In a prior post I partially seconded Alan Dershowitz's suggestion that the courts might have a role in reviewing impeachments, despite the political question doctrine. David E. Weisberg writes in response:
Scholars have argued that the Court has the constitutional power to review articles of impeachment with a view toward answering one narrow question: whether the acts or omissions cited in the articles qualify as “high Crimes and Misdemeanors” (abbreviated hereafter as “hC&M”) within the meaning of Article II, Section 4. The question of the Court’s power under the Constitution is, I think, inappropriate and ultimately irrelevant. What is relevant is whether, in light of the political question doctrine, that one narrow question is justiciable, that is, whether the Court should answer it. The Court should not.
Consider, first, the procedural posture in which the “hC&M” question might arise. The supporters of Court intervention seemingly assume that that question would be considered by the Court immediately after the House adopts the articles of impeachment, but that probably would not be the case. The president (perhaps having mistakenly predicted the Senate would acquit) might not file a petition until after conviction. Moreover, from the standpoint of litigation tactics, waiting until after Senate trial would give the president two bites at the same apple: he could argue to the Senate that the articles do not allege “hC&M”, but, if he failed, he could still raise the same objection before the Court. If he petitions the Court before trial, he gets only one bite.
Finally, even if the petition were filed before Senate trial, the Court, relying on a principle of exhaustion of remedies, should reject the petition as premature. I assume (and fervently hope) the Court would be extraordinarily cautious about entering the impeachment arena. If the Senate held a trial and rejected all articles, the “hC&M” issue would be mooted. (It couldn’t credibly be argued that trial in the Senate itself irreparably injures the president; both Andrew Johnson and Bill Clinton discharged their duties after such trial.) It’s therefore likely the president’s petition would be entertained only after conviction in the Senate.
So, would the political question doctrine prohibit the Court from deciding whether the articles alleged “hC&M” within the meaning of the Constitution? Everyone begins with Marbury v. Madison and Chief Justice Marshall’s statement that it is the duty of the courts “to say what the law is.” He goes on to say: “If two laws conflict with each other, the Courts must decide on the operation of each. So, if a law be in opposition to the Constitution, … the Court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty.” (5 U.S. 177-178.) Thus, a court is duty-bound “to say what the law is” where two laws conflict, and that is particularly the case where a law arguably conflicts with the Constitution.
But, in adopting articles of impeachment, the House does not enact a law; in finding the president guilty of “hC&M,” the Senate does not enact a law. In neither case is either body enacting legislation. In reviewing the House’s articles of impeachment or the Senate’s verdict of guilt, the Court would not be exercising “the very essence of judicial authority.” It does not follow, of course, that the Court may not undertake such reviews, but it is nevertheless true that those reviews would fall outside “the very essence of judicial authority.”
[N.B. The first sentence of Article II is: “The executive Power shall be vested in a President[.]” The first sentence of Article III is: “The judicial Power of the United States shall be vested in one supreme Court[.]” But the first sentence of Article I is: “All legislative Powers herein granted shall be vested in a Congress[.]” The implication is that non-legislative powers are also granted in Article I. The House’s impeachment power, and the Senate’s power to try impeachments, are certainly instances of non-legislative powers.]
The most important precedent regarding the political question doctrine is Baker v. Carr, 369 U.S. 186, 217 (1962), where the Court summarized its findings as follows:
Prominent on the surface of any case held to involve a political question is found a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it; or the impossibility of deciding without an initial policy determination of a kind clearly for non judicial discretion; or the impossibility of a court's undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or an unusual need for unquestioning adherence to a political decision already made; or the potentiality of embarrassment from multifarious pronouncements by various departments on one question.
The summary lists six separate hallmarks of a non-justiciable political question. The first three of the four hallmarks discussed below would be present whether the Court considered the “hC&M” issue before or after Senate trial; the last would apply particularly to post-trial consideration.
The three-word phrase “the sole Power” appears exactly two times in the Constitution: “The House…shall have the sole Power of Impeachment” (Art. I, Sec. 2), and “The Senate shall have the sole Power to try all Impeachments” (Art. I, Sec. 3). That phrase, used exclusively in connection with the impeachment process, is, I think, a “textually demonstrable constitutional commitment” of that process to the two houses of Congress, excluding the judicial branch entirely.
Secondly, the Court’s independent resolution of the “hC&M” question would necessarily disrespect the House. That disrespect would be compounded by disrespect for the Senate if the Court took up the question after the Senate had voted to convict.
Thirdly, there is always “the potentiality of embarrassment from multifarious pronouncements by various departments on one question.” In adopting articles of impeachment, a majority of the House pronounces that those articles allege genuine “hC&M.” In a finding of guilt, two-thirds of the Senate makes the same pronouncement. If the Court decides otherwise, whether before or after trial, we have the “multifarious pronouncements” the political question doctrine seeks to avoid.
Finally, if considered after conviction in the Senate, the votes of a majority of the House and two-thirds of the Senate to remove the president engender “an unusual need for unquestioning adherence to a political decision already made.” No president has ever been convicted in the Senate. It would be folly for the Court to reverse (perhaps by a 5 to 4 vote) a political decision of such historic magnitude.
And this from Devin Watkins:
To me the word “sole” was clearly intended to withdraw such questions from judicial authority. And the reason for that is quite clear, impeachment is a check on the judiciary. What if the Supreme Court justices think that their own impeachment was improperly conducted (or that of their fellow justices)? It simply is not appropriate for the judiciary to be ruling on the authority to remove their fellow judges, and it is for that reason that the word “sole” was used to withdraw that from judicial authority. Most of the other uses of the so-called “political question” doctrine are often overused, but this is one situation in which the Constitution itself puts within the sole discretion of Congress. The words “high crimes and misdemeanors” are then standard for Congress to evaluate and decide if the President’s conduct meets that standard, but its decision is final.
I don’t see how anyone can read Federalist No. 65 and come to the conclusion that the Supreme Court has any role to play in an impeachment producing (besides the Chief Justice presiding over the trial). It repeatedly states that the Supreme Court could not be trusted with such a power, and that the Senate is the appropriate place for that power. For instance, “These considerations seem alone sufficient to authorize a conclusion, that the Supreme Court would have been an improper substitute for the Senate, as a court of impeachments.”
Also, at Lawfare, Keith Whittington responds to Professor Dershowitz: Alan Dershowitz Is Wrong About Impeachments.
Posted at 6:14 AM