From Publius to Santos: Congressional Expulsion and the Enforcement of Legislative Virtue

On December 1, 2023, in a historic decision, the U.S. House of Representatives voted to expel Congressperson George Santos. Prior to Santos’s expulsion, only two members of the House had been expelled since the Civil War. In fact, although he was under indictment, Santos was the first member to be expelled from the House without first being convicted of a federal crime or supporting the Confederacy. Santos presented an unusual case, however. By the time that he was expelled, Santos was nationally reviled for fabricating nearly every aspect of his personal biography. Although it is difficult to know what the Founders would have made of George Santos, a major theme of James Madison’s work in The Federalist Papers was how the Constitution would ensure that lawmakers possess the character traits and intellectual capabilities necessary to govern in a republic. The threat of expulsion from Congress is a seldom used, though vital, constitutional tool for enforcing congressional virtue. This Essay delves into the text, drafting, and infrequent historical application of Article I’s Expulsion Clause. Using examples such as the “electoral pardon,” under which voters excuse a member’s known wrongdoing, this Essay explores the constitutional limits of Congress’s expulsion power. In the future, Congress may face a case where the interests of the nation conflict with the expressed electoral will of a single congressional district. In such situations, we must be mindful of the crucial distinction between arguments grounded in constitutional limits of Congress’s power, and claims based on institutional precedents or policy.