Powell v. McCormack

PETITIONER:Adam Clayton Powell
RESPONDENT:John McCormack, Speaker of the House of Representatives
LOCATION:Congress

DOCKET NO.: 138
DECIDED BY: Warren Court (1969)
LOWER COURT: United States Court of Appeals for the District of Columbia Circuit

CITATION: 395 US 486 (1969)
ARGUED: Apr 21, 1969
DECIDED: Jun 16, 1969

Facts of the case

Adam Clayton Powell pecked at his fellow representatives from his unassailable perch in New York’s Harlem. Powell had been embroiled in controversy inside and outside Washington. When Powell failed to heed civil proceedings against him in New York, a judge held him in criminal contempt. His problems were only beginning. He won reelection in 1966 but the House of Representatives voted to exclude him.

Question

May the House of Representatives exclude a duly elected member if the member has satisfied the standing requirements of age, citizenship and residence as articulated in Article I Section 2 of the U.S. Constitution?

Arthur Kinoy:

Were wholly unsupported by the facts themselves.

They’ve talked of willful contemptuous a conduct in the part of the petitioner towards the Courts of the State New York, and on April 11th of this year, the appellate division of this Court’s to State of New York, revoked, resented, and vacated the judgment of criminal contempt against the petitioner.

They talked of alleged improper use of committee funds and yet, Mr. Hayes, himself the chairman of the committee which had previously investigate said on the Floor of the House, in supporting the admission of the petitioner without any qualifications this time, he pointed out that when these supposed facts were submitted to a tribunal which has the power to investigate a grand jury, the grand jury refused to return any bill of indictment whatsoever.

This illustrates the profundity of the founder’s insistence that this rock of protection be written.

Now, the respondents have a great difficulty with this constitutional of analysis.

They have difficulty with the writings and thinking of Professor Warren, who after lifetime scholarly expertise came to the conclusions which we have here advanced.

Did they suggest that Professor Warren through his lifetime of experience did not have the same time to examine the sources of history which turns this to the respondents that had.

We don’t have to pause long on this.

This Court has time and time again relied only in Bond against Floyd on the expertise of Professor Warren.

Think of difficulty with Madison and Hamilton and they suggest that the Federalist Papers are after all only special pleading.

Well, we do not have to pause long with that contention.

This Court has characterized the Federalist Papers time and time again as the most authoritative evidence of the intention of the founders.

They have difficulty with the constitutional opinion of their own Select Committee.

We point out in our brief that there own Select Committee said, the House had no constitutional power to exclude Mr. Powell.

They have difficulty with the opinion of the most dominant constitutional authority in the House, the Chairman of the Judiciary Committee.

They have difficulty with this Court’s decision in Bond against Floyd which proceeds on the assumption that the statements of Madison and Hamilton meant what they said.

So, they suggested this Court that it’s a position and thinking in Bond against Floyd is mere dictum.

Having these difficulties, the respondents reached back into history for precedent to explain that Madison and Hamilton did not mean what they said.

That the founders in fact intended to allow some sort of inherent power in the legislature to exclude otherwise duly qualified representatives of the people.

Upon the legislatures own notion of unfixed but what is extraordinary is that there entire constitutional edifice rests upon a precedent that they grasped from history, what is the precedent?

The Wilkes case, the exclusion of John Wilkes by the British Parliament and Blackstone’s rationale in justification for the parliament reaction.

They say that since American lawyers were schooled in Blackstone as we all know.

The founders must have adopted his justification for the action of the British parliament in excluding Wilkes.

But I suggest to the Court this is fantastic that it turns history upon its head that the Wilkes case was the very lesson, Madison said in Philadelphia was what we must prevent in the New Republic in this Republic.

And Blackstone’s justification for the action of the British Parliament upon which their entire constitutional case rests.

They do not inform the Court, was first of all not included in this first commentaries he was very embarrass on the Floor of parliament when he appeared as a special plea therefore the majesty’s government to justify the Wilkes exclusion when his own commentaries were read against him.

So, he revise his opinion to justify the Wilkes exclusion and he was then attacked on both sides of the Atlantic by the leading spokesman for the colonial courts as evidencing the precise theory of legislative tyranny which the colonist were rising against.

Then, we have set forth with the court’s convenience in our reply brief.

The famous “Junius” papers which repudiate that Blackstone position but most important of all, the Blackstone position was repudiated by the parliament itself when it expunge the Wilkes exclusion resolution, five years before the Philadelphia convention when it expunge it as what, as subversive of the rights of the electorate of the British Isles.

And finally, the Blackstone opinion is not even considered English law today.

Arthur Kinoy:

As Professor Holdsworth in his most dominant history of the British English law sets out.

So, I suggest the respondent’s entire constitutional argument is based upon theories and actions of the British parliament of George III which were at the very core of American opposition, the British league — legislative tyranny at this has at least proven to me.

The wisdom of Mr. Justice Holmes comments that at page of history worth the volume of logic.

But I suggest to the Court that this understanding that the founders insisted that the legislature was to have no power to refuse the seat and otherwise duly qualified representative of the people is the key to the question of justiciability and is the key to the question of the role of this Court in this case.

In this case as in Baker-Carr, non-justiciability had become little more than a play in words.

For Baker-Carr teaches that the test of non-justiciability in the political question doctrine is deciding whether a manner has been in anyway committed by the Constitution to another branch of government or whether the action of that branch succeeds, whatever authority has been committed, or Justice Harlan pointed out his opinion in Baker-Carr that it’s quite necessary to cut through the thick of discussion about justiciability and get to the point as to whether complaint discloses the violation of our federal constitutional right.

This inquiry the Court has thought us all in Baker-Carr, requires a delicate exercise in constitutional interpretation and it is the responsibility of this Court as the ultimate interpreter of the Constitution to make it.

This is the key to this case.

The question as to who may be the freely chosen representatives of the people has not been confronted by the Constitution to the exclusive control of the legislature quite to the contrary.

It has been confided by the Constitution to the ultimate branch of government, the sovereign people.

In the written document they established as their fundamental law.

This is because the fundamental process itself of representative government requires that the free choice of the people’s representatives remain with the people, subject only to the qualifications they themselves lay down in their Constitution.

So, under the teachings of the Court in Baker-Carr, this is a case in which judicial power must be exercised with the action of the legislatures exceeded the authority committed to it.

It is suggested that relief here would violate separation of powers.

The contrary is true.

Relief here is required to preserve the powers reserved to the sovereign people by the Constitution.

This is the most historic role of this Court and the words of the Chief Justice in Marbury are decisive here.

And his question is the question, we must all answer to what purpose or powers limited and to what purposes is that limitation committed to writing, if these limits may at any time be passed by those intended to be restrained.

And let me speak frankly at this point, what is that the heart of the reluctance of the Lower Courts to grant relief here?

It is the fear of a confrontation with the House, but this fear in itself unreal since in the words of this Court, it is an inadmissible suggestion that the House would not accept this Court’s role as the ultimate interpreter of the Constitution.

This fear would paralyze the Court in its most important function to preserve a rule of law, the foundation stone of which is a written Constitution.

A fear to act here because respondents have power would in the Chief Justice’s words in Marbury subvert the very foundations of all written constitutions.

At another priceless point in the history of this Court, this Court said in Cooper against Aaron that Marbury declared the basic principle that the federal judiciary is supreme in the exposition of the law of the Constitution and that this principle has been respected by this Court and by the country as a permanent and indispensable feature of our constitutional system.

The reaffirmation of that this is a government of laws and not men that represented of government means that ultimate power remains with the people is particularly necessary when the crisis arises in a context in which black citizens are denied the right to elect their own black representative who had reason to great heights of legislative leadership.

It is difficult indeed to demand law and order of American citizens if the legislative branch itself denies the first assumptions of an ordered society.

The right of people to govern themselves, thus, to grant relief here would not only be to reaffirm the fundamentals of a representative government but it would reaffirm the fact, that the principles of populous sovereignty are equally applicable to citizen’s black and white.

Such a decision in Justice Clark’s words concurring in Baker-Carr would be in the greatest tradition of this Court.

Professor Reid will continue the argument.

Earl Warren:

Professor Reid.

Herbert O. Reid:

May it please the Court.

Herbert O. Reid:

We’ve attempted to argue in our brief in orally.

First the Congress did not have the power to exclude Congressman Adam C. Powell and what it did and how he did it raise further constitutional objections.

In the outset, the two judges in the Court of Appeals tried to treat this matter of expulsion — treat this matter of exclusion as a matter of expulsion.

And have it clearly that should be laid to rest in the beginning.

When Congress was organized — when the House organized on January 3, 1969, the very same resolution which had been proposed in March 1, 1967, the subject matter of our discussion here, the same resolution was proposed.

The speaker was called upon to read to rule on whether or not a motion to exclude with germane to expel, with germane to his seating our motion to exclude in which the Speaker wrote with January 3rd that such a motion was not germane that on the seating of the congressman.

The only question opens to the House with the three qualifications.

Also, the speaker wrote on March the 1st that since this was a question of seating that the necessary vote was a majority vote and not the two-thirds which would have been required if it had been a matter of expulsion.

The justice’s below suggests that this is an immaterial distinction since the vote was large enough to satisfy the two-thirds requirement.

What we argue here is that of course, the motives of the members of the House in voting cannot be inquired into determine how they would have voted where the issue expulsion.

But more fundamentally, this was at the bottom and grounded on the Precedents of the House as demonstrated in the speaker under the later wrote in this January 3, 1969.

These precedents dictated that the speakers earlier ruling that the vote was on exclusion because the House could not expel for conduct in a previous session and it was no question as the conduct alleged here in had taken place in Congres’s previous to 90th of Congress.

The —

Abe Fortas:

What’s the basis of that statement Professor Reid that the House could not expel for conduct in previous session?

Herbert O. Reid:

The Precedents of the House sir, the speaker outlined the Precedents of the House when he wrote on March — on January 3, 1969 in which we’ve included the copy of the record of January 3rd.

In which he gives — he said that he anticipated.

Pardon me.

That he had anticipated that this question would be raised and therefore he had had his brief and it is very long in detailed ruling by the speaker that particular time citing the House Precedents.

It’s not a judicial law that is cited there?

Herbert O. Reid:

Sir?

There’s no judicial opinion that says supports the statement relating to?

Herbert O. Reid:

Well, no because I don’t know of any matter that is a reason that would have given the Court the opportunity, sir, to have decide at this.

There is however, a great distinction involved in judicial standard sir.

If the — on the question of judging an election and seating.

Of course, the House exercises judicial power there but this Court has been very clear in a number of cases and saying that, when the House is exercise — the House are in, they’re exercising their powers or in expulsion.

That this is a judicial power of the highest order requiring the greatest amount of due process protections in the adversary sense.

So, for an additional judicial reason, sir, we believe that this role that this exclusion — the expulsion could not be — the exclusion could not be treated as expulsion.

As a different appropriation on the one that Justice Fortas argues —

Herbert O. Reid:

Yes, of course as I said the — in terms of a — which incidentally we contend here that does power — the Congress did not — the House did not have the power and beyond that the money in which out of the Congress in power was excluded violates other provisions of the Constitution to wit the Fifth Amendment due process and the prohibition against Bill of Attainment.

Certainly, the House has power to deal with a member and the member elect and the way in which it may not deal with a general member of the societies so far as the bill of attainder is concerned.

Herbert O. Reid:

Its judicial power there to seat and to remove one who has been seated, however, where one was never seated and punishment was legislative as it was here after a legislative finding and at no time with any resemblance of due process hearing held.

We contend then that such the manner in which this was accomplished in the House violates first the due process while this substantively and procedural requirements and in addition that it amounts to a bill of attainment.

At the beginning of this matter in the 90th of Congress, when Congressman Powell was asked to step aside, the Hayes Committee had concluded its report.

The Hayes Committee, Committee on Administration had been directed by a resolution which is in the Hayes report at pages — at page 4 had been directed by the resolution to investigate the various committees of the House and the various numbers of a House into regard.

There was nothing in this resolution was specify, any particular committee, any particular committee chairman or any particular member of the House.

Nevertheless, the committee proceeded to investigate only one.

Congressman Powell was invited to attend the Hayes Committee, in which he declined at page 84 that levy in the same report as included at which he was not an unconditional declination by in which he suggest that the Committee that a charge to investigate other committees and other people in Congress.

And as soon as the Committee had done this, he would be glad to appear now, this position who has asserted by the very reason that he was entitled to know whether or not this was preferential treatment as to him, in order to lay an equal predicate if necessary in the House or in the Courts if the matter had been raised.

Now, he was denied this opportunity and then when the Select Committee was formed and directed to investigate and to report back on the seating of the Congressman, the Select Committee declined to have an adversary hearing and that one thing that’s clear in this record.

It is the Chairman Celler’s position and the position of the Committee that this was not an adversary hearing.

As a result, he was not afforded the rights of an adversary hearing and therefore, the findings are mere legislative findings.

And I think the affect of such findings are clearly illustrated by the January 3rd proceeding in the House in 1969.

Where even though these facts are not refuted anywhere because we didn’t have adversary hearing.

They have been completely repudiated.

Mr. Hayes who was chairman of the Subcommittee on Administration, pointed not only that they had — they didn’t found insufficient by grand jury but he said, “They are insufficient for us to act on, the way we find facts in the House,” he said, “in no basis upon which to predicate this kind of action.”

Gentleman, Mr. Hayes made that statement himself in the record on January 3rd.

So, the first predicate of the House’s action, the Hayes report.

The second predicate, the proceedings in the New York Court have both been the support of these have been withdrawn from the House’s position.

In addition, the House reported to furnish Congressman Powell for his contumacious conduct toward the select Committee and that contumacious conduct where they refuse over to participate in a legislative hearing to determine whether or not he should be seated.

For — so, for exercising his constitutional right as the Court pointed out this morning in the decision in the resident requirement cases, he was being punished then for asserting a constitutional right and that’s impermissible whether the assertion is good or bad.

Beyond this he was denied all of the procedure work guaranties and for a very good reason, I think.

For the very inception of this matter, Mr. Powell would notify that the Select Committee would investigate, “Into his official misconduct since 1961.”

Of course, that’s a frightening suggestion to most people but this — it was open ended and to the day in which he had assumed the chairmanship of this committee.

At the time he assumed this chairmanship of this committee, there was great question raised in the House and addressed to the speaker as to whether or not Mr. Powell would be elected by the House as Chairman of this committee, since he was then the senior person or would he be avoided because of his race and of course, he was re-elected.

And what relevance other than this that the notice of his official misconduct to date of his taken on the chairmanship has — I do not know.

Abe Fortas:

The adversary in the —

Herbert O. Reid:

Yes, sir.

Abe Fortas:

Suppose that the House determine in whatever way that a member had misappropriated House funds in a substantial amount.

And suppose that this determination occur and the misappropriation had occurred during the same session, do you challenge that the House could expel him?

Herbert O. Reid:

There are two problems, Mr. Justice Fortas.

Herbert O. Reid:

First, procedural due process, I have no and I have no problem that the House would have to afford here an adversary hearing, affording all the requisites of due process.

Procedural due process, as to the matter of the substantive due process implicit in your question, I have some difficulty as members of the House have and the members of the Senate from time to time across on in each one that they should write some rules and regulations before the fact so as to avoid the same kind of situation.

Congressman Fusco introduced the resolution in the House several days after this occurred, to call him for a select Committee to set up standards.

I would not go so far to say sir that before these standards arouse were set up that the House would be important to act.

I think the House might be able to proceed on account of a common law reference —

Abe Fortas:

Well I want to be sure —

Herbert O. Reid:

Which have been suggested by some of the rights, sir.

Abe Fortas:

I want to be sure I understand your position.

You wouldn’t say them that the House could constitutionally expel the member after a due process hearing for the misappropriation of House funds and I assume that it was everything happen during the single session.

Herbert O. Reid:

Well, misappropriation of funds, yes sir.

However, in terms of such a proceeding, and to defense to that the conduct other members of the House would be highly relevant.

And this is one of the reasons I’m sure that the House did not want to afford him a due process hearing.

Because they didn’t want any comparative study made and this is indicated also about — January 3rd record of 1969 when Chairman Celler said as to nepotism, judge not lest, you be judged.

Abe Fortas:

You mean can expel one person for misappropriation of House funds unless you expel everybody?

Herbert O. Reid:

No, sir.

I’m not saying that Mr. Justice Fortas.

What I am saying that the relevant to the expulsion of the one is the conduct of others and whether or not under the equal cases.

Whether or not he then has an equal protection argument because of being singled out and this was highly relevant in the particular case as well as the conduct of other members.

And I think that there is no other justification for the House’s failure to accord him a due process hearing.

They’re requiring the attendance of witnesses and the like other than they wanted to avoid this comparative study, to which I think he was entitled to.

Beyond the constitutional infirmities of due process and (Inaudible) which clearly are going back to the main part of our argument would indicate that this Court had jurisdiction and that the issues were just justiciable.

I want to say a word about mootness and remedy.

The House has suggested that the seating of Congressman Powell on January 3, 1969 had mooted this controversy to which we take issue in our memorandum in our position in which we contained narrow to argue that the manner had not been come moot.

One, because this is continuous conduct, the kind of continuous conduct that we had complained about in the original suit.

And on January the 3rd 1969 when the motion which finally passed — the motion which finally passed seating him carried the findings from the 90th Congress with no question whether the same punishment, the same conduct, the same activity was the basis of the discriminatory action which took place on January 3, 1969.

In addition, we take the further position that the House could not moot this case by further unconstitutional conduct.

Therefore, in order for this Court to determine that this case had been mooted by the January 3rd action of the House.

This Court would have to find that the January 3rd resolution which seated him on condition of paying of fine and other limitations whether that action of the House was correct.

In addition to the continuing conduct, obviously as the Court suggested in Bond case.

We have a question of the backpay from the two years in which he was not allowed to seat.

Herbert O. Reid:

An amount I think estimated by the chairman of — Mr. Chairman Celler, as $55,000.00 but in addition, this resolution which a levy to fine upon him.

Thereby adding the resolution of January 3rd seated him were clearly and then the — against the pleadings of the leadership of the House, Mr. Albert, Mr. Celler, mention just a few Your Honor, all suggested that the House would not punish him prior to seating him because to do so was to add to the qualifications.

Mr. Kinoy has pointed out.

And now the House is now in position of the respondent is that this further illegal conduct moots this controversy to which we take exception and press before you that this matter is not moot, ready for the decision and should be decided in order to cover to the matter of backpay as well as the other punishment position provisions of the resolution.

Now, as to remedy because the big stone in Bond in this case all along has been the remedy aspect, and whether the Court could enforce its mandate.

I think the difficult in our position since you agree to took the outset, a mandamus was proper and that we were entitled to mandamus from Marbury, to the case of Marbury down.

I think the fact that the Congressman had been seated however, removes his difficulty considerably.

The — therefore, I think the remedy problem becomes much, much easier to handle and to direct here in terms of declaring the Resolution 278 and of March 1, 1967, and the resolution of January 3, 1969 unconstitutional.

I think that in the light of the —

Abe Fortas:

1969 Resolution is not before us, is it for —

Herbert O. Reid:

Sir —

Abe Fortas:

Adjudication?

Herbert O. Reid:

Well, we feel that it is in number one, we feel that this is in part of the illegal unconstitutional conduct for which we had complained about in the original suit.

That is the predicate sir, before the passage of the resolution on January 3rd was the same conduct.

Abe Fortas:

But —

Herbert O. Reid:

In fact of the matter, he took the same language.

Abe Fortas:

But there is a difference between taking notice of that for whatever bearing it may have on the mootness question and our granting relief because that has not been adjudicated in the Lower Courts, has it?

Herbert O. Reid:

No, it has not sir.

Because this action took place on the matter it was appending here.

Of course also, implicit in any notion of mootness is the validity of this action.

In terms and of the remedy, we feel that the House cannot be anticipated.

The House would not obey the declaration of law by this Court as it has from Marbury through Cooper and (Inaudible) and that there is no inhibition to the kind of remedy we seek here coming out of the Constitution itself with no basis for believing that the historical role of this Court in the area of judicial review has been that it had judgment that it — that in separation of powers what had been separated and given to the judiciary was the matter of deciding cases.

Abe Fortas:

What–

Byron R. White:

And we do, I understand you then that your position now is that all that you seek is the declaratory judgment?

Herbert O. Reid:

Sir?

No, sir.

We argue that we entitle to character judgment injunctive relief and we press for mandamus —

Byron R. White:

What?

What injunctive relief are you with?

Herbert O. Reid:

Well, mandatory relief sir.

Herbert O. Reid:

In the sense of the only inability to the paying of disability remedy, to the paying of this fine — of paying of a backpay of $55,000.00 is of course a resolution of the House which has directed the — in effect that he had not be pay because he was not seated.

And as in the Mangual case —

Byron R. White:

Is that in — is that a separate resolution?

Herbert O. Reid:

No, sir.

Because he was not —

Byron R. White:

That’s the effect of —

Herbert O. Reid:

Yes, sir.

Of the Resolution 278 and we are saying the declaration of unconstitutionality as the Court did in the Mangual which we cite in our reply brief.

It — incidentally, it did not issue mandamus against the comptroller even if it did — even though it did against another government official, under the theory that as soon as control are read and its opinion, the Court itself.

The mandatory relief was not necessary that he would act accordingly and we amend as suggesting here that everything indicates to us that in this Court exercise this historical judicial function and declares this resolution unconstitutional that the House would abide by that.

Byron R. White:

Well that sounds to me that you’d be content with just the declaratory judgment that Resolution 278 was unconstitutional, is that what you’re telling?

Herbert O. Reid:

Yes.

I think that effective relief here at the — by declaration of unconstitutionality to said date.

Earl Warren:

Judge Bromley.

Bruce Bromley:

Mr. Chief Justice, may it please the Court.

Yes, please.

They – there are at least four undisputed matters before us to which my two friends have made scant attention.

First as this Court is fully aware, this is an action against the members of the House questioning their action in there official capacity as petitioners emphatic announce below.

Here, we are suing the legislative branch.

This action then is not an action against private parties or against the United States with its consent to secure the declaration of unconstitutionality of a statute passed by the Congress.

It is directed solely to the members in their capacity as members of the House and three of their agents who acted within the House pursuant to the command of the House.

It is our view that this Court does not have the power to entertain this action against the members any more than it would have the power to order the members to pass or repeal a statute.

Second, there is no dispute now as to the correctness of the findings made by the Select Committee of the 90th Congress.

To the effect that Mr. Powell misappropriated large sums of government funds that he was in civil and criminal contempt at the time of the action of the New York Courts.

That he maintained unlawfully an improper person on his congressional payroll and that he refused to cooperate in a perfectly proper investigation of his conduct, conducted by two committees, one of the 89th Congress and one of the 90th.

Now, the serious charges against Mr. Powell were not denied by him at any time.

They were not denied by him before the committees which investigated him.

They were not denied by him at the time the House convened.

Now, considered the matter and reach its decision.

They were not denied by him in the compliant which was filed two years ago.

Bruce Bromley:

They were not denied by him in the lower courts below — in the courts below and they are not denied here.

Earl Warren:

Judge Bromley, is it a fact that the Speaker of the House had already ruled that those questions were not relevant to the investigation of the committee?

Bruce Bromley:

No, Your Honor.

It is not.

Earl Warren:

I thought that counsel said that prior of this it was a ruling by the Speaker of the House that the inquiry into his conduct while he was in the Congress on this particular investigation was not relevant?

Bruce Bromley:

No, that’s not right sir.

Earl Warren:

Well, I misunderstood probably.

Bruce Bromley:

No, I don’t think so.

I think they said that probably but if they did it’s not correct.

Earl Warren:

Well, don’t let me interrupt your argument anymore then.

Bruce Bromley:

Now third, the complaint in this case does not allege that Mr. Powell was excluded because of his race and the record before the House when it came to reach its decision of expulsion.

It does not even suggest that such an allegation would be supported.

Accordingly, I say it has no proper place in this case.

Fourthly, the action of the House of the 91st Congress, the present Congress in fining Mr. Powell $25,000.00 and depriving him of his seniority, likewise, is not before this Court.

The action of the 91st House is not challenged in the compliant.

The parties to any such claim that is the members of the present Congress and their agents are not parties to this action in their capacity as members of this Congress.

The moreover, this Court I submit it does not have original jurisdiction to hear any such claim.

And so, the precise question as we see it is whether any Court in a suit against the members of the House of the 90th Congress can review a decision of those members acting pursuant to their constitutional powers to judge the qualifications of their own members to exclude the member elect solely for reasons of personal misconduct and that’s all Mr. Powell was excluded for here.

Hugo L. Black:

Suppose he had been excluded because of his race, a former resolution.

Would say that he would have any judicial remedy?

Bruce Bromley:

I should say sir in answer to that question of action of the House would be clearly unconstitutional.

Hugo L. Black:

And he — would he have traditional remedy?

Bruce Bromley:

But as I read the speech or debate clause he would not sir.

So, our position is that what the House did in this matter was for the House on the House alone to decide and its action should not and is not subject to judicial review.

Before discussing however the reasons for that answer, I wish to emphasize again as we do in our suggestion of mootness and in our brief that in my judgment that this action is clearly moot.

The House of the 90th Congress against which relief is sought as terminate.

Mr. Powell can no longer be seated in that House.

There is now a new House.

He now seats in that House and I believe for that reason in that simple reason, the case is moot.

But it is my purpose to devote the remainder of my time to the substantive issue.

Hugo L. Black:

How about his back salary that he would have been paid, had he been seated, Mr. Bromley?

Bruce Bromley:

Back salary is so incidental to the main prayer for relief that I do not feel it could justify the jurisdiction of the Court.

It is completely de minimis.

He was paid up to March 1, 1967, the date on which he was expelled.

He was re-elected very promptly and he could have prevented himself to the House in April of the same year.

And as the speaker said, twice the matter would be considered again in light of the very important new factor that he had been re-elected as it was last January but Mr. Powell chose to stay away.

He never presented himself.

He never came near the House.

So, I say he clearly has no claim for any salary except maybe a month’s salary.

Abe Fortas:

Well, suppose it were — suppose it were 12 months’ salary, Judge Bromley, would that save the case from being moot in your judgment?

Bruce Bromley:

No, Your Honor.

It would not.

Abe Fortas:

Why not?

Bruce Bromley:

Because in the first place, the salary can’t be paid unless the oath is administered.

Abe Fortas:

No, no, no, I’m talking about — I see what you mean.

You mean that because the salary can’t — couldn’t be paid that the courts would have no jurisdiction even if, they were wrongfully withheld.

And the oath wrong — wrongfully withheld?

Bruce Bromley:

Yes, I think this Court would have no jurisdiction against the sergeant of the — and the relief would have to be against the sergeant ordering him to pay when he is prohibited by statute from doing it.

Potter Stewart:

I suppose you might conceive that he might have an action in the Court of Claims.

Bruce Bromley:

I certainly would sir.

And in that Court, the United States should have the opportunity which it might be very well seize of pleading a counterclaim were a set off for the 50 or so thousand dollars of its funds which Mr. Powell had taken unlawfully.

Abe Fortas:

But would a remedy in the Court of Claims foreclose a declaratory judgment action in the Federal District Court for salary?

Bruce Bromley:

Well, it’s moot now so you couldn’t have a declaratory judgment.

But if you could and I don’t think you could have one anyway.

I don’t think the action would foreclose it but I don’t think this Court should grant a declaratory judgment whether that matter is in the Court of Claims or whether it isn’t.

Earl Warren:

Judge Bromley, on your question of mootness.

If the Court should be of the opinion that this action was justiciable originally, if it had been timely, do you think that it would be moot now?

Bruce Bromley:

I think so clearly sir.

Earl Warren:

Why?

Bruce Bromley:

Because he’s been seated.

Bruce Bromley:

You — nothing you can do about the 90th Congress, I respectfully submit.

It’s gone.

You can’t seat him in that Congress and that the present Congress is the one in which he has been seated.

And that action the propriety of the fine which he got and the laws of seniority which he got in company with his seating is not attack in the complaint, and it is not here.

Thurgood Marshall:

What happen Mr. Bromley if he does attack it then two years from now, that will be moot?

Bruce Bromley:

Not if he proceeded promptly, it wouldn’t be.

Thurgood Marshall:

On further word about your statement that in 1967, he was paid one month salary?

Bruce Bromley:

No, I didn’t say he was paid.

He was paid up to March 1, 1967 when he was excluded.

Thurgood Marshall:

Well, how could the sergeant pay him if he hadn’t taken the oath?

Bruce Bromley:

By resolution of the House.

That —

Thurgood Marshall:

The resolution say he should paid?

Bruce Bromley:

That’s right.

The resolution said he should be paid while the hearings were going on and up to his date of — up to the date of decision.

Thurgood Marshall:

I see.

Bruce Bromley:

Of course, my point about the salary is after he was paid the March 1st, he could have come back and the result might have been entirely different as it was last January.

The reason he didn’t get his salary after April 1967 until January 1969 was because he never presented himself.

He never asked the House to reconsider in the light of the important fact that he had been overwhelmingly re-elected in Harlem.

Now, I submit that there are at least five separate reasons why his demands for relief cannot be granted and I’d like to summarize them briefly before I start to discuss it.

In the first place, although, we haven’t heard any mention of it.

Article I Section 5, the Speech or Debate Clause affirmatively barged any Court from questioning members of the House or their agents with respect to actions taken by them within the House such as the exercise of their constitutional power to judge the qualifications of one of their members.

Second, I don’t think Federal Courts have any subject matter jurisdiction here because Article I Section 5 assigns the sole adjudicatory power to the House by declaring that the House is the judge of the qualifications of its members.

That delegation of judicial power under Article I, like the power of the trial impeachment if you please is an explicit exception to the general grant of judicial power to the courts under Article III.

Since the legislative is co-equal with the judicial branch, the judgments which the House makes in this situation in the field allocated to it, i.e. the qualification of its members are exclusive and supreme.

Thirdly, the Court should not proceed in this case because it involves a nonjusticiable political question.

Fourthly, if the courts could review the propriety what the House did.

It is clear that the House acted within its constitutional powers when it excluded Mr. Powell.

But the constitutional power of each House, the judge qualifications is not limited as had has been stated so many times here to the three standing disqualifications of age, citizenship, and inhabitancy.

It extends as well to matters of personal misconduct on the fitting a member of the House and even three — if these three standing disqualifications were exclusive, the House’s action in any event would be justified under its expulsion power.

Bruce Bromley:

Since the two-thirds vote required for expulsion was obtained.

And fifthly, assuming that the lower Federal Courts did have the power to rule on the merits of the case, under the circumstances presented here, those courts did not abuse their discretion in declining to grant the extraordinary and discretionary relief prayed for.

Now, I submit that anyone of these five reasons is sufficient to require dismissal of the action.

Could I ask you a question about your non-justiciability argument.

Put in extreme case, have you claimed that if the Congress expelled Mr. Powell saying, well, we will lay aside the majority vote required for expulsion before exclusion and he had two-thirds vote for expulsion were just take a general census in expulsion.

Did you say that is nonjusticiable?

Bruce Bromley:

I think so, of course it was improper and unconstitutional.

But that there no, no, relief?

Bruce Bromley:

No relief because the power to judge which includes the power to judge erroneously has been confided to the House.

Abe Fortas:

But would you contest, I beg your pardon.

Would you then contest the judicial power to review and whatever procedure it might be in action by the House holding a nonmember in contempt?

Bruce Bromley:

I wouldn’t contest that.

No.

Abe Fortas:

So, there are some instances where action by the house maybe subjective to judicial review?

Bruce Bromley:

It’s correct.

Yes, but outside the House but not for action in pursuant to its adjudicatory constitutional power to act within the House.

Abe Fortas:

Well, I don’t understand.

Both actions take place within the House.

Bruce Bromley:

But if Kilbourn against Thompson certainly that action didn’t take place within the House.

The witness would seize outside the House.

True that there were some authorization within the House that they act which the courts had jurisdiction of was the seizure outside the House and I think that distinction, however, artificial it may seem is one which is dictated by the allocation through the power to judge the qualifications of its members, power to make its own rules of its proceedings, and the bar which is set up against attack in the Speech or Debate Clause.

Earl Warren:

Well Judge Bromley, would your argument carry you to the extent of saying that if one party was in complete control of the House, say it had three — two-thirds or three-fourths of all the members that the House and that it could on a proceeding of this kind refuse to seat all the elected members of the other party on a ground that their views were dangerous to the country or on any views so — on any — for any reasons that it want to, would you say that they could do that without any remedy whatsoever?

Bruce Bromley:

No, sir.

I would not but I think —

Earl Warren:

What would the remedy be?

Bruce Bromley:

It would reside in this Court, in spite of the Speech or Debate Clause.

Earl Warren:

Yes.

Suppose they did it one by one, just one by one, they take to Mr. Powell today and on Mr. Smith tomorrow, and on Mr. Jones the next day, did it one by one.

Where would the remedy lie?

Bruce Bromley:

Well, it’s a harder case but that might be first place —

Earl Warren:

No, it is not harder case if we have no jurisdiction whatsoever.

Bruce Bromley:

Well, I think it is because of your remark about other perversions in Bond against Floyd there — I must admit there are some perversions which this Court must be ingenious enough to find a way around the Speech or Debate Clause or else will be confronted with revolution or worse.

So, I don’t say that the other perversions which this maybe and lastly, this maybe an attempt by a Congress to add another standing disqualification which it has no power to do and which I don’t think could be attacked if it tried to do it to cause of the Speech or Debate Clause.

Abe Fortas:

But you have said —

Bruce Bromley:

I think somebody’s got to draw the lines somewhere.

Earl Warren:

And who draws that line?

Bruce Bromley:

The House draws that line sir.

Earl Warren:

Oh, then the Court has not jurisdiction to draw lines.

Bruce Bromley:

Except in cases of under perversions, sir.

Abe Fortas:

And in response to Justice Black I take it an exclusion solely on the grounds of rights would not be within — would not be within the category of other perversions as you see it.

Bruce Bromley:

In my opinion it would not sir, although, clearly unconstitutional, clearly improper.

Now, very little has been —

Earl Warren:

But what could be more, Judge Bromley, what could be more perverse than that — than that?

Bruce Bromley:

Well, a great many things.

Earl Warren:

What for instance?

Bruce Bromley:

Seizing the president and dragging him in to the well of the House under a resolution that he be beheaded.

Earl Warren:

Kilbourn against Thompson.

He isn’t seeking a place in the House.

Bruce Bromley:

He isn’t seeking a place.

No, I’m talking about House action which constitutes another perversion of its function.

Earl Warren:

We’ll recess now Judge Bromley.

Judge Bromley, you may continue with your argument.

Bruce Bromley:

Mr. Chief Justice, may it please the Court.

I recognize that it has a strange sound coming from any lawyer to tell this Court that something unconstitutional may have occurred and yet you have no power to intervene.

But I’ve — I make that contention in this posture and I rest it squarely on the Speech or Debate Clause as interpreted by at least three cases decided here under that clause.

But that clause providing that for any speech or debate in the House, its members shall not be questioned at any place underscores and enforces the separation of power doctrine embedded in our Constitution.

It has the broad purpose, I submit of protecting the integrity and independence of the Federal Legislative branch from any interference whatsoever by the Executive or Judicial branches even to the extent of imposing upon the members the inconvenience and expense of defending themselves.

No longer is there — does anyone question the fact that speech or debate is not limited to words spoken in debate in the House but includes everything done in the House in connection with its business such as the act of holding the passage of a resolution directing the activities of its agents and —

Abe Fortas:

Mr. Powell led to its logic conclusion why doesn’t that vitiate the whole part of the initial review?

Bruce Bromley:

Because it’s confined only, Your Honor, to the action which the members take in connection with the regulation of their own proceedings within the House.

Bruce Bromley:

And mind you, that’s why I emphasized at the outset in the suit against the members.

It doesn’t officiate a broad area at all sir, it only vitiates a very narrow area.

Now the three cases that I mention, this immunity from attacked put up with the Speech or Debate Clause covers, well, let’s take Kilbourn against Thompson first.

That involves the passage of a resolution directing the illegal and unconstitutional incarceration imprisonment of a private individual sued against the members barred by speech or debate even though their action was clearly unconstitutional.

The alleged unlawful and unconstitutional activity of seizing private property in the context of an effort to suppress free speech, last terms Dombrowski against Eastland.

And finally, activity which results in the clear violation of a criminal statute, United States against Johnson, the only possible limitation as I said before on the Speech or Debate Clause is what this Court said in Kilbourn.

And what it described as possible other perversions and the example that I gave of the heading the precedent was given by this Court in the opinion in Kilbourn as an example of an utter perversion, I didn’t make it up.

Now, what other cases would be included in this doctrine of other perversion?

Well, that’s a very difficult question but I am willing to say I think but what its worth that probably if all blacks were excluded in any fashion either seriatim or by the passage of a rule that would be an utter perversion possibly.

I’m sure if all republicans were excluded it would clearly be an utter perversion.

But I say probably not if only one will act were excluded such as here assuming contrary to the fact that Mr. Powell was excluded because of his race.

He’d probably not give if —

Abe Fortas:

How about 10?

Bruce Bromley:

Sir?

Abe Fortas:

How about 10 Judge Bromley?

Suppose 10 blacks were excluded?

Bruce Bromley:

Ten blacks.

Well, 10 at one time.

Abe Fortas:

What else take?

You take it your way.

Bruce Bromley:

I take it my way.

Abe Fortas:

Yes.

Bruce Bromley:

Well, 10 at one time and if there are only 10 in the House I can’t tell you.

I don’t know.

Maybe we could get some help if we took the analogy of impeachment.

Suppose the president were impeached on unconstitutional grounds of race, religion, or speech and removed from office by the Senate.

I say this Court could do nothing about it in a suit against members of the Senate because of the Speech or Debate Clause.

And the fact —

Earl Warren:

But wouldn’t it rather be because of the Impeachment Clause rather than the speech and debate?

Bruce Bromley:

I was about to say and because I think as well the fact that the constitutional lodges the ultimate power to try impeachments in the Senate under Article I just as the Constitution allocates the power to judge the qualifications in the House or perhaps —

Earl Warren:

But the Constitution does state what the qualifications are, doesn’t it?

Bruce Bromley:

Oh!

No, sir.

Earl Warren:

Oh!

I thought it did?

Bruce Bromley:

Oh!

No, sir.

It states — it states three or more standing disqualifications that affect the class.

No person shall be a representative who has not obtained the age of 25 and is a resident citizen of state court he comes.

I think that’s — that’s a standing disqualification and doesn’t that all evidence an intent on the part of the framers to overrule the longstanding power of legislative bodies for over two centuries to discipline their own members for personal misconduct.

Well, that goes back to the 16th century.

Abe Fortas:

What you’re really saying Judge Bromley, if I correctly understand you is that the Constitution has these grounds of disqualification.

The Constitution provides that the House shall be the judge of the qualifications of its member that the House may take whatever standard it wants to for necessary qua — as a necessary qualification of member — of the member provided that it is not so extremely outrageous, is that about it?

Bruce Bromley:

That’s a fair statement, yes.

Abe Fortas:

That’s your position?

Bruce Bromley:

So, long as we qualify it by understanding that my contention about that power to exclude is probably limited to cases of misconduct unbefitting the trust and confidence that ought to be placed in the member.

Abe Fortas:

Well, now that’s a different matter because if you’re going to narrow it down to qualifications unbefitting a member, unbefitting a member.

Bruce Bromley:

A conduct.

Abe Fortas:

Well now is that something for the House to decide whether the particular basis for exclusion is an appropriate basis within that standard or is it that subject to judicial review?

Bruce Bromley:

Something for the House, and the House alone.

Abe Fortas:

Well, then you get back to my statement of it rather than your qualification of it, don’t you?

Bruce Bromley:

Well you may, I’m not sure I quite understand it but my position is —

Abe Fortas:

What I mean to say is that, if I correctly understand your last statement.

You’re saying that there is — that the House may adopt its own standards as to what are requisite qualifications in members within the subject to only one limitation and that is as perversion or whatever correct words of it, is that right?

Bruce Bromley:

Adopt its own standards.

I can’t adopt any additional standing disqualifications.

Abe Fortas:

Well, I think I assume —

Bruce Bromley:

That they must judge —

Abe Fortas:

I’m trying to understand your position.

Bruce Bromley:

I know it’s difficult.

Abe Fortas:

It is.

Yes, it is judge.

Bruce Bromley:

But the — I might —

Earl Warren:

Judge, suppose we had — suppose we had the situation they had in New York after World War 1, where the case in which the Chief Justice Hughes then out of office interceded for five men who were denied admission to the New York legislature just because they were socialist.

Now, suppose that same thing happened in the Congress today under your argument would there be any remedy for that?

Bruce Bromley:

Under speech or debate, I do not believe so.

No, sir.

Earl Warren:

Speech or debate.

Bruce Bromley:

Yes, sir.

Now, that I must repeat even though I know it may bore you.

These questions have nothing to do with our case.

There was nothing unconstitutional about Mr. Powell’s exclusion once you agree that the power to judge the qualifications for misconduct is lodge in the House as I think is perfectly clear by the practice of all the legislatures and our Congress right down to the present time.

Abe Fortas:

Well, I want to ask you one more question.

Bruce Bromley:

Yes, sir.

Abe Fortas:

Would you in that respect, would you make any distinction between the grounds for exclusion which relate to his activities as a member of the House that is to say the allege misappropriation of funds, the allege contumacious conduct, the alleged improper payroll practice, would you make a distinction between those on the one hand and on the other hand alleged improper conduct that had no bearing upon the business of the House but related the allegedly to Mr. Powell’s character and his obedience to law, namely the contumacious conduct towards a court?

Bruce Bromley:

I would make no such distinction sir and there are many, many cases of the legislative practice of excluding felons, perjurers, and we even have some presidents for persons who had been contemptuous of the Court’s outside the House.

I think that a well-defined legislative common law that came along with this Speech or Debate Clause into the Constitution.

Well, I was talking about impeachment and I said that I thought that was an analogy because the Speech or Debate Clause applied to impeachment, even though it was on at utterly unconstitutional grounds.

Now, coming to this contention of the petitioners for a moment, as I understand them they say, well, speech or debate may bar the imposition of criminal or civil penalties after the event.

But it doesn’t forbid the course the kind of relief inherent in an injunction or a writ or declaratory judgment.

However, it seems to us that in order to effectuate the immunity afforded by the Speech or Debate Clause, it must apply to injunction, mandamus, or declaratory judgment, of course, it is far simpler to intimidate critical legislators by direct order of a court with its attention — attended sanctions than it is by the indirect threat of subsequent criminal or civil proceedings.

And as I’ve indicated, I don’t believe petitioners have overcome their difficulty by now limiting their prayer to a declaratory judgment because the declaratory judgment is itself I submit in the most direct and positive sense, a questioning of speech or debate taken in the House.

Furthermore in this situation, I think there should be a doctrine and probably is that declaratory relief should not lie where the suit for injunction is barred at least by the separation of power’s doctrine as it is here for unless declaratory judgment is to feel wholly gratuitous and advisory, and useless act.

It must rely for its efficacy upon the willingness of the members to acquiesce in the Court’s interpretation of it’s — of the House’s powers.

Thus, insofar as a declaratory judgment would be given force and effect by the member voluntary acquiescence, it would be, I submit as effective and impingement and interference with legislative proceedings as a flat injunction would be.

I want to say a word about nonmember agents because in the Dombrowski against Eastland, the court said that the immunity extends to the Sergeant at Arms in this case to the Clerk and the Doorkeeper who are three individual defendants in this matter.

And this Court said the immunity extends although it is less absolute.

But it seems to me, of course there the agent of the Senate Mr. Sowerwine was held not protected by the Clause because he is alleged to have conspired down in Louisiana with some people to make an illegal seizure of some papers which Senator Eastland wanted.

Here, the only thing that these three gentlemen did was to obey the command of the House within the House and it seems to me the immunity therefore clearly applies to them.

I want to say a word about power to judge qualifications and the power to expel.

Bruce Bromley:

Let’s assume for a moment contrary to my basic position that this Court may properly review the action of the House in this case.

I nevertheless say that the action of the House in doing what it did to Mr. Powell was clearly within its constitutional powers for it clearly was within the constitutional grant in my view of the power to judge his qualifications to seat and I had no use my repeating that I do not believe this constitutional disqualifications under more than three of them are exclusive in all that the framers had before them illustration of state constitutions which made this matter clear.

I said that the legislature in various states like New Hampshire and Massachusetts had the power to judge the qualifications contained in this Constitution and one of the men who work on the draft of the Constitution came from Massachusetts or New Hampshire that he was fully familiar with his own Constitution.

And yet, the framers chose to adopt language not so specifically limited and the reason they did it I think it’s because they new fully well and realize and all that to retain the power to purged themselves of dishonest, disgraceful people because of the obligation they owed to the whole nation to have a legislative body made up at least of decent, honorable citizens.

Earl Warren:

How are the qualifications fix if not by the Constitution?

Bruce Bromley:

They fix her by undoubted practice of all legislatures that control there own disciplinary matters and by the doctrine that the legislatures have power to compel — over their internal affairs and the judge —

Earl Warren:

That is to say — that is to say that they can fix any qualifications they want?

Bruce Bromley:

Oh!

No.

They can’t — I don’t — they can’t constitutionally add to the standing of — the standing disqualifications contained in the Constitution.

They can’t have a rule.

They can’t adopt the res — our rule resolution that certain classes, people who do not posses $50,000.00 worth of property are not qualified to seat.

They can’t do that that would unconstitutionally add to the provisions of the Constitution.

Earl Warren:

Well What are the present qualifications for the admission of the Congress?

Bruce Bromley:

They are specified in the Constitution the three that I’ve mentioned.

In addition, there are couple more person who can’t take the oath of loyalty and the person who holds the federal office.

Earl Warren:

Alright.

And he’ve comply with all of those?

Bruce Bromley:

He complied with all of those.

Yes.

Earl Warren:

What other qualifications are there for the office of Congressman?

Bruce Bromley:

They are not any expressed in the Constitution except as his residence are phrase to judge the qualifications which has a meaning that is personal conduct is a qualification.

Earl Warren:

Well judges that that mean that the — you contend that Congress by the Constitution is given the right to determine what the qualifications for Congressman are as well as to judge who whether he follows the or he complies with the qualifications in the Constitution.

Bruce Bromley:

Yes, I do.

I say in addition to following those expressed in the Constitution under the power to judge provision, they have the right to judge whether the man’s character and action is that it is worthy of a member there body or whether the man is a crook and ought to be thrown out.

And I say that’s so deeply embedded in our whole system that I really don’t see how anybody can question it.

Earl Warren:

Where has it been explored — exploit it either in the Constitution or in our cases if is it so clear?

Bruce Bromley:

Well, I don’t think your cases have ever had occasion to consider it.

However, the historical matter that I refer going back centuries is contained in this appendix that we have filed with the Court.

It’s more blue-covered doctrine in which we list the precedents in England, in the American Colonies, and the American states.

Bruce Bromley:

At great length showing how widespread the power with — was and how widely it was exercise what the grounds were.

For instance on page 19 (a) back of our brief, we summarize some of the things from our appendix, Mr. Whittemore in South Carolina excluded from 41st Congress by a vote for selling appointments to the military and naval academies.

Now, it doesn’t say whether he did that while he was in the Congress at least the summary doesn’t or before —

Earl Warren:

When was it before —

Bruce Bromley:

He got there but it doesn’t make any difference.

Earl Warren:

It would make a difference wouldn’t it?

Bruce Bromley:

Not a bit.

Earl Warren:

Why?

Bruce Bromley:

Not a bit.

Because if he’s guilty of prior misconduct he’s just about as unfit to seat so he conduct it a — committed the same impropriety while he was acting.

Earl Warren:

Well, does a man who is excluded under procedures such as we have here judge.

Have the same — same right, procedural rights that a man — a member of the Congress has when they try to expel him from the Congress?

Bruce Bromley:

Yes, he has the same rights.

Earl Warren:

Can he stand on the floor of the Congress —

Bruce Bromley:

Oh!

Surely.

Earl Warren:

Stand on the floor of the Congress and defend himself?

Bruce Bromley:

Surely, if the Congress before he sworn gives him that right which it did here by resolution.

The rules of the House gave him the right to be heard and they offered it to him.

They offered him to have full right to produce witnesses proceed in the investigations in both Houses to appear on the floor with his counsel to make any statement he wanted to.

He never showed up.

He boycotted these hearings and has never denied the factual findings which were resulted from these hearings.

Byron R. White:

Judge Bromley, excuse me.

I take it then you do rely on also on the argument that this might be viewed as an expulsion?

Bruce Bromley:

Oh!

Yes, sir.

Byron R. White:

And that the two-thirds vote requirements satisfied.

Bruce Bromley:

Yes.

I think it’s a pure —

Byron R. White:

Now in looking through your brief, I see only on page 94, 95 where you deal with the expulsion and that I don’t — not sure that you address yourself specifically to whether or not the House may expel or conduct occurring before the member becomes a member.

Bruce Bromley:

Well —

Byron R. White:

Do you deal — do you anywhere deal with the precedents of the House to just means?

Bruce Bromley:

Yes, we do in that area.

Furthermore, we cite In re Chapman decided by this Court in which the Court affirmed the action of the House and made a statement that the offense which grounded the exclusion was not a statutory offense.

It was not committed while he was in the House or at the seat of Government or not even during a session and it negated all of the requirements that the conduct be limited to his conduct while he was in the House.

This opinion In re Chapman approve the case of William Blunt, not long ago in 1797 in which the House found that his conduct, although, not taking place during the time of his service was nevertheless a proper ground for expelling or excluding.

Byron R. White:

Has the House itself ever adjust itself to this matter?

In its own cases in so much its expulsion cases?

Bruce Bromley:

Yes, it’s been discussed.

Byron R. White:

And what has been the judgment of the House about it?

Bruce Bromley:

They never reached in any case that we can find a square decision on that.

Byron R. White:

So that the — you have no Precedents for the House itself would still for conduct prior to the — that term of the House?

Bruce Bromley:

That’s right.

But of course, you understand that my contention is that a matter for the House to decide.

Byron R. White:

I understand it.

Bruce Bromley:

I call Your Honor’s attention to page 19 (a) of —

Byron R. White:

The appendix?

Bruce Bromley:

Our brief, where we list a summary of Precedents of the House in Senate regarding exclusion or expulsion on grounds other than the three standing disqualifications.

Byron R. White:

Judge Bromley, are we — we do attach any significance to the conclusions of the Select Committee, its apparently contrary of the decision that you take?

Bruce Bromley:

Contrary?

Are they?

Byron R. White:

On the question of whether they may expel for conduct occurring before?

Bruce Bromley:

Oh!

Yes.

Byron R. White:

The Committee wasn’t concurring.

Bruce Bromley:

Yes.

Byron R. White:

Are we to attach in this significance to thereafter?

Bruce Bromley:

No.

No, they —

Byron R. White:

This is a legal conclusion which no matter what the recommendation of the report letter was decided as a legal matter by the House on March 1st and they did not accept that?

Bruce Bromley:

Well, the House is never — the House itself formally never thought this is acting on an expulsion matter.

Byron R. White:

The Speaker right, I thought the speaker put an as exclusion matter?

Bruce Bromley:

Yes, but isn’t that the distinction since there was a two-thirds vote.

Absolutely immaterial, what would this Court be —

Byron R. White:

I mean that’s the question were investigating —

Bruce Bromley:

But I just want to say this — this work should the Court order the House not an existence to go back and seat him and then expel him?

Byron R. White:

Let’s assume the House that the — that in the precedents of the House it was pretty clear that the House had always sought it, it could never expel for conduct occurring prior to the organizing of the House?

I suppose that would be at some —

Bruce Bromley:

Yes, but —

Byron R. White:

Varying reasons in that?

Bruce Bromley:

But isn’t that — isn’t it — couldn’t they clearly distinguished Mr. Powell’s situation.

He had $50,000.00 which he taken.

He had it through — he took it prior to the 90th Congress but he had it in his possession at the time the 90th acted, he saw no reason for offering to give it back —

Byron R. White:

So, he came into the House with the status?

Bruce Bromley:

With the what?

Byron R. White:

Well, sort of like he came into the House with the status?

In the sense that the —

Bruce Bromley:

Yes.

Byron R. White:

His conduct continued into that House.

Bruce Bromley:

Yes.

Byron R. White:

I had the money.

Bruce Bromley:

He had the money, yes.

And the —

Thurgood Marshall:

Where is in this record Judge Bromley that he had $50,000.00?

Bruce Bromley:

Well, I opted a little or defined the specific finding — specific findings of the report, say that he willfully and unlawfully appropriated to his own use.

There are two findings, 25,000 add, 50,000 add, 16,000 add and you add them up and they come to over $44,000.00.

Thurgood Marshall:

Well, I thought you said that in March and January of 1967, he had in his pocket $50,000.00, did I hear you correctly?

Bruce Bromley:

Well, I — maybe I should have said $44,892.02

Thurgood Marshall:

Well, is that in the record that he had at that time in his possession?

Bruce Bromley:

All I said was that he never offered to return it.

Bruce Bromley:

The Government never got it back.

I don’t know what he did with it, maybe spend it but we didn’t give.

We the citizens of this country didn’t get it back.

In addition to which, there were many other improper expenditures.

Hugo L. Black:

Mr. Bromley, sounds to me like in what you say they charged him with a crime of embezzlement?

Bruce Bromley:

They charged — they found that he misappropriated their finding was —

Hugo L. Black:

Wasn’t it supposed to belong to the United States?

Bruce Bromley:

What?

Hugo L. Black:

When it did belong to the United States?

Bruce Bromley:

Yes, sir.

I suppose that was crime.

Hugo L. Black:

Well, wouldn’t that be embezzlement?

Bruce Bromley:

It might be embezzlement, yes.

Hugo L. Black:

Now, what they punishing for that or what were they doing when they fined him?

Bruce Bromley:

Well, he wasn’t fined in the 90th Congress.

He was fined in the present Congress which is not before Your Honors, but what were doing?

They were exercising their constitutional power to punish him.

Hugo L. Black:

To punish.

Bruce Bromley:

That’s what the Constitution says.

Hugo L. Black:

That’s not a crime.

Bruce Bromley:

Well, no it’s just says to punish him.

Hugo L. Black:

But I suppose they have indicted him, could they have done that?

Bruce Bromley:

Perhaps no.

No, they couldn’t.

Hugo L. Black:

Why not?

Bruce Bromley:

The House indicted him.

Hugo L. Black:

Why couldn’t they?

Bruce Bromley:

Well, they could send him to a grand jury own his own.

Hugo L. Black:

But it seems to me like what they’ve done is to try him for criminal offense.

Thereby denying him of his — they would be tried before a judge in a jury.

Bruce Bromley:

That was the 91st Congress which isn’t before you and before a judge in the jury he admits all the issue, Your Honor.

Hugo L. Black:

He didn’t admit he is guilty, does he?

Bruce Bromley:

Why not?

He’s never denied it, never disputed it at any time.

Hugo L. Black:

But he is not required to deny it, is he under the Constitution?

Bruce Bromley:

Well, I should think in this posture that we ought to come here with some statement from him if he didn’t do it saying, we’ll, I didn’t do it.

But if — they’re very careful not to say that and they have never said it.

Why he took — he took checks made out to his wife and there was a forged signature on her checks.

And he deposited them and in his own account.

That’s where he got the $44,000.00 from and they were separated.

He and his wife were separated.

She lived in Puerto Rico.

She testified under oath.

She hadn’t done any work for his congressional staff since 1965 which started the period that the $44,000.00.

She was paid at his instigation over $20,000.00 a year.

Never did a thing and each month, the check with the forged endorsement in her name ended up in his bank account.

And not only that, he authorized according to the testimony of his Assistant Stone, the illegal and deceitful use of credit cards issued to employees of his committee for friends and family to travel in Europe, to Florida, to the Bahamas —

Hugo L. Black:

Isn’t that a crime?

Bruce Bromley:

Yes, it’s a crime and he should have been indicted.

I don’t know why he wasn’t.

Hugo L. Black:

Well, that’s what I was thinking —

Bruce Bromley:

Yes.

Hugo L. Black:

And it probably be a better place to try him.

Bruce Bromley:

Yes.

Well, I don’t know if there’s been any better place to tried at Mr. Justice Black, since he plainly admitted it, there was no doubt about it.

He’d been indicted he’d probably would have to plead guilty.

I don’t understand why he wasn’t.

The jury, the grand jury by the way to whom my friend referred, never voted no true bill.

It never did anything and the Department of Justice all fit to terminate its existence before it took any action.

But the matter of whether he similarly liable it’s still pending somewhere in the department.

Bruce Bromley:

So finally, I say again that for anyone that he seeks legal reasons, I think this matter deserves affirmance and I believe it to be no answer to any of those arguments to say that the House might unreasonably or erroneously exercise its adjudicatory powers.

For members of the House like judges take an oath to support the Constitution

We can’t assume that they will violate the oath.

Of course, there’s always the risk of error, even constitutional error on the part of each branch of Government in the areas in which it is granted supreme constitutional competence.

But this is not a weakness of our system of Government.

I think it’s a strength because some individual or some group always has to make the final decision and our finding fathers put this narrow area of adjudication

Not in the hands of an Article III Court but in the hands of an Article I Legislative body

There’s a remedy for a situation like this, of course, but it’s a political remedy.

So quickly exercise by the voters in this case.

And if he, Mr. Powell had presented himself a month or two after he was excluded since he was overwhelmingly re-elected.

In the light of the speaker’s ruling that the House would reconsider the matter in the light of that important development.

He probably would have been seated.

He chose to wait.

I don’t know why.

Hugo L. Black:

Why would he been seated, if he so reasonably been prevented from taking his office because of these what you call crimes?

Bruce Bromley:

Because the voters so overwhelmingly express their preference to him of this.

His opponents practically got no votes.

Despite — despite all the publicity attended upon is there elections and of course the House would consider that that was a very important matter when they did consider it last January.

They voted to seat him, surely.

They thought, look, we can’t let this man go scot-free.

We will punish him and they did strip him of his seniority and fining $25,000.00 which he got to pay $1,100.00 a month out of his salary.

Hugo L. Black:

Well, there’s a quite a difference between those two than that.

Quite a difference between taking away his seniority which I presume nobody would decline to say to the Congress they know what to do —

Bruce Bromley:

That’s right.

Hugo L. Black:

And fining for crimes.

Bruce Bromley:

I don’t see the difference, sir, fining him from misappropriating money making him pay it back in part.

I think it was a very mild sanction myself.

Abe Fortas:

Would they have had the power to order to commit him to prison?

Bruce Bromley:

Yes.

Abe Fortas:

Under the Expel Clause in the Constitution?

Bruce Bromley:

Or disorderly behavior, they —

Abe Fortas:

Yes.

Bruce Bromley:

Have the power to punish the member for disorderly behavior.

Abe Fortas:

That’s what it says.

Bruce Bromley:

I assume that mean I can have him imprison.

Abe Fortas:

And in that event would he been entitled to — it is your position that he would not be entitled any judicial review?

Bruce Bromley:

That is my position.

Yes, sir.

As Professor Zechariah Chafee said long ago, it is no answer to say that if the House should exclude the man on some whimsical ground, no appeal would lie from its action, neither is there any appeal from the Supreme Court.

Earl Warren:

Very well.

Mr. Kinoy.

Arthur Kinoy:

May it please the Court.

There have been some rather unusual statements made in Court this morning which we would like to respond to very briefly.

In the first place, in response to the Chief Justice’s question as to the speaker’s ruling.

I called the Court’s attention to the fact that in the congressional record for January 3rd H14, the speaker’s ruling is set forth in full the speaker ruled that the question as to the punishment of Mr. Powell for act’s committed in the 88th or 89th Congress is not germane to the proposition that he now be sworn in.

The speaker based this ruling, Mr. Justice White upon the Precedents of the House and contrary to what Judge Bromley had said, the Precedents of the House are full and clear on this question and they start with the case which is most famous in American history.

The case of Matthew Lyon in the Fifth Congress which Congressman Lyon was convicted under the Alien and Sedition Act and a motion was made to expel him before the House.

The House then composed of gentlemen who had participated in the framing of the Constitution.

For we debated the issue and came to the conclusion that the House had no constitutional power whatsoever to expel, and mind you, this is under the Expulsion Clause not Exclusion Clause

No constitutional power to expel a member for alleged acts occurring prior to his election and in full the Annals of Congress point out that the fundamental reason was the very same reason which Madison and Hamilton advanced.

And that is that the ultimate tribunal and to the fitness of a member is not the Congress of the United States but the tribunal it’s fitness of a member is his constituency is the people of the United States, the people he represents.

The President of the Matthew Lyon case has been followed fully and completely, never deviated once in the five cases on expulsion in the history of the House and for the convenience of the Court, we have set them out info in our reply brief pages 18 through 23.

And just as so that there would be no question about that whatsoever, the official historian of the House, Mr. Galloway says in this history of the House of Representative, he concluded that I quote, “In general the House has been dubious of its power to punish members for offenses committed before their election.”

Now, it turn —

Earl Warren:

Mr. Kinoy?.

Arthur Kinoy:

Yes.

Earl Warren:

Is your — is that order of the speaker in the best time is here?

Arthur Kinoy:

The order of the speaker Chief Justice, is in the official record which the parties have stipulated, copies are to be available to the Court.

Earl Warren:

Well It is quoted in many of your briefs.

Arthur Kinoy:

That ruling is referred to in our brief, in our reply brief.

Arthur Kinoy:

It is not set forth in full.

It is in the official document set forth info.

Earl Warren:

Very well.

Byron R. White:

What is the citation?

Arthur Kinoy:

The citation is January 3rd Congressional Record 1969, H14.

Now, I would like to address myself to the next question —

Byron R. White:

19 what?

Arthur Kinoy:

1969.

I would like to address myself now to the — that question advance that this Court has no power under the Speech or Debate Clause.

Now, I find that argument rather surprising in light of the decisions of this Court itself.

This Court has held from the beginning that the Speech or Debate Clause and these are called discussing fully with the Court in the Eastland case last term has held that the clause was designed to protect legislators and legitimate legislative business from criminal or civil sanctions.

There are no criminal or civil sanctions involved in this case.

But more fundamentally, in Kilbourn against Thompson which is the founding head of all teaching of this Court on the Speech or Debate Clause.

Byron R. White:

Mr. Kinoy.

Arthur Kinoy:

Yes.

Byron R. White:

Let me get something straight here, did the Speaker of the House in 1967, was that when the exclusion took place?

Arthur Kinoy:

Yes.

He made a ruling there too Mr. Justice White and I make that very clear.

The ruling in March of 1967 was that the matter before the House was an exclusion and not an expulsion.

Byron R. White:

Now I understand that.

But did he at that time say refer to anything at all about expulsion?

Except to say it was —

Arthur Kinoy:

Except two-thirds vote.

That’s right.

Byron R. White:

They didn’t so it was only in 1969 that he referred to the precedents then —

Arthur Kinoy:

Correct, Mr. Justice White.

That’s absolutely correct.

Now in Kilbourn itself, the Court held that the resolution of the House of Representatives then before the Court was unconstitutional and void, and held it directly and the relief that flowed from that was the relief which was directed toward this Sergeant at Arms of the House.

So, that in the very case which the respondents rely on which supposedly deprives this Court of its historic power of judicial review over actions of the legislature when those actions transcend constitutional boundaries in that very case.

This Court did precisely what we are asking the Court to do here and that is declare a resolution of the House of Representatives unconstitutional.

Arthur Kinoy:

Now, this was no minor question.

This reflected the understanding of the court that the Speech or Debate Clause does not repeal Marbury-Madison.

The Speech or Debate Clause was known to the Chief Justice when that decision was handed down.

The Speech or Debate Clause simply has nothing to do with this case whatsoever, nothing whatsoever.

Now —

Hugo L. Black:

Which occasion was that?

Arthur Kinoy:

Kilbourn against Thompson Mr. Justice Black, Kilbourn against Thompson the original discussion of the Speech or Debate Clause in this Court.

Hugo L. Black:

Is that the one — is that the one that stated that and considering this was condition of the Constitution, how that could be exercise to do something to a man was the least possible power adequate to the (Inaudible)?

Arthur Kinoy:

That’s right Your Honor.

That’s precisely the case that stated that.

I respectfully would bring this to the attention of the Court.

The analysis of the Constitution which the respondents have presented here today is — has one fundamental flaw in it.

The fundamental flaw is that it is simply not the analysis of Hamilton and Madison.

It is simply not the analysis of the founding fathers and what I find extraordinary in that height is that the proposition is urged before this Court that the legislative power which the British Parliament asserted in the Wilkes case.

One of the most central and decisive causes of our revolution that this power is the power which is the respondents seek to sustain their action upon.

I never would have expected that the Wilkes case would once again be argued in an American Court.

Now I have to say one thing, I think it is outrageous that before this Court assertions are made that the petitioner was guilty of certain acts that the petitioner never denied his guilt of certain acts.

The record has it an ounce of evidence of that and then, I want to make is very clear.

We did not boycott those hearings.

Mr. Bromley was not there.

We were there and the petitioner was there, and we asserted our constitutional position which we had every right to assert before that House.

More than that, I think it is not proper that the respondents make the statements they do about petitioner when the chairman of this committee itself, Mr. Hayes.

On January 3rd of this year said, that the findings of his committee were not judicially ascertained and that he was satisfied that no inference could be drawn from those because a federal grand jury had not seen fit to indict the petitioner.

I think it’s improper to make the statements about petitioner which were made.

Hugo L. Black:

You said that he made his position clear before the committee?

Arthur Kinoy:

Yes, Justice Black.

Hugo L. Black:

What did he say?

Arthur Kinoy:

We said before the committee that the Congress had the power on the question of seating a member to inquire into the constitutional qualifications as set forth in the Constitution, we would give evidence as to those qualifications we did.

We testified, the petitioner testified and we put in documentary evidence as to the existence of the three constitutional qualifications for membership.

We said that House had no power under the Constitution to go beyond that question and that was the position we took before the Select Committee.

Abe Fortas:

If they —

Hugo L. Black:

Did he answer all the questions there?

Arthur Kinoy:

All questions on the constitutional qualifications.

Yes, Your Honor.

Abe Fortas:

If the petitioner had been seated, there’s no doubt is there that the House would have had power to punish him if it had so concluded so to do under the specific provision in the Constitution.

Arthur Kinoy:

Justice Fortas, subject only to the constitutional mandate that they could not punish him for alleged acts occurring prior to his elect —

Abe Fortas:

I understand that but the —

Arthur Kinoy:

Otherwise —

Abe Fortas:

In theory that constitutional power is clear?

Arthur Kinoy:

Yes, Your Honor.

Abe Fortas:

And so that if the — a proceeding to punish him had been brought in the same session of Congress in which allegedly acts, these acts were committed.

I’m talking about the acts relating to congressional funds.

There would have been no question as to the power of the House to punish subject to judicial review or not subject to judicial review as it might turn out, is that right?

Arthur Kinoy:

That’s correct, subject to an adversary proceeding and the rights of the adversary proceeding, and subject to the limitations as I said before of the Constitution.

Abe Fortas:

And also there had been no question as to power of the House and in appropriate case and by whatever procedure may be appropriate to expel a member, is there?

Arthur Kinoy:

That’s absolutely right.

Abe Fortas:

So that to considerable extent in a way, your submission to us depends in the first instance upon the distinction between the exclusion and the expulsion procedures or the exclusion and the punishment procedures.

Arthur Kinoy:

Well, I would put it this way Your Honor.

Fundamentally, the constitutional argument, the constitutional position is the same.

If the expulsion power were used in affect to do what the House cannot do under the exclusion power that is to add a qualification to membership that would equally fall as unconstitutional.

Abe Fortas:

Oh!

You’re — what you’re saying is that the House can expel only because of the lack of these three specific called cases?

Arthur Kinoy:

No.

What I’m saying, the House can expel under the Punishment Clause for misbehavior which it’s found within that session of the Congress subject of course to other limitations in the Constitution.

Abe Fortas:

Now, why do you — I’ve read your brief on the point that — perhaps you’d tell — tell me briefly, quickly now why you say that you have to take this problem session by session of the Congress or Congress by Congress?

That is to say that Congress — you’re position isn’t Congress could not punish or expel for “x”, let’s say disorderly behavior occurring in the preceding Congress by the same member?

Arthur Kinoy:

That’s correct, Your Honor.

Abe Fortas:

And why is that?

Arthur Kinoy:

Well, the explanation for that I think was best put forward.

First one, it was never discussed in the House in the Matthew Lyons case.

Arthur Kinoy:

An explanation was that this went to the fundamental principles of Representative Government because the founders were determined that under no guides whatsoever.

The House was the half power of overruling the choice of the people as to who would to be the representative.

Now as to unfitness or prior misbehavior, the House specifically discussed this in the Lyons case and said — because there, they said it was the grossest misbehavior.

He was charge with among other things speeding at all the members of the House of Representatives, Matthew Lyons was.

And the House there said that it is a fundamental principle of American Representative Government that the Court of resort of last resort as to the fitness of a member is his constituency.

When an act is occurred prior to the election, the people have passed on it by electing him and the House may not overrule.

To allow the House to overrule it would be to open up the dangerous road which Madison talked of, of subverting the fundamental principles of the Constitution.

Byron R. White:

And the fact is that in this case you would say that it — that the Representative Powell could not have been expelled for the conduct that’s involved in this case.

Arthur Kinoy:

I would say that.

Yes, Your Honor —

Byron R. White:

Because — because of the time of its occurrence?

Arthur Kinoy:

That’s right.

I think the constitutional provisions are very clear and the Precedents of the House are very clear on that.

Finally, I would like to just point out to the Court that in essence, the respondents’ position is a challenge to the role of this Court as the ultimate interpreter of the Constitution, that the short answer to the respondents’ entire argument can be put no better than Chief Justice Marshall put it in Marbury against Madison.

That it is for the judiciary to say what is the law and that is the meaning of a written Constitution.

And to argue a doctrine which says that the legislature can transcend the boundaries placed in the Constitution is to subvert the very meaning of a written Constitution.

Thank you, Your Honor.