Expelling Santos Sets A Dangerous Precedent

The New York Times recently reported that George Santos made up significant aspects of his life story during his bid to win a seat in the House of Representatives. Santos - a Republican - bested his opponent - Democrat Robert Zimmerman - by more than eight points on Election Day. As a result, he will represent New York’s 3rd congressional district in the 118th Congress when it convenes next week.

Revelations that Santos invented significant parts of his campaign biography have led some people to call for his resignation before the new Congress officially begins on January 3. For example, House Democrats are asking Santos to step aside because of his fabrications. Some Democrats suggest that the House expel Santos after the new Congress convenes if he refuses to resign before then. Joaquin Castro, D-Texas, contends that lawmakers will set a “dangerous precedent” by allowing Santos to remain in Congress. And the Vice Chair of the House Democratic Caucus, Ted Lieu, D-Calif., has suggested that the Republican leader - presently Kevin McCarthy, R-Calif. - schedule a vote to expel Santos if he becomes the next Speaker of the House.

Yet McCarthy and most House Republicans have not yet commented on the Santos controversy. Three incoming Republican representatives-elect have called on Santos to resign. But Republican leaders and rank-and-file lawmakers have not yet indicated to the public what they plan to do when the 118th Congress begins.

But whatever Republicans decide to do about Santos, and notwithstanding the merits of the case against the representative-elect, the Constitution limits their options once he takes the oath of office.

The Constitution

The Constitution imposes clear limits on what the House can do to punish Santos for inventing things in his life story. For example, it does not authorize House lawmakers to decide who gets to represent New York's 3rd congressional district. And while the Constitution empowers the House to determine whether a winning candidate meets the requirements to serve in the institution, it does not permit lawmakers to define those requirements or to change them.

The Constitution instead explicitly stipulates who picks House members. Article I, section 2, clause 1 states unequivocally that the "House of Representatives shall be composed of Members chosen every second Year by the People of the several States." It also stipulates that "the Electors in each State shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature.”

Of course, the Constitution’s Qualifications for Representatives clause (Article I, section 2, clause 2) limits who "the People of the several States" can pick to represent them in the House. It requires all lawmakers to meet three requirements to serve in the House. First, they must be at least twenty-five years old. Second, representatives must be American citizens for at least seven years. Finally, they must be "an Inhabitant of that State in which he shall be chosen." If a candidate meets these criteria, then they are authorized by the Constitution to serve in the House.

The Supreme Court affirmed this view in two landmark cases. In Powell v. McCormack, the Court ruled that the House is  "limited to the standing qualifications expressly prescribed by the Constitution" when determining whether a representative-elect is eligible to serve in the institution." Lawmakers in the House, therefore, have "no power to exclude a member-elect who meets the Constitution's membership requirements." And the Court ruled in U.S. Term Limits, Inc. v. Thornton that lawmakers in the House do not have the power “to alter or add to the qualifications set forth in the Constitution’s text.” The Court characterized those qualifications as “‘fixed,’ at least in the sense that they may not be supplemented by Congress.”

Within these parameters, the Constitution’s Qualifications and Quorum clause (Article I, section 5, clause 1) enables lawmakers to determine if a representative-elect is eligible to serve in the House. And its Rules and Expulsion Clause (Article I, section 5, clause 2) empowers the House to "punish its Members for disorderly Behaviour, and, with the Concurrence of two thirds, expel a Member." But the Constitution does not permit the House to use its power to judge the qualifications of its members in ways that contradict its other provisions. Nor does the Constitution empower the House to expel a member if doing so contradicts - or changes - the explicit provisions detailed in Article I, section 2, clause 1, and clause 2.

The Takeaway

The Constitution limits the House’s ability to expel Santos if he refuses to resign before the 118th Congress convenes. And however distasteful Santos' actions are, lawmakers in the House risk setting a "dangerous precedent" if they ignore the Constitution's limitations. This is because, in doing so, they would be assuming the power to decide who gets to represent New York's 3rd congressional district instead of its voters.