Every U.S. legislature, from the U.S. Congress to all fifty state legislatures, possesses the constitutional power to expel a member, a power that originated in English Parliament. As recently illustrated by the expulsions of two Tennessee legislators, however, this power may conflict with other constitutional rights of legislators and their constituents. This Note explores the tension between the constitutional power to expel and the constitutional rights of legislators and their constituents. In doing this, the Note responds to gaps in legal scholarship surrounding expulsion’s historical, legal, and theoretical dimensions. Most significantly, scholars have not comprehensively examined state constitutional powers of expulsion. While historical practice and precedent suggest that some bases for expulsion are unconstitutional, courts—whether ruling on the merits or eschewing political questions—have upheld legislative expulsions in almost every case. The Note argues that this dynamic is evidence of a right-remedy gap that threatens the vindication of constitutional rights. Given significant barriers to judicial relief, this Note argues that legislatures must reform their powers of expulsion—voluntarily or in response to citizen advocacy. Additionally, litigants should test a narrow avenue left open by recent Supreme Court precedent. With one-party supermajorities near their most numerous in modern American history, making expulsion more feasible, reform is urgently needed to prevent irremediable constitutional violations and to uphold the integrity of the democratic process.
Introduction
On the morning of March 27, 2023, a shooter killed three nine-year-old children and three staff members at the Covenant School in Nashville, Tennessee.1 1.Cries for Covenant: Deadly Mass Shooting Hits Nashville, The Tennessean (May 18, 2023, 11:59 AM), https://www.tennessean.com/in-depth/news/2023/05/18/cries-for-covenant-deadly-mass-shooting-hits-nashville/70204202007/ [https://perma.cc/ULP3-H9B8].Show More In the months following, parents of the victims,2 2.Emily Cochrane, The Covenant Parents Aren’t Going to Keep Quiet on Guns, N.Y. Times (Dec. 26, 2023), https://www.nytimes.com/2023/12/26/us/politics/nashville-school-shooting-covenant-parents.html.Show More thousands of Nashville-area students,3 3.Marta W. Aldrich, Nashville Students Rally for Tougher Gun Laws, As Governor Seeks Armed Guards for Every School, Chalkbeat (Apr. 3, 2023, 7:12 PM), https://www.chalkbeat.org/tennessee/2023/4/3/23668031/nashville-school-shooting-walkout-march-lives-capitol-protest-gun-safety/ [https://perma.cc/LPL3-2JJM].Show More and a sizeable, bipartisan coalition of Tennesseans4 4.Vanderbilt Poll: State Legislature’s Approval Remains Low; Bipartisan Support for Abortion Exceptions, Gun Safety Laws; More, Vanderbilt Univ. (Dec. 14, 2023, 6:00 AM), https://news.vanderbilt.edu/2023/12/14/vanderbilt-poll-tennessee-december-2023/ [https://perma.cc/5Y9U-N4S2].Show More expressed support for various gun reforms intended to prevent another attack. After a special session devoted to such reforms, all major legislative proposals failed in Tennessee’s General Assembly, with only modest bills aimed at mental health and security resources passing.5 5.Emily Cochrane, Tennessee Session Ends in Chaos, With No Action on Gun Control, N.Y. Times (Aug. 29, 2023), https://www.nytimes.com/2023/08/29/us/politics/tennessee-special-session-gun-control.html.Show More Amidst this painfully familiar pattern of American political history, something unprecedented occurred. Days after the shooting, Tennessee Representatives Gloria Johnson, Justin Jones, and Justin Pearson gathered in the heart of the Tennessee House chamber from 10:49 AM until 11:42 AM and “shouted, pounded on the podium, led chants with citizens in the gallery, and generally engaged in disorderly and disruptive conduct, including refusing to leave the well, sitting on the podium, and utilizing a sign displaying a political message” to advocate for gun law reforms.6 6.H.R. 65, 113th Gen. Assemb., 1st Reg. Sess. (Tenn. 2023); see also Melissa Alonso & Dakin Andone, Tennessee House Republicans Take Steps to Remove Democratic Lawmakers After They Joined Gun Control Protest, CNN (Apr. 4, 2023, 10:20 PM), https://www.cnn.com/2023/04/04/us/tennessee-reps-expulsion-gun-control/index.html [https://perma.cc/WNQ5-SGRW] (noting Representative Sam McKenzie’s view that this “political retribution is unconstitutional”).Show More Representatives Jones and Pearson also “used a bullhorn to amplify their protestations.”7 7.Tenn. H.R. 65.Show More For these acts, House Republicans filed three nearly identical resolutions to remove the Democratic lawmakers from office.8 8.Id.; H.R. 64, 113th Gen. Assemb., 1st Reg. Sess. (Tenn. 2023); H.R. 63, 113th Gen. Assemb., 1st Reg. Sess. (Tenn. 2023); Alonso & Andone, supra note 6. Only the representatives’ names, pronouns, legislative districts, and home counties differ among the three resolutions, along with the resolutions’ sponsors.Show More
After six hours of proceedings on the House floor, the legislature voted to expel Representatives Jones (72-25) and Pearson (69-26), both of whom are Black men under the age of thirty, while voting not to expel Representative Johnson (65-30), who is a white woman in her sixties.9 9.Adam Friedman, ‘An Abomination:’ TN House Expels Two Dems Over Gun Protest, Despite Removal Looking Temporary, Tenn. Lookout (Apr. 7, 2023, 8:56 AM), https://tennesseelookout.com/2023/04/07/an-abomination-tn-house-expels-two-dems-over-gun-protest-despite-removal-looking-temporary/ [https://perma.cc/GUW9-TD3K]; Tenn. Gen. Assemb., HR 0065, https://wapp.capitol.tn.gov/apps/Billinfo/default.aspx?BillNumber=HR0065&ga=113 [https://perma.cc/7E27-GUMJ] (last visited Jan. 7, 2025) (Rep. Jones); Tenn. Gen. Assemb., HR 0063, https://wapp.capitol.tn.gov/apps/BillInfo/default.aspx?BillNumber=HR0063&GA=113 [https://perma.cc/RC4C-AEY4] (last visited Jan. 7, 2025) (Rep. Pearson); Tenn. Gen. Assemb., HR 0064, https://wapp.capitol.tn.gov/apps/Billinfo/default.aspx?BillNumber=HR0064&ga=112 [https://perma.cc/A5CW-CR2V] (last visited Jan. 7, 2025) (Rep. Johnson); Representative Justin J. Pearson, Tenn. Gen. Assemb., https://wapp.capitol.tn.gov/apps/legislatorinfo/member.aspx?district=h86 [https://perma.cc/3QKK-6A8U] (last visited Oct. 11, 2024).Show More Apart from recognizing Representatives Jones’s and Pearson’s use of a bullhorn, the expulsion resolutions did not distinguish among the legislators’ alleged conduct.10 10.Tenn. H.R. 65; Tenn. H.R. 64; Tenn. H.R. 63.Show More During his expulsion hearing, Representative Pearson stated: “I take full accountability and responsibility for my actions . . . [but] there was in no world or way that I thought that would lead to us being expelled from this House that we got elected into by our constituents. . . . That is antidemocratic.”11 11.Tennessee House of Representatives, House Floor Session 21st Legislative Day—April 6, 2023, YouTube (Apr. 6, 2023) (statement of Rep. Pearson), at 9:21:00–9:21:36, https://www.youtube.com/live/ZZK–_x3gIU?t=30894s [https://perma.cc/KMJ2-4249].Show More President Joe Biden called Pearson’s expulsion “shocking” and “undemocratic.”12 12.Chris Megerian, Aamer Madhani & Josh Boak, Biden Thanks ‘Tennessee Three’ for ‘Standing Up,’ Associated Press (Apr. 24, 2023, 6:07 PM), https://apnews.com/article/biden-tennessee-three-lawmakers-pearson-jones-johnson-bb74e4bdb9628d53d64d13acf004248c; cf.Editorial, The Tennessee Bullhorn Isn’t Democracy, Wall St. J. (Apr. 19, 2023, 6:45 PM), https://www.wsj.com/articles/tennessee-justin-jones-justin-pearson-bullhorn-biden-white-house-chuck-schumer-gun-control-b9a4d4f5 (arguing that the conduct of the Tennessee Three was sufficiently disruptive to justify expulsion).Show More
When asked why he voted to expel Representatives Pearson and Jones but flipped his vote in favor of Representative Johnson, one House Republican explained:
I’m an attorney, and Ms. Johnson was the only representative that showed up with legal counsel. And their legal counsel made an opening statement, pointing out deficiencies in the resolution that had been filed that we were voting on. And once those deficiencies were pointed out, in my view as an attorney, then it was incumbent upon the debate to present evidence to correct that and to establish clearly what it was that Ms. Johnson did to rise to the level of expulsion. I just don’t think that we established that during the debate.13 13.Erika Ryan, Patrick Jarenwattananon & Mary Louise Kelly, Tennessee GOP Rep. Barrett on Why He Voted to Expel Two Colleagues But Not the Third, NPR (Apr. 7, 2023, 5:24 PM), https://www.npr.org/2023/04/07/1168728769/tennessee-gop-rep-barrett-on-why-he-voted-to-expel-two-colleagues-but-not-the-th [https://perma.cc/K7R9-VTZY]; see also Tenn. H.R. 64 (proposed resolution expelling Rep. Johnson).Show More
In a leaked tape recording of the House Republicans’ caucus meeting after the expulsion votes, Representative Jason Zachary said: “I don’t want to hear why there wasn’t preponderance of the evidence as an attorney—I need to know why you flipped your vote at the last minute.”14 14.Cheyanne M. Daniels, Leaked Audio Shows Tennessee GOP Infighting Over Expulsion of Black Lawmakers, The Hill (Apr. 14, 2023, 3:59 PM), https://thehill.com/homenews/state-watch/3951196-leaked-audio-shows-tennessee-gop-infighting-over-expulsion-of-black-lawmakers/.Show More
Following their expulsions, Representatives Pearson and Jones were reinstated to their seats within a week.15 15.Bill Chappell & Katie Riordan, Both Black Tennessee Lawmakers Have Been Reinstated After Being Expelled by GOP, NPR(Apr. 12, 2023, 2:46 PM), https://www.npr.org/2023/04/12/1169444850/justin-pearson-vote-memphis-tennessee-house [https://perma.cc/BAZ4-BG4M].Show More Despite their prompt returns, the expulsions temporarily nullified roughly 10,000 combined votes cast for the representatives, were projected to incur taxpayer expenses exceeding $475,000, and disrupted Representatives Pearson’s and Jones’s committee assignments.16 16.Sam Stockard, Special Elections for Three Seats Could Hit $570,000, Tenn. Lookout (Apr. 27, 2023, 10:35 AM), https://tennesseelookout.com/2023/04/27/special-elections-for-three-seats-could-hit-570000/ [https://perma.cc/SFL5-6ANK]; see infra note 186 (indicating that Representatives Jones and Pearson earned 9,831 combined votes); see also Nadine Yousif, Brandon Drenon & Melisa Goh, Lawmakers Expelled: What to Know About the ‘Tennessee Three,’ BBC (Apr. 7, 2023), https://www.bbc.com/news/world-us-canada-65182502 [https://perma.cc/WZ35-PAQL].Show More Only Representative Jones raised constitutional challenges to the General Assembly’s actions, though his suit remains in a preliminary posture as of early 2025.17 17.Jones v. Sexton, No. 23-cv-01033, 2024 WL 4631658, at *1 (M.D. Tenn. Oct. 30, 2024).Show More
The U.S. Constitution18 18.U.S. Const. art. I, § 5, cl. 2.Show More and every state constitution19 19.Although Massachusetts, New Hampshire, New York, North Carolina, and South Dakota lack constitutional expulsion provisions, courts have interpreted other provisions to impliedly confer the power to expel. See Hiss v. Bartlett, 69 Mass. (3 Gray) 468 (1855); Horton v. McLaughlin, 821 A.2d 947 (N.H. 2003); Monserrate v. N.Y. State Senate, 599 F.3d 148 (2d Cir. 2010); Alexander v. Pharr, 103 S.E. 8 (N.C. 1920); Gray v. Gienapp, 2007 SD 12, 727 N.W.2d 808; see also infra Appendix: State Constitutional Expulsion Provisions.Show More empower legislatures to remove duly elected members, temporarily depriving constituents of their democratic representation. American legislatures have rarely exercised this power.20 20.Todd Garvey, Cong. Rsch. Serv., R45078, Expulsion of Members of Congress: Legal Authority and Historical Practice 4, 9 (2023).Show More When they have, legislators have been puzzled by expulsion’s obscurity and its inherent constitutional tensions.21 21.See, e.g., Investigation of Sen. Joseph R. McCarthy: Hearings on S.R. 187 Before the Subcomm. on Privileges & Elections of the S. Comm. on Rules & Admin., 82d Cong. 62 (1952) [hereinafter McCarthy Hearing] (statement of Sen. William Benton) (explaining that the Senate “is not an investigating body” and identifying the need for “procedure, in the form of a committee” to pursue expulsion charges); see also, e.g., Cong. Globe, 37th Cong., 2d Sess. 969–70 (1862) (statement of Sen. John Sherman) (debating the procedure and scope of expulsion with other Senators).Show More Even against such sparse precedent, the Tennessee legislature’s 2023 expulsion votes raised new constitutional questions that were previously relegated to hypotheticals22 22.Monserrate v. N.Y. State Senate, 695 F. Supp. 2d 80, 92 (S.D.N.Y. 2010) (describing “hypothetical worst-case scenarios of the misuse of the expulsion power to discriminate against racial, ethnic, and political minorities”), aff’d, 599 F.3d 148 (2d Cir. 2010); see also Expulsion of House Member for Conduct Pre-Dating Election, Tenn. Att’y Gen. Op. No. 19-20, at 5 (2019) (observing that “the equal protection guarantees of Tennessee and U.S. Constitutions would prevent racially discriminatory expulsion decisions”).Show More and dicta,23 23.Hous. Cmty. Coll. Sys. v. Wilson, 142 S. Ct. 1253, 1263–64 (2022) (reserving the question of a First Amendment retaliation claim in the context of legislative expulsion).Show More provoking a national reckoning with an unfamiliar legislative power. That reckoning continued months later with the historic removal of Congressman George Santos for his financial misdeeds.24 24.Michael Gold & Grace Ashford, George Santos Is Kicked Out of Congress in a Historic Vote, N.Y. Times (Dec. 1, 2023), http://www.nytimes.com/2023/12/01/nyregion/santos-expulsion-vote-congress.html; H.R. Res. 878, 118th Cong., 169 Cong. Rec. H6062–63 (daily ed. Dec. 1, 2023) (enacted).Show More Urgent questions that implicate democratic principles of representation, due process, and free expression remain unresolved. What constitutional rules govern expulsion proceedings? Are there any constraints on a legislature’s expulsion power when the grounds for expulsion implicate constitutional rights?
Despite the urgency of these foundational questions, expulsion scholarship has remained frozen in time. As recently as 2022, the Supreme Court cited as authoritative a 1978 article on expulsion’s early history—a study authored nearly fifty years ago without the benefit of digital archival research.25 25.See Dorian Bowman & Judith Farris Bowman, Article I, Section 5: Congress’ Power to Expel—An Exercise in Self-Restraint, 29 Syracuse L. Rev. 1071 (1978); Wilson, 142 S. Ct. at 1259 (citing Bowman & Bowman, supra); Garvey, supra note 20, at 3 n.22.Show More Recent federal cases have explored the boundaries of expulsion law, yet they have not been scrutinized by the Congressional Research Service—a key resource for legislators.26 26.See, e.g., Garvey, supra note 20, at 5–7 (discussing predominately early to mid-twentieth century case law).Show More Scholars have also examined the federal expulsion power in isolation, despite the fact that most expulsions arise under state constitutions rather than under the U.S. Constitution.27 27.See, e.g., id.;Robyn Sanders & Andrew Garber, The Unconstitutional Expulsion of Legislators, Brennan Ctr. for Just. (May 25, 2023), https://www.brennancenter.org/our-work/research-reports/unconstitutional-expulsion-legislators [https://perma.cc/6ZX4-9RWQ].Show More Scholarship has yet to comprehensively examine state expulsion powers even while the Supreme Court has emphasized the centrality of state law in Dobbs v. Jackson Women’s Health Organization28 28.142 S. Ct. 2228, 2242, 2256 (2022).Show More and Whole Woman’s Health v. Jackson.29 29.142 S. Ct. 522, 537–38 (2021).Show More In short, legal scholarship offered precious little in response to the Tennessee Three and the incident’s constitutional questions.
This Note offers a modern synthesis of expulsion’s historical, legal, and theoretical dimensions. Part I retraces the historical roots of expulsion from English Parliament through the Founding Era, uncovering previously unexamined perspectives on expulsion from James Madison, Alexander Hamilton, and Abigail Adams.30 30.The author is unaware of any expulsion scholarship to date that examines James Madison’s reflections on French expulsion, Alexander Hamilton’s proposal to abolish expulsion, Abigail Adams’s reflections on partisan expulsion, or various Anti-Federalist concerns about the Constitution’s expulsion power. See infra notes 58, 61, 65, 66, 67, 87 and accompanying text.Show More With the advent of digital archival tools, these Founding Era sources enrich our understanding and recontextualize Dorian and Judith F. Bowman’s 1978 account. This Part also provides a comprehensive analysis of state expulsion provisions, filling a gap in the literature and highlighting the importance of state-level practices where most expulsions occur.31 31.See infra notes 70, 72–74 and accompanying text; Appendix: State Constitutional Expulsion Provisions.Show More
Part II surveys judicial review of expulsions, including recent federal case law examining constitutional challenges to expulsion (and similar procedures).32 32.Most notably, this includes Houston Community College System v. Wilson,142 S. Ct. 1253 (2022). The author is unaware of expulsion scholarship evaluating other recent federal opinions such as Hernandez v. Oregon Legislature, 521 F. Supp. 3d 1025 (D. Or. 2021), or Shooter v. Arizona, 4 F.4th 955 (9th Cir. 2021), cert. denied, 142 S. Ct. 898 (2022).Show More This Part demonstrates that judicial review is ill-equipped to address the sort of constitutional issues raised by the Tennessee Three, exposing a gap between constitutional rights and judicial remedies for their violation that requires further scholarly attention.33 33.See infra note 178 and accompanying text.Show More Part III proposes specific reforms to prevent antidemocratic abuses of the expulsion power, including legislative amendments and claims-making in the First Amendment retaliation context, which appears ripe for challenge following the Supreme Court’s ruling in Houston Community College System v. Wilson.34 34.142 S. Ct. 1253.Show More
While this Note does not purport to definitively resolve all the complex constitutional questions surrounding expulsion, it takes a critical step forward by offering historical insights, exposing current legal deficiencies, and charting a path for future research and reform efforts. Taken as a whole, this Note calls attention to an understudied topic of foundational importance to American democracy. Expulsion matters because it has the potential to censor the political process, alter legislative outcomes, and deprive citizens of democratic representation. Although the mine-run of expulsions involving criminal convictions may not appear facially unconstitutional, the Tennessee Three incident suggests that when constitutional issues do emerge in the expulsion context, they raise significant right-remedy gaps.35 35.See generally John C. Jeffries, Jr., The Right-Remedy Gap in Constitutional Law, 109 Yale L.J. 87 (1999) (discussing this term and the shortfall between the goals of rights and the realities of implemented remedies).Show More Without additional guardrails to uphold the constitutional rights of legislators and their constituents, the expulsion power may be exploited for antidemocratic purposes. That risk of exploitation appears even greater today, when one-party supermajorities are near their most numerous in modern American history, making expulsion more feasible.36 36.See infra notes 207–08 and accompanying text.Show More
- Cries for Covenant: Deadly Mass Shooting Hits Nashville, The Tennessean (May 18, 2023, 11:59 AM), https://www.tennessean.com/in-depth/news/2023/05/18/cries-for-covenant-deadly-mass-shooting-hits-nashville/70204202007/ [https://perma.cc/ULP3-H9B8]. ↑
- Emily Cochrane, The Covenant Parents Aren’t Going to Keep Quiet on Guns, N.Y. Times (Dec. 26, 2023), https://www.nytimes.com/2023/12/26/us/politics/nashville-school-shooting-covenant-parents.html. ↑
- Marta W. Aldrich, Nashville Students Rally for Tougher Gun Laws, As Governor Seeks Armed Guards for Every School, Chalkbeat (Apr. 3, 2023, 7:12 PM), https://www.chalkbeat.org/tennessee/2023/4/3/23668031/nashville-school-shooting-walkout-march-lives-capitol-protest-gun-safety/ [https://perma.cc/LPL3-2JJM]. ↑
- Vanderbilt Poll: State Legislature’s Approval Remains Low; Bipartisan Support for Abortion Exceptions, Gun Safety Laws; More, Vanderbilt Univ. (Dec. 14, 2023, 6:00 AM), https://news.vanderbilt.edu/2023/12/14/vanderbilt-poll-tennessee-december-2023/ [https://perma.cc/5Y9U-N4S2]. ↑
- Emily Cochrane, Tennessee Session Ends in Chaos, With No Action on Gun Control, N.Y. Times (Aug. 29, 2023), https://www.nytimes.com/2023/08/29/us/politics/tennessee-special-session-gun-control.html. ↑
- H.R. 65, 113th Gen. Assemb., 1st Reg. Sess. (Tenn. 2023); see also Melissa Alonso & Dakin Andone, Tennessee House Republicans Take Steps to Remove Democratic Lawmakers After They Joined Gun Control Protest, CNN (Apr. 4, 2023, 10:20 PM), https://www.cnn.com/2023/04/04/us/tennessee-reps-expulsion-gun-control/index.html [https://perma.cc/WNQ5-SGRW] (noting Representative Sam McKenzie’s view that this “political retribution is unconstitutional”). ↑
- Tenn. H.R. 65. ↑
- Id.; H.R. 64, 113th Gen. Assemb., 1st Reg. Sess. (Tenn. 2023); H.R. 63, 113th Gen. Assemb., 1st Reg. Sess. (Tenn. 2023); Alonso & Andone, supra note 6. Only the representatives’ names, pronouns, legislative districts, and home counties differ among the three resolutions, along with the resolutions’ sponsors. ↑
- Adam Friedman, ‘An Abomination:’ TN House Expels Two Dems Over Gun Protest, Despite Removal Looking Temporary, Tenn. Lookout (Apr. 7, 2023, 8:56 AM), https://tennesseelookout.com/2023/04/07/an-abomination-tn-house-expels-two-dems-over-gun-protest-despite-removal-looking-temporary/ [https://perma.cc/GUW9-TD3K]; Tenn. Gen. Assemb., HR 0065, https://wapp.capitol.tn.gov/apps/Billinfo/default.aspx?BillNumber=HR0065&ga=113 [https://perma.cc/7E27-GUMJ] (last visited Jan. 7, 2025) (Rep. Jones); Tenn. Gen. Assemb., HR 0063, https://wapp.capitol.tn.gov/apps/BillInfo/default.aspx?BillNumber=HR0063&GA=113 [https://perma.cc/RC4C-AEY4] (last visited Jan. 7, 2025) (Rep. Pearson); Tenn. Gen. Assemb., HR 0064, https://wapp.capitol.tn.gov/apps/Billinfo/default.aspx?BillNumber=HR0064&ga=112 [https://perma.cc/A5CW-CR2V] (last visited Jan. 7, 2025) (Rep. Johnson); Representative Justin J. Pearson, Tenn. Gen. Assemb., https://wapp.capitol.tn.gov/apps/legislatorinfo/member.aspx?district=h86 [https://perma.cc/3QKK-6A8U] (last visited Oct. 11, 2024). ↑
- Tenn. H.R. 65; Tenn. H.R. 64; Tenn. H.R. 63. ↑
- Tennessee House of Representatives, House Floor Session 21st Legislative Day—April 6, 2023, YouTube (Apr. 6, 2023) (statement of Rep. Pearson), at 9:21:00–9:21:36, https://www.youtube.com/live/ZZK–_x3gIU?t=30894s [https://perma.cc/KMJ2-4249]. ↑
- Chris Megerian, Aamer Madhani & Josh Boak, Biden Thanks ‘Tennessee Three’ for ‘Standing Up,’ Associated Press (Apr. 24, 2023, 6:07 PM), https://apnews.com/article/biden-tennessee-three-lawmakers-pearson-jones-johnson-bb74e4bdb9628d53d64d13acf004248c; cf. Editorial, The Tennessee Bullhorn Isn’t Democracy, Wall St. J. (Apr. 19, 2023, 6:45 PM), https://www.wsj.com/articles/tennessee-justin-jones-justin-pearson-bullhorn-biden-white-house-chuck-schumer-gun-control-b9a4d4f5 (arguing that the conduct of the Tennessee Three was sufficiently disruptive to justify expulsion). ↑
- Erika Ryan, Patrick Jarenwattananon & Mary Louise Kelly, Tennessee GOP Rep. Barrett on Why He Voted to Expel Two Colleagues But Not the Third, NPR (Apr. 7, 2023, 5:24 PM), https://www.npr.org/2023/04/07/1168728769/tennessee-gop-rep-barrett-on-why-he-voted-to-expel-two-colleagues-but-not-the-th [https://perma.cc/K7R9-VTZY]; see also Tenn. H.R. 64 (proposed resolution expelling Rep. Johnson). ↑
- Cheyanne M. Daniels, Leaked Audio Shows Tennessee GOP Infighting Over Expulsion of Black Lawmakers, The Hill (Apr. 14, 2023, 3:59 PM), https://thehill.com/homenews/state-watch/3951196-leaked-audio-shows-tennessee-gop-infighting-over-expulsion-of-black-lawmakers/. ↑
- Bill Chappell & Katie Riordan, Both Black Tennessee Lawmakers Have Been Reinstated After Being Expelled by GOP,
NPR
(Apr. 12, 2023, 2:46 PM), https://www.npr.org/2023/04/12/1169444850/justin-pearson-vote-memphis-tennessee-house [https://perma.cc/BAZ4-BG4M]. ↑
- Sam Stockard, Special Elections for Three Seats Could Hit $570,000, Tenn. Lookout (Apr. 27, 2023, 10:35 AM), https://tennesseelookout.com/2023/04/27/special-elections-for-three-seats-could-hit-570000/ [https://perma.cc/SFL5-6ANK]; see infra note 186 (indicating that Representatives Jones and Pearson earned 9,831 combined votes); see also Nadine Yousif, Brandon Drenon & Melisa Goh, Lawmakers Expelled: What to Know About the ‘Tennessee Three,’ BBC (Apr. 7, 2023), https://www.bbc.com/news/world-us-canada-65182502 [https://perma.cc/WZ35-PAQL]. ↑
- Jones v. Sexton, No. 23-cv-01033, 2024 WL 4631658, at *1 (M.D. Tenn. Oct. 30, 2024). ↑
- U.S. Const. art. I, § 5, cl. 2. ↑
- Although Massachusetts, New Hampshire, New York, North Carolina, and South Dakota lack constitutional expulsion provisions, courts have interpreted other provisions to impliedly confer the power to expel. See Hiss v. Bartlett, 69 Mass. (3 Gray) 468 (1855); Horton v. McLaughlin, 821 A.2d 947 (N.H. 2003); Monserrate v. N.Y. State Senate, 599 F.3d 148 (2d Cir. 2010); Alexander v. Pharr, 103 S.E. 8 (N.C. 1920); Gray v. Gienapp, 2007 SD 12, 727 N.W.2d 808; see also infra Appendix: State Constitutional Expulsion Provisions. ↑
- Todd Garvey, Cong. Rsch. Serv.,
R45078
, Expulsion of Members of Congress: Legal Authority and Historical Practice
4, 9
(2023). ↑
- See, e.g., Investigation of Sen. Joseph R. McCarthy: Hearings on S.R. 187 Before the Subcomm. on Privileges & Elections of the S. Comm. on Rules & Admin., 82d Cong. 62 (1952) [hereinafter McCarthy Hearing] (statement of Sen. William Benton) (explaining that the Senate “is not an investigating body” and identifying the need for “procedure, in the form of a committee” to pursue expulsion charges); see also, e.g., Cong. Globe, 37th Cong., 2d Sess. 969–70 (1862) (statement of Sen. John Sherman) (debating the procedure and scope of expulsion with other Senators). ↑
- Monserrate v. N.Y. State Senate, 695 F. Supp. 2d 80, 92 (S.D.N.Y. 2010) (describing “hypothetical worst-case scenarios of the misuse of the expulsion power to discriminate against racial, ethnic, and political minorities”), aff’d, 599 F.3d 148 (2d Cir. 2010); see also Expulsion of House Member for Conduct Pre-Dating Election, Tenn. Att’y Gen. Op. No. 19-20, at 5 (2019) (observing that “the equal protection guarantees of Tennessee and U.S. Constitutions would prevent racially discriminatory expulsion decisions”). ↑
- Hous. Cmty. Coll. Sys. v. Wilson, 142 S. Ct. 1253, 1263–64 (2022) (reserving the question of a First Amendment retaliation claim in the context of legislative expulsion). ↑
- Michael Gold & Grace Ashford, George Santos Is Kicked Out of Congress in a Historic Vote, N.Y. Times (Dec. 1, 2023), http://www.nytimes.com/2023/12/01/nyregion/santos-expulsion-vote-congress.html; H.R. Res. 878, 118th Cong., 169 Cong. Rec. H6062–63 (daily ed. Dec. 1, 2023) (enacted). ↑
- See Dorian Bowman & Judith Farris Bowman, Article I, Section 5: Congress’ Power to Expel—An Exercise in Self-Restraint, 29 Syracuse L. Rev
.
1071 (1978); Wilson, 142 S. Ct. at 1259 (citing Bowman & Bowman, supra); Garvey, supra note 20, at 3 n.22. ↑
- See, e.g., Garvey, supra note 20, at 5–7 (discussing predominately early to mid-twentieth century case law). ↑
- See, e.g., id.; Robyn Sanders & Andrew Garber, The Unconstitutional Expulsion of Legislators, Brennan Ctr. for Just. (May 25, 2023), https://www.brennancenter.org/our-work/research-reports/unconstitutional-expulsion-legislators [https://perma.cc/6ZX4-9RWQ]. ↑
- 142 S. Ct. 2228, 2242, 2256 (2022). ↑
- 142 S. Ct. 522, 537–38 (2021). ↑
- The author is unaware of any expulsion scholarship to date that examines James Madison’s reflections on French expulsion, Alexander Hamilton’s proposal to abolish expulsion, Abigail Adams’s reflections on partisan expulsion, or various Anti-Federalist concerns about the Constitution’s expulsion power. See infra notes 58, 61, 65, 66, 67, 87 and accompanying text. ↑
- See infra notes 70, 72–74 and accompanying text; Appendix: State Constitutional Expulsion Provisions. ↑
- Most notably, this includes Houston Community College System v. Wilson, 142 S. Ct. 1253 (2022). The author is unaware of expulsion scholarship evaluating other recent federal opinions such as Hernandez v. Oregon Legislature, 521 F. Supp. 3d 1025 (D. Or. 2021), or Shooter v. Arizona, 4 F.4th 955 (9th Cir. 2021), cert. denied, 142 S. Ct. 898 (2022). ↑
- See infra note 178 and accompanying text. ↑
- 142 S. Ct. 1253. ↑
- See generally John C. Jeffries, Jr., The Right-Remedy Gap in Constitutional Law, 109 Yale L.J. 87 (1999) (discussing this term and the shortfall between the goals of rights and the realities of implemented remedies). ↑
-
See infra notes 207–08 and accompanying text. ↑