Roy Moore may still yet be the next Senator for Alabama, although who knows; polls last week either showed a tie or Doug Jones, the Democrat, winning. After allegations that Moore sexually harassed or assaulted young women, law professors and learned commentators started talking (here and here) about how the Senate might lawfully send keep Moore out of the Senate; although others aren’t so sure it’s possible (even if it is). If Moore wins, his new colleagues “will have a very tough decision to make,” said Sen. Susan Collins on Sunday.
If Moore wins today, the options available to a Senate wishing to send him back to Alabama are two: either excluding or expelling him from the Senate.
Since the Supreme Court’s decision in Powell v. McCormack (395 U.S. 547 (1969)), the conventional wisdom is that that the Senate may only exclude Moore (that is, refuse to swear him in) if he doesn’t meet the age, citizenship, and residence qualifications established under Article I, Section 3, Clause 3, of the United States Constitution. “They can’t just exclude someone because they don’t like him or even because he has committed a crime,” under the Senate’s power to “judge … the elections, returns, and qualifications of its own members” spelled out in Article I, Section 5, Clause 1. “[I]t has to be because he’s not actually entitled to a seat,” Chafetz said.
The Powell Court held that the constitutional grant of power extends “to judg[ing] only the qualifications expressly set forth in the Constitution” and that “the [Senate is] without authority to exclude any person, duly elected by his constituents, who meets all the requirements for membership expressly prescribed by the Constitution.” 395 U.S. at 521-522, 548.
The Powell Court was focused exclusively on the Article I qualifications, sidestepping any discussion of an additional qualification imposed by Article VI, Clause 3: “The Senators … shall be bound by oath or affirmation, to support this Constitution[.]” The Court explained that it did not consider whether this provision, or the other provisions concerning dual office-holding or disqualification because of impeachment or rebellion, was a qualification because the parties agreed that “Powell was not ineligible under any of these provisions.” Id. at 520 n.41.
So, what if the individual does not have the capacity to take the oath? Could the Senate exclude that individual? Consider the case of John M. Niles, elected to the Senate in 1843.
When Niles, a Connecticut Democrat, presented himself at the bar of the Senate on April 30, 1844, Sen. Spencer Jarnagin asked the presiding officer to not administer the oath. Cong. Globe, 28th Cong., 1st Sess., 564 (1844). The Tennessee Whig objected that Niles had a “condition … believed to disqualify him as a senator[;]” it was “general[ly] rumor[ed]” that Niles “had been afflicted [with] alienation of mind[.]” Id. “Alienation of mind” appears to be Victorian code for “insanity.” Forbes Winslow, Obscure Diseases of the Brain and Mind 414 (1866). The insanity charge was apparently supported by his stay at the New York State Asylum from July 1843 to March 1844 for severe depression triggered by the November 1842 death of his wife, Sarah. Robert L. Reutenauer, Jr., The Connecticut Democracy and Public Life of John Milton Niles: Universalist, Jacksonian, and Anti-slavery Senator, 1816-1856 at 152-157 (unpublished M.A. thesis) (2005).
Because of the rumors of Nile’s insanity, Jarnagin thought that a Senate committee should investigate and determine whether Niles “had recovered so far as to enable him to be a fit representative of the Staten from which he was elected[;]” and “the Senate had the power to make the investigation.” Cong. Globe, 28th Cong., 1st Sess., at 564.
Sen. John Fairfield, who presented Niles’s credentials, admitted that Niles “[wa]s laboring under a considerable degree of physical debility, and consequent depression of the spirits[;]” but his mind was sound. The Maine Democrat objected that he wasn’t quite sure the Senate had the power “to object to his being sworn  and to institute such an inquiry” urged by Jarnagin. Id.
Jarnagin was undeterred; he offered a resolution to delay Niles from taking his seat until a five-member committee could “inquire into the qualification of … Niles, and into his capacity at this time to take the oath prescribed by the constitution of the United States.” In debating the resolution, the Senators discussed whether Niles’s mental health was a qualification to be considered.
John Crittenden, a Kentucky Whig thought “the term ‘qualification,’ as stated in the constitution, had a distinct sense, and excluded the question proposed altogether.” Id. at 565. He would have substituted “mental competency” for “qualification” but did not offer an amendment to that effect. Id. Ohio Democrat Benjamin Tappan agreed, “doubt[ing] the constitutional power of the Senate to make such an inquiry[;]” Tappan “knew [of] no authority that they had to enter into an investigation of a question of competency.” Id. Tappan cautioned that if the Senate undertook to judge mental competency, it “would strike at the very existence of the body.” Id.
Ohio Democrat William Allen thought that “[t]he Senate had a right to inquire into his eligibility; but before exercising that privilege, where was its right to exclude him?” Id. However, that question—and any other constitutional questions as to jurisdiction—could be decided by the committee created by the resolution. Id. Finally, the resolution should be adopted immediately so that the committee could complete its investigation without delay; “the same evils [that] result from the total exclusion of a member … naturally followed his temporary exclusion.” Id. [Apparently, several senators were absent from the day’s proceedings on the understanding that “nothing of importance [w]ould be taken up during their absence[.]” Id.] Pennsylvania Democrat James Buchanan (yes, that one) agreed. Id. Finally, New York Democrat Silas Wright thought that any judgment as to mental capacity had to be first considered by a committee before the Senate could make its decision. Id.
Despite the differences of opinion, the resolution was adopted by unanimous consent, Niles was excluded, and the committee, chaired by Jarnagin, was appointed. Sen. J., 28th Cong., 1st Sess., 257 (1844). On May 16, Jarnagin submitted the committee’s report: Niles, while “laboring under mental and physical debilit[ies, was] not of ‘unsound mind’ … and there is no sufficient reason why he be not qualified, and permitted to take his seat as a member of the Senate.” Cong. Globe, 28th Cong., 1st. Sess. at 602. The Senate Journal states that Jarnagin submitted a report with the resolution permitting Niles to take his seat but does not print that report. See Sen. J., 28th Cong., 1st Sess. at 283. The Congressional Globe reports verbaitm only a single paragraph of the report (from which the immediate quotation above is drawn). See Cong. Globe, 28th Cong., 1st Sess. at 602.
“While the Niles controversy is not an instance of where the Senate actually excluded a senator-elect because of mental incompetency, yet it does show clearly that the Senate considered without question that it had the constitutional right to refuse to seat Niles if he had been mentally incompetent, because, if it had not considered itself as having that constitutional right, the controversy would never have been referred to a select committee.” Conwell Shoup Sykes, Has the Senate of the United States the Constitutional Right to Refuse to Seat a Senator who Presents Proper Credentials from the State Authorities Showing His Due Election to the United States Senate?, 1 Miss. L.J. 211, 219-220 (Oct. 1928).
Insanity is a bar to holding office in part because the elected official lacks the requisite capacity to make a meaningful oath of office. “If a person be so to such an extent as not to understand the nature of an oath,” for example, he is not competent as a witness at trial. State v. Brown, 28 Ohio Dec. 213, 219 (Com. Pl. 1918)(citing Regina v. Hill, 5 Cox’s Criminal Cases 259 (Eng. Crim. App. 1851). While all of us suffer under some delusions, only those delusions that prevent one from understanding the nature of an oath are disqualifying. Id.
The oath of constitutional support required by Article VI is a “promissory oath in which the declarant promises that he will perform certain duties in the future.” Law Students Civil Rights Research Council, Inc. v. Wadmond, 401 U.S. 154, 179 (1971)(Black, J., dissenting). “The oath of constitutional support requires an individual assuming public responsibilities to affirm, in entirely familiar and traditional language, that he will endeavor to perform his public duties lawfully.” Id. at 192 (Marshall, J., dissenting), approved by Cole v. Richardson, 405 U.S. 676, 682 (1972).
If an individual has demonstrated that he cannot “affirm … that he will endeavor to perform his public duties lawfully,” then he lacks capacity to take the oath. That is, if there is repeated behavior suggesting that an individual does not understand the obligation imposed on him by taking the oath, then he cannot make the oath because he does not or cannot intend the oath to be binding upon him.
Collins made precisely this point on “Meet the Press.” It wasn’t just the accusations of sexual misconduct or prejudiced comments: “most important of all, [Moore was] removed twice from the Alabama Supreme Court for failure to follow lawful judicial orders.”
As well-recounted elsewhere, Moore was removed from the office of Chief Justice of Alabama because he refused to comply with Federal court orders. In upholding his 2003 removal for failing to comply with a Federal court order that he remove a large statute of the Ten Commandments from the state judicial building, the Alabama Supreme Court squarely framed the question decided:
[T]his case is about a public official who took an oath to uphold the Constitution of the United States and then refused to obey a valid order of a United States District Court holding that the placement of the monument in the Judicial Building violated the Establishment Clause of the First Amendment to the United States Constitution.
Moore v. Jud. Inquiry Commn. of Ala., 891 So.2d 848, 859 (Ala. 2004). It quoted approvingly from the Eleventh Circuit’s opinion upholding the monument’s removal in Glassroth v. Moore; there, the court expressly rejected the “notion [that] high government officials [, who take an oath of office to defend the Constitution], can decide whether the Constitution requires or permits a federal court order and can act accordingly” and thus place themselves “above the law.” Id. (quoting 335 F.3d at 1302). As explained in another case where an Alabama official refused to obey court orders, the Eleventh Circuit reminded, “the very essence of a republican form of government, embraces the notion that when the judicial process of a state or federal court, acting within the sphere of its competence, has been exhausted and has resulted in a final judgment, all persons affected thereby are obliged to obey it.” 335 F.3d at 1303 (quoting U.S. v. Wallace, 218 F. Supp. 290, 292 (N.D. Ala. 1963).
Similarly in his 2016 removal, the Alabama Supreme Court found that his actions in ordering probate judges (who are generally non-lawyers in the state) to ignore a federal court order requiring them to issue marriage licenses to same-sex couples “incit[ed] those bound by it to disobey.” ___ So.3d ___, 2017 WL 1403696 at *10 (Ala. 2017). He did so especially after the U.S. Supreme Court recognized the constitutional right to same-sex marriage in June 2015. See id. at **19-20. Moore did so while he “was aware of or had knowledge … specifically of the binding nature of the United States Supreme Court’s rulings as to the interpretation of the Constitution” Id. at *20. In doing so, Moore “demonstrated an unwillingness to follow clear law” and merited removal. See id. at *10.
Moore has consistently argued that he had a higher obligation to honor God and not defy Him by removing the monument. E.g., 891 So. 2d at 858. These biblical arguments superseded any objective requirements imposed by his oath. See id. at 862. One justice made swift work of those arguments in a special concurrence by reprinting the text of the following New Testament passages, chief of which is this from Romans chapter 13, verses 1-2: “Every person must submit to the supreme authorities. There is no authority but by act of God, and the existing authorities are instituted by him; consequently anyone who rebels against authority is resisting a divine institution, and those who so resist have themselves to thank for the punishment they will receive” (NEB). That is, “[t]he very idea of the power and the right of the people to establish government presupposes the duty of every individual to obey the established government.” Washington’s Farewell Address, S. Doc. 106-21, at 13 (2000).
Moore simply refuses to recognize that his oath of constitutional support requires that he obey federal court rulings, especially when the Supreme Court reviews congressional action. “[T]he fact that Congress independently interprets the Constitution is not problematic–simply a corollary of the congressional constitutional oath.” Patrick O. Gudridge, The Office of the Oath, 20 Const. Comment. 387, 403 (Summer 2003). “Whether or not the congressional reading matches the Supreme Court’s understanding is, in and of itself, irrelevant for purposes of the substance of [the] judicial constitutional review” that is, for better or worse, the linchpin of our constitutional democracy. Id. Rather, “[t]he operative question is whether legislation is inconsistent with the Constitution within the Court’s own independent reading.” Id. Because that reading controls, at least until it is overturned or overruled, a Senator must recognize that fact; if he does not, then he cannot support the Constitution. Moore has demonstrated twice, most recently in 2016, that he does not recognize this fact. Thus, he does not understand the obligations imposed by the oath and cannot take the oath as required by the Constitution.
Since the Powell Court expressly reserved judgment on the oath-as-qualification issue, so Moore cannot argue Powell‘s protections. The Court recognized the possibilities of other qualifications, but those possibilities were not relevant in Powell’s case. And the Court did not consider the Niles precedent to be out of line with the general rule that the power to exclude is confined to those qualifications set out in the Constitution. 395 U.S. at 542-543 & n.79. The Court did not take any pains to explain away the Niles precedent as inconsistent with its review of the power to exclude, thus assuming that it was lawful and not incompatible with its ultimate holding. See id. The time is now ripe to litigate that issue; and, frankly, better facts there could not be. This approach avoids a tawdry discussion of Roy Moore’s sexual behavior; one side attacks Moore for sexual misconduct and another side attacks the women who believed they were targeted by him. It involves, instead, the sort of argument that Moore says he favors: what does the Constitution require?
What should Senator Collins do? It seems that she should offer a resolution delaying the administration of the oath to Moore pending an inquiry into his capacity to take the oath; such a resolution is privileged and prevents the Presiding Officer from administering the oath. Riddick’s Senate Procedure, S. Doc. 101-28 at 704 (1992). This is certainly the procedure used by Jarnagin in the Niles precedent. While “orderly procedure” first outlined in 1903 suggests that a Senator-elect should be sworn first and then his qualifications should be reviewed, that procedure seems to relate primarily to cases of election contests and not to cases where the Senator lacks capacity to take the oath. See id. at 704-705. Moore can then take his case to a Federal district court and thence on appeal, eventually to the Supreme Court. Poetic, I think.
Senator Collins, if you feel as you say, it’s worth a try. Good luck.