Powell v. McCormack
395 U.S. 486 (1969)

Annotate this Case

U.S. Supreme Court

Powell v. McCormack, 395 U.S. 486 (1969)

Powell v. McCormack

No. 138

Argued April 21, 1969

Decided June 16, 1969

395 U.S. 486




Petitioner Powell, who had been duly elected to serve in the House of Representatives for the 90th Congress, was denied his seat by the adoption of House Resolution No. 278 which the Speaker had ruled was on the issue of excluding Powell and could be decided by majority vote. The House's action followed charges that Powell had misappropriated public funds and abused the process of the New York courts. Powell and certain voters of his congressional district thereafter brought suit in the District Court for injunctive, mandatory, and declaratory relief against respondents, certain named House members, the Speaker, Clerk, Sergeant at Arms, and Doorkeeper of the House, alleging that the Resolution barring his seating violated Art. I, § 2, cl. 1, of the Constitution as contrary to the mandate that House members be elected by the people of each State, and cl. 2, which sets forth the qualifications for membership of age, citizenship, and residence (all concededly met by Powell), which they claimed were exclusive. The complaint alleged that the House Clerk threatened to refuse to perform the service to which Powell as a duly elected Congressman was entitled; that the Sergeant at Arms refused to pay Powell's salary, and that the Doorkeeper threatened to deny Powell admission to the House chamber. The District Court granted respondents' motion to dismiss the complaint "for want of jurisdiction of the subject matter." The Court of Appeals affirmed on somewhat different grounds. While the case was pending in this Court, the 90th Congress ended and Powell was elected to and seated by the 91st Congress. Respondents contend that (1) the case is moot; (2) the Speech or Debate Clause (Art. I, § 6) forecloses judicial review; (3) the decision to exclude Powell is supported by the expulsion power in Art. I, § 5, under which the House, which "shall be the Judge of the . . . Qualifications of its own embers," can by a two-thirds vote (exceeded here) expel a member for any reason at all; (4) the Court lacks subject matter jurisdiction over this litigation, or, alternatively,

Page 395 U. S. 487

(5) the litigation is not justiciable under general criteria or because it involves a political question.


1. The case has not been mooted by Powell's seating in the 91st Congress, since his claim for back salary remains a viable issue. Pp. 395 U. S. 495-500.

(a) Powell's averments as to declaratory relief are sufficient. Alejandrino v. Quezon,271 U. S. 528, distinguished. Pp. 395 U. S. 496-499.

(b) The mootness of Powell's claim to a seat in the 90th Congress does not affect the viability of his back salary claim with respect to the term for which he was excluded. Bond v. Floyd,385 U. S. 116. Pp. 395 U. S. 499-500.

2. Although the Speech or Debate Clause bars action against respondent Congressmen, it does not bar action against the other respondents, who are legislative employees charged with unconstitutional activity, Kilbourn v. Thompson,103 U. S. 168; Dombrowski v. Eastland,387 U. S. 82, and the fact that House employees are acting pursuant to express orders of the House does not preclude judicial review of the constitutionality of the underlying legislative decision. Pp. 395 U. S. 501-506.

3. House Resolution No. 278 was an exclusion proceeding, and cannot be treated as an expulsion proceeding (which House members have viewed as not applying to pre-election misconduct). This Court will not speculate whether the House would have voted to expel Powell had it been faced with that question. Pp. 395 U. S. 506-512.

4. The Court has subject matter jurisdiction over petitioners' action. Pp. 395 U. S. 512-516.

(a) The case is one "arising under" the Constitution within the meaning of Art. III, since petitioners' claims "will be sustained if the Constitution . . . [is] given one construction and will be defeated if it [is] given another." Bell v. Hood,327 U. S. 678. Pp. 395 U. S. 513-514.

(b) The district courts are given a broad grant of jurisdiction by 28 U.S.C. § 1331(a), over "all civil actions wherein the matter in controversy . . . arises under the Constitution . . . ," and, while that grant is not entirely coextensive with Art. III, there is no indication that § 1331(a) was intended to foreclose federal courts from entertaining suits involving the seating of Congressmen. Pp. 395 U. S. 514-516.

5. This litigation is justiciable because the claim presented and the relief sought can be judicially resolved. Pp. 395 U. S. 516-518.

(a) Petitioners' claim does not lack justiciability on the ground that the House's duty cannot be judicially determined, since, if

Page 395 U. S. 488

petitioners are correct, the House had a duty to seat Powell once it determined that he met the standing qualifications set forth in the Constitution. P. 395 U. S. 517.

(b) The relief sought is susceptible of judicial resolution, since, regardless of the appropriateness of a coercive remedy against House personnel (an issue not here decided), declaratory relief is independently available. Pp. 395 U. S. 517-518.

6. The case does not involve a "political question," which, under the separation of powers doctrine, would not be justiciable. Pp. 395 U. S. 518-549.

(a) The Court's examination of relevant historical materials shows at most that Congress' power under Art. I, § 5, to judge the "Qualifications of its Members" is a "textually demonstrable constitutional commitment . . . to [that] co-ordinate political department of government" (Baker v. Carr,369 U. S. 186, 369 U. S. 217) to judge only standing qualifications which are expressly set forth in the Constitution; hence, the House has no power to exclude a member-elect who meets the Constitution's membership requirements. Pp. 395 U. S. 518-548.

(b) The case does not present a political question in the sense, also urged by respondents, that it would entail a "potentially embarrassing confrontation between coordinate branches" of the Government, since our system of government requires federal courts on occasion to interpret the Constitution differently from other branches. Pp. 395 U. S. 548-549.

7. In judging the qualifications of its members under Art. I, § 5, Congress is limited to the standing qualifications expressly prescribed by the Constitution. P. 395 U. S. 550.

129 U.S.App.D.C. 354, 395 F.2d 577, affirmed in part, reversed in part, and remanded to the District Court for entry of a declaratory judgment and for further proceedings.

Page 395 U. S. 489

MR. CHIEF JUSTICE WARREN delivered the opinion of the Court.

In November, 1966, petitioner Adam Clayton Powell, Jr., was duly elected from the 18th Congressional District of New York to serve in the United States House of Representatives for the 90th Congress. However, pursuant to a House resolution, he was not permitted to take his seat. Powell (and some of the voters of his district) then filed suit in Federal District Court, claiming that the House could exclude him only if it found he failed to meet the standing requirements of age, citizenship, and residence contained in Art. I, § 2, of the Constitution -- requirements the House specifically found Powell met -- and thus had excluded him unconstitutionally. The District Court dismissed petitioners' complaint "for want of jurisdiction of the subject matter." A panel of the Court of Appeals affirmed the dismissal, although on somewhat different grounds, each judge filing a separate opinion. We have determined that it was error to dismiss the complaint, and that petitioner Powell is entitled to a declaratory judgment that he was unlawfully excluded from the 90th Congress.



During the 89th Congress, a Special Subcommittee on Contracts of the Committee on House Administration conducted an investigation into the expenditures of the Committee on Education and Labor, of which petitioner

Page 395 U. S. 490

Adam Clayton Powell, Jr., was chairman. The Special Subcommittee issued a report concluding that Powell and certain staff employees had deceived the House authorities as to travel expenses. The report also indicated there was strong evidence that certain illegal salary payments had been made to Powell's wife at his direction. See H.R.Rep. No. 2349, 89th Cong., 2d Sess., 6-7 (1966). No formal action was taken during the 89th Congress. However, prior to the organization of the 90th Congress, the Democratic members-elect met in caucus and voted to remove Powell as chairman of the Committee on Education and Labor. See H.R.Rep. No. 27, 90th Cong., 1st Sess., 1-2 (1967).

When the 90th Congress met to organize in January, 1967, Powell was asked to step aside while the oath was administered to the other members-elect. Following the administration of the oath to the remaining members, the House discussed the procedure to be followed in determining whether Powell was eligible to take his seat. After some debate, by a vote of 363 to 65, the House adopted House Resolution No. 1, which provided that the Speaker appoint a Select Committee to determine Powell's eligibility. 113 Cong.Rec. 26-27. Although the resolution prohibited Powell from taking his seat until the House acted on the Select Committee's report, it did provide that he should receive all the pay and allowances due a member during the period.

The Select Committee, composed of nine lawyer-members, issued an invitation to Powell to testify before the Committee. The invitation letter stated that the scope of the testimony and investigation would include Powell's qualifications as to age, citizenship, and residency; his involvement in a civil suit (in which he had been held in contempt), and "[m]atters of . . . alleged official misconduct since January 3, 1961." See Hearings on

Page 395 U. S. 491

H.R.Res. No. 1 before Select Committee Pursuant to H.R.Res. No. 1, 90th Cong., 1st Sess., 5 (1967) (hereinafter Hearings). Powell appeared at the Committee hearing held on February 8, 1967. After the Committee denied in part Powell's request that certain adversary-type procedures be followed, [Footnote 1] Powell testified. He would, however, give information relating only to his age, citizenship, and residency; upon the advice of counsel, he refused to answer other questions.

On February 10, 1967, the Select Committee issued another invitation to Powell. In the letter, the Select Committee informed Powell that its responsibility under the House Resolution extended to determining not only whether he met the standing qualifications of Art. I, § 2, but also to

"inquir[ing] into the question of whether you should be punished or expelled pursuant to the powers granted . . . the House under Article I, Section 5, . . . of the Constitution. In other words, the Select Committee is of the opinion that, at the conclusion of the present inquiry, it has authority to report back to the House recommendations with respect to . . . seating, expulsion or other punishment."

See Hearings 110. Powell did

Page 395 U. S. 492

not appear at the next hearing, held February 14, 1967. However, his attorneys were present, and they informed the Committee that Powell would not testify about matters other than his eligibility under the standing qualifications of Art. I, § 2. Powell's attorneys reasserted Powell's contention that the standing qualifications were the exclusive requirements for membership, and they further urged that punishment or expulsion was not possible until a member had been seated. See Hearings 111-113.

The Committee held one further hearing at which neither Powell nor his attorneys were present. Then, on February 23, 1967, the Committee issued its report, finding that Powell met the standing qualifications of Art. I, § 2. H.R.Rep. No. 27, 90th Cong., 1st Sess., 31 (1967). However, the Committee further reported that Powell had asserted an unwarranted privilege and immunity from the processes of the courts of New York; that he had wrongfully diverted House funds for the use of others and himself, and that he had made false reports on expenditures of foreign currency to the Committee on House Administration. Id. at 31-32. The Committee recommended that Powell be sworn and seated as a member of the 90th Congress, but that he be censured by the House, fined $40,000, and be deprived of his seniority. Id. at 33.

The report was presented to the House on March 1, 1967, and the House debated the Select Committee's proposed resolution. At the conclusion of the debate, by a vote of 222 to 202 the House rejected a motion to bring the resolution to a vote. An amendment to the resolution was then offered; it called for the exclusion of Powell and a declaration that his seat was vacant. The Speaker ruled that a majority vote of the House would be sufficient to pass the resolution if it were so

Page 395 U. S. 493

amended. 113 Cong.Rec. 5020. After further debate, the amendment was adopted by a vote of 248 to 176. Then the House adopted by a vote of 307 to 116 House Resolution No. 278 in its amended form, thereby excluding Powell and directing that the Speaker notify the Governor of New York that the seat was vacant.

Powell and 13 voters of the 18th Congressional District of New York subsequently instituted this suit in the United States District Court for the District of Columbia. Five members of the House of Representatives were named as defendants individually and "as representatives of a class of citizens who are presently serving . . . as members of the House of Representatives." John W. McCormack was named in his official capacity as Speaker, and the Clerk of the House of Representatives, the Sergeant at Arms and the Doorkeeper were named individually and in their official capacities. The complaint alleged that House Resolution No. 278 violated the Constitution, specifically Art. I, § 2, cl. 1, because the resolution was inconsistent with the mandate that the members of the House shall be elected by the people of each State, and Art. I, § 2, cl. 2, which, petitioners alleged, sets forth the exclusive qualifications for membership. [Footnote 2] The complaint further alleged that the Clerk of the House threatened to refuse to perform the service for Powell to which a duly elected Congressman is entitled, that the Sergeant at Arms refused to pay Powell his salary, and that the Doorkeeper threatened to deny Powell admission to the House chamber.

Page 395 U. S. 494

Petitioners asked that a three-judge court be convened. [Footnote 3] Further, they requested that the District Court grant a permanent injunction restraining respondents from executing the House Resolution, and enjoining the Speaker from refusing to administer the oath, the Clerk from refusing to perform the duties due a Representative, the Sergeant at Arms from refusing to pay Powell his salary, and the Doorkeeper from refusing to admit Powell to the Chamber. [Footnote 4] The complaint also requested a declaratory judgment that Powell's exclusion was unconstitutional.

The District Court granted respondents' motion to dismiss the complaint "for want of jurisdiction of the subject matter." Powell v. McCormack, 266 F.Supp. 354 (D.C. D.C.1967). [Footnote 5] The Court of Appeals for the District of Columbia Circuit affirmed on somewhat different grounds, with each judge of the panel filing a separate opinion. Powell v. McCormack, 129 U.S.App.D.C. 354, 395 F.2d 577 (1968). We granted certiorari. 393 U.S. 949 (1968). While the case was pending on our docket, the 90th Congress officially terminated, and the 91st Congress was seated. In November, 1968, Powell was again elected as the representative of the 18th Congressional District of New York, and he was seated by the 91st Congress. The resolution seating Powell also

Page 395 U. S. 495

fined him $25,000. See H.R.Res. No. 2, 91st Cong., 1st Sess., 115 Cong.Rec. H21 (daily ed., January 3, 1969). Respondents then filed a suggestion of mootness. We postponed further consideration of this suggestion to a hearing on the merits. 393 U.S. 1060 (1969).

Respondents press upon us a variety of arguments to support the court below; they will be considered in the following order. (1) Events occurring subsequent to the grant of certiorari have rendered this litigation moot. (2) The Speech or Debate Clause of the Constitution, Art. I, § 6, insulates respondents' action from judicial review. (3) The decision to exclude petitioner Powell is supported by the power granted to the House of Representatives to expel a member. (4) This Court lacks subject matter jurisdiction over petitioners' action. (5) Even if subject matter jurisdiction is present, this litigation is not justiciable either under the general criteria established by this Court or because a political question is involved.



After certiorari was granted, respondents filed a memorandum suggesting that two events which occurred subsequent to our grant of certiorari require that the case be dismissed as moot. On January 3, 1969, the House of Representatives of the 90th Congress officially terminated, and petitioner Powell was seated as a member of the 91st Congress. 115 Cong.Rec. H22 (daily ed., January 3, 1969). Respondents insist that the gravamen of petitioners' complaint was the failure of the 90th Congress to seat petitioner Powell, and that, since the House of Representatives is not a continuing body [Footnote 6]

Page 395 U. S. 496

and Powell has now been seated, his claims are moot. Petitioners counter that three issues remain unresolved, and thus this litigation present a "case or controversy" within the meaning of Art. III: [Footnote 7] (1) whether Powell was unconstitutionally deprived of his seniority by his exclusion from the 90th Congress; (2) whether the resolution of the 91st Congress imposing as "punishment" a $25,000 fine is a continuation of respondents' allegedly unconstitutional exclusion, see H.R.Res. No. 2, 91st Cong., 1st Sess., 115 Cong.Rec. H21 (daily ed., January 3, 1969), and (3) whether Powell is entitled to salary withheld after his exclusion from the 90th Congress. We conclude that Powell's claim for back salary remains viable even though he has been seated in the 91st Congress, and thus find it unnecessary to determine whether the other issues have become moot. [Footnote 8]

Simply stated, a case is moot when the issues presented are no longer "live" or the parties lack a legally cognizable interest in the outcome. See E. Borchard, Declaratory

Page 395 U. S. 497

Judgments 35-37 (2d ed.1941). Where one of the several issues presented becomes moot, the remaining live issues supply the constitutional requirement of a case or controversy. See United Public Workers v. Mitchell,330 U. S. 75, 330 U. S. 86-94 (1947); 6A J. Moore, Federal Practice 1157.13 (2d ed.1966). Despite Powell's obvious and continuing interest in his withheld salary, respondents insist that Alejandrino v. Quezon,271 U. S. 528 (1926), leaves us no choice but to dismiss this litigation as moot. Alejandrino, a duly appointed Senator of the Philippine Islands, was suspended for one year by a resolution of the Philippine Senate and deprived of all "prerogatives, privileges and emoluments" for the period of his suspension. The Supreme Court of the Philippines refused to enjoin the suspension. By the time the case reached this Court, the suspension had expired and the Court dismissed as moot Alejandrino's request that the suspension be enjoined. Then, sua sponte, [Footnote 9] the Court considered whether the possibility that Alejandrino was entitled to back salary required it "to retain the case for the purpose of determining whether he [Alejandrino] may not have a mandamus for this purpose." Id. at 271 U. S. 533. Characterizing the issue of Alejandrino's salary as a "mere incident" to his claim that the suspension was improper, the Court noted that he had not briefed the salary issue, and that his request for mandamus did not set out with sufficient clarity the official or set of officials against whom the mandamus should issue. Id. at 271 U. S. 533-534. The Court therefore refused to treat the salary claim and dismissed the entire action as moot.

Page 395 U. S. 498

Respondents believe that Powell's salary claim is also a "mere incident" to his insistence that he was unconstitutionally excluded so that we should likewise dismiss this entire action as moot. This argument fails to grasp that the reason for the dismissal in Alejandrino was not that Alejandrino's deprivation of salary was insufficiently substantial to prevent the case from becoming moot, but rather that his failure to plead sufficient facts to establish his mandamus claim made it impossible for any court to resolve the mandamus request. [Footnote 10] By contrast, petitioners' complaint names the official responsible for the payment of congressional salaries and asks for both mandamus and an injunction against that official. [Footnote 11]

Furthermore, even if respondents are correct that petitioners' averments as to injunctive relief are not sufficiently definite, it does not follow that this litigation must be dismissed as moot. Petitioner Powell has not been paid his salary by virtue of an allegedly unconstitutional House resolution. That claim is still unresolved, and hotly contested by clearly adverse parties. Declaratory relief has been requested, a form of relief not available

Page 395 U. S. 499

when Alejandrino was decided. [Footnote 12] A court may grant declaratory relief even though it chooses not to issue an injunction or mandamus. See United Public Workers v. Mitchell, supra, at 330 U. S. 93; cf. United States v. California,332 U. S. 19, 332 U. S. 25-26 (1947). A declaratory judgment can then be used as a predicate to further relief, including an injunction. 28 U.S.C. § 2202; see Vermont Structural Slate Co. v. Tatko Brothers Slate Co., 253 F.2d 29 (C.A.2d Cir.1958); United States Lines Co. v. Shaughnessy, 195 F.2d 385 (C.A.2d Cir.1952). Alejandrino stands only for the proposition that, where one claim has become moot and the pleadings are insufficient to determine whether the plaintiff is entitled to another remedy, the action should be dismissed as moot. [Footnote 13] There is no suggestion that petitioners' averments as to declaratory relief are insufficient, and Powell's allegedly unconstitutional deprivation of salary remains unresolved.

Respondents further argue that Powell's "wholly incidental and subordinate" demand for salary is insufficient to prevent this litigation from becoming moot. They suggest that the "primary and principal relief" sought was the seating of petitioner Powell in the 90th Congress, rendering his presumably secondary claims not worthy of judicial consideration. Bond v. Floyd,385 U. S. 116 (1966), rejects respondents' theory that the mootness of a "primary" claim requires a conclusion that all "secondary" claims are moot. At the Bond oral argument, it was suggested that the expiration of the session of the Georgia Legislature which excluded Bond had rendered

Page 395 U. S. 500

the case moot. We replied:

"The State has not pressed this argument, and it could not do so, because the State has stipulated that, if Bond succeeds on this appeal, he will receive back salary for the term from which he was excluded."

385 U.S. at 385 U. S. 128, n. 4. Bond is not controlling, argue respondents, because the legislative term from which Bond was excluded did not end until December 31, 1966, [Footnote 14] and our decision was rendered December 5; further, when Bond was decided, Bond had not as yet been seated, while, in this case, Powell has been. [Footnote 15] Respondents do not tell us, however, why these factual distinctions create a legally significant difference between Bond and this case. We relied in Bond on the outstanding salary claim, not the facts respondents stress, to hold that the case was not moot.

Finally, respondents seem to argue that Powell's proper action to recover salary is a suit in the Court of Claims, so that, having brought the wrong action, a dismissal for mootness is appropriate. The short answer to this argument is that it confuses mootness with whether Powell has established a right to recover against the Sergeant at Arms, a question which it is inappropriate to treat at this stage of the litigation. [Footnote 16]

Page 395 U. S. 501



Respondents assert that the Speech or Debate Clause of the Constitution, Art. I, § 6, [Footnote 17] is an absolute bar to petitioners' action. This Court has on four prior occasions -- Dombrowski v. Eastland,387 U. S. 82 (1967); United States v. Johnson,383 U. S. 169 (1966); Tenney v. Brandhove,341 U. S. 367 (1951), and Kilbourn v. Thompson,103 U. S. 168 (1881) -- been called upon to determine if allegedly unconstitutional action taken by legislators or legislative employees is insulated from judicial review by the Speech or Debate Clause. Both parties insist that their respective positions find support in these cases, and tender for decision three distinct issues: (1) whether respondents, in participating in the exclusion of petitioner Powell, were "acting in the sphere of legitimate legislative activity," Tenney v. Brandhove, supra, at 341 U. S. 376; (2) assuming that respondents were so acting, whether the fact that petitioners seek neither damages from any of the respondents nor a criminal prosecution lifts the bar of the clause; [Footnote 18] and (3) even if this

Page 395 U. S. 502

action may not be maintained against a Congressman, whether those respondents who are merely employees of the House may plead the bar of the clause. We find it necessary to treat only the last of these issues.

The Speech or Debate Clause, adopted by the Constitutional Convention without debate or opposition, [Footnote 19] finds its roots in the conflict between Parliament and the Crown culminating in the Glorious Revolution of 1688 and the English Bill of Rights of 1689. [Footnote 20] Drawing upon this history, we concluded in United States v. Johnson, supra, at 383 U. S. 181, that the purpose of this clause was "to prevent intimidation [of legislators] by the executive and accountability before a possibly hostile Judiciary." Although the clause sprang from a fear of seditious libel actions instituted by the Crown to punish unfavorable speeches made in Parliament, [Footnote 21] we have held that it would be a "narrow view" to confine the protection of the Speech or Debate Clause to words spoken in debate. Committee reports, resolutions, and the act of voting are equally covered, as are "things generally done in a session of the House by one of its members in relation to the business before it." Kilbourn v. Thompson, supra, at 103 U. S. 204. Furthermore, the clause not only provides a

Page 395 U. S. 503

defense on the merits, but also protects a legislator from the burden of defending himself. Dombrowski v. Eastland, supra, at 387 U. S. 85; see Tenney v. Brandhove, supra, at 341 U. S. 377.

Our cases make it clear that the legislative immunity created by the Speech or Debate Clause performs an important function in representative government. It insures that legislators are free to represent the interests of their constituents without fear that they will be later called to task in the courts for that representation. Thus, in Tenney v. Brandhove, supra, at 341 U. S. 373, the Court quoted the writings of James Wilson as illuminating the reason for legislative immunity:

"In order to enable and encourage a representative of the publick to discharge his publick trust with firmness and success, it is indispensably necessary that he should enjoy the fullest liberty of speech, and that he should be protected from the resentment of everyone, however powerful, to whom the exercise of that liberty may occasion offence. [Footnote 22]"

Legislative immunity does not, of course, bar all judicial review of legislative acts. That issue was settled by implication as early as 1803, See Marbury v. Madison, 1 Cranch 137, and expressly in Kilbourn v. Thompson, the first of this Court's cases interpreting the reach of the Speech or Debate Clause. Challenged in Kilbourn was the constitutionality of a House Resolution ordering the arrest and imprisonment of a recalcitrant witness who had refused to respond to a subpoena issued by a House investigating committee. While holding that the Speech or Debate Clause barred Kilbourn's action for false imprisonment brought against several members of the House, the Court nevertheless reached the merits of Kilbourn's attack, and decided that, since the House had no power to punish for contempt, Kilbourn's imprisonment

Page 395 U. S. 504

pursuant to the resolution was unconstitutional. It therefore allowed Kilbourn to bring his false imprisonment action against Thompson, the House's Sergeant at Arms, who had executed the warrant for Kilbourn's arrest.

The Court first articulated in Kilbourn and followed in Dombrowski v. Eastland [Footnote 23] the doctrine that, although an action against a Congressman may be barred by the Speech or Debate Clause, legislative employees who participated in the unconstitutional activity are responsible for their acts. Despite the fact that petitioners brought this suit against several House employees -- the Sergeant at Arms, the Doorkeeper and the Clerk -- as well as several Congressmen, respondents argue that Kilbourn and Dombrowski are distinguishable. Conceding that, in Kilbourn, the presence of the Sergeant at Arms, and, in Dombrowski, the presence of a congressional subcommittee counsel as defendants in the litigation allowed judicial review of the challenged congressional action, respondents urge that both cases concerned an affirmative act performed by the employee outside the House having a direct effect upon a private citizen. Here, they continue, the relief sought relates to actions taken by House agents solely within the House. Alternatively, respondents insist that Kilbourn and Dombrowski prayed for damages, while petitioner Powell asks that the Sergeant at Arms disburse funds, an assertedly greater interference with the legislative process. We reject the proffered distinctions.

That House employees are acting pursuant to express orders of the House does not bar judicial review of the constitutionality of the underlying legislative decision.

Page 395 U. S. 505

Kilbourn decisively settles this question, since the Sergeant at Arms was held liable for false imprisonment even though he did nothing more than execute the House Resolution that Kilbourn be arrested and imprisoned. [Footnote 24] Respondents' suggestions thus ask us to distinguish between affirmative acts of House employees and situations in which the House orders its employees not to act or between actions for damages and claims for salary. We can find no basis in either the history of the Speech or Debate Clause or our cases for either distinction. The purpose of the protection afforded legislators is not to forestall judicial review of legislative action, but to insure that legislators are not distracted from or hindered in the performance of their legislative tasks by being called into court to defend their actions. A legislator is no more or no less hindered or distracted by litigation against a legislative employee calling into question the employee's affirmative action than he would be by a lawsuit questioning the employee's failure to act. Nor is the distraction or hindrance increased because the claim is for salary, rather than damages, or because the litigation questions action taken by the employee within, rather than without, the House. Freedom of legislative activity and the purposes of the Speech or Debate Clause are fully protected if legislators are relieved of the burden of defending themselves. [Footnote 25] In Kilbourn and Dombrowski,

Page 395 U. S. 506

we thus dismissed the action against members of Congress, but did not regard the Speech or Debate Clause as a bar to reviewing the merits of the challenged Congressional action, since congressional employees were also sued. Similarly, though this action may be dismissed against the Congressmen, petitioners are entitled to maintain their action against House employees and to judicial review of the propriety of the decision to exclude petitioner Powell. [Footnote 26] As was said in Kilbourn, in language which time has not dimmed:

"Especially is it competent and proper for this court to consider whether its [the legislature's] proceedings are in conformity with the Constitution and laws because, living under a written constitution, no branch or department of the government is supreme, and it is the province and duty of the judicial department to determine, in cases regularly brought before them, whether the powers of any branch of the government, and even those of the legislature in the enactment of laws, have been exercised in conformity to the Constitution, and, if they have not, to treat their acts as null and void."

103 U.S. at 103 U. S. 199.



The resolution excluding petitioner Powell was adopted by a vote in excess of two-thirds of the 434 Members of

Page 395 U. S. 507

Congress, 307 to 116. 113 Cong.Rec. 5037-5038. Article I, § 5, grants the House authority to expel a member "with the Concurrence of two thirds." [Footnote 27] Respondents assert that the House may expel a member for any reason whatsoever, and that, since a two-thirds vote was obtained, the procedure by which Powell was denied his seat in the 90th Congress should be regarded as an expulsion, not an exclusion. Cautioning us not to exalt form over substance, respondents quote from the concurring opinion of Judge McGowan in the court below:

"Appellant Powell's cause of action for a judicially compelled seating thus boils down, in my view, to the narrow issue of whether a member found by his colleagues . . . to have engaged in official misconduct must, because of the accidents of timing, be formally admitted before he can be either investigated or expelled. The sponsor of the motion to exclude stated on the floor that he was proceeding on the theory that the power to expel included the power to exclude, provided a 2/3 vote was forthcoming. It was. Therefore, success for Mr. Powell on the merits would mean that the District Court must admonish the House that it is form, not substance, that should govern in great affairs, and accordingly command the House members to act out a charade."

129 U.S.App.D.C. at 383-384, 395 F.2d at 606-607.

Page 395 U. S. 508

Although respondents repeatedly urge this Court not to speculate as to the reasons for Powell's exclusion, their attempt to equate exclusion with expulsion would require a similar speculation that the House would have voted to expel Powell had it been faced with that question. Powell had not been seated at the time House Resolution No. 278 was debated and passed. After a motion to bring the Select Committee's proposed resolution to an immediate vote had been defeated, an amendment was offered which mandated Powell's exclusion. [Footnote 28] Mr. Celler, chairman of the Select Committee, then posed a parliamentary inquiry to determine whether a two-thirds vote was necessary to pass the resolution if so amended "in the sense that it might amount to an expulsion." 113 Cong.Rec. 5020. The Speaker replied that "action by a majority vote would be in accordance with the rules." Ibid. Had the amendment been regarded as an attempt to expel Powell, a two-thirds vote would have been constitutionally required. The Speaker ruled that the House was voting to exclude Powell, and we will not speculate what the result might have been if Powell had been seated and expulsion proceedings subsequently instituted.

Nor is the distinction between exclusion and expulsion merely one of form. The misconduct for which Powell was charged occurred prior to the convening of the 90th Congress. On several occasions, the House has debated whether a member can be expelled for actions taken during a prior Congress, and the House's own manual of procedure applicable in the 90th Congress states that "both Houses have distrusted their power to punish in such cases." Rules of the House of Representatives, H.R.Doc. No. 529, 89th Cong., 2d Sess., 25 (1967);

Page 395 U. S. 509

see G. Galloway, History of the House of Representatives 32 (1961). The House rules manual reflects positions taken by prior Congress. For example, the report of the Select Committee appointed to consider the expulsion of John W. Langley states unequivocally that the House will not expel a member for misconduct committed during an earlier Congress:

"[I]t must be said that with practical uniformity the precedents in such cases are to the effect that the House will not expel a Member for reprehensible action prior to his election as a Member, not even for conviction for an offense. On May 23, 1884, Speaker Carlisle decided that the House had no right to punish a Member for any offense alleged to have been committed previous to the time when he was elected a Member, and added, 'That has been so frequently decided in the House that it is no longer a matter of dispute.'"

H.R.Rep. No. 30, 69th Cong., 1st Sess., 1-2 (1925). [Footnote 29]

Page 395 U. S. 510

Members of the House having expressed a belief that such strictures apply to its own power to expel, we will not assume that two-thirds of its members would have expelled Powell for his prior conduct had the Speaker announced that House Resolution No. 278 was for expulsion, rather than exclusion. [Footnote 30]

Finally, the proceedings which culminated in Powell's exclusion cast considerable doubt upon respondents' assumption that the two-thirds vote necessary to expel would have been mustered. These proceedings have been succinctly described by Congressman Eckhardt:

"The House voted 202 votes for the previous question [Footnote 31] leading toward the adoption of the [Select] Committee report. It voted 222 votes against the previous question, opening the floor for the Curtis Amendment, which ultimately excluded Powell. "

Page 395 U. S. 511

"Upon adoption of the Curtis Amendment, the vote again fell short of two-thirds, being 248 yeas to 176 nays. Only on the final vote, adopting the Resolution as amended, was more than a two-thirds vote obtained, the vote being 307 yeas to 116 nays. On this last vote, as a practical matter, members who would not have denied Powell a seat if they were given the choice to punish him had to cast an aye vote or else record themselves as opposed to the only punishment that was likely to come before the House. Had the matter come up through the processes of expulsion, it appears that the two-thirds vote would have failed, and then members would have been able to apply a lesser penalty. [Footnote 32]"

We need express no opinion as to the accuracy of Congressman Eckhardt's prediction that expulsion proceedings would have produced a different result. However, the House's own views of the extent of its power to expel

Page 395 U. S. 512

combined with the Congressman's analysis counsel that exclusion and expulsion are not fungible proceedings. The Speaker ruled that House Resolution No. 278 contemplated an exclusion proceeding. We must reject respondents' suggestion that we overrule the Speaker, and hold that, although the House manifested an intent to exclude Powell, its action should be tested by whatever standards may govern an expulsion.



As we pointed out in Baker v. Carr,369 U. S. 186, 369 U. S. 198 (1962), there is a significant difference between determining whether a federal court has "jurisdiction of the subject matter" and determining whether a cause over which a court has subject matter jurisdiction is "justiciable." The District Court determined that "to decide this case on the merits . . . would constitute a clear violation of the doctrine of separation of powers." and then dismissed the complaint "for want of jurisdiction of the subject matter." Powell v. McCormack, 266 F.Supp. 354, 359, 360 (D.C. D.C.1967). However, as the Court of Appeals correctly recognized, the doctrine of separation of powers is more properly considered in determining whether the case is "justiciable." We agree with the unanimous conclusion of the Court of Appeals that the District Court had jurisdiction over the subject matter of this case. [Footnote 33] However, for reasons set forth in 395 U. S. infra we disagree with the Court of Appeals' conclusion that this case is not justiciable.

In Baker v. Carr, supra, we noted that a federal district court lacks jurisdiction over the subject matter (1) if the

Page 395 U. S. 513

cause does not "arise under" the Federal Constitution, laws, or treaties (or fall within one of the other enumerated categories of Art. III); or (2) if it is not a "case or controversy" within the meaning of that phrase in Art. III; or (3) if the cause is not one described by any jurisdictional statute. And, as in Baker v. Carr, supra, our determination (see395 U. S. B(1), infra) that this cause presents no nonjusticiable "political question" disposes of respondents' contentions [Footnote 34] that this cause is not a "case or controversy." [Footnote 35]

Respondents first contend that this is not a case "arising under" the Constitution within the meaning of Art. III. They emphasize that Art. I, § 5, assigns to each House of Congress the power to judge the elections and qualifications of its own members and to punish its members for disorderly behavior. Respondents also note that, under Art. I, § 3, the Senate has the "sole power" to try all impeachments. Respondents argue that these delegations (to "judge," to "punish," and to "try") to the Legislative Branch are explicit grants of "judicial power" to the Congress, and constitute specific exceptions

Page 395 U. S. 514

to the general mandate of Art. III that the "judicial power" shall be vested in the federal courts. Thus, respondents maintain, the

"power conferred on the courts by article III does not authorize this Court to do anything more than declare its lack of jurisdiction to proceed. [Footnote 36]"

We reject this contention. Article III, § 1, provide that the "judicial Power . . . shall be vested in one supreme Court, and in such inferior Courts as the Congress may . . . establish." Further, § 2 mandates that the "judicial Power shall extend to all Cases . . . arising under this Constitution. . . ." It has long been held that a suit "arises under" the Constitution if a petitioner's claim "will be sustained if the Constitution . . . [is] given one construction and will be defeated if [it is] given another." [Footnote 37] Bell v. Hood,327 U. S. 678, 327 U. S. 685 (1946). See King County v. Seattle School District No. 1,263 U. S. 361, 263 U. S. 363-364 (1923). Cf. 22 U. S. Bank of the United States, 9 Wheat. 738 (1824). See generally C. Wright, Federal Courts 48-52 (1963). Thus, this case clearly is one "arising under" the Constitution as the Court has interpreted that phrase. Any bar to federal courts reviewing the judgments made by the House or Senate in excluding a member arises from the allocation of powers between the two branches of the Federal Government (a question of justiciability), and not from the petitioners' failure to state a claim based on federal law.

Respondents next contend that the Court of Appeals erred in ruling that petitioners' suit is authorized by a jurisdictional statute, i.e., 28 U.S.C. § 1331(a).

Page 395 U. S. 515

Section 1331(a) provides that district courts shall have jurisdiction in "all civil actions wherein the matter in controversy . . . arises under the Constitution. . . ." Respondents urge that, even though a case may "arise under the Constitution" for purposes of Art. III, it does not necessarily "arise under the Constitution" for purposes of § 1331(a). Although they recognize there is little legislative history concerning the enactment of § 1331(a), respondents argue that the history of the period when the section was first enacted indicates that the drafters did not intend to include suits questioning the exclusion of Congressmen in this grant of "federal question" jurisdiction.

Respondents claim that the passage of the Force Act [Footnote 38] in 1870 lends support to their interpretation of the intended scope of § 1331. The Force Act gives the district courts jurisdiction over

"any civil action to recover possession of any office . . . wherein it appears that the sole question . . . arises out of denial of the right to vote . . . on account of race, color or previous condition of servitude."

However, the Act specifically excludes suits concerning the office of Congressman. Respondents maintain that this exclusion demonstrates Congress' intention to prohibit federal courts from entertaining suits regarding the seating of Congressmen.

We have noted that the grant of jurisdiction in § 1331(a), while made in the language used in Art. III, is not in all respects coextensive with the potential for federal jurisdiction found in Art. III. See Zwickler v. Koota,389 U. S. 241, 389 U. S. 246, n. 8 (1967). Nevertheless, it has generally been recognized that the intent of the drafters was to provide a broad jurisdictional grant to the federal courts. See, e.g., Mishkin, The Federal "Question" in the District Courts, 53 Col.L.Rev.

Page 395 U. S. 516

157, 160 (1953); Chadbourn & Levin, Original Jurisdiction of Federal Questions, 90 U.Pa.L.Rev. 639, 6 645 (1942). And, as noted above, the resolution of this case depends directly on construction of the Constitution. The Court has consistently held such suits are authorized by the statute. Bell v. Hood, supra; King County v. Seattle School District No. 1, supra.See, e.g., Gully v. First Nat. Bank in Meridian,299 U. S. 109, 299 U. S. 112 (1936); The Fair v. Kohler Die & Specialty Co.,228 U. S. 22, 228 U. S. 25 (1913).

As respondents recognize, there is nothing in the wording or legislative history of § 1331 or in the decisions of this Court which would indicate that there is any basis for the interpretation they would give that section. Nor do we think the passage of the Force Act indicates that § 1331 does not confer jurisdiction in this case. The Force Act is limited to election challenges where a denial of the right to vote in violation of the Fifteenth Amendment is alleged. See 28 U.S.C. § 1344. Further, the Act was passed five years before the original version of 1331 was enacted. While it might be inferred that Congress intended to give each House the exclusive power to decide congressional election challenges, [Footnote 39] there is absolutely no indication that the passage of this Act evidences an intention to impose other restrictions on the broad grant of jurisdiction in § 1331.



Having concluded that the Court of Appeals correctly ruled that the District Court had jurisdiction over the subject matter, we turn to the question whether the case is justiciable. Two determinations must be made in this regard. First, we must decide whether the claim

Page 395 U. S. 517

presented and the relief sought are of the type which admit of judicial resolution. Second, we must determine whether the structure of the Federal Government renders the issue presented a "political question" -- that is, a question which is not justiciable in federal court because of the separation of powers provided by the Constitution.

A. General Considerations

In deciding generally whether a claim is justiciable, a court must determine whether

"the duty asserted can be judicially identified and its breach judicially determined, and whether protection for the right asserted can be judicially molded."

Baker v. Carr, supra, at 369 U. S. 198. Respondents do not seriously contend that the duty asserted and its alleged breach cannot be judicially determined. If petitioners are correct, the House had a duty to seat Powell once it determined he met the standing requirements set forth in the Constitution. It is undisputed that he met those requirements, and that he was nevertheless excluded.

Respondents do maintain, however, that this case is not justiciable because, they assert, it is impossible for a federal court to "mold effective relief for resolving this case." Respondents emphasize that petitioners asked for coercive relief against the officers of the House, and, they contend, federal courts cannot issue mandamus or injunctions compelling officers or employees of the House to perform specific official acts. Respondents rely primarily on the Speech or Debate Clause to support this contention.

We need express no opinion about the appropriateness of coercive relief in this case, for petitioners sought a declaratory judgment, a form of relief the District Court could have issued. The Declaratory Judgment Act, 28 U.S.C. § 2201, provides that a district court may "declare the rights . . . of any interested party . . . whether or not further relief is or could be sought." The

Page 395 U. S. 518

availability of declaratory relief depends on whether there is a live dispute between the parties, Golden v. Zwickler,394 U. S. 103 (1969), and a request for declaratory relief may be considered independently of whether other forms of relief are appropriate. See United Public Workers v. Mitchell,330 U. S. 75, 330 U. S. 93 (1947); 6A J. Moore, Federal Practice

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