Qualifications and Quorum - Article1, Section 5, Clause 1

Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members, and a Majority of each shall constitute a Quorum to do Business; but a smaller Number may adjourn from day to day, and may be authorized to compel the Attendance of absent Members, in such Manner, and under such Penalties as each House may provide.

Comment: This provision gives to the House and Senate the power to determine whether an election of a member is valid, and whether the person elected meets the Constitutional requirements for service. This type of provision was common throughout England and America - e.g.,eight states had similar clauses in their constitutions. In any event, this clause was not litigated in court for almost 200 years until the House refused to seat Adam C. Powell because he had allegedly embezzled House funds and lied to the House. Powell sought a judicial declaration of the matter.

In Powell v. McCormack, the Court held that although Article I Section 5 provided that "Each House shall be the Judge of the...Qualifications of its own Members," Article 1 Section 2 specifies exactly three qualifications -- age, citizenship, and residency -- and that implies that there can be no more qualifications added by Congress. Moreover, in Morgan v. United States, Judge Scalia held that the House's determination as to which candidates had been elected was not within the court's power to review (i.e. the issue was nonjusticiable).

Regarding the Quorum provision, there was a two-thirds requirement under the Articles of Confederation, which was a major onstacle that they did not want anymore. As a result, the Framers settled on a majority - and some even thought that was too high as well.  The day-to-day adjournment provision allows the business of the Congress to carryon with a majority needing to be present. As a result, in todays' Congress a quorum is not usually considered, unless a member requests a quorum.

A real threat to the quorum requirement exists if a sufficient number of members decided to not attend so as to prevent a quorum and keep business from being done - e.g., Wisconsin. As a result, the Framers saw fit, thankfully, to permit each house "to compel the attendance of absent members," which passed without debate. Currently, fifteen Member of the House may order the Sergeant at Arms to compel the attendence of the absent Members.

Primary Source - The Heritage Guide to the Constitution.

Meetings of Congress- Article 1, Section 4, Clause 2

"The Congress shall assemble at least once in every Year, and such Meeting shall be on the first Monday in December, unless they shall by Law appoint a different Day."

Comment: The Framers were careful to make sure that the executive branch did not control Congress. As a result, they did not consider adopting the British model, which the executive called Parliament to meet. Although the Framers did permit a provision allowing the President to call a special session of Congress for "extraordinary Occasions" as stated in Article 2, Section 3, the Framers maintained a bright separation-of-powers line.

Initially, the Framers argued over "when" to meet. Some wanted to meet in May because Europe met during the winter, which such result would arrive in the U.S. around spring; and it would be more conducive to travel. In the end, they decided on December because it would be more convenient for business owners and would coincide with State elections.

Election Regulations - Article 1, Section 4, Clause 1

The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Place of Chusing Senators.

Comments: This provision delegates to the state legislatures (not the executive or judicial branch) the authority to determine the time, place and manner of electing Senators; however, the provision also granted Congress the authority to supersede state law.

Regarding the authority for Congress to supersede the States, the Anti-Federalist were troubled that Congress would manipulate election laws so that they could stay in office longer.

Countering, Hamilton stated in The Federalist No. 59, "every government ought to contain within itself the means of its own preservation." He thought, however, that Congress would exercise this power only "whenever extraordinary circumstances might render that interposition necessary to its safety."

Furthermore, the provision requires that "Congress," (i.e., both sides) as a whole was needed to supersede state law. As a result, because the Constitution was originally ratified with the House representing the people and the Senate representing the States - having both houses of Congress agree, meant a national consensus was met, which provided additional safety.

However, despite Hamilton's thoughts of Congress acting only in "extraordinary circumstances," it has actually had a significant foot print. Congress has passed many Voting Rights Acts, such as the Enforcement Act of 1870 (curbed the abusive electoral process), Voting Rights Acts of 1965 (prohibitions on racial discrimination in voting), 1970 Voting Rights Act (reduced the voting age to 18 in state and federal elections); and it has passed numerous amendments, such as the Fifteenth Amendment (prohibited voter discrimination on the basis of race), Seventeenth Amendment (popular election for Senators), Nineteenth Amendment (prohibited voter discrimination on the basis of sex), Twenty-fourth Amendment (prohibited poll taxes in federal elections), and Twenty-sixth Amendment (gave 18 year olds the right to vote).

State laws are still important; however. As States, for example, are still in control of the rules for recounts and for replacing candidates who drop out shortly before the election, etc.

Primary Source. The Heritage Guide to the Constitution. 

Punishment for Impeachment - Article 1, Section 3, Clause 7

Judgment in Cases of impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.

Comment:  This provision deals with the punishment that the Senate may impose in an impeachment trial. For the most part, the Framers followed the States' constitutional format vs. the British system, which included a broad range of punishments - including a death sentence.

In any event, a few questions have developed under this provision - the first of which is whether the Senate may impose sanctions separately. That is, is the "removal" and "disqualification" vote mutually exclusive from the "conviction" vote. The Senate believed that it was and defended its position on grounds that the punishment clause does not specify a requisite vote.

The next question deals with which proceeding comes first -  impeachment or criminal proceedings. The short answer is that neither is required first. In Federalist No. 69, Hamilton interpreted the clause, as it applied to the President, as requiring impeachment first, then they would be "liable to prosecution and punishment in the course of law." However, in practice many judges have been prosecuted, and some even imprisoned, before impeachment proceedings took place. Regarding the President, the Supreme Court ruled that the President is not immune to "subpoenas" in a federal criminal trial or from "civil litigation" for his personal conduct. See. US v. Nixon and Clinton v. Jones.

Another question dealt with whether a lesser punishment could be handed down - like a Censure. There are strong arguments for and against; however, historically, the House and the Senate have passed many resolutions condemning Presidents and the like.

Primary Source. The Heritage Guide to the Constitution.