Balkinization  

Sunday, November 09, 2008

Why exactly is the Senate permitted to expel a felon?

Sandy Levinson

Sen. Majority Leader Harry Reid is apparently confident that Sen. Ted Stevens (R-Alaska) is not long for the Senate:

On CNN today, Senate Majority Leader Harry Reid . . . declared that Mr. Stevens will not, will not be in the Senate, come the next session. Asked about Senator Daniel Inouye’s declaration that Mr. Stevens of course could return, Mr. Reid said:

All the Republicans — John Ensign, head of the Republican Senatorial Campaign Committee, Republican Leader McConnell and a long list of people — said that he’s going to be kicked out of the Senate. Of course he is. He is not going to survive.


I find it altogether unclear why Sen. Reid believes so confidently that the Senate will be permitted, as a constitutional matter to kick Sen. Stevens out of the Senate. Let's begin with this question: Could a state require that a candidate for the Senate not be a convicted felon? One might believe that the answer would be "of course," but I take it that the meaning of the Term Limits v. Thornton, 514 U.S. 779 (1995), is that states cannot add to the bare qualifications set out by the Constitution itself, which are limited to "hav[ing] attained to the Age of thirty Years, and been nine Years a Ciizen of the United States, and who shall..., when elected, be an Inhabitant of the State in which he shall be chosen." So, if a "textual" reading of this clause prohibits Arkansas from adding to the list of qualifications "shall not have already served X terms in the Senate"--for what it is worth, I agreed with the dissenters, Thomas, Scalia, Rehnquist, and O'Connor--then I fail to see how it could add a requirement "shall not have been convicted of a felony." If anyone believes that I am wrong on the meaning of Thornton, I await correction with interest.

But, of course, Article I, Section 5 states that "Each House shall be the Judge of the . . . Qualifications of its own Members...." and a certain kind of mindless textualism could read this as supporting the proposition that Congress has complete and utter discretion. But that can't be right, even if, for sake of argument, we can stipulate that congressional decisions would be non-justiciable. If a "sovereign" (or "semi-sovereign" or whatever you want to call it) state can't add to the list of qualifications, why in the world can Congress? The most reasonable reading of the clause is that the Senate can determine whether a proposed member is 30, a citizen for nine years (which kept Albert Gallatin out of the Senate and, some argued in 1870, should have disqualified Hiram Revels, the African-American senator from Mississippi), and an inhabitant of the state the senator purports to represent (which, arguably, couldl support denying Elizabeth Dole her seat had the votes of North Carolina chosen to re-elect her). If one believes that the Senate does indeed have plenary power,

then, I presume, it would be perfectly legitimate, as a constitutional matter, to refuse to a newly-elected senator on racial or religious grounds, which, I presume, just can't be right, even if no court would intervene (and are we really confident that courts would choose to impotent in the case of such an outrage?). But every senator takes an oath to abide by the Constitution and such an exclusion would count, for any reasonable person, as a betrayal of that oath. But one might say that this is only because of the egregious substantive grounds, i.e., racial or religious prejudice. Other, "reasonable," grounds (such as the desire not to associate with felons) would be acceptable. But I suggest that Thornton rejects any such argument. It is eminently "reasonable" to adopt term limits, even if, as a matter of policy, I think they are bad ideas. But the majority in Thornton said that reasonableness is simply irrelevant (any more than, say, Sandra Day O'Connor would allow "reasonable" conscription of state officials for the administration of federal programs or Hugo Black would allow "reasonable" regulation of free speech.... you get the point).

If the people of Alaska want to be represented by a felon, then why not? To be sure, if he is sentenced to jail, there might be some additional problems, but then the good folks of Alaska might have considered that when casting their vote for Sen. Stevens. It is not unknown for states to be effectively "unrepresented" by their senators. After all, South Dakota was without the services of Sen. Tim Johnson while he was recovering from his stroke (and they just re-elected him by something like a 2/3 vote). To the extent that the role of a contemporary senator, alas, is constituent services, then the office could be organized to provide them even if the senator himself is in jail. Or, perhaps, the jail term could be served at night and during Senate recesses, which would be a reasonable way of handling Sen. Stevens's punishment.

My point is fully serious. Should Senator Stevens wish to fight his expulsion, I personally believe he has a very strong constitutional argument that I'm fully prepared to make on his behalf. If I am wrong, it is because a) you agree that Thornton was wrongly decided and, therefore, need not really be followed by a constitutionally conscientious senator; or b) you believe, for reasons that must be explained, that Congress has greater attributes of sovereignty than does Arkansas (in imposing term limits) or Alaska (in deciding that it wishes to be represented by a felon). I suppose that someone might simply cite earlier Senate precedents. But all of them preceded Thornton.

Comments:

Article 1 Section 3 of the Constitution states that each house can expel a member with a 2/3 vote. My reading of that clause is that the expulsion portion is independent from the "rules" and "punish" sections. Do you read it differently? And regardless, couldn't they punish and then remove any member? The Constitution doesn't say they have to have a reason to expel them - they just have to have a 2/3 vote. Isn't this what was decided in Powell v. McCormack?
 

Sandy,

Are you saying that Thornton renders Congress's exclusion of the Southern Representatives during Reconstruction unconstitutional?

Gerard
 

If one believes that the Senate does indeed have plenary power, then, I presume, it would be perfectly legitimate, as a constitutional matter, to refuse to a newly-elected senator on racial or religious grounds, which, I presume, just can't be right, even if no court would intervene (and are we really confident that courts would choose to impotent in the case of such an outrage?).

I think an even better counterexample would be an expulsion for partisan reasons - a Republican majority expels a Democrat so the state's Republican governor can temporarily appoint a Republican in time to vote on a key vote. That's plainly an abuse of the Senate's Article 1, Section 5 powers.
 

I agree with Jason that under Powell v. McCormack, the Senate's powers to expel are much broader than its constitutionally limited powers to exclude. (Powell explicitly declines to address the potential unconstitutionality of a decision to expel the congressman.)

There is an argument that Stevens should not be expelled because his constituents knew of his conduct when they re-elected him. See Josh Chafetz, Democracy's Privileged Few, at 211. But Chafetz argues that the option of expulsion in such cases should be available where "a Member acts antithetically to national popular sovereignty" even if "in the interests of his constituents."
 

I'm with Jason, it does say,

"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."

Seems crystal clear. This isn't the first time I've had cause to wonder this: When was the last time you actually sat down an read the Constitution?
 

All the previous posters are correct. This is not a question of whether Stevens is qualified to sit in the Senate. He is, and the Senate will have to seat him in January.

The question is whether the Senate will expel him. The Senate certainly has the power to do so, although as Daniel notes there is an argument that a Senator should not be expelled for conduct known to his constituents at the time of election.

In any event, Stevens shouldn't be expelled just for being a "convicted felon" (at least in theory). He should be expelled, if at all, for the underlying conduct that made him a convicted felon.

I have blogged about this at some length at www.pointoforder.com.
 

(Powell explicitly declines to address the potential unconstitutionality of a decision to expel the congressman.)

Simply and only because they didn't have to come to that question.
 

Isn't there room for argument on what "expel" means as far as authority of congress applies? I agree, Stevens was elected as is, and satisfies the requirements. Who is congress to say Alaska may not choose its own senator, or that Alaska's senator is somehow subject to the approval of congress. In other instances where congress has lawful input, it is stated. It is not stated here. That omission seems potentially significant.

I voted for the other guy.
 

I think an even better counterexample would be an expulsion for partisan reasons - a Republican majority expels a Democrat so the state's Republican governor can temporarily appoint a Republican in time to vote on a key vote.

Tray, it takes 2/3, so I can't imagine what "key vote" could be at issue, unless perhaps a key vote on a constitutional amendment (3/4 vote req'd) -- which seems a bit farfetched.
 

Yeah, that's a good point Anderson. And now that I read Powell v. McCormack, it seems quite clear that the Court thought expulsion in cases of bad behavior was quite permissible, while Congress could only exclude members who didn't meet qualifications.
 

I do stand corrected that the relevant clause is the "expulsion" clause. But I still don't know exactly why that gives carte blanche to Congress. Presumably the offending member of Congress has to be guilty of "disorderly behavior." It's not clear to me that violating a federal law, particularly if its malum prohibitum and not malum in se, constitutes such behavior (as distinguished, for example, from a member of the House caning a senator).

It's interesting, incidentally, that the given House of Congress must actually vote to expel; presumably, this means that they can't pass a "rule" stating that the seat is automatically vacant if onen is convicted of a federal crime. So the House or the Senate must exercise independent judgment, and on what, exactly, is the judgment based. As to Jason's initial comment, incidentally, I don't think that it is reasonable to read the Constitution as licensing any governmental action, by any governmental official, in the absence of a legitimate reason. The only possible exception is presidential pardoning.

As to gerard's question, I view the exclusion of the Southern representatives as an important continuation of the War and assuring that the North would actually be able to prevail. Bruce Ackerman is canonical on this point.
 

Is not the issue whether a Member is liable to be expelled for "conduct unbecoming a member of the House" - a Senator is addressed as "honourable" and as a "gentleman", neither of which appellations are consistent with a conviction for felony?

However, is there not something of a rush to judgment because as I understand the time for appealing the conviction is not yet expired?

On the assuption that the Senate is master of its procedure in such a matter, would not the more appropriate measure be to suspend the Senator from the service of the Senate pending conclusion of any appeal and only move to definitive expulsion once the conviction is final?

In most parliamentary procedures, the process of suspension from service means the person may not enter on the floor or sit on any committee.

If the appellate process is very lengthy, the Senator may consider it in the interests of his constituents to resign anyway.
 

The disciplinary clause gives each House a very broad discretion with regard to what offenses warrant punishment, or so it has consistently been construed by both Houses (with occasional support from the judiciary and commentators). I don’t think anyone would seriously dispute that the offense of making false statements on financial disclosure forms (which is what Stevens was convicted of) is “disorderly behavior” for which he could be punished. Even if Stevens is only guilty of taking gifts that he knew or should have known violated the Senate gift rules, the Senate would clearly have the authority to punish him.

The real question has to do with the appropriate punishment. Here there are two problems. First, the Senate has only expelled 15 Senators in its history, all of whom were guilty of treason (supporting the Confederacy) or, in one case, something very close thereto. Senate precedent does not support the notion that Stevens’s offenses warrant expulsion.

Second, even if expulsion would otherwise be warranted, the fact that Alaska voters elected Stevens with knowledge of his misconduct strongly argues against expulsion. It could even be argued that this operates as an absolute bar to expulsion, although, IMHO, this goes too far (for reasons spelled out in Josh Chafetz’s book).

Mourad- the Senate does not have the power to suspend a Senator, as this would deprive his state of equal representation in the Senate, which is a very big no-no under our Constitution.
 

I just can't wait to see Palin in the Senate. Should be endlessly entertaining.
 

MLS - I can understand that it is wrong to deprive a state of its representation - arguably more importantly it deprives the electors of representation.

However, it seems to me that where the facts relied upon for improper conduct are the same as those relied upon for a criminal conviction, there is merit in waiting for a conviction to be come final so as to create an estoppel.

Otherwise, would there not be a danger of injustice in proceeding to expel at once based merely on the fact of the conviction without re-examination of the facts?
 

"I do stand corrected that the relevant clause is the "expulsion" clause. But I still don't know exactly why that gives carte blanche to Congress."

Because it states the power to expel without any qualifiers. Therefore it doesn't HAVE any qualifiers. This is not rocket science. It's basic reading skills.

It could be argued that expelling a Senator for conduct the voters were aware of is tacky, maybe unprecedented, but it's not "unconstitutional". That last would require that the constitution say something against it.

Can we have an end to this whole "Extract higher principles from the Constitution, generalize them, and then use them to contradict what the Constitution actually says gambit?

At any rate, I don't expect him to be expelled. It's not in the interest of the Democratic party to expel a Republican who will be replaced with a Republican, or to remove from the Senate a glaring example of Republican corruption. AND, way too many Senators are aware that the only thing that separates them from Stevens is the ignorance of law enforcement.
 

If Brett is suggesting that Stevens is the tip of the iceberg in the Senate (or the entire Congress), more the political reason for the Senate, both Democrats and Republicans, to want to excise him. A Senator coming to the defense of Stevens on purely legal principles can quickly be subjected to challenges of his/her own integrity - and reelection. Let the legal processes run their course. Besides, aren't there higher priorities to be addressed? And perhaps Stevens' attorneys may work something out.
 

Mourad- the results of Stevens’s criminal trial, whether or not appeals have been exhausted, are not binding on the Senate. Any Senate action against Stevens would not be predicated on the fact that he has been convicted, but will be based (at least in theory) on the Senate’s independent assessment of his conduct.

Assuming the Senate follows regular order, the first step will be for the Senate Ethics Committee to review the matter, conduct an inquiry and make a recommendation to the full Senate. While the committee may rely heavily on the trial transcripts for evidence, it must give Stevens an opportunity to present other evidence and argument in his own defense. Thus, Stevens could present evidence that the court excluded, or new evidence, or evidence of prosecutorial misconduct, etc.
 

mls --

Why is Mourad wrong? Doesn't the criminal conviction have a res judicata effect as to Stevens having committed the acts comprising the crimes of which he was convicted? This seems to be the approach taken in the federal judge impeachment cases. This also disposes of Sandy's complaint that Stevens would be excluded/expelled for his conviction, as I think you said, it would be for the acts underlying the conviction.
 

As I understand it the nearest parallel is the case of Harrison Williams. The Committee on Ethics recommended that Williams be expelled because of his "ethically repugnant" conduct in the Abscam scandal, for which he was convicted of conspiracy, bribery, and conflict of interest. Prior to a Senate vote on his expulsion, Williams resigned on March 11, 1982.

So fair dealing suggests there has to be at least an enquiry and report by an appropriate committee of the Senate. I would assume that while the Senate is master of its procedures, ordinary principles of due process would require that the procedure be quasi-judicial.

By why should the conviction (once final) not estop the Senator from contesting the facts - although not stopping the Senator from arguing in mitigation.

But until the conviction has become final, it would seem unfair to rush to judgment on that basis.

Conversely, even if the Senator were acquitted, that would seem to be no bar to the Senate conducting its own enquiry and considering whether censure or expulsion were proper.
 

Rfriedman

As I understand it, in the impeachment case of Judge Claiborne, the House managers proposed that the Senate grant preclusive effect to the prior conviction, but the Senate declined to do so. A number of Senators, including Hatch and Specter, expressed the view that the Senate had a constitutional obligation to make an independent determination of the facts, and not merely rely on the jury’s verdict.

With regard to ethics proceedings, in the Harrison Williams case, the Senate committee’s report indicated that it had made independent findings on the evidence presented, rather than just relying on the verdict.

The assumption of congressional experts like Rob Walker, the former staff director of the Senate Ethics Committee, is that the Senate will approach the Stevens case in the same way, and will come to an independent judgment about the facts.

So Mourad’s suggestion that the Senate wait until conviction is final and then apply res judicata principles to the conviction is not necessarily “wrong” or unreasonable; it is just not how the Senate has approached these matters in the past, and not how it is likely to do so in the future. Moreover, there would be serious separation of powers objections to any proposal that the Senate give automatic deference to the findings of another branch of government in connection with a determination that is the Senate’s sole responsibility under the Constitution.
 

It seems to me that there is a distinction between bribery, which by definition is the selling of one's vote for gain (and thus could easily be brought within the ambit of "disorderly behavior" relative to the performance of one's legislative duties, and the kind of corruption that Stevens engaged in.

I also respectfully suggest that Brett's view is unsustainable unless one truly believes that Congress has the "sovereign power" to expel any and every senator against whom 67 votes can be procured, without even bothering to offer a reason beyond the boilerplate assertion of "disorderly conduct." This is not what we mean by "lawful" or, indeed, a "Republican Form of Government."

I'm just curious if Brett reads the First Amendment to prevent any and all limitations on freedom of speech or the press or the free exercise clause to require the toleration of (voluntary) human sacrifice.
 

I think concerns that an unfettered power to expel might be abused have to confront the following two facts: (1) neither the judiciary nor any other body outside Congress has attempted to place restraints on the expulsion power at any time in the last 220 years; and (2) the Senate has inarguably never abused its expulsion power during that time.

So the idea that we must impose some outside restraints on the process lest the Senate start expelling members willy-nilly is rather belied by history. The Founders were not simply being hopelessly naive when they assumed a modicum of good faith would be exercised in this regard.
 

the time for appealing the conviction is not yet expired?

That's relevant for whether he goes to prison.

It's not the standard for whether he gets to stay in the Senate.

Two very different decisions.

Stevens's right to avoid going to prison until he has exhausted his appeals is not at issue here.

Stevens's right not to be expelled by the Senate until this or that, does not exist. The Senate may expel.

I agree with mls: the issue is conduct. The criminal conviction is merely a handy way to weigh conduct. The Senate is entitled to wait until conviction, or not.
 

"I also respectfully suggest that Brett's view is unsustainable unless one truly believes that Congress has the "sovereign power" to expel any and every senator against whom 67 votes can be procured, without even bothering to offer a reason beyond the boilerplate assertion of "disorderly conduct.""

Of course not; Article one doesn't call for even so much as a "boilerplate assertion of disorderly conduct"; If they had 67 votes, they could expel a Senator for having a bad hair day. I would certainly like to think that they wouldn't, but there's no constitutional issue at stake.

What is this, clauses which damned well DO have qualifiers, such as the commerce clause, get them interpreted away, and clauses which lack qualifiers get them interpreted in? Why can't we just go with the Constitution that actually got ratified? I've got a pocket edition of it right here.

"I'm just curious if Brett reads the First Amendment to prevent any and all limitations on freedom of speech or the press or the free exercise clause to require the toleration of (voluntary) human sacrifice."

Yes.
 

I'm just curious if Brett reads the First Amendment to prevent any and all limitations on freedom of speech

In this he'd be shared by Hugo Black... whether that's good or bad company is another question.
 

Tray:

I just can't wait to see Palin in the Senate. Should be endlessly entertaining.

Saturday Night Live wasn't enough for you, eh?

Agreed, we've had other senators as much eedjits and azos as her, but ... when we know in advance?!?!?

Cheers,
 

Well gee, the Senate has generally had a pretty sincere atmosphere of collegiality, and Stevens is expelled it will only be because some of his fellow Republicans want him expelled.

What I'm wondering is how his obstinacy might play out when he's sentenced.
 

Do my fellow discussants believe there'd be the slightest chance that the GOP would vote to expel Stevens if they didn't believe it likely that the Republicans would retain the seat?

In any event, shouldn't Reid let the GOP take the lead in throwing Stevens over the cliff?
 

The full text of the second clause of Article I, Section 5:

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.

So Brett thinks the three clauses within this sentence are independent, Sandy thinks they're dependent. Can anybody muster up a convincing argument for why we should read it one way or the other (apart from personal preference)? A quick review of the remaining clauses within Article I suggests that this is the only one that includes a list that may be read dependently or independently.
 

Per Justice Story:

"But the power to make rules would be nugatory, unless it was coupled with a power to punish for disorderly behaviour, or disobedience to those rules. And as a member might be so lost to all sense of dignity and duty, as to disgrace the house by the grossness of his conduct, or interrupt its deliberations by perpetual violence or clamour, the power to expel for very aggravated misconduct was also indispensable, not as a common, but as an ultimate redress for the grievance. But such a power, so summary, and at the same time so subversive of the rights of the people, it was foreseen, might be exerted for mere purposes of faction or party, to remove a patriot, or to aid a corrupt measure; and it has therefore been wisely guarded by the restriction, that there shall be a concurrence of two thirds of the members, to justify an expulsion."
 

Hmmm... well if the clauses are dependent then "punish" and "expel" seem redundant.

As for the other question, I'd say and elected official who is convicted of a crime that touches his official duties should be barred from holding office, period.
 

Ahhhh, a near-contemporaneous understanding of the meaning of the expulsion clause. I don't know if you've seen this, but it has a fair number of such commentaries, including Story's. Thanks for the insight!
 

One last comment. This 1798 report from the Committee of Privileges has a long discussion about "disorderly" behavior being a pre-requisite for expulsion. It also includes a discussion of the fact that the second clause of Article I, Section 5 differentiates between punishment and expulsion because the former requires only a bare majority, while the latter requires a 2/3 vote.
 

Nice job, Everett.
 

"Saturday Night Live wasn't enough for you, eh?"

It's not that I like the woman, but I didn't think the Fey stuff was funny at all. Palin's actual appearance, even less. But seeing her in the Senate and in the primaries would be fascinating. It may be a cliche at this point, but politics in the MSNBC era is just another reality show. One wants the most interesting characters on the island.
 

To add to Sandy's point, neither could Stevens be impeached per the early Blount precedent that says legislators are not "officers" of the United States within the meaning of the Impeachment Clauses.

Tuan Samahon
 

It seems to me that Article 1 Section 3, read straightforwardly, is a list of three spearate things that each House of Congress may do. Each item on the list has its own verb, and each item is separated by a comma. Thus, the Senate "may" (1) "determine the rules of its proceedings", (2) "punish its Members for disorderly Behavior", and (3) "expel a member" (with a 2/3 vote). Relying on syntax alone, the prepositional phrase "for disorderly Behavior" clearly modifies only the middle item on the list. To try to make it modify "expel a member" is to do violence to the syntax. If the author of that sentence meant for there to be two allowed consequences for "disorderly behavior" -- "punish[ment]" or exp[ulsion]" -- it would have been easy to write the sentence that way. But the author created a list of three powers, the last two of which have their own modifiying phrases. If the author meant that each House of Congress may either punish or expel a member for disorderly behavior, then he picked the least effective way to try to express that thought. I have better regard for the English skills of the framers than to think that they were so imprecise. On the subject of a serial comma signaling that each element in a series stands independent, see United States v. Ron Pair Enterprises, 489 U.S. 235 (1989).
 

I have better regard for the English skills of the framers than to think that they were so imprecise.

Some of the framers are involved in the discussions to which Everett linked above. It is clear that even by 1798, the actual meaning of the clause was not fixed. Some people seemed to believe that it only applied to offenses that occured within the walls of the House and while the House was in session. Some believed that the ability to expel was contingent upon violation of a House rule. Others believed that the ability to expel was independent of disorderly behavior.

Simply put, the notion that each sentence in the Constitution has a single ironclad and timeproof meaning is ridiculous, even if we assume that meaning can be inferred posthumously through said framers' statements or the punctuation therein.
 

My experience in these matters surely falls far short of others posting here. But I have to ask, what does expulsion from the Senate have to do with the will of the constituents? Sandy Levinson appears to be correct (at first blush) that the Senate should not be able to add to the qualification rules--that goes directly to being able to represent a state. But surely the Senate gets to decide which conduct with respect to the Senate qualifies for expulsion. In a sense, I would compare the expulsion proceedings to impeachment for members of the Executive or the Judiciary.

But this leads me to another question. Reid specifically said that Stevens would be expelled prior to the next session. And DeMint and Ensign both said that they want to deal with the issue in the lame-duck session. This is where the question of electoral will may come in--if a Senator is expelled in one session of Congress, then reelected, does the expulsion extend to the next session? More importantly, if the expulsion is a punishment for behavior associated with a particular time period that precedes the election cycle for the next session, can the Senator be expelled for the same behavior without any evidence that any of it occurred in the period intervening between the original findings and the elections?

If Brett is correct, this is hardly an impediment. The Senate may decide once to expel a Senator of bad behavior (whatever that might mean). If they are the ultimate judges of Senatorial behavior, they can do it again, taking into account the totality of such behavior and not individual instances. In that case, what's bad for the Senate once, is bad forever, so no further expulsion would be necessary. In this reading, expulsion would be, in essence, a declaration of persona non grata.

The opposite reading would be to declare that expulsion is for specific, not general behavior and, therefore, if a Senator is reelected by the constituents after having been expelled, his rights would have to be restored. But even with this reading, conducting the proceedings in the lame-duck section may get around that technicality.

I also want to point out that there has been an incorrect interpretation of the Republicans' intent as to expulsion of Stevens in the lame-duck session. DeMint and Ensign have declared that they want Stevens expelled from the caucus, not from the Senate. As far as I can tell, Democrats are the only ones effectively talking about removing Stevens from the Senate.

Finally, I should point out that the latest tabulation that finally includes a large number of uncounted ballots from the Democrats-friendly precincts has put Begich over the top. The remaining uncounted ballots should also favor Begich, so, pending a recount, Begich will replace Stevens in the next session. Unfortunately, this development would render all the previous musings here moot.

Still, Republicans may want to make a symbolic gesture and expel Stevens from the caucus in the lame-duck session. This would accomplish several goals: 1) showcase the GOP as the party of lawfulness (other facts notwithstanding); 2) avoid constitutional issues discussed here; 3) tell Stevens that his career really is over; 4) spare Stevens the possibility of losing his pension.
 

since it now appears that.. after finding and counting some 90,000 outstanding ballots in alaska.. stevens will fail in his bid for re-election.. the whole matter appears to soon be rendered moot ..
 

The opposite reading would be to declare that expulsion is for specific, not general behavior and, therefore, if a Senator is reelected by the constituents after having been expelled, his rights would have to be restored.

IIRC, the Supreme Court held in the Adam Clayton Powell case that an intervening election restored the Member.
 

This comment has been removed by the author.
 

Although this discussion is -- at least according to the current vote count in Alaska -- somewhat academic, I do want to respond to PMS Chicago's post above (and, hey, this is an academic blog, after all).

Quoth PMS: [T]he notion that each sentence in the Constitution has a single ironclad and timeproof meaning is ridiculous, even if we assume that meaning can be inferred posthumously through said framers' statements or the punctuation therein.

I fully agree that, to try to determine "a single ironclad and timeproof meaning" from any given provision of the Constitution is largely a fool's errand -- although some provisions are, I would hazard, a bit less, um, open textured than others (e.g., apart from allowing for the vagaries of births during leap years, I don't think that even Stanley Fish could find loads of plausible ambiguity in the age qualification for the presidency, for example).

But I'm certainly not arguing for some kind of ironclad and timeproff meaning. Far from it. I'm simply asking that the interpretive exercise be undertaken with some regard for, yes, the words and punctuation. Those aren't small things. They are the way that we endeavor to transmit meaning. However fraught the enterprise of interpretation is, I ask only that due regard be given to the language used and the shared conventions about how certain groupings of words and punctuation marks are understood.

I have no quarrel with the proposition, for instance, that some standard should be read into the expulsion clause -- otherwise, it is simply a supermajoritarian Lord-of-the-Flies provision. But I have no respect for an argument that the "disorderly Behavior" modifier actually modifies soemthing it doesn't modify, according to basic syntax conventions that we rather have to adhere to to make sure that things that we write are effective means of communication.

With all respect, I think Prof. Levinson reached out for a kooky textual interpretation of the expulsion provision because he originally backed the wrong horse -- by believing that the "qualifications" clause was the relevant clause. That, I suspect, triggered an understandably human -- albeit analytically unsustainable -- effor to read the expulsion clause as being bounded by the "disorderly Behavior" proviso (whatever the hell that might mean).

I think that the standard-less expulsion-by-supermajority clause is pretty stupid as written. Elections should not be undone through a mechanism like unto the TV show Survivor. And consequently, some kind of standard should, I think, be read into that provision. And if you want to use "disorderly Behavior" as the standard, go for it (although I think that's a pretty stupid standard, which seems to be more concerned with decorum inthe chamber than it it is with lying on your disclosure forms). But that is a normative argument calling for an interpretation that hews to a normative principle -- one that, to be sure can be defended by implications drawn fromthe docuemnt as a whole and particular passages as well (e.g., concerns about due process, the basic system by which Senators are selected, at least after they became elected officials and not state-house appointees). I think that's a respectable argument, but it's not an argument about the English actually used in the provision. And dressing it up as an argument emanating from teh syntax of the sentence is a disservice to the argument and to those who are expected to take it seriously.
 

Ginger Man- to be honest, I have always assumed (without thinking much about it) that the phrasing of the expulsion clause is simply a mistake, of the kind that one might expect occasionally in a document written by committee. On reflection, however, this may be an unwarranted assumption. It seems to me that there are three possible reasons why the framers might have intentionally crafted the clause in this way: (1) they intended that expulsion be available for any reason or any conduct whatsoever; (2) they intended that expulsion be available for only some types of disorderly behavior, but could not agree on a specific standard to identify that conduct; or (3) they intended that expulsion be available only for certain conduct, which might or might not qualify as disorderly behavior, but could not agree on a specific standard to identify that conduct.

I think we agree that option (1) seems unlikely, and is certainly inconsistent with how the clause has been interpreted and applied throughout our history. Moreover, given the broad meaning that has been given to the term “disorderly behavior” by both the House and Senate, there may be no practical difference between (2) and (3). It is hard to think of conduct that could be reasonably thought to justify expulsion that would not also fall within the disciplinary power for “disorderly behavior.”
 

Mourad can correct me if I'm wrong (and I'm too lazy to look it up right this minute), but I'm pretty sure the expulsion standard was the same as then existed for the House of Commons. The Founders had mental images of government which stemmed from British practice even when they didn't use express words to that effect.
 

Mark- the framers were certainly familiar with expulsions from the House of Commons, but I don't think they were entirely positive about that experience. In particular, there was a great deal of concern about the Wilkes case, where a MP was expelled several times against the clear wishes of his constituents who kept re-electing him. Fear of that kind of abuse is why there is a supermajority requirement for expulsion.

Josh Chafetz's book has an excellent discussion of these issues.
 

mls: Agreed on both the Wilkes case and the supermajority as protection against it.
 

Jesse Bright of Indiana was the last senator to be expelled, in 1862. The reasons given were that he acknowledged Jefferson Davis as president of the Confederate States and that he sympathized with the Confederacy.

Now neither of those were even crimes, and he was from a state that remained in the Union, and presumably the people who voted for him were aware of his sympathies.

His property was then confiscated by the government without compensation and used to build a military hospital.

Looks like this question has already been decided.
 

The people didn't vote for Bright. Senators were chosen by state legislatures back then.

That process may have raised lesser policy concerns about expulsion than election by the people does.
 

@Brett: Ah, hermeneutics raises its (ugly?) head: "Can we have an end to this whole 'Extract higher principles from the Constitution, generalize them, and then use them to contradict what the Constitution actually says gambit?'"

Well, no, we can't have an end to it. Constitutional interpretation is not an exercise in grammar and logic, it is an exercise akin to theology, in which "Thou shalt not kill" is quickly explained to mean "Kill only when your church says it is a good thing."

As someone immediately reminded you, the phrase "Congress shall pass no law..." in the first amendment, as every Constitutional lawyer knows, actually means "Congress shall pass all sorts of laws as long as the courts agree they are acceptable."
 

I think that Jason that under Powell v. McCormack, the Senate's powers to expel are much broader than its constitutionally limited powers to exclude but some other factors are also involved in it, i have visited a website of law Rechtsberatung

Anwalt fuer Arbeitsrecht

Rechtsanwalt
that provide services in these areas of law.
 

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