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36 posts from August 2022

08/30/2022

Ann Woolhandler: State Separation of Powers and the Federal Courts
Michael Ramsey

Ann Woolhandler (University of Virginia School of Law) has posted State Separation of Powers and the Federal Courts (33 pages) on SSRN.  Here is the abstract:

The issue of state separation of powers generally is not one that the federal courts have had much occasion to address. Recent issues have arisen, however, with respect to states’ use of private parties to enforce state anti-abortion regulations such as Texas’s Senate Bill 8 (S. B. 8), and as to state legislatures’ claims of near-plenary powers over federal elections under the so-called independent state legislature doctrine (ISLD). See Moore v. Harper, cert. granted, Jun. 30, 2022 (No. 21-1271). In addition, revived interest in the nondelegation doctrine, as illustrated in West Virginia v. EPA, raises questions as to the earlier impact of that doctrine. While nondelegation scholarship often focuses on the rare use of the doctrine to strike down statutes conferring powers on federal agencies, the federal courts’ use of separation of powers as to state delegations illustrates the effect of the doctrine in aid of other constitutional rights. This paper provides an account of the federal courts’ treatment of state separation of powers in the past, and then addresses the relevance of this account to current debates about S. B. 8 and ISLD.

08/29/2022

Kevin Tobia & Brian Slocum: The Interpretation of Law
Michael Ramsey

Kevin Tobia (Georgetown University Law Center; Georgetown University - Department of Philosophy) & Brian G. Slocum (University of the Pacific - McGeorge School of Law) have posted The Interpretation of Law (64 pages) on SSRN.  Here is the abstract:

Courts increasingly presume that law should be interpreted according to what it communicates to an ordinary reader. Textualists view this as a strict requirement, creating a bright line between favored “textual” interpretive canons (reflecting objective linguistic principles) and suspect “substantive” canons (reflecting subjective normative values). This Article defends a novel thesis about this bright line. We argue that some substantive canons are also textual canons. This Article presents the first empirical study of whether ordinary people (N = 1,520) implicitly follow some substantive canons when interpreting legal rules. The study finds that some substantive canons track valid linguistic generalizations about how ordinary people understand rules’ meaning. For example, the presumption against retroactive application of statutes is usually justified by values like fairness, but it also reflects ordinary readers’ general understanding of the meaning of rules.

This empirically supported theory carries significant practical and theoretical implications, especially for textualists. For example, it offers a novel resolution to long-standing conflict between the famous Chevron doctrine and substantive canons. It also grounds a new critique of textualists’ reliance on non-linguistic canons. More broadly, the results support a call for a linguistic reorientation in legal interpretation. Laws’ words express rules, and text-committed interpreters should carefully consider how ordinary people understand rules, beyond the meanings of individual words or general communications. The “ordinary reader” is assumed to be interpreting law, and judicial interpretation committed to that reader should similarly reflect the interpretation of law.

(Via Larry Solum at Legal Theory Blog, who says Highly recommended.  Download it while it's hot!)

08/28/2022

Philip Hamburger on Magistrate Judges Issuing Search Warrants
Michael Ramsey

At The Federalist, Philip Hamburger (Columbia): Can Magistrate Judges Constitutionally Issue Search Warrants Against Trump (Or Anyone Else)?  From the introduction: 

The Mar-a-Lago search warrant is interesting not only because of the high office of the individual whose papers were seized but also because of the low office of the person who signed it. The warrant illustrates the long-standing constitutional anomaly of letting magistrate judges sign search warrants.

Leave aside how you feel about the former president. Leave aside what you think of January 6, 2021. Leave aside whether there was a good reason to issue the warrant. A more basic question is whether the Hon. Bruce Reinhart could constitutionally issue it. 

The problem is that Reinhart is a so-called magistrate judge. Many commentators have focused on his personal history and political leanings, but much more significant is that he is not really a judge. 

To be precise, he is not a judge of a court of the United States. The judicial power of the United States is vested in its courts. In the exercise of this power, judges of those courts can issue search warrants. But a magistrate judge is just an assistant to a court and its judges. Not being a judge of one of the courts of the United States, he cannot constitutionally exercise the judicial power of the United States. That means he cannot issue a search warrant.

The full shift of the judicial power of the United States in criminal cases to magistrate judges has been relatively recent. Only since 1968 has Congress generally authorized persons other than real judges to exercise the judicial power of the United States in trying misdemeanors (although a defendant can still insist on being tried by a real judge when charged with more than a petty offense). In addition, district courts can assign the non-judges “such additional duties as are not inconsistent with the Constitution and laws of the United States.” Only since 1990 have the non-judges been called “magistrate judges.”

Just how little a magistrate judge can be considered a judge is evident from the way he is appointed. Rather than be nominated by the president and confirmed by the Senate—as provided by the Constitution for real judges—a magistrate judge, including the one who signed the Mar-a-Lago warrant, is appointed merely by a majority of the active judges of a district court. He serves for only eight years, he can be removed for cause, and even if not removed, he always must worry that his district court will not reappoint him.

Congress, moreover, can reduce his salary. He therefore is not a judge of the court, but merely one of its servants. Like a law clerk or other assistant, he can help a judge understand the issues underlying the decision to issue a search warrant. But he should not issue it.

And from later on:

At stake is whose judgment matters. The whole point of having judges nominated by the president and confirmed by the Senate is to ensure that the judgment required for the exercise of judicial power will be the judgment of individuals learned in the law—ones carefully chosen to exercise mere judgment, not will.

Such individuals, moreover, are protected in salary and tenure. They need never worry that they will be removed for cause or not reappointed. So the judgment of a real judge makes a real difference. Any binding judicial act that is not merely ministerial must be an exercise of judgment by an actual judge of the courts, not anyone else.

...

The Constitution’s vesting of the judicial power in the courts is important for search warrants. It ensures that at least for federal search warrants, the “probable cause” required by the Fourth Amendment will be ascertained by a judge, not anyone else.

Indeed, search warrants from magistrate judges violate not only the vesting of judicial power in the courts but also the Fourth Amendment. In guaranteeing that search warrants must rest on probable cause, that amendment assumes that probable cause will be found by a judge. Moreover, the issuance of a search warrant is unreasonable when it comes from a non-judge, because he lacks salary and tenure protection and has not gone through the same rigorous selection process as a real judge. The guarantees of probable cause and reasonableness are much diminished when a non-judge can make the determination.

And on the development of the practice:

One might have thought judges would be cautious about predetermining the lawfulness of any question—especially a threat to civil liberties, especially in criminal law, and especially when they have an institutional interest in the outcome. Nonetheless, they have blithely assumed the constitutionality of search warrants issued by magistrate judges.

For example, after Congress authorized the Supreme Court to promulgate the Rules of Criminal Procedure for the District Courts of the United States, the Supreme Court, in 1944, in Rule 41(a), provided that a search warrant may be issued “by a United States commissioner within the district wherein the property sought is located.” What were commissioners are now called “magistrate judges.”

Even today, Congress itself does not generally authorize magistrate judges to issue search warrants, but merely authorizes district courts to assign “additional duties” to these subordinates. It thus leaves each district court to decide whether its magistrate judges can issue search warrants, and district court judges generally take this opportunity.

Why have judges been so willing to assume and even predetermine the lawfulness of search warrants from magistrate judges? One answer is their workload. As the Supreme Court puts it, without magistrate judges, “the work of the federal court system would grind nearly to a halt.” There is some truth to this, but not because of search warrants. They are only part of the burden alleviated by magistrate judges, and it would not crash the system to leave such warrants to real judges.

The workload of district courts is, at least in part, a judicially created problem. Through their own doctrines, judges have sometimes unnecessarily crowded their schedules. To this extent, it befits them to suggest that the judicial workload requires them to subject Americans to search warrants issued by magistrate judges.

For decades, the judges—the real judges—have shut their eyes to the dangers of handing off parts of the judicial power of the United States to subordinates. ...

08/27/2022

Kurt Lash: The State Citizenship Clause [Updated with a Comment from Andrew Hyman]
Michael Ramsey

Kurt T. Lash (University of Richmond School of Law) has posted The State Citizenship Clause (49 pages) on SSRN.  Here is the abstract:

The first sentence of the Fourteenth Amendment contains not one, but two citizenship clauses. The first defines national citizenship and the second defines state citizenship. Although a significant body of scholarship exists regarding the history and meaning of the former, no prior work has investigated the origins and original understanding of the latter.

Unlike the National Citizenship Clause, the State Citizenship Clause had no analogue in the 1866 Civil Rights Act. The unique language of State Citizenship Clause emerged out of a private Republican Senate Caucus which met to address concerns about the Joint Committee’s proposed Fourteenth Amendment. Post-passage criticism of the 1866 Civil Rights Act had revealed a major flaw in the Act: The statute failed to secure the status of state citizenship and potentially left open a loophole through which states might continue to deny Black Americans equal civil rights. The State Citizenship Clause closed this loophole by securing the status of local citizenship for every resident American citizen, regardless of race. Any state law that denied a local civil right on the basis of race by definition denied that resident their status of equal state citizenship. Throughout the ratification period, proponents of the Fourteenth Amendment repeatedly insisted that the final language of Section One prohibited states from denying equal civil rights to any resident American citizen. This prohibition on racial discrimination was not limited to certain “fundamental” civil rights. It applied to all state level civil rights, no matter how trivial. This history suggests that the original understanding of the Fourteenth Amendment supports decisions like Brown v. Board of Education but does so on the basis of the original understanding of the State Citizenship Clause.

UPDATE:  Andrew Hyman comments:

Professor Lash writes, “The Supreme Court has occasionally recognized this basic principle of equal state citizenship rights, though without recognizing its textual roots in the State Citizenship Clause. See, e.g., The Slaughterhouse Cases, 16 Wall. 36, 80 (1872) (Miller, J.).”  Miller was certainly referring there to the State Citizenship Clause (emphasis added): “One of these privileges is conferred by the very article under consideration. It is that a citizen of the United States can, of his own volition, become a citizen of any State of the Union by a bona fide residence therein, with the same rights as other citizens of that State.”  Miller was saying that the State Citizenship Clause implied nondiscrimination based on whether a citizen was born in a state or instead immigrated to the state, and Miller did not suggest a broader form of equality resulting from the State Citizenship Clause. Indeed, a broader form of equality is difficult to infer from that Clause’s text, beyond entitling more people to Comity Clause rights.

Fortunately, the 14th Amendment also includes the Equal Protection (EP) Clause, but Professor Lash writes that it was only meant to protect “life, liberty and property….[which] would not have been understood as involving emerging public benefits like public schooling.”  Lash acknowledges that that limitation of the EP Clause regarding “life, liberty, and property” was removed from the initial draft of Section One; even if it somehow remained implicit in the EP Clause (I doubt it), “liberty” arguably included freedom to attend public schools especially when education became so much more important in the economy of the twentieth century.  But was there really an EP limitation to “life, liberty, and property”?  Professor Lash quotes Senator Allen Thurman to that effect, but the Thurman quote is from 1875 which was seven years after ratification (and perhaps not coincidentally Thurman was a segregationist and white supremacist).  The word “protection” often had a broader meaning in the period 1866-1868, for example in an 1867 speech by James Brisbin quoted later that year on the Senate floor by Senator Charles Sumner: “As we claim allegiance from the blacks, we are bound to accord them full protection in all their rights as citizens, both civil and political.” Other speakers limited “protection” to civil but not political rights, but even then the scope would be broader than only rights of “life, liberty, and property.” As Professor Lash writes, “Americans in 1866 understood ‘civil rights’ to include any benefit conferred upon state residents on the basis of their local citizenship.”

08/26/2022

Lawrence Lessig on the Slaughterhouse Cases
Earl Maltz

[Ed.: For this guest post we welcome back Professor Earl Maltz, Distinguished Professor of Law at Rutgers Law School.]

In Privileges or Immunities:  A Judicially Restrained and Originalist Understanding [ed.: noted on this blog here], Lawrence Lessig both discusses the original meaning of the Fourteenth Amendment and challenges the traditional reading of the majority opinion in The Slaughterhouse Cases. Professor Lessig begins by asserting that, if given its original meaning, section one of the Fourteenth Amendment would be interpreted to provide Congress with a wide-ranging power to determine the scope of the protections established by the Privileges or Immunities Clause.  But in addition, he contends that the majority opinion in Slaughterhouse adopted a similar reading of that clause.  In particular, Lessig claims that the Slaughterhouse majority was motivated by a desire to limit the role of the judiciary in reviewing the constitutionality of state legislation while at the same time recognizing the power of Congress “fill out the contours of the ‘privileges or immunities of citizens of the United States.’”

In fact, however, nothing could be further from the truth.  In the majority opinion, Justice Samuel Miller did indeed complain that an expansive reading of the Privileges or Immunities Clause would, in his words, “constitute this court a perpetual censor upon all legislation of the States, on the civil rights of their own citizens, with authority to nullify such as it did not approve as consistent with those rights.”  However, Miller placed even greater emphasis on the impact that an expansive vision of the import of the clause would have on the scope of congressional authority, asserting that the broad interpretation advocated by the dissenting justices would  “bring within the power of Congress the entire domain of civil rights heretofore belonging exclusively to the States” and would also allow Congress “to pass laws in advance, limiting and restricting the exercise of legislative power by the States, in their most ordinary and usual functions.”  Thus, Miller concluded by asserting that the Privileges or Immunities Clause should be interpreted narrowly in order to avoid “radically chang[ing] the whole theory of the relations of the State and Federal governments to each other and of both these governments to the people.”

These passages belie the claim that the majority opinion in Slaughterhouse was designed to give Congress broad authority to define the nature of the “privileges or immunities of citizens of the United States” for constitutional purposes.  Instead, Justice Miller clearly intended to greatly limit the scope of the powers granted to Congress by the Fourteenth Amendment and, by implication at least, to empower the Court to strike down statutes that exceeded those limitations.  Of course, one might still argue that the interpretation of the Privileges or Immunities Clause envisioned by Professor Lessig is consistent with the original meaning of the Fourteenth Amendment.  However, one thing is crystal clear.  The majority in Slaughterhouse did not embrace any such theory.

08/25/2022

Maureen Brady: Uses of Convention History in State Constitutional Law
Michael Ramsey

Maureen E. Brady (Harvard Law School) has posted Uses of Convention History in State Constitutional Law (Wisconsin Law Review, forthcoming) (27 pages) on SSRN.  Here is the abstract:

For decades now, scholars have been interested in the reliability of historical evidence surrounding the drafting of the federal Constitution. The intrigues surrounding the publication of records of the federal constitutional convention—the Philadelphia Convention, held in 1787—are nearly worthy of their own Netflix special (though maybe not quite another installation of the National Treasure franchise). As compared with the amount of material available to federal constitutional law scholars and interpreters, the quantity of historical material pertaining to state constitutions is vast. And yet, no comparable literature exists to assess the reliability of those records. This leaves a question: if scholars have criticized courts’ reliance on shaky historical evidence to interpret the federal Constitution, to what extent might the same sorts of concerns plague the records in the states?

Now is an opportune time to consider the production and use of the historical evidence surrounding state constitutions for at least three reasons. First, while much scholarly interest in uses of historical material focuses on originalism as deployed in the Supreme Court, more recent work is starting to engage originalism and uses of history in state and lower federal forums. Second, the Supreme Court’s turn in recent federal constitutional decisions toward “history” and “tradition” may mean more lawyers turn to state constitutions and associated records for evidence of historical understandings of rights and their limits. And lastly, recent progressive losses in the Supreme Court seem likely to reinvigorate interest in pursuing state constitutional causes of action to protect rights not recognized at the federal level, a move that may likewise trigger renewed interest in state constitutional sources.

This Essay begins to examine the records that surrounded the creation of state constitutions, considering their reliability as sources, their emergence as interpretive aids, and their widespread use by judges. It focuses in particular on material from state constitutional conventions: the published journals, debates, and proceedings that purport to chronicle the day-to-day activities of a state constitution’s drafters. Although hardly the most frequent way that state constitutions are changed, state convention evidence can be helpfully viewed through the critical lens that has already been applied to records of the federal Constitutional Convention. In this brief work, I will illustrate some of the problems and possibilities that this material can pose for interpreters of state constitutions, informed by the critiques that scholars have made of convention evidence in the federal context.

Part I begins by examining the extent to which the evidentiary weaknesses identified by federal constitutional scholars apply to material produced in conjunction with state constitutional conventions. Part II traces the history of state-court reliance on convention evidence, examining its emergence as an interpretive aid in the first half of the nineteenth century and its acceptance in an increasing number of judicial decisions. Given the frequency with which courts turn to convention evidence, Part III identifies some puzzles and directions for further research on the uses of historical material to shed light on the meaning of state constitutional provisions.

08/24/2022

Originalist Perspectives on Bolling v. Sharpe
Michael Ramsey

At Ius & Iustitium, Cass Sunstein (Harvard): The Enigma of Bolling v. Sharpe.  From the introduction (footnotes omitted): 

For constitutional theory, Bolling v. Sharpe has always been a bit of a puzzle, but it is suddenly much more than that. In Bolling, the Supreme Court held that the Due Process Clause of the Fifth Amendment forbids Congress from segregating the schools in the District of Columbia. That holding is important in itself. Actually, it is much more than important in itself, because it is the source of the broad idea that the national government may not engage in racial discrimination. But Bolling is important as the foundation of an even broader idea, which is that principles of equal protection generally apply to the national government. Because the Equal Protection Clause can be found in the Fourteenth Amendment, and not the Fifth, we have to do considerable work to generate a theory to make sense of Bolling. In Bolling, the Court itself offered some of the essential ingredients of such a theory (as we shall see).

In Dobbs v. Jackson Women’s Health Center, the Court cut the legs out from under Bolling. In essence, the Court held that to qualify for protection under the Due Process Clause of the Fourteenth Amendment, a litigant must show that the relevant right is “deeply rooted in this Nation’s history and tradition” and “implicit in the concept of ordered liberty.” It is exceedingly hard to show that a right to be free from segregation qualifies under this test – not least because segregation was required by the Black Codes, enacted throughout the South in the 1860s, and because the Supreme Court upheld segregation in 1896 and did not strike it down until 1954 (under the Equal Protection Clause). Racial segregation was both practice and permissible for about a century. Insofar as we are speaking of the Due Process Clause of the Fifth Amendment, the idea of a right to be free from racial segregation stands, under the Dobbs approach, on very shaky ground. In fact it is worse than that. For the approach in BollingDobbs is an earthquake. ...

Despite the alarmed tone and extensive discussion, I don't think there's really much new here.  Originalists have long understood (and been worried by) the fact that Bolling is a tenuous case as a matter of original meaning.  In addition to the problems Professor Sunstein notes, I think more serious ones are (1) I don't know of any evidence that anyone in 1791 might have thought the 5th Amendment's due process clause contained a substantive guarantee of equality, and (2) if the due process protection contains a guarantee of equal treatment, then the equal protection clause (assuming it is a guarantee of equal treatment, as modern law understands it) is superfluous.

But originalists are not without responses.  There are at least four:

(1) Bolling was wrongly decided and should be overruled.  If that outcome is morally intolerable (and I agree with Professor Sunstein that it should be) then the Constitution can be amended to change it, just as the Thirteenth Amendment changed the original Constitution's morally intolerable failure to proscribe slavery.  Judges don't fix morally intolerable parts of the Constitution; amendments do.

(2)  Bolling would come out the other way on strictly originalist grounds, but originalism should accept an "escape clause" by which judges can refuse to enforce morally intolerable results in extreme cases.  The acceptance of an escape clause in extreme cases does not undermine the use of originalism in non-extreme cases.  (Justice Scalia acknowledged this possibility in his famous comment about being a "faint-hearted originalist"). In similar vein, even the strictest view of stare decisis would probably allow precedent to be overruled in extreme cases (such as Plessy v. Ferguson); that in itself does not undermine a general rule of strict adherence to precedent. (Note, though, that this approach indicates that judges in the antebellum period should have read the Constitution to invalidate slavery even though it didn't; I'm not sure how many people actually hold that view).

(3) Bolling was wrongly decided at the time it was decided, but it should not be overturned now as a matter of stare decisis.  It is well-integrated into the framework of U.S. law, is not seriously contested on moral or policy grounds by anyone, and does not create distortions or difficulty of administration.  (This is roughly the way Justice Scalia looked at it).  Further, borrowing from John McGinnis and Mike Rappaport, it's very likely that if Bolling had been decided the other way, that result would have been overturned by constitutional amendment.  Thus overturning it now, and forcing an unnecessary amendment process, would be a pointless exercise.

(4) Bolling was wrongly reasoned but its result can be reached on other originalist grounds.  Professor Sunstein alludes to this position, citing Ryan Williams, Originalism and the Other Desegregation Decision, 99 Va. L. Rev 493 (2013) (arguing that the requirement of equal treatment by the federal government comes from the Fourteenth Amendment's citizenship clause).  As Professor Sunstein does not mention, Justice Thomas endorsed this position in a long concurrence in United States v. Vaello Madero, relying heavily on Professor Williams' article.  

I don't have an opinion on which is best.  I have a very high degree of confidence that most current originalist-oriented Justices would pick (3), with one or two picking (4) and none picking (1).  So it's really an academic question.  But I like those.

(Via Jonathan Adler at Volokh Conspiracy, who encourages originalists' thoughts on the matter).

08/23/2022

Tara Leigh Grove: Testing Textualism’s 'Ordinary Meaning'
Michael Ramsey

Tara Leigh Grove (University of Texas School of Law) has posted Testing Textualism’s 'Ordinary Meaning' (George Washington Law Review, Vol. 90, No. 5, 2022) (36 pages) on SSRN.  Here is the abstract:

This Foreword to an annual issue on Administrative Law explores the concept of “ordinary meaning” in statutory interpretation. The Foreword challenges two central assumptions underlying some recent empirical scholarship: first, that “ordinary meaning” should be viewed primarily as an empirical concept, and, second, that textualists themselves view “ordinary meaning” in empirical terms. As the Foreword shows, “ordinary meaning” can be understood as a legal concept, not simply as an empirical fact. Moreover, the Foreword demonstrates that many prominent textualists have long treated “ordinary meaning” as a legal concept—one that must be elucidated through the understanding of a hypothetical reasonable reader (although, as the Foreword discusses, textualists debate how well-informed such a reasonable reader should be). This analysis complicates recent efforts to test empirically whether textualists have reached the “right answer” in specific cases. For many textualists, like many other interpretive theorists, statutory analysis is primarily a normative, not an empirical, enterprise.

(Via Larry Solum at Legal Theory Blog, who says "Highly Recommended.")

08/22/2022

May the Senate Properly Try a Former Officer Who Was Impeached by the House While Still in Office?
David Weisberg

Although one fervently hopes that the timeliness of the issue has very much receded, there recently has been more commentary on impeachment.  Prof. Michael McConnell has written an article contending that, if a president, vice-president, or civil officer is properly impeached by the House (whatever that requires) while still in office, that person may properly be tried by the Senate even after he or she has left office.  Andrew Hyman dissents in a recent post, and I join him.  (I previously expressed my own opinion here.)  But I’d like to add two additional points to the mix.

First, Prof. McConnell writes:

To be sure, sitting officers convicted on impeachment must be removed, but any person convicted on impeachment may be disqualified from future office. There is no textual or logical reason to assume that only person[s] who can be removed can be tried and convicted.

With respect, I disagree with that conclusion.  There is, I think, strong textual support for the view Prof. McConnell rejects. 

In relevant part, Art. I, Sec. 3, Cl. 7 recites:

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[.] 

I agree completely with Prof. McConnell that “sitting officers convicted on impeachment must be removed.”  But, with that understanding, one would expect that, if former officers who had been impeached while in office could properly be tried in the Senate when out of office, the clause would read:

Judgment … shall not extend further than to removal … , or disqualification … , or both[.]

With those very minor textual modifications, it would have been made manifest that disqualification may properly be imposed without removal, that is, that a former officer may be disqualified.  But that is not the actual text.  The actual text, which uses the word “and,” implies that disqualification must always be coupled with removal; it is not a stand-alone punishment.   

The second point turns on a certain symmetry between impeachment in the Senate and disciplinary proceedings in Congress.  I assume everyone agrees that members of the Senate and the House of Representatives may not be impeached under Art. I, Sec. 2, Cl. 5.  They are instead subject to discipline by the body in which they serve pursuant to Art. I, Sec. 5, Cl. 2, which recites:   

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.  

It is indisputable that neither House may punish a non-member.  The clause explicitly provides that each House may punish “its Members”—not non-members who formerly were members.  It also does not provide that a former member may be punished if disciplinary proceedings had been formally commenced before he or she became a non-member.  I’m no historian, but I’m not aware of any precedent for either House purporting to punish a former member. 

There is what I consider a highly significant similarity between disciplinary proceedings in the Houses of Congress and discipline via impeachment in the House and trial in the Senate: A two-thirds vote is required both in either congressional body to expel a member and also in the Senate to remove a sitting president, vice-president, or civil officer.  It is difficult to imagine that the necessity of a two-thirds vote in both proceedings is a mere coincidence.

It is true that the Senate may impose disqualification, and there is no analogous punishment for expelled members of Congress.  So, the symmetry between the two proceedings is not perfect.  The lack of perfect symmetry is not, I would think, a reason to embrace a position that exacerbates asymmetry. 

I personally can think of no persuasive reason why former members of Congress should not be subject to further discipline, while former presidents, vice-presidents, and civil officers in the executive and judicial branches should continue to be subject to further discipline.  I therefore believe that, because former members of Congress are not subject to congressional discipline (even if disciplinary proceedings against them had been formally commenced before leaving Congress), the better view is that former presidents, vice-presidents, and civil officers in the executive and judicial branches should not be subject to trial in the Senate (even if they had been formally impeached before leaving office).    

Ilya Somin on the Major Questions Doctrine
Michael Ramsey

At Volokh Conspiracy, Ilya Somin: Originalism and the "Major Questions" Doctrine (commenting on the exchange on this blog between me and Mike Rappaport).  After summarizing the competing posts, he continues:

Both Mikes make good points. But I largely agree with Ramsey. Indeed, I would go further. Even if nondelegation is justiciable, at least in some cases, the major questions doctrine can be justified as an additional tool for enforcing it, in situations where direct enforcement is infeasible for some reason (either because it is intrinsically impossible, or because judges just aren't willing to do it). In this way, MQD, like other "clear statement" rules can be seen as a second-best tool for enforcing constitutional constraints on government power that, in an ideal world, would get stronger protection.

I think Rappaport fails to effectively respond to this rationale for MQD. Even if it is not the ideal rule, it may be better than the available alternatives in a world where nondelegation is inadequately enforced.

I would add that, while both Mikes implicitly assume that constitutional originalists must also apply originalist principles to statutory interpretation, I am not convinced that is necessarily true. It may be so for those I refer to as "intrinsic originalists," who believe that originalism is inherently the only legitimate method of legal interpretation. But this is not true for what I call "instrumental originalists" - those whose support for originalism is based on the view that originalism leads to better consequences than other methodologies would. An instrumental originalist might conclude that, while constitutional originalism leads to better consequences than other constitutional theories, statutory originalism isn't necessarily superior in the same way to all of its rivals.

I agree with the last point in theory.  But I see the main instrumentalist reason for preferring constitutional originalism to be rule of law values, which also supports statutory textualism/originalism.