The Senate Cannot Refuse to Seat Roy Moore and Will Not Vote to Expel Him

Abstract

If Roy Moore is elected to the Senate by the voters of Alabama, the Senate is required to seat him. The Supreme Court has held that the House and the Senate cannot refuse to seat a person who has been elected to the House or the Senate and who possesses the constitutional requirements of age, citizenship and residence. The Court has also held that a constitutional challenge to the actions of the House or Senate in refusing to seat a person who has been elected to that body or to expel that person is fully justiciable by the federal courts. Since Moore possesses the constitutional requirements of age, citizenship, and residency, the Senate cannot refuse to seat him. The question then arises whether after Moore has been seated, the Senate could then turn around and by a two-thirds vote, decide to expel him. On the one hand, it could be contended, that under Art. I, sec. 5, cl.2, the Senate could only expel him for improper conduct that he had engaged in while a Senator and that expelling him for conduct that he allegedly had engaged in prior to his election to the Senate is the equivalent of refusing to seat him and so is unconstitutional. The contrary argument is that expulsion is different from a refusal to seat, and that the only constitutional limitation on the power of the Senate to expel is that it requires a two-thirds vote. The constitutional question is unlikely to arise, because the Senate will not vote to expel Moore. The Senate follows its own precedents, and under those precedents, the Senate will only vote to expel a Senator for improper conduct taking place while that person was serving as a Senator. It is for the voters of Alabama to decide whether Moore will serve in that venerable body.