflects the Framers’ understanding that Members of Congress are chosen by separate constituencies, but that they become, when elected, servants of the people of the United States. They are not merely delegates appointed by separate, sovereign States; they occupy offices that are integral and essential components of a single National Government. In the absence of a properly passed constitutional amendment, allowing individual States to craft their own qualifications for Congress would thus erode the structure envisioned by the Framers, a structure that was designed, in the words of the Preamble to our Constitution, to form a “more perfect Union.”

The judgment is affirmed.

It is so ordered.

Justice Thomas, with whom the Chief Justice, Justice O’Connor, and Justice Scalia, join, dissenting.

It is ironic that the Court bases today’s decision on the right of the people to “choose whom they please to govern them.” Under our Constitution, there is only one State whose people have the right to “choose whom they please” to represent Arkansas in Congress. The Court holds, however, that neither the elected legislature of that State nor the people themselves (acting by ballot initiative) may prescribe any qualifications for those representatives. The majority therefore defends the right of the people of Arkansas to “choose whom they please to govern them” by invalidating a provision that won nearly 60% of the votes cast in a direct election and that carried every congressional district in the State.

I dissent. Nothing in the Constitution deprives the people of each State of the power to prescribe eligibility requirements for the candidates who seek to represent them in Congress. The Constitution is simply silent on this question. And where the Constitution is silent, it raises no bar to action by the States or the people.

Because the majority fundamentally misunderstands the notion of “reserved” powers, I start with some first principles. Contrary to the majority’s suggestion, the people of the States need not point to any affirmative grant of power in the Constitution in order to prescribe qualifications for their representatives in Congress, or to authorize their elected state legislators to do so.

Our system of government rests on one overriding principle: All power stems from the consent of the people. To phrase the principle in this way, however, is to be imprecise about something important to the notion of “reserved” powers. The ultimate source of the Constitution’s authority is the consent of the people of each individual State, not the consent of the undifferentiated people of the Nation as a whole.

The ratification procedure erected by Article VII makes this point clear. The Constitution took effect once it had been ratified by the people gathered in convention in nine different States. But the Constitution went into effect only “between the States so ratifying the same,” Art. VII; it did not bind the people of North Carolina until they had accepted it. In Madison’s words, the popular consent upon which the Constitution’s authority rests was “given by the people, not as individuals composing one entire nation, but as composing the distinct and independent States to which they respectively belong.” The Federalist No. 39, p. 243 …

When they adopted the Federal Constitution, of course, the people of each State surrendered some of their authority to the United States (and hence to entities accountable to the people of other States as well as to themselves). They affirmatively deprived their States of certain powers, see, e. g., Art. I, § 10, and they affirmatively conferred certain powers upon the Federal Government, see, e. g., Art. I, § 8. Because the people of the several States are the only true source of power, however, the Federal Government enjoys no authority beyond what the Constitution confers …

In each State, the remainder of the people’s powers”[t]he powers not delegated to the United States by the Constitution, nor prohibited by it to the States,” Arndt. lO-are either delegated to the state government or retained by the people. The Federal Constitution does not specify which of these two possibilities obtains; it is up to the various state constitutions to declare which powers the people of each State have delegated to their state government …

These basic principles are enshrined in the Tenth Amendment, which declares that all powers neither delegated to the Federal Government nor prohibited to the States “are reserved to the States respectively, or to the people.” With this careful last phrase, the Amendment avoids taking any position on the division of power between the state governments and the people of the States: It is up to the people of each State to determine which “reserved” powers their state government may exercise. But the Amendment does make clear that powers reside at the state level except where the Constitution removes them from that level. All powers that the Constitution neither delegates to the Federal Government nor prohibits to the States are controlled by the people of each State …

In short, the notion of popular sovereignty that undergirds the Constitution does not erase state boundaries, but rather tracks them …

The majority is therefore quite wrong to conclude that the people of the States cannot authorize their state governments to exercise any powers that were unknown to the States when the Federal Constitution was drafted. Indeed, the majority’s position frustrates the apparent purpose of the Amendment’s final phrase. The Amendment does not preempt any limitations on state power found in the state constitutions, as it might have done if it simply had said that the powers not delegated to the Federal Government are reserved to the States. But the Amendment also does not prevent the people of the States from amending their state constitutions to remove limitations that were in effect when the Federal Constitution and the Bill of Rights were ratified …

I take it to be established, then, that the people of Arkansas do enjoy “reserved” powers over the selection of their representatives in Congress. Purporting to exercise those reserved powers, they have agreed among themselves that the candidates covered by § 3 of Amendment 73-those whom they have already elected to three or more terms in the House of Representatives or to two or more terms in the Senate-should not be eligible to appear on the ballot for reelection, but should nonetheless be returned to Congress if enough voters are sufficiently enthusiastic about their candidacy to write in their names. Whatever one might think of the wisdom of this arrangement, we may not override the decision of the people of Arkansas unless something in the Federal Constitution deprives them of the power to enact such measures.

… the fact that the Constitution specifies certain qualifications that the Framers deemed necessary to protect the competence of the National Legislature does not imply that it strips the people of the individual States of the power to protect their own interests by adding other requirements for their own representatives.

… No matter how narrowly construed, however, today’s decision reads the Qualifications Clauses to impose substantial implicit prohibitions on the States and the people of the States. I would not draw such an expansive negative inference from the fact that the Constitution requires Members of Congress to be a certain age, to be inhabitants of the States that they represent, and to have been United States citizens for a specified period. Rather, I would read the Qualifications Clauses to do no more than what they say. I respectfully dissent.


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Government Powers and Limitations Copyright © 2024 by Rorie Spill Solberg is licensed under a Creative Commons Attribution 4.0 International License, except where otherwise noted.

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