The Constitutional (and Political) Safeguards Against Impeachment.

AuthorNourse, Victoria

TABLE OF CONTENTS TABLE OF CONTENTS 819 I. INTRODUCTION 820 II. THE CONSTITUTIVE CONSTITUTION 821 III. STRUCTURAL CONSTRAINTS AGAINST IMPEACHMENT 825 A. Collective Action 825 B. Contrary Vertical Electoral Incentives 827 C. Weak Parties in a Big Country: The Problem of Saliency and the Need for Ouster 829 IV. THE FUTURE OF IMPEACHMENT 830 V. CONCLUSION 833 I. INTRODUCTION

Will the Trump impeachments inspire a flurry of future presidential impeachments? Will the second Trump impeachment, which occurred after the President left office, spur impeachments of lesser, former government officials? These and other questions emerged during the 2022 Missouri Law Review Symposium and on the Senate floor during the Trump impeachment trials. I have argued that we can make an educated prognosis about these possibilities based on constitutional structure. I called this argument the "political safeguards" of impeachment in my recent book, The Impeachments of Donald Trump: An Introduction to Constitutional Argument. (1) What I called political safeguards, invoking the great legal scholar Professor Herbert Wechsler, (2) are easily described as constitutional safeguards. They are political in the sense that they are part of our democracy, and not political in the sense that they are lawless or partisan. In this short Article, I expand on this claim, arguing that these "political" safeguards emerge from what Professor Charles Black called basic constitutional structures and relationships. (3)

This claim may sound oxymoronic for many readers. How can politics be a safeguard? Politics is the problem, not the solution. (4) Won't the President's political opponents have an incentive to impeach, particularly in a highly polarized age? Won't all those chants of "lock her up" lead to impeachments of unpopular political figures like former Secretary of State Hillary Clinton, long after she has left office? These claims assume a much too simple model of American politics, and an incomplete view of our Constitution. Congress's constitutional structure operates as a disincentive to party unity. (5) Absent egregious enough action to unite a disunited country, I do not believe we will see a spiral of impeachments. Why? The costs of impeachment for Congress, both as an institution and for individual members, are high. To be sure, in a deeply divided nation, worries abound. Unforeseen cataclysms may defeat the most solid of predictions. But there are reasons that, in a post-pandemic era, impeachment fury may wither, even if politics at large remains viciously partisan. My point: those reasons lie in the Constitution's structure.

In Part II, I explain the "constitutive Constitution." Lawyers tend not to understand the Constitution as creating a government as opposed to limiting it. Focused firmly on courts, they mistake a part of the Constitution for its whole: most of the Constitution is political in the sense that it creates representative institutions. The prime reason for the 1787 Convention was not the creation of courts (otherwise the country would have perished long ago). It was the creation of a popularly-elected government, divided principally in two departments (6) : the legislature and the executive. In Part III, I explain why the constitutive Constitution makes it difficult to impeach. I focus on institutional reasons that make impeachment costly. These reasons can all be traced to the constitutional text, just not the text that most consider constitutional "law." In Part IV, I apply these lessons to argue that the second Trump impeachment trial (which occurred after the President left office) will not lead to the impeachment of former officials such as former Secretary of State Hillary Clinton or former Attorney General William Barr. I conclude that this is unlikely to happen because of Congress's more pressing electoral incentives, which are built into the Constitution's structural preference for local geography.

  1. THE CONSTITUTIVE CONSTITUTION

    When the Framers sat down to write a document creating a new government, they focused on creating a government that would work. In 1787, the existing government was in shambles, leaving the nation in danger. "The founders had just broken free from one empire, and the idea that some other empire was going to swallow them up was a constant source of fear for them," explains historian Mary Sarah Bilder. (7) The Articles of Confederation had failed to unite the country or pay its debts. The Framers needed a new a government. Courts were the least of the Founders' worries. That explains why Article I creates a Congress and Article II a Presidency. (8) A working democracy requires rule by the people. Voters are the essence of democracy and that is why the Framers spent an inordinate amount of time in the summer of 1787 on who would vote for whom to create the Congress and the Presidency. (9)

    The reason that I call these provisions the "constitutive Constitution" is because this is what the Framers were doing: they were constituting a government. We call the Constitution a "Constitution" rather than a "contract" or a "debt" or a "prayer" for a reason: it calls into existence something that did not exist before. Although the Framers were sent to "revise" the Articles of Confederation, (10) they quickly found themselves proposing grander plans to address the nation's urgent needs. A new constitutional structure dominated the convention. For example, constituting Congress was a major question: was there to be one chamber or two? Often, the Framers looked to the failures of the state constitutions to decide. (11) And they ultimately decided on a bicameral approach with two different kinds of constituencies: states (then, the state legislature) would elect the Senate and smaller geographic and population units that we now call districts would elect the House. These were the kind of structural questions preoccupying the Framers in drafting Article I, although one might not know that from constitutional law classes which tend to focus on limits on Congress's powers (i.e., Section 8's limits), (12) not how Congress is elected.

    For much of the Constitutional Convention, how to elect the President was unresolved. Some favored a multiple chief executive, whereas some favored a single President with a council. But the most important decision about the Presidency was not about whether there would be a single or multiple executive. The most important decision -one not decided until nearly the end of the convention - was to give the President a national constituency, mediated by an electoral college. For much of the Constitutional Convention, Congress was to elect the President. That would have created, in essence, a parliamentarian government. In the parliamentary system, such as the one in Britain, members of the Parliament form a "government," meaning that members of the legislature sit in the executive branch. (13) Today, that would mean the current Speaker of the House, Nancy Pelosi, would serve simultaneously in the Executive. In a parliamentary form of government, the "party" elected is the driving force uniting members of the legislature and the executive (for example, in Britain, the "Labor Party" or the "Conservative Party" rules). The Framers did not like the idea of parties or "factions" as they called them. Had they adopted a system in which the President was elected by Congress, it would have bound the two institutions together as they are bound in parliamentarian systems. The President would have looked to Congress, and to curry favor with its members, if he sought re-election.

    When the Framers, at the Convention, finally rejected congressional election of the President, they made the President independent from Congress. That, in turn, created the separation of powers. (14) Had the President been elected by the House and the Senate, the President would have had an incentive to cultivate House and Senate members. In effect, those who elected the House and Senate members would elect the President. The Founders created a different system: the President was to have an independent, national constituency. As Gouverneur Morris expressed it, had the President been elected by the House and the Senate, the President would have spent all his time in Washington seeking favor from members of Congress. (15) A national constituency encouraged the President to represent those outside of Washington. (16) Indeed, since electoral college votes determined the outcome, the President would have an incentive to cultivate those states with the most Senators and Representatives--the most populous states.

    It is possible to see any Constitution as purely constitutive, meaning only constituting the political departments. Other countries' traditions have done so. (17) In such a world, the Constitution is not enforced by courts as law, but is a guide for the...

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