At The Hill, Alan Dershowitz answers yes: Supreme Court could overrule an unconstitutional impeachment. From the beginning:
President Trump has said that if the House were to impeach him despite his not having committed “high crimes and misdemeanors,” he might seek review of such an unconstitutional action in the Supreme Court. On April 24, he tweeted that if “the partisan Dems ever tried to Impeach, I would first head to the U.S. Supreme Court. Not only are there no ‘High Crimes and Misdemeanors,’ there are no Crimes by me at all.”
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Commentators have accused Trump of not understanding the way impeachment works and have stated quite categorically that the courts have no constitutional role to play in what is solely a congressional and political process. Time magazine declared in a headline “That’s Not How It Works,” and Vox called the president’s argument “profoundly confused.”
Scholars also echoed the derision. The influential legal blog Lawfare wrote confidently that “The Supreme Court Has No Role in Impeachment,” and my friend and colleague Larry Tribe, an eminent constitutional law scholar, called Trump’s argument simply “idiocy,” explaining that “the court is very good at slapping down attempts to drag things out by bringing it into a dispute where it has no jurisdiction.”
Not so fast. Our nonlawyer president may be closer to the truth than his lawyer critics. …
And from later on:
The president is not above the law, but neither is Congress, whose members take an oath to support, not subvert, the Constitution. And that Constitution does not authorize impeachment for anything short of high crimes and misdemeanors.
Were Congress to try to impeach and remove a president without alleging and proving any such crime, and were the president to refuse to leave office on the ground that Congress had acted unconstitutionally, there would indeed be such a constitutional crisis. And Supreme Court precedent going back to Marbury v. Madison empowers the justices to resolve conflicts between the executive and legislative branches by applying the Constitution as the supreme law of the land.
From an originalist perspective, I agree. (At least in part.)
The Constitution does not permit impeachment for anything other than high crimes and misdemeanors. Let’s suppose that the House impeaches the President for something he claims is not a high crime or misdemeanor under the original meaning of those words. (I’m assuming that the question is whether conduct X is a high crime or misdemeanor, not whether the President committed conduct X).
Is this the type of question a court ordinarily could hear? Professor Dershowitz says yes, and I agree. It’s a pure (although perhaps difficult) legal question of the meaning of the Constitution’s text.
A key case is the Supreme Court’s decision in Zivotofsky v. Clinton, involving the scope of the President’s recognition power. The President objected that the case was a so-called “political question” and thus inappropriate from judicial review. (This is also the argument scholars are making against the idea of judicial review of impeachments). But the Court in Zivotofsky rejected the political question claim, saying that since the case involved a pure legal question of the meaning of the Constitution’s text (there, the scope of the President’s power to receive ambassadors), it was something the courts could decide.
And I agree with Professor Dershowitz that this follows from Marbury v. Madison and the courts’ Article III “judicial Power” to say what the law is.
The counterargument (made in the posts linked above) is that the Constitution’s text gives Congress non-reviewable power over impeachments (in a way that it doesn’t give non-reviewable power over other legal questions, like the one in Zivotofsky, to the other branches). Specifically, Article I, Section 2 says that the House “shall have the sole Power of Impeachment.”
I do think this gives the House substantial non-reviewable discretion over many aspects of impeachment (more on that below). But deciding the meaning of the constitutional phrase “high Crimes and Misdemeanors” is not part of the “Power of Impeachment.” It is instead a prerequisite to the exercise of the power of impeachment. And it is a pure question of law, not a question of the exercise of discretion committed to the House.
In contrast, much of the impeachment process does involve the exercise of the House’s discretion. Whether to initiate impeachment proceedings, how to conduct the proceedings, and what result to reach are all matters for the House to decide, employing the discretion committed to the House by Article I, Section 2. In particular — and here I disagree with Professor Dershowitz and the President — the House has discretion to decide whether the facts establish that the President has committed an impeachable offense.
That is, if the question is not whether conduct X is a high crime or misdemeanor but rather whether the President has committed conduct X, I think that is a political question committed to the House and is not reviewable by the courts. A key point of the impeachment clause is to shift the adjudicatory aspects of the impeachment process to the political branches.
Again, this distinction comes from Marbury, and I think it reflects the correct original power of the courts conveyed by Article III to say what the law is, but not to interfere with the exercise of discretion committed to the political branches. In the part of Marbury that is the foundation of the political question doctrine, Chief Justice Marshall explained that the courts could not review exercises of discretion by the executive branch.
Whether the executive made the correct answer or not, he was answerable in his political capacity to the people, not to the courts. But where the question is the meaning of a law (including the Constitution), that matter is committed to the courts and does not involve any discretion in the executive.
For what it’s worth, I’ve made a closely parallel argument regarding the justiciability of the President’s war power in this article: War Powers Litigation after Zivotofsky v. Clinton. My argument there is that courts can review war powers questions that are pure questions of law, such as the scope of the declare war clause, but should not review questions regarding the conduct of war that involve matters of presidential discretion.
The impeachment context involves actions of Congress rather than actions of the President, but the principle should be the same. If the question is what the Constitution’s text means, the courts have the constitutional power to answer it.
NOTE: This article was originally posted at The Originalism Blog, “The Blog of the Center for the Study of Constitutional Originalism at the University of San Diego School of Law,” and is reposted here with permission from the author.
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