Article I Section 5
Rules of the Proceedings of Each House
Each House shall be the judge of the elections, returns and qualifications of its own members, and a majority of each shall constitute a quorum to do business; but a smaller number may adjourn from day to day, and may be authorized to compel the attendance of absent members, in such manner, and under such penalties as each House may provide.
Each House may determine the rules of its proceedings, punish its members for disorderly behavior, and, with the concurrence of two thirds, expel a member.
Each House shall keep a journal of its proceedings, and from time to time publish the same, excepting such parts as may in their judgment require secrecy; and the yeas and nays of the members of either House on any question shall, at the desire of one fifth of those present, be entered on the journal.
Neither House, during the session of Congress, shall, without the consent of the other, adjourn for more than three days, nor to any other place than that in which the two Houses shall be sitting.
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Analysis
Allowing each House to be the judge of the “qualifications of its own members” as stated in clause 1 gives authority to refuse to seat an “unqualified” member. Where clause 2 says: “punish its members for disorderly behavior, and, with the concurrence of two thirds, expel a member” allows the other members of each house to expel a “disorderly” member with the vote of the required super majority. Neither an expelled member nor an unseated member ceases to be a duly elected Senator or Congressman. That decision was made by electors (voters) qualified by the Constitution to make that choice. It just means that the other members of that particular house can’t (or won’t) work with that individual. Since the unseated or expelled member is not permitted to be present, he or she ought to be treated as an absent member
Neither clause is explicit however on which entirety the two thirds or majority is to be measured. Is it all possible seats, the number present when a particular vote is taken, or the required quorum?
After a member of either house is disqualified or expelled, what voting rules will apply relating to the seat left vacant by the removed Representative or Senator? Will the vacant seat be still be counted as part of any total votes that could have been cast? Not counting vacant seats as part of the whole in effect has the potential of disenfranchising opposing states or opposing views. This oversight might seem insignificant when considering the expulsion of a true “trouble maker” but in a party context it allows the exercise of malicious caprice from powerful partisan players.
The Constitution did not adequately protect the legislative branch of government from the cabal and intrigue so typical of party politics. This oversight becomes fatal to minor party members who disagree with the will of the major players. To review this tragic situation in its actual occurrence during the proposal of the 14th Amendment please read Abuses in Amending the Constitution which contains an excerpt from a ruling of the Utah State Supreme Court decision in Dyett v. Turner.
