Powell v. Mccormack, 395 U.S. 486, argued 21 Apr. 1969, decided 16 June 1969 by vote of 8 to 1; Warren for the Court, Douglas concurring, Stewart in dissent. In 1966 the flamboyant black congressman Adam Clayton Powell, Jr. was reelected by the Harlem constituency he had served since 1942. Because of allegations about improper use of congressional funds (and because, his supporters contended, he was about to become chairman of the House Labor and Education Committee), the House of Representatives refused to permit Powell to take his seat at the beginning of the Ninetieth Congress. A select committee reported that he met the qualifications of age, residency, and citizenship specified in Article I, section 2, but concluded that he was guilty of various improprieties. It recommended that he be sworn in and seated but fined and deprived of his seniority (and thus his chairmanship). This was rejected by the House, which then voted, 307 to 116, to exclude him from the Ninetieth Congress and declare his seat vacant.
Powell and some of his supporters then filed suit in federal court, seeking a
declaratory judgment that he had been improperly excluded, an
injunction prohibiting the House from excluding him, and back pay. While the suit was pending, Powell was reelected to the Ninety‐first Congress. He was permitted to take his seat but fined and stripped of his seniority and chairmanship.
The Supreme Court held that a lawsuit against members of Congress, including House Speaker John McCormack, violated the legislative immunity protected by the
Speech and Debate Clause of Article I, section 6, and removed them as defendants. But it ruled that the suit could be maintained against employees of the House such as the doorkeeper and sergeant‐at‐arms.
The government argued that Powell's lawsuit should be dismissed because Congress's decision to exclude one of its members constituted a nonjusticiable political question. Under the doctrine of
Baker v. Carr (1962),
political questions that courts should not decide include those where the Constitution has made a “textually demonstrable commitment” to another branch of government to exercise a particular power (p. 518). Congress, the Court said, had only the exclusive authority to judge the qualifications of its members as specified in Article I, section 2. Powell met those qualifications and thus exclusion for any other reason was reviewable—and, at least in this case, unconstitutional.
The Court also considered whether the vote to exclude could also be taken as a vote to expel, since the two‐thirds requirement for expulsion had been met. It observed, however, that the House had been advised by the speaker that it was voting to exclude and that only a majority vote was needed. Furthermore the rules of the House disfavored expulsion for misbehavior in a prior Congress. Thus a vote to exclude could not be transformed retroactively into a vote to expel; expulsion and exclusion are not equivalents.
If Powell had actually been expelled for misconduct, could the Supreme Court have reviewed the case or would this also have constituted a nonjusticiable political question? The Court gave no formal answer, although Justice William O.
Douglas suggested in a footnote that an expulsion would not be reviewable. Also left unanswered was whether a decision to exclude a member because of a disputed finding that he or she was not a citizen or properly a resident of the district would be subject to judicial review.
Powell, following closely on the heels of
Baker v. Carr, seemed to have placed significant limits on the political questions doctrine, thus inviting greater judicial intrusion into the internal processes of the other branches of government. It does not, however, appear to have had that effect. In the many cases in which federal courts declined to address the legality of the war in
Vietnam, for example, the political questions doctrine, contrary to the implications in Baker, was employed to support judicial restraint.
See also
Congress, Qualifications of Members of.
Joel B. Grossman
