15

While the present condition of Senator McCain prompts this question I am looking for a general answer under similar circumstance for any senator, not necessarily "just McCain".

Is there a mechanism for the Senate or the State (of Arizona in this case) to remove a sitting senator for medical cause against his will. The 25th Amendment, section 4, essentially provides that others may declare a president unable to discharge his duties and may be displaced from office. Are there similar provisions pertaining to a senator?

edit: The answers present thus far refer to expulsion, and note that it is "disciplinary"... which is actually what I was trying to avoid. While certainly the senate could go on without the voice of any single senator, their state is entitled to representation. In the past (when the Senate was more "collegial") I know there were times when opposing Senators 'skipped voting' so as to preserve the balance that would have occurred had their ill member been present. In today's environment I doubt this would happen.

Improve this question
13
  • 4
    AFAIK, Expulsion, Resignation, and Death are the only means for a member of Congress to leave office before their term is expired. Normally a respected member of Congress is expected to resign if they cannot fulfill their duties.
    – RBarryYoung
    Commented Apr 17, 2018 at 20:21
  • 1
    @AzorAhai There are related precedents that hold that state constitutions limiting the terms of their federal senators and representatives are unconstitutional. This reasoning extends equally strongly to state recalls.
    – ohwilleke ♦
    Commented Apr 17, 2018 at 21:38
  • 1
    @RBarryYoung you might be right, but other possibilities include impeachment and conviction, voluntary renunciation of citizenship, involuntary deprivation of citizenship (for a naturalized citizen Senator convicted of lying wrt their citizenship application). I suspect if a State left the Union with permission of Congress then its Senators would be involuntarily shown the door (or otherwise ceased to be a state). I anticipate that these things will never happen.
    – emory
    Commented Apr 17, 2018 at 22:59
  • 1
    @Emory Congress determined some time ago that members of congress are not subject to impeachment under the constitution and will not do so. The Supreme Court has never contradicted this interpretation by them. Further, being convicted of a crime does not automatically vacate your office, you still have to be formally removed (expelled). So the 3 means I mentioned are, as currently interpreted, the only ways for a congressional office to be vacated.
    – RBarryYoung
    Commented Apr 18, 2018 at 14:04
  • 1
    "Is there a mechanism for ... the State ... to remove a sitting senator for medical cause against his will." is somewhat in conflict with " I am looking for a general answer ... for any senator" - Asking for an answer that provides details for all the states is too large for a single question. Consider either 1) making this question specific to McCain and his state or 2) removing the request for information for the states, restricting wholly to the federal level.
    – Adam Davis
    Commented Apr 18, 2018 at 14:57

6 Answers 6

Reset to default
18

You're talking about "expulsion".

Expulsion is the most serious form of disciplinary action that can be taken against a Member of Congress. Article I, Section 5 of the United States Constitution provides that "Each House [of Congress] may determine the Rules of its proceedings, punish its members for disorderly behavior, and, with the concurrence of two-thirds, expel a member." The processes for expulsion differ somewhat between the House of Representatives and the Senate. ~ Wikipedia

That's all the Constitution says about this matter, leaving the details to the respective chambers.

References:

Improve this answer
6
  • 10
    I'm not sure that "Each House may determine the Rules of its proceedings, punish its members for disorderly behavior, and, with the concurrence of two-thirds, expel a member." means that "expulsion" is intrinsically a punitive/disciplinary action. Seems that it's saying that the congress has the ability to do two conceptually separate things - A) expel a member with a 2/3rds supermajority, and B) punish its members for disorderly behavior. That the expulsion can be done in the spirit of punishment doesn't seem to necessitate that it must always have that as the reason.
    – mtraceur
    Commented Apr 17, 2018 at 23:20
  • 1
    @mtraceur three things, actually, which strengthens your argument: set rules, punish members, and expel.
    – fectin
    Commented Apr 18, 2018 at 0:22
  • 1
    That interpretation may be sound theoretically. But in reality, expulsions have all occurred as punishment. In US history, 15 senators have been expelled. 14 for supporting the Confederacy. 1 for treason and conspiracy. @mtraceur
    – Michael Benjamin
    Commented Apr 18, 2018 at 0:31
  • 2
    I agree with @mtraceur and would add that this reminds me of the "high crimes and misdemeanors" that qualify the President for impeachment. While there were technical meanings of the term, it was understood to mean, "for whatever reason whatsoever" or even if the POTUS "rendered himself obnoxious". The case of a senator seems the same, and the fact that it has to date not been used in a non-punitive case does not limit the power of the Senate to do so. The Constitutional standard is "concurrence", but with a high majority hurdle.
    – Andrew
    Commented Apr 18, 2018 at 0:59
  • That PDF file is a broken link. Is it possible to correct or replace it?
    – Pieter Geerkens
    Commented Sep 28, 2018 at 21:45
8

The senate can remove a member by 2/3rd vote, it is meant as a punishment, and has only been used a handful of times for obvious problems like joining the confederacy.

It would be beyond bizarre to use this to remove someone for being sick.

A single senator isn't really critical to the functioning of government. They don't have launch codes or need to throw baseballs or sign laws, and pretty everything they do could be done by another senator.

If it was required for a senator to do something the senate can have the sargent at arms bring them back, arresting them if necessary. I doubt that anyone would dare try with someone truly sick though.

Improve this answer
4
  • 2
    "or need to throw baseballs" The President, as head of state, as weighty personal responsibilities.
    – ohwilleke ♦
    Commented Apr 17, 2018 at 19:48
  • Strictly speaking, McCain is half of Arizona's representation in the Senate. The Federal government may not "need" him, but Arizona probably feels differently.
    – Kevin
    Commented Apr 17, 2018 at 20:28
  • @Kevin But it's the Constitution that sets the lengths for a Senate term, and a state may not override that.
    – user5155
    Commented Apr 17, 2018 at 20:31
  • 1
    @JeffLambert: Of course they can't remove him. But they can certainly whine about being deprived of their equal representation in the Senate, and ask him to resign.
    – Kevin
    Commented Apr 17, 2018 at 20:32
6

The U.S. Senate can expel members from the Senate by a two-thirds majority.

The United States Constitution, Article I, Section 5, Clause 2 states:

Each House may determine the rules of its proceedings, punish its members for disorderly behavior, and, with the concurrence of two thirds, expel a member.

This has been done, historically, several times, although never, to my knowledge, for medical reasons.

Improve this answer
2

A couple of other answers (so far) mentioned expulsion. However, that's intended for disciplinary reasons, not for simple inability to attend. In general, if a state is fine with one of their Senators not attending and/or voting, that's always been viewed as that state's business.

So this is really one of many, many things under the US constitutional system that have been left up to individual states to deal with. So its up to the states to have provisions for dealing with replacing a member of their congressional delegation who has died or is otherwise rendered unable to fulfill their duties, but that's a matter of state law in each of those states.

There are also provisions in many states for an in-between case, where the voters of the state might wish to replace a Senator for some reason: a recall. This typically involves a petition (often with a rather high bar for signatures), and then assuming the petition gets enough valid signatures, an election. Whether the replacement is then appointed, voted for separately, or voted for in the recall election varies by state. Ballotpedia reports that this process hasn't been Constitutionally tested though.

The most recent precedent for this situation I can think of was Robert Byrd, who was allowed to die in office in 2010, even though he was clearly dying in the final months of his life. He still made a surprising number of votes, but I know on at least one occasion it required he be brought in a wheelchair.

Improve this answer
6
  • 1
    About that last sentence's last phrase. This was forced by the other party to break a filibuster. Feel free to delete this for soapboxing, but it was a colossally classless move to go ahead and force a man on his deathbed to come in for a vote when you know he'll do it, and know the subsequent outcome won't help you any.
    – T.E.D.
    Commented Apr 18, 2018 at 16:12
  • 1
    The 17th amendment puts serious doubt on the legitimacy of a Senate recall.
    – Cos Callis
    Commented Apr 18, 2018 at 16:18
  • @CosCallis - I did touch on that in the last sentence of the 3rd paragraph. Do you think I should highlight that more?
    – T.E.D.
    Commented Apr 18, 2018 at 16:32
  • @T.E.D. Yes, definitely. There are no Constitutional grounds to permit a Congressional recall. Any laws authorizing such are based on the principle of "If it doesn't explicitly say I can't, I can." It's certainly possible that that argument will hold up in court when it comes down to a specific case, but the default assumption should be that it isn't actually possible. All the case law so far has been against allowing it.
    – Bobson
    Commented Jul 9, 2018 at 21:37
  • 1
    @T.E.D. Wikipedia says that there were provisions for recalling in one of the drafts, but they didn't make it into the final version. I haven't done the research to say whether they were cut because people felt recalls shouldn't be allowed or because they didn't need to be explicitly called out, but it would be interesting to know that.
    – Bobson
    Commented Jul 9, 2018 at 22:08
1

Is there a mechanism for the Senate ... to remove a sitting senator for medical cause against his will.

The constitution does not provide for the removal of senators due to incompetence other than the 2/3 majority vote for expulsion. This high bar recognizes the sovereign nature of each state in the US republic - the states themselves are responsible for putting forth capable congresspersons and recalling incapacitated congresspersons. To lower the bar would give rise to disenfranchisement of states. A 2/3 majority of the chamber, the same bar for a constitutional amendment, is sufficient to ensure adequate representation for each state and only in extreme cases would congress expel any member.

Improve this answer
3
  • Your link does not support the claim that "It has been used for medical incompetence". I merely states that it might have been possible but that it didn't get that far (Justice Douglas was 'convinced' to resign). The article does not even goes as far as to suggest that impeachment was being seriously considered.
    – Cos Callis
    Commented Apr 18, 2018 at 15:02
  • @CosCallis You're right, I've removed that.
    – Adam Davis
    Commented Apr 18, 2018 at 15:04
  • There is no way for a state to recall an incapacitated congressperson. They must actually vacate the office themselves (voluntarily or by dying) and can then be replaced, but the state has no way to do so without that. If there were, that would be an answer to this question.
    – Bobson
    Commented Jul 9, 2018 at 21:28
1

18 USC 2385 by interpretation of the Congressional Research Service and SCOTUS precedent post 1871 Insurrection case is the only statute that will upon conviction cause the immediate removal of a member of Congress other than treason. Public and overt support for the subversion of the government (body, entity, jurisdiction, office, etc. is punishable by felony. The Chambers have adopted this legal interpretation into their Rules of the Senate and House as well as the caucus rules.

Improve this answer

You must log in to answer this question.

Not the answer you're looking for? Browse other questions tagged .