Ability of Congress to Change Qualifications for Members

prev | next

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.

The Framers appear to have intended that the House and Senate Qualifications Clauses would establish national standards for membership in Congress.1 During debates over qualifications for Members of Congress, delegates to the Constitutional Convention considered and rejected giving Congress discretion to set qualifications requirements on the grounds that such discretion would be susceptible to manipulation and thereby would risk excluding otherwise qualified persons from the national legislature.2 In the Federalist No. 60, Alexander Hamilton addressed the exclusivity of the constitutional qualification requirements, stating: “The qualifications of the persons who may . . . be chosen . . . are defined and fixed in the constitution; and are unalterable by the legislature.” 3

Pursuant to Article I, Section 5, Clause 1, the Constitution provides for each House of Congress to determine whether Members-elect have met the qualification requirements for congressional membership. Article I, Section 5, Clause 1 states: “Each House shall be the Judge of the Elections, Returns, and Qualifications of its own Members.” 4

In determining eligibility to serve in Congress, Congress does not appear to have deviated from Hamilton’s position that qualifications for Congress “are unalterable by the legislature” until the Civil War.5 But in July of 1862, Congress passed a law requiring all persons appointed or elected to the United States Government to take an oath—known as the “Ironclad Test Oath” 6

>https://www.senate.gov/artandhistory/history/common/generic/Civil_War_TestOath1863.htm

—that they had never been, nor ever would be, disloyal to the United States Government.7 Subsequently, both Houses refused seats to several persons because of charges of disloyalty.8 Thereafter, Members sometimes challenged seating Members-elect on grounds such as moral turpitude and bribery with disparate and unpredictable results.9

In 1969, the Supreme Court conclusively established in Powell v. McCormack10 that House qualification requirements set forth at Article I, Section 2, Clause 4, and possibly any other qualification requirements set forth in the Constitution, are exclusive11 and Congress cannot exclude Members-elect, who meet such requirements.12 In Powell, Adam Clayton Powell, Jr. was re-elected to serve in the House of Representatives for the 90th Congress. The House of Representatives, however, denied him a seat based on findings by a Special Subcommittee on Contracts of the Committee on House Administration that Powell had engaged in misconduct during the 89th Congress.13

In determining that Powell was entitled to a declaratory judgment that he had been unlawfully excluded from Congress, the Supreme Court examined the Constitution, Constitutional Convention debates, and how Congress had applied the House qualification requirements in the past. Looking to English parliamentary and colonial legislative practice, the Court noted that these bodies had only excluded officers when they failed to meet standing qualifications.14 The Court further noted that the Constitutional Convention considered and rejected provisions that would have allowed Congress to create property or other qualification requirements without limitation as unworkable.15 And the Court recognized that Alexander Hamilton and James Madison in the Federalist Papers and Hamilton at the New York ratifying convention had stated that the Constitution stipulated exclusive qualification requirements for Members of Congress.16

Examining early congressional practices, the Court noted that Members of Congress, many of whom had participated in the Constitutional Convention, generally took the view that Congress could only exclude Members-elect who failed to meet qualifications expressly prescribed in the Constitution and that this position went unchallenged until the Civil War.17 Finally, the Court reasoned that qualification requirements should be construed narrowly because, to do otherwise, would deprive voters of their choice as to who should represent them in Congress. Referencing James Madison, the Court stated: “A fundamental principle of our representative democracy is . . . ‘that the people should choose whom they please to govern them.’ . . . [T]his principle is undermined as much by limiting whom the people can select as by limiting the franchise itself.” 18 Thus, the Court reasoned, if the House excluded Powell based on qualifications other than those stipulated in the Constitution, the House would impinge on the interests of Powell’s constituents to choose their preferred candidate.19

1: The Senate Qualifications Clause is set forth at Article I, Section 3, Clause 3.
2: 2 Records of the Federal Constitution 248–51 (Max Farrand ed., 1911).
3: The Federalist No. 60 (Alexander Hamilton). See also Joseph Story, Commentaries on the Constitution of the United States §§ 623–27 (1833).
4: U.S. Const. art. I, § 5, cl. 1.
5: All the instances appear to have involved an additional state qualification. Other cases involve challenges under Art. I, § 3, cl. 3. See e.g., R. Hupman, Senate Election, Expulsion and Censure Cases From 1789 to 1960, S. Doc. No. 71 at 1, 87th Cong., 2d sess. (1962) (discussing Albert Gallatin of Pennsylvania).
6: >https://www.senate.gov/artandhistory/history/common/generic/Civil_War_TestOath1863.htm
7: Act of July 2, 1862, 12 Stat. 502.
8: 1 Hinds’ Precedents of the House of Representatives §§ 449, 451, 457 (1907).
9: In 1870, the House excluded a Member-elect who was re-elected after previously resigning when the House instituted expulsion proceedings against him for selling appointments to the Military Academy. Id. at § 464. In 1899, the Senate did not exclude a Member-elect because he practiced polygamy (id. at §§ 474–80) after adopting a rule requiring a two-thirds vote to exclude a Member-elect on those grounds. Id. at §§ 481–483. The House twice excluded a socialist Member-elect in the wake of World War I on allegations of disloyalty. 6 Cannon’s Precedents of the House of Representatives §§ 56–58 (1935). See also S. Rep. No. 1010, 77th Congress, 2d sess. (1942); R. Hupman, Senate Election, Expulsion and Censure Cases From 1789 to 1960, S. Doc. No. 71, at 140, 87th Cong. 2d sess. (1962) (discussing House Committee voting that Senator William Langer of North Dakota was not entitled to a seat based on alleged moral turpitude, including embracing kickbacks, converting proceeds of legal settlements, accepting a bribe, and prematurely paying on advertising contracts and the Senate upholding Senator Langer’s seat); Id. at 140–41 (discussing effort to exclude Senator Tom Stewart of Tennessee on grounds that he contracted with the Tennessee officials to promote candidacies and secure nominations of three men, and, as part of carrying out the agreements, the candidates illegally expended more than $200,000.00 in primary and general elections. The Petition for expulsion was submitted to the Committee and dismissed by unanimous vote without explanation).
10: Powell v. McCormack, 395 U.S. 486 (1969). The Court divided 8-1 with Justice Potter Stewart dissenting on the ground that the case was moot. Id. In U.S. Term Limits, Inc. v. Thornton, the Court affirmed Powell, holding that the House and Senate Qualifications Clauses are exclusive and cannot be augmented by Congress or states. U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 787–98 (1995). Dissenting, Justice Clarence Thomas joined by Justices Sandra Day O’Connor and Antonin Scalia reasoned that, while Congress could not add qualifications because the Constitution had not provided it such powers, the Constitution did not preclude states from doing so. Id. at 875–76, 883.
11: The Court did not address if the Constitution imposes other qualifications, such as Article I, § 3, cl. 7 (disqualifying persons impeached); Article I, § 6, cl. 2 (incompatible offices); and § 3 of the Fourteenth Amendment. Powell v. McCormack, 395 U.S. 486, 520 n.41 (1969). Courts might also consider Article VI, cl. 3, to be a qualification. See Bond v. Floyd, 385 U.S. 116, 129–31 (1966).
12: Powell v. McCormack, 395 U.S. 486, 550 (1969).
13: See H. Rep. No. 27, 90th Cong., 1st sess. (1967); Powell v. McCormack, 395 U.S. 486, 489–90 (1969).
14: Id. at 522–31.
15: Id. at 532–39.
16: Id. at 539–41.
17: Id. at 541–47.
18: Id. at 547 (citations omitted).
19: Protecting the voters’ interest in choosing their representatives is consistent with voters’ constitutionally secured right to cast ballots and have them counted in general elections (Ex parte Yarbrough, 110 U.S. 651 (1884)); and primary elections (United States v. Classic, 313 U.S. 299 (1941)); to cast a ballot undiluted in strength because of unequally populated districts (Wesberry v. Sanders, 376 U.S. 1 (1964)); and to cast a vote for candidates of their choice unfettered by onerous restrictions on candidate qualification for the ballot. Williams v. Rhodes, 393 U.S. 23 (1968).