A review of thirty years of scholarship on why judicial impeachment - even on partisan grounds - is permissible.
Yesterday, I laid out the four principal types of objections to a broad understanding of the constitutional power of impeachment. Yesterday’s post focused on the supposed danger of abuse. Today, I take up the objection that, even if supported by evidence of original meaning and even if employed in good faith, the power of impeachment would simply be too strong in principle and inevitably lead to congressional dominance. More than a check, it would be a threat to separation of powers, tending to sow seeds of destruction of the Constitution’s balance between the branches.
Much of what I said yesterday, in response to the objection that a strong impeachment power would be too susceptible to abuse, can also be said here, in partial answer to the objection that a vigorous impeachment power is simply too strong as a matter of first principles — even if exercised within proper constitutional bounds: the objection is overstated; the impeachment power is divided within Congress; the supermajority Senate vote requirement guards effectively — perhaps even too effectively — against over-enthusiastic or merely partisan conviction; the special oath requirement promotes conscientious deliberation and decision on the merits; some perceived “abuses” would not in fact be abuses at all, but fall within the proper understanding of the original meaning of the impeachment power; the greater concern should be our habit of under-impeachment. There is also the simple observation that the constitutional power is what it is: that a policy or political-theory objection to the scope of the power is not really an argument against its existence as a constitutional matter. All of these points apply to the objection that taking impeachment seriously would transform our system into a quasi-parliamentary government.
In addition, the objection that a strong impeachment power would degenerate in practice into nothing more than a quasi-parliamentary “no confidence” makes two further analytic errors. First, it overstates what a true understanding of the impeachment power would permit: it would not rightly permit impeachment and removal of presidents for ordinary policy disagreements. The objection thus might overlap completely with the “it-might-be-abused” objection — and be subject to the same answers. Second, and somewhat ironically, the objection also overstates the supposed dramatic contrast between the two systems. Impeachment is not a mere vote of no-confidence; but impeachment’s rightful use would have the effect of removing the executive short of completion of his term, including for “political” offenses like believed abuse of power, violating the Constitution, or failing to perform the duties of office responsible. In those respects — early removal, including for certain political offenses — a vigorous impeachment power indeed would resemble, at least superficially, parliamentary regimes.
Offenses of that description match the types of misconduct for which the English Parliament brought executive power to heel through the power of impeachment, before the practice of “no-confidence” votes began to eclipse impeachment as the procedure of choice in the nineteenth century. That earlier English practice framed the American constitutional understanding of “high Crimes and Misdemeanors.” If Congress took the impeachment power more seriously, our system might look somewhat more like a modern parliamentary system. What of it? Such a consequence should be no cause for alarm. It would simply be the incidental, superficial-appearances consequence of the correct application of a constitutional power.
It is also worth noting a key difference between the consequences of impeachment and the consequences of a no-confidence vote. Unlike a parliamentary no-confidence vote, the effect of an impeachment conviction is to remove only a particular officeholder, not an entire administration or “government.” If a president is impeached and convicted, the vice president — typically a person of the same political party and (probably) similar political and policy views — assumes office. Only in the rare and now mostly theoretical (thanks to the Twenty-fifth Amendment) case of a double vacancy is there even the prospect that party control of the presidency would switch as the result of removing a president.
The closest to such a situation occurring was the impeachment of Andrew Johnson, who, had he been convicted, would have been succeeded by a man of quite different political views, Senator Benjamin Wade — a true “Radical Republican.” But that was only because there was no Vice President (Johnson having become President upon Lincoln’s assassination and no constitutional provision then existing for filling the vacant vice presidency). Other than in such a situation, Presidents facing impeachment have been (or would have been, if convicted) succeeded by men of their own party. That is a huge difference from the effect of modern parliamentary-system no-confidence votes, which cause the entire government to fall and often generate new legislative elections.
The reality of vice presidential succession also mitigates substantially the concern that impeachment would occur for insubstantial reasons or be pursued for purely partisan gain — the prospect of abuse of the impeachment power, discussed yesterday. Since presidential removal ordinarily will not flip party control of the presidency, there is little political profit in removing a president for (supposed) purely partisan reasons. In addition, modern experience has shown that impeachment efforts are often bad politics, even if impeachment is merited — yet another reason the greater concern is that the power will be underused, not that it will become a tool of legislative dominance.
The objection can even be turned around. The “too-much-like-a-parliamentary-no-confidence” vote argument actually works better in the opposite direction: a weak impeachment power, or its weak exercise for political reasons of deference to a president, party loyalty, or for reasons of policy, might actually amount to a “no-confidence” vote in reverse.
Think about it: First, imagine a president who otherwise deserves to be impeached and removed. On the merits, he has committed serious impeachable acts that warrant removal. Now, suppose that Congress nonetheless decides to retain the miscreant in office, for political or policy reasons collateral to the merits of guilt. Isn’t that a case of politics trumping (pardon the expression) principle? Isn’t that like a parliamentary system, in the sense that the officeholder remains in his post — here, even if he has committed serious wrongdoing — as long as he retains the legislature’s “confidence”? Indeed, if politics and policy are allowed a role, all it takes to keep a guilty, impeachment-worthy president in office is the political support of a minority bloc of his own party in the Senate — a block amounting to one-third-plus-one senators.
On this scenario, our system of separation of powers really has deteriorated into a quasi-parliamentary system, where the executive remains in power unless and until he loses the support of the legislature. Or it has become something a little bit worse: a president, once in office, can do whatever he wants — violate the Constitution, abuse constitutional power, lie, obstruct justice, break laws — and remain in office as long as he retains the political support of just thirty-four senators. Prime ministers never had it so good.
Is not this the reality of our day? And if it weren’t our reality, wouldn’t Mike Pence be president? The real danger is not that a strong power of impeachment, consistent with constitutional standards, will degenerate into a simple no-confidence vote. It is that a weak impeachment power will degenerate — and perhaps already has — into a system of essentially plenary presidential government, unbounded by law and unchecked by Congress, so long as the president retains any substantial core of minority political support among senators of his own party.
Next week, I will take up two more objections to a strong power of impeachment: that it would improperly “overturn the result of elections” and that it is “inconsistent with settled practice.”