Scalia got one thing right: the 2000 presidential election was a disaster. Something had to be done about it—and quickly. Scalia’s framing, though, concealed a sleight of hand. The question wasn’t whether to act but rather who should do so. As briefed to the Supreme Court by one of us, Bush v. Gore was a case about the allocation of power. In responding to calls for a recount in certain Florida counties, whose word would be final?
To many observers, there was a clear answer: the Florida Supreme Court. As the highest authority on applicable state law, it had decisively addressed the “hanging chad” issue by ordering a recount. The US Supreme Court had never second-guessed a state court under remotely similar circumstances, and the Constitution afforded no recognized basis for doing so. If confusion persisted after a recount in Florida, the House of Representatives was empowered by the Twelfth Amendment to resolve any controversies in the Electoral College.
But the Bush v. Gore majority disdained these alternatives. In its view, leaving control to Florida and the House risked further chaos. Convinced that only they could restore order, five justices decided to seize control of the situation. They made their power play by stretching the Equal Protection Clause far past the limits of any prior interpretation. Once they reconfigured the dispute as a violation of the Constitution, they placed themselves in the driver’s seat. Their word would now be final on the issue that mattered most: ending the Florida recount. Removing any doubt about its goals, the majority ignored a natural implication of its own reasoning and opted to halt the recount outright rather than ordering it redone correctly. As those five justices knew well, this particular remedial order effectively declared Bush the victor.
The majority achieved its goal, but it paid a high price. As Justice John Paul Stevens prophesied in dissent, Bush v. Gore forever damaged “the Nation’s confidence in the judge as an impartial guardian of the rule of law.”3
There are many lessons of Bush v. Gore. One of the most important is that the Court treads on brittle ice when deciding who will lead the nation. The 2000 election proved this about selecting presidents. And as we’ll see, the Framers believed this would be true in removing them for misconduct. It’s exceptionally important for judges to protect the ground rules of free and fair elections. But nothing good comes of a perception that unelected judges decide who occupies the Oval Office.
More fundamentally, Bush v. Gore also cast in stark relief a question that is often overlooked in public debates over constitutional law: Who decides? On most issues that matter, Americans have different views about what the Constitution forbids, allows, and requires. That’s partly because the Constitution itself rarely speaks with perfect clarity. Most of the time, it uses vague standards such as “cruel and unusual punishment,” “due process of law,” or “unreasonable searches and seizures.” Sometimes it says nothing at all about how government should operate, forcing us to infer rules from its underlying structure. And in many cases, its principles come into unavoidable conflict. As Justice David Souter wrote in 2010, “We want order and security, and we want liberty. And we want not only liberty but equality as well.”4 History teaches that the Constitution leaves broad room for good faith disagreements on matters of interpretation.
When faced with such uncertainty, it’s crucial to determine who has the power to make a final decision. Different institutions have their own vision of what the Constitution means. They also have unique incentives, political sensibilities, personality quirks, and decision-making processes. Asking nine unelected federal judges to interpret “the free exercise” of religion isn’t the same as asking the Treasury Secretary, the Senate Judiciary Committee, the governor of Alabama, or the New York City Council. These differences in outlook often loom largest when a question involves the separation of powers or federalism. Each branch and level of government has its own conception of how the Constitution allocates authority.
Indeed, deciding who will decide a constitutional question is sometimes the most significant choice. Far too often, abstract discussions of power and restraint fail to grapple with this point. Constitutional law unfolds and takes shape within institutions of government, not in a philosophical ether. As a result, the answer to many legal questions may depend on when they’re asked and who can answer them, especially in the heat of political combat.
Yet as Bush v. Gore proves, it’s not always clear at the outset who will get the final say. In constitutional law, many disputes over the plan of government expand to encompass the very battleground on which they’re fought. That’s possible because the Constitution’s lack of specificity affects not only the division of power but also the refereeing of those divisions.
When they addressed impeachment, though, the Framers took a very different approach. Here is a rare case where the Constitution leaves no doubt about who’s in charge. Not even a court as ambitious as the Bush v. Gore majority could say otherwise. The House “shall have the sole Power of Impeachment.” The Senate “shall have the sole Power to try all Impeachments.” The president has no role except as suspect and defendant. The vice president, in turn, is barred from his usual role presiding over the Senate when the president has been accused. The chief justice takes the vice president’s place as presiding officer at a presidential impeachment trial—though by virtue of the Senate’s “sole power,” any of the chief justice’s rulings can be overturned by majority vote.
Simply put, Congress has the first and final word on matters of impeachment. The Constitution couldn’t be clearer about who decides.
It’s impossible to overstate the significance of Congress’s exclusive role. Nearly every aspect of impeachment involves difficult judgments on which the Constitution offers little guidance. What are “high Crimes and Misdemeanors”? How much proof is required? What if 10 percent of the nation would violently resist removal, despite shocking misdeeds? By virtue of its sole jurisdiction, Congress alone must chart our nation’s course through the fog.
In that effort, the House and Senate can never escape themselves. Unlike the courts, which strive for detachment and neutrality, Congress is political to the core. Its members stand for election on a regular basis, and famously obsess over public opinion. Their habit of mind is pragmatic, not formalistic. Their view of impeachment’s risks, consequences, and alternatives is steeped in political reality as they comprehend it. So is their assessment of the president as a friend or foe. They understand the use of power because they live and breathe it. Their habits are defined by partisan combat, legislative process, campaign finance, and serving constituents. To many legislators, impeachments are a disruptive and unwelcome break from ordinary governance.
By entrusting the impeachment power to Congress, the Constitution shapes when and how it will be exercised. By dividing it between the House and Senate, and by imposing a two-thirds voting rule for conviction, the Framers set a high bar for removal. These limits, based in constitutional structure, define the political circumstances in which Congress can succeed in ending a presidency. This imaginative constitutional design was intended to roughly calibrate the impeachment power to the broader system of checks and balances.
Too often, Congress’s role in impeachment is taken for granted or dismissed as mere politics. Scholars instead focus their energy on generating endless lists of what conduct does (and doesn’t) qualify as impeachable. That’s unfortunate. The Framers agonized over who should decide matters of impeachment and saw their selection of Congress as a crucial limit on this dangerous power. Appreciating why they made that choice allows a far more sophisticated understanding of impeachment’s role in our democracy. So, too, does a deep dive into how Congress has historically approached its awesome responsibility.
As one of us knows from personal experience in South Africa, the Marshall Islands, and the Czech Republic, writing a democratic constitution is mind-blowingly hard. The decision points are endless. That’s true even if a choice is made at the outset to build a presidential system with a separation of legislative,
judicial, and executive powers. It’s especially challenging to ensure that the branches of government constructively balance one another rather than spiraling out of control. In this search for equilibrium, shields against a rogue president are among the most bedeviling variables.
The Framers thought so, too. In 1788, while criticizing a draft of the Virginia Constitution, James Madison bluntly conceded that “a Court of Impeachments is among the most puzzling articles of a republican Constitution.”5 Alexander Hamilton took a similar view in Federalist No. 65: “A well-constituted court for the trial of impeachments is an object not more to be desired than difficult to be obtained in [an elected] government.”
As described in Chapter 1, the complexities of this question led some Framers to give up on the very idea of presidential impeachment. To them, allowing anyone to hold such an extreme threat over the president would undermine the executive branch. Viewing the system on paper, they didn’t see how impeachment could fit the grand design of checks and balances.
After centuries of national experience, it may now seem natural that this power should reside in Congress. The Framers, however, had few useful models. England divided impeachment between the houses of Parliament, but the Framers consciously rejected many aspects of English practice. Given their republican objectives, most of them were wary of replicating parliamentary systems wholesale. Meanwhile, the Framers’ experiences in colonial and state government only confirmed how difficult it was to design an impeachment process. With palpable frustration, Madison wrote that “the diversified expedients adopted in the Constitutions of the several States prove how much the compilers were embarrassed by the subject.”6
Over the summer of 1787, as the Constitutional Convention debated whether to allow presidential impeachment, it considered a dizzying array of options for who would do the deed. That discussion began on May 29, when Edmund Randolph introduced the “Virginia Plan.” Under this far-reaching scheme for the federal government, the judiciary would handle “impeachments of any National officers.”7 That same day, Charles Pinckney of South Carolina proposed that the “House of Delegates” would bring impeachment charges, which would be tried before the Senate and the judiciary.8 These proposals remained the sole contenders until June 2, when John Dickinson of Delaware threw a curveball: “the Executive [should] be made removable by the National Legislature on the request of a majority of the Legislatures of individual States.”9 In his view, “the happiness of this Country… required considerable powers to be left in the hands of the States,” and these powers included impeachment.10
On June 13, Randolph and Madison struck back, proposing that “the jurisdiction of the national Judiciary shall extend to… impeachments of any national officers.”11 But two days later, William Paterson scattered the state of play by offering his own scheme of government, the “New Jersey Plan.” In this proposal, the president could be removed by Congress “on application by a majority of the Executives of the several States.”12 The following Monday, June 18, Hamilton shared a very different vision for the Constitution. Like Dickinson and Paterson, he saw an important role for the states in matters of impeachment: all such proceedings would be tried before a court consisting of each state’s most senior judge, though only if such judges were insulated from politics by a permanent salary and protections for their tenure in office. Randolph, who had initially agreed with Madison that the judiciary should handle impeachment, ultimately came around and endorsed Hamilton’s view.
In late July, the Committee of Detail—which was charged with turning a mess of ideas into a working draft—proposed that impeachments would be tried “before the Senate and the judges of the federal judicial Court.”13 But when the committee issued its final report on August 6, it had shifted away from that position. Instead, it supported impeachment by the House and trial by the Supreme Court.14 That remained the operative rule until September 4, when a different committee proposed replacing the Supreme Court with the Senate.15 As we’ll see, this decision was linked to the invention of the Electoral College. After impassioned debate, with Madison speaking eloquently in opposition, the Convention decided that the Senate alone would render verdicts on articles of impeachment.16
In many historical accounts, the Framers are portrayed as confident world builders, forging a nation from their collective genius. Here we see them playing with fire, scared of their own creation. The Framers didn’t reach an agreement on who would wield the removal power until the final two weeks of the Convention. By then, their deliberations over who could end a presidency had stretched on for months. At various points, they considered the Senate, the Supreme Court, the Senate and the Supreme Court, a forum of state judges, a vote of state legislatures, and a vote of state governors. It’s safe to say they left almost no stone unturned. Why, then, did they settle on the House and Senate?
To answer that question, it’s helpful to ask a different one: Why did the Framers split this power in half? The notion that there should be an “impeacher” and a “court of impeachments” was familiar from Parliament, but that didn’t make it self-recommending. Indeed, some of the proposals offered in Philadelphia involved only a single actor: the federal judiciary, or a gathering of state officials. To this day, many foreign nations with unicameral legislatures give representatives sole control over presidential impeachments.
Yet the Framers rejected that model. Although there is no clear record of why they did so, Hamilton later offered a convincing two-part account in Federalist No. 66. First, he reasoned that splitting impeachment “avoids the inconvenience of making the same persons both accusers and judges.” To a lawyer like Hamilton, it was obvious that nobody who spends years building a case can possibly judge his or her own position impartially. The human mind doesn’t work that way. Nor do the political forces and factions that drive an impeachment campaign. Especially in a nation committed to an adversarial system of justice, removal proceedings couldn’t be seen as fair unless they were adjudicated by a neutral decision maker.
Second, Hamilton also explained that splitting impeachment “guards against the danger of persecution, from the prevalency of a factious spirit in either of those branches.” This argument identified a safeguard against abuse of the impeachment power. The Framers knew that partisan rivalries and popular outrage could prevail over responsible governance. We suspect they also recognized that “high Crimes and Misdemeanors” was an unstable standard. Although they couldn’t eliminate the risk that impeachment would be misused, they could mitigate it through constitutional structure. By requiring that two institutions separately agree—and that the accuser be put to its proof—they shielded the president from a “factious spirit” in any single branch. This helped to preserve executive authority and independence.
Once they split impeachment, the Framers quickly agreed that only the House was fit to serve as prosecutor.17 When the president has betrayed or imperiled the nation, who should accuse him other than elected representatives of the people at large? As James Iredell explained at the North Carolina Ratifying Convention, “this power is lodged in those who represent the great body of the people, because the occasion for its exercise will arise from acts of great injury to the community.”18 Given the fraught political judgments that surround impeachment, the House alone could wield this power with a mantle of democratic legitimacy.
In one important respect, that was even truer in 1789 than it is today. Initially, the House was the only branch of government directly elected by the people. Judges have always been appointed by the president, with the advice and consent of the Senate. And senators, in turn, were originally chosen by state legislatures. Direct election of senators didn’t begin until the Seventeenth Amendment was ratified in 1913—largely because the Senate blocked many earlier proposals that would have changed its selection process. As a result, the House alone faced popular elections for the first 124 years of US history. By virtue of this electoral mandate, it could credibly claim unique authority to speak for the Am
erican people.
That democratic aura eclipsed even the president’s. Whereas members of the House of Representatives are directly elected every two years, presidents have always been chosen by the Electoral College. At heart, the Electoral College is an undemocratic and unrepresentative institution. The Framers designed it to ensure that only elite, distinguished characters would select the chief executive. Consistent with that vision, many states didn’t allow direct elections for Electoral College delegates until the 1820s. But even after that development, which gave the process a more populist tint, the Electoral College remained an arbitrary filter between the people and the presidency. To this day, while failing to achieve any worthwhile purpose, the Electoral College continues to skew the course and outcome of elections. In practice, it serves mainly to promote minority rule and to provide small states with an undemocratic advantage over larger states. In consequence, when the House rises to accuse a president of “high Crimes and Misdemeanors,” it is fortified by the distinctive legitimacy conferred through frequent, direct elections.19 Not all presidents can claim a comparable mandate, especially if they took office after losing the national popular vote.
This discussion points to a distinct explanation for why the Framers may have assigned impeachment to the House. As they knew, the Electoral College was an odd duck. It had no continuing life and no stable membership. Each elector cast two ballots, one of which had to be for someone who lived in another state. Electors, moreover, were required to convene separately, each in their own state. Together, these rules made coordination virtually impossible. The Framers therefore anticipated that the Electoral College would usually fail to select a president. As Professor Michael Klarman notes, “the vast geographic scope of the country, combined with the relatively primitive state of transportation and communication, would prevent presidential candidates from becoming widely known or coordinating their campaigns across states—especially in the absence of national political parties.”20 Indeed, George Mason predicted that the Electoral College would come up short “nineteen times in twenty.”21 To address that situation, the Framers decided that if no candidate had a simple majority in the Electoral College, the House would choose the president from the top five vote getters. In light of these complex expectations, entrusting impeachment to the House created a certain symmetry. The House would often end up selecting the president, and the House would then have the sole power to initiate his removal.
To End a Presidency Page 14