As I write these words on December 13, 2017, Roy Moore has lost his bid to become the junior Senator from the State of Alabama. There will be no test in the Senate of my musings over the exclusion and expulsion options at Article I Sec. 5 of the Constitution.

When I wrote the Featured Article, it seemed to me that the matters of exclusion and expulsion under Article I Sec. 5 were committed solely to “each House” of Congress such that there was no room for judicial intervention, particularly in light of the doctrine of Separation of Powers. In my certainty and in my haste I neglected to consider the Warren Court and missed its interventionist Opinion in Powell v. McCormack, 395 U.S. 486 (1969).

The colorful and controversial Adam Clayton Powell, Jr. was an elected member of the House of Representatives from the State of New York. While serving in the 89th Congress and chairing a House Committee Powell allegedly made false claims for travel expenses and was involved in other financial impropriety. Powell was re-elected in November of 1966 to represent his District in the 90th Congress. After much ado the 90th Congress excluded Powell for his misconduct during the 89th Congress. He sued. The U.S. District Court dismissed for want of subject matter jurisdiction. The D.C. Court of Appeals affirmed as to result. Then the Warren Court decided the matter in June of 1969 (after dissolution of the 90th Congress). The Warren Court held that the “qualifications” that the Senate could judge under Article I Sec. 5 were limited to the individual’s age, citizenship, and residence and that Powell had been wrongfully excluded from the 90th Congress.

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On December 12, 2017 the electorate of red state Alabama will go to the polls in a special election to fill the U.S. Senate seat vacated by Jeff Sessions when he became Attorney General. Republican candidate Roy Moore won a spot on the ballot by defeating interim Senator Luther Strange, who was favored by “establishment” Republicans and the Trump administration. Roy Moore was twice elected (in 2001 and 2013) to the office of Chief Justice of the Alabama Supreme Court. His 2001 election resulted in a November 2003 removal by the “Alabama Court of the Judiciary.” The 2013 election resulted in Roy’s resignation in April 2017 after nearly a year of suspension. The resignation was commensurate with Roy’s announcement of his intent to run for the Senate seat vacated by Jeff Sessions. Between his two elections to the Office of Chief Justice, Roy was twice a losing candidate in the Alabama Republican party’s gubernatorial primary. Roy certainly brought discredit upon the office of Chief Justice but did so in a fashion that played to the (white) conservative evangelical wing of the Alabama electorate. Roy’s legal positions that doomed each Chief Justice tenure amounted to a political asset when running for that office.

After his 2001 election to the office of Chief Justice, Roy found the wooden plaque of the Ten Commandments in the Alabama Judicial Building insufficiently violative of the First Amendment Establishment Clause. Accordingly, Roy commissioned a large granite Ten Commandments monument. After the celebrated installation of the monument in the Judicial Building’s central rotunda, a federal lawsuit was filed. An unrepentant Roy lost the suit and defied orders to remove the monument so long as he could.¹ As mentioned above, Roy was removed from office by the Alabama Court of the Judiciary.

After his 2013 return to the office of Chief Justice, Roy soon came into conflict with federal courts over same-sex marriage. It seems that Roy used his administrative authority to direct probate judges to ignore federal court rulings in favor of same-sex marriage.² Once again he faced charges in the Alabama Court of the Judiciary. Roy was suspended for the remainder of his elected term. Roy’s “resignation” in April of 2017 appears to have been meaningless.

It is remarkable that Roy’s fondness for teen-aged girls while he was a 30-something deputy prosecutor escaped attention for 16 years while he ran for state office at least four times and once in the Republican Senate primary.

Then, as if on cue, the accusers are ganging up on poor Roy. While the timing is certainly suspicious, the flood of accusations would be difficult to ignore even if Roy did not admit dating young girls who were 17 or older. The more Roy speaks and the more the accusers speak, the uglier it gets. Roy Moore is creepy. He is not a dirty old man so much as a dirty young man now grown old. Still, he has an excellent chance of winning the special election of December 12, 2017 to become the next Senator from Alabama.

The point of this Article (at last!) is to examine what happens if this unworthy man (reviled by Democrat and Republican alike) wins a Senate seat.

If you remember the fall of former Illinois Governor Rod Blagojevich (in large part for trying to sell the vacant Obama Senate seat), you may remember the humiliation of Roland Burris, the eventual appointee who went to Washington bearing the Blago taint. There was talk about Burris being rejected by the Senate, though Burris was seated and completed the unexpired Senate term of then-President Obama. So what does the Constitution say about rejecting a person elected to the Senate? Here is the text, in relevant part, of Section 5 from Article I of the United States Constitution:

Section 5. Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members…

Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behaviour, and, with the Concurrence of two thirds, expel a Member.

These opening two paragraphs of Section 5 provide two methods of challenging a Senator. I will call the first “exclusion” and the second “expulsion.” I have read someone else’s tally of Senate exclusions at six (ending in 1928) and expulsions at 15 (ending in the Civil War era). The first clause makes clear that the Senate is the “Judge” of the qualifications of its members. That clarity would seem to leave no room for judicial review. It appears that exclusion requires a simple majority when a quorum is present. Expulsion is inherently more difficult given the requirement of a two-thirds majority and the question of whether the requisite “disorderly Behaviour” includes pre-election misconduct, mostly from decades ago.

Many “establishment” Republicans have reached for the moral high ground by urging Roy to step down. One problem is that Roy will not step down; another problem is that it is too late to replace him on the ballot. Backing an 11th hour write-in alternative to Roy is the best way I can imagine to elect a Democrat. The next best way to elect a Democrat is for establishment Republicans to continue demanding Roy’s (political) head on a platter.

Establishment Republicans need to shut up for the next few weeks while secretly hoping that Roy wins the special election but that he will be excluded by the Senate in a rare showing of bipartisanship.

What then? If Roy wins the election only to be excluded by the Senate, then the Sessions vacancy endures. If I were the much-maligned Jeff Sessions, I would seek to fill the vacancy that I created by becoming the Attorney General.

¹The SCOTUS clarified the law somewhat on June 27, 2005 with two Justice Kennedy opinions dealing with the Ten Commandments on public property. One opinion approved a Ten Commandments monument outside a public building in a sort of “monument park.” The other opinion disapproved of visible copies of the Ten Commandments in courthouses. Van Orden v. Perry, 545 U.S. 677 (2005) and McCreary County, Kentucky v. ACLU, 545 U.S. 844 (2005).

²The U.S. Supreme Court decided Obergefell v. Hodges, 135 S.Ct. 2584 (2015) in June of 2015.

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