The Political — and Solely Political — Power of Impeachment

The story of impeachment is a simple and straightforward one. So much so, in fact, that it is perhaps the easiest to settle in our pantheon of constitutional debates.

Impeachment is not a judicial process; it is governed by no laws, statutes, decrees, mandates or constitutions, or metaphysical divinations. The powers of impeachment and conviction rest with the most influential political bodies in the country because the process, by its very nature, is, and was meant to be political.

To say that impeachment is political is, of course, not to say that it is trivial. It only means that an important decision has been left to the political process, as most are in our republic. Furthermore, the fact that the power of impeachment, like the power of legislation, is divided internally and allocated equally between the Senate and the House of Representatives should serve as a barometer of the importance of this power. After all, one does not worry about the consolidation of a meaningless or insubstantial power. Indeed, there is an excellent argument to be made that impeachment was left to the political branches precisely because it is so important and the people ought to have a more direct say in its development than they would in other more mundane matters.

Furthermore, this is a question on which the Constitution itself leaves little doubt or room for interpretive adventure. We are firmly commanded that “[t]he House of Representatives...shall have the sole Power of Impeachment”[1] and that the “Senate shall have the sole Power to try all Impeachments.”[2] That the word “sole” appears but twice in the Constitution, and both times as qualifiers of who holds the powers of impeachment and conviction should offer an unsubtle hint as to how strongly these powers were meant to be hermetically sealed within the political process.

One of the most vocal opponents of a purely political impeachment process is renowned Harvard Law professor Alan Dershowitz.[3] He is of the view that “high Crimes and Misdemeanors” should be construed in a limited sense only to encompass actual high crimes of the kind that might so qualify in a court of law. Furthermore, he believes that the impeachment process is a justiciable question, even going so far as to assert that the Chief Justice, in his capacity as presiding officer of the Senate trial of a President’s impeachment charges, has the common law authority to set aside a Senate verdict — just as a judge in regular trials has the power to set aside jury verdicts.

Dershowitz’s historical analysis of the common law is certainly commendable, but his error here lies in his mistaken fundamental assumption that the impeachment process is, in any way, a judicial matter. It is a political power that rests solely and exclusively with the political bodies to which the Constitution entrusts its two respective components. His argument that common law and American judicial practice ought to govern impeachment proceedings only has any purchase if one first buys into the premise that impeachment is a judicial process at all. Since that premise is refuted by the language and meaning of the Constitution,[4] Dershowitz’s common law gymnastics, while highly engaging as an intellectual exercise, necessarily fail.

To be entirely fair to a decorated scholar, there is substantially more to unpack in Dershowitz’s presumption of justiciability. For one, Dershowitz rests quite heavily on the specification “high Crimes and Misdemeanors” to stress the point that such qualifications — whether “high” in particular or the broader delineation of “Crimes and Misdemeanors” — would serve no purpose if Congress could simply steamroll their way past them and remove the President from office at their whim for something like, say, maladministration or developing a gluten allergy. This is an important point, but one ultimately rooted in constitutional theory and philosophy than strictly in interpretation. There exists a fairly popular, albeit pervasive, constitutional philosophy that all provisions in the Constitution are, or must be, justiciable. This is untrue. Much of the Constitution is a political document and performs its function best when the people and their representatives in the political branches remain faithful to it and enforce its terms. Consider, for instance, the constitutional philosophy of departmentalism. For several reasons rooted in constitutional interpretation, framers’ intent, original meaning, and the common law, understanding the power and responsibility of constitutional interpretation as a “departmentally segregated” endeavor is appropriate. In short, this view believes strongly that the judiciary is unable to legislate, amend legislation, or rule by decree. The Constitution specifies that the scope of judicial power only extends to “Cases [and] Controversies.”[5] But it does not end there; the Constitution goes further to specify what kinds of cases fall under the jurisdiction of the judiciary and, in doing so, sets up specific guidelines for parties, localities, jurisdictions, and subject matter that govern the ability of a federal court to hear a case in the first place. The trouble through which the Framers appear to go to clearly lay down the rules of judicial action makes it evident that their idea of judicial power necessarily extended, as at common law, only to the particular parties in whose names the verdicts were entered. Consequently, “departmentalism” sheds important light on the relationship between a judicial verdict and the political branches of government; in particular, the verdict does bind the party, but there is no reason for a legislature or executive to be bound by the decision in a case to which it is not a party. This is not much of a surprise, since the idea that a judicial verdict “binds” either of the other branches is meaningless when one considers that courts lack any kind of enforcement mechanism and rely wholly on the political branches to lend credence to their decisions.[6]

This is a detailed explanation of a simple bottom line: the idea that the judiciary somehow “defends” the Constitution from the attacks of the political branches is nothing more than a captive illusion. When routine talking points are peeled away, all that stands is the sobering realization that political branches are only bound by the interpretations and decisions of courts because they choose or acquiesce to be so bound. Whether it is tradition, precedent, institutional inertia, or sheer popular will, true constitutional power lies with the people and their representatives. As the Great Chief Justice, John Marshall, said, “[t]he people made the Constitution, and the people can unmake it. It is the creature of their own will, and lives only by their will.” Cohens v. Virginia, 19 U.S. (6 Wheaton) 264, 387 (1821).  And, when ultimate constitutional power indeed rests with the people and the political branch, what higher exercise of of that power exists than the removal of a commander-in-chief and chief executive?

At the end of the day, it is the people for whom the Constitution was drafted, ratified, and enacted. It is the people who get a say in how powers delegated solely to their representatives are to be used and exercised. In many cases, the Constitution serves to remind people of great traditions, principles, and philosophies that long predate them. The guidelines on impeachment are, therefore, just those — guidelines. It is for the people to decide what they consider a high crime or misdemeanor, and it is they that must have the ultimate say in a question as central to the political heart of the republic as the removal of the single most important and powerful governmental officer in the country. Impeachment is a purely political process, the sole power over which is given by the Constitution to the two most political national bodies in its contemplation. Given that the Constitution in no other instance explicitly declares a power to be exclusive, we can rest assured that the Framers knew precisely what they were doing and, better still, that they had hope that the people would be capable of making some of the most important decisions of the Republic. Courts, for once, are required to sit this one out.

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Akhil Rajasekar is a student of American politics and constitutional law at Princeton University and founder and president of the Princeton Federalist Society. He was formerly a legislative fellow in the United States Senate. Follow Akhil on Twitter at twitter.com/AkhilRajasekar.