Senator Tim Johnson:

First, best wishes for a speedy and complete recovery to Sen. Johnson (D-SD).

Second, I've heard someone ask whether — if Sen. Johnson unfortunately proves to be incapacitated — the current Senate majority could remove him from office under the Constitution's provision that "[e]ach House shall be the Judge of the Elections, Returns and Qualifications of its own Members" (art. I, cl. 5, § 1). The answer is no, under Powell v. McCormack, 395 U.S. 486 (1969): "[I]n judging the qualifications of its members Congress is limited to the standing qualifications prescribed in the Constitution," namely "age, citizenship, and residence." In judging the elections and returns each House is of course also allowed to decide whether the person got a majority of the vote. But the clause does not authorize exclusion for misconduct (the next clause, which provides that "Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behaviour, and, with the Concurrence of two thirds, expel a Member," does so, though it requires a 2/3 vote rather than a majority) or for perceived incapacity.

(Thanks to Hugh Brady for pointing this out.)

Dave N (mail):
I too pray for Senator Johnson's full and complete recovery. To speculate further about his own medical condition and its political ramifications is not only unseemly, it is ghoulish.

However, in response to the legal question presented, there is a precedent when a member of Congress is incapacitated. Represenatative Gladys Noon Spellman suffered a heart attack on October 30, 1980 and was re-elected the following week.

Rep. Spellman's heart attack left her in a persistent vegetative state until her death in 1988. In February 1981, the House declared her seat vacant--even though she was still alive. Steny Hoyer was elected in the subsequent special election.

I realize that there are important differences. Most significantly, Rep. Spellman never took the oath of office for her new term and never could. Senator Johnson, on the other hand, was duly sworn into a six year term that expires in January, 2009.

Should a member of Congress fall into an irreversible coma or no longer be able to serve, I would hope that chamber could find a way of declaring a seat vacant short of expelling the member.
12.14.2006 2:33pm
Craig Oren (mail):
John Fortier of the American Enterprise Institute says on legislation list that there is no instance in which a sitting Senator was disqualified for incapacity -- even for Senators who were incapacitated for a significant period. The Gladys Spellman situation is distinguishable on the ground Dave suggests: she couldn't take her oath of office. This is not a problem for Senator Johnson because, as a continuing Senator, he need not take the oath.
12.14.2006 2:41pm
logicnazi (mail) (www):
Yes, but as they just pointed out on NPR their was a house member who fell into a coma for four months and the house eventually declared the seat vacant.

Of course different rules apply in the house and senate but I'm just wondering how this fits in to the statement made in the post.
12.14.2006 3:03pm
logicnazi (mail) (www):
Oops ignore/delete my last post. It's just a less useful statement of what Dave N said.
12.14.2006 3:08pm
Just an Observer:
There is ample precedent for incapacitated senators continuing to serve. Today's New York Times cites several examples:

According to information from the Senate historian cited on, at least nine senators have taken extended absences from the Senate for health reasons since 1942. Robert F. Wagner, Democrat of New York, was unable to attend any sessions of the 80th or 81st Congress from 1947 to 1949 because of a heart ailment. Senator Joseph R. Biden Jr., Democrat of Delaware, missed about seven months in 1988 after surgery for a brain aneurysm. And David Pryor, Democrat of Arkansas, suffered a heart attack in April 1991 and returned to the Senate in September that year.

And the Times omits the perhaps-ironic case of Republican Sen. Karl E. Mundt, who once occupied the very same seat for South Dakota that Johnson does now. From Wikipedia:

After suffering a severe stroke in 1969, he remained in office through the end of his term on January 3, 1973, but was unable to attend sessions of Congress and was stripped ... of his committee assignments by the Senate Republican Conference in 1972. He did not seek reelection in 1972.

BTW, see also the discussion of this general topic at Balkinization.
12.14.2006 3:22pm
SimonD (www):
There's also a thorny question about what happens if Sen. Johnson retires or the seat is otherwise declared vacant, as I explain here.
12.14.2006 3:30pm
I'm not sure I agree with Dave N's characterization of speculation as 'ghoulish.' Politicians are public servants. The nature, if not the quality, of Congress's ability to serve the public is determined in part by which party controls each chamber. Therefore, the prospect of Senator Johnson's death, or incapacitation to a degree that renders him unable to serve, seems like a matter of public concern separate from the natural concern of fellow human beings for his well-being. That said, I'm happy to read that his condition seems to have stabilized to some degree.

12.14.2006 4:21pm
dejapooh (mail):
I doubt the Republicans can or will do something about before they lose control of the senate. I doubt the democrats will declare the seat vacant, given the republican governor would get to pick the replacement unless a deal were worked out first as to who would replace him. Hopefully, the whole discussion is moot.
12.14.2006 4:40pm
Kevin Lynch (mail):
This unfortunate situation brings up some of those fascinating hypotheticals that you hope never have to be addressed. The following questions have been bouncing around in my head all day:

1) Consider what occurs if a joint session of Congress were to be attacked with a (hypothetical) bioweapon that incapacitated, but did not kill, a majority of Representatives and Senators. Doesn't this leave us with a completely non-functional Legislative branch?

2) If a Senator or Representative becomes permanently incapacitated, could the legal representative (spouse or similar) of that Congressman transmit a resignation to the appropriate house in their stead? That representative could do just about anything else, including a decision to pull the plug on life support.

3) Does the permanent incapacitation of a Senator without process for replacement deprive a State of its equal suffrage in the Senate? Article 5 forbids amending the Constitution to deprive a State of its Senate seats without its explicit consent. It seems perverse that States are protected from active attempts to strip their Senate representation but not from a de facto stripping, for a period of up to six years. Could a legal argument be made by the State to have the incapacitated Senator replaced on these grounds?
12.14.2006 5:44pm
Auren Kaplan (www):
Check out my blog for thoughts about the appointment process if Johnson remains incapacitated.
12.14.2006 8:26pm
Powell had been elected and re-elected many times over to Congress. And I believe there were allegations of misconduct on his part both within and outside the scope of his office. So I am not clear whether it was that the House could not deny him his seat because he had been re-elected, or with a 2/3 vote he could have been tossed once he had been seated. In other words, did his re-election have some "cleansing" effect, preventing the House from basing their action on misconduct during the course of his previous term(s)?

Anyway, suppose Louisianans had duly elected David Duke to the House. Would the House have been unable to rely on prior misconduct to deny him a seat, but then with a sufficient number of votes been able to toss him after he was sworn in?

Sorry for this other than well-stated question, but I am admittedly confused as to the circumstances surrounding attempts to get rid of him and the implications of that court decision. The House didn't have too much trouble bouncing the "unusual" congressman from Youngstown (blocking on his name), who resisted the effort to expel him.

(Adam Clayton Powell III, a college classmate of mine, was nothing like his flashy father, who showed up infrequently in his own district, and then only on Sundays to avoid enforcement of a judgment against him.)
12.14.2006 11:23pm
If someone wonders how impaired an individual can be and still serve in the Senate, they should look at the last years of Strom Thurmond's career for an answer.

How impaired was Douglas before he was persuaded to retire. I don't know the details, but am under the impressions that there was no question that he had to go on account of his impairments, and that he young wife (Cathy?) was instrumental in getting him to agree.
12.14.2006 11:32pm
BobVDV (mail):
The Youngstown congressman was James Trafficant, who was expelled after being convicted on several counts of bribery and tax evasion.
12.15.2006 7:45am
Rich Egan (mail):
Re Kevin Lynch and:
1) Consider what occurs if a joint session of Congress were to be attacked with a (hypothetical) bioweapon that incapacitated, but did not kill, a majority of Representatives and Senators. Doesn't this leave us with a completely non-functional Legislative branch?

I assume you think this would be a bad thing? I'm not sure that I would agree with that opinion.
12.15.2006 6:05pm