The American Interest
The threat of impeachment being employed more often might just put some ballast back into our constitutional system.
"With House Speaker Nancy Pelosi’s announcement that she asked the relevant House committees to begin an impeachment inquiry of the President comes the need for a short primer on how to think about the impeachment of a president as a constitutional matter. This is not to dive into the details about what the current president may or may not have done. Rather, it’s a reminder in outline about how the Constitution, first through the text of Article II and second the process as laid out in Article I, intends to shape House members’ thinking about such an inquiry.
In Section 1 of Article II, the text explains that the “powers and duties” of presidency will “devolve on the Vice President” when, for whatever reason, a president is removed from office. This signals that, when examining Article II, we should be looking not only for the President’s authorities but also his official obligations.
In that regard, Article II begins by vesting “the executive power” in the person of the president—a power that was defined by the political theorists of the day as involving a broad obligation to administer the laws of the land, command the nation’s military forces, and conduct the nation’s foreign affairs. What concludes Section 1, Article II, is the presidential oath to “faithfully execute the office of President. . . .and. . . .to the best of my ability, preserve, protect and defend the Constitution of the United States.” Thus Section 1, which lays out the fundamental features of the office, begins with the defining power and concludes with a sweeping obligation to not only carry out the office properly, but to do so with the health of the larger constitutional order in mind.
Sections 2 and 3 of Article II appear as an odd lot, sharing neither the same length nor an obvious coherence. As Supreme Court Justice Robert Jackson once put it, the text is “almost as enigmatic as the dreams Joseph was called upon to interpret for Pharaoh.” But is it? Would the Constitution’s drafters have been so slipshod when it came to such an important matter as setting out presidential authorities?
Upon closer inspection, Section 2’s authorities appear to be spelled out because each of the executive powers named has been modified in some way. For example, while the president as the chief executive directs the nation’s diplomacy, in concluding a treaty he must get the consent of two-thirds of the Senate—a concession to the federal and republican character of the country. As the individual inhabiting the office vested with the executive power, the president is commander-in-chief over the nation’s armed forces but also the state militias when called into service—an authority intended to fix a problem that bedeviled George Washington as commander-in-chief during the Revolutionary War, when he could only request the cooperation of the militias when planning campaigns.
As for Section 3, the language is one of oughts: The president “shall” do this and that, such as seeing to it that the laws are “faithfully executed.” Taken as a whole, the section essentially calls on the inherent energy of the unitary executive to give direction to the nation’s policy agenda and keep the basic functions of government up and running. There is certainly discretion in how a president carries out these mandates, but they are mandates.
"In brief, Section 2 is about powers, while Section 3 is about presidential duties. In that respect, Sections 2 and 3 are structurally an echo of Section 1.
"The final section of Article II, Section 4, lays out the grounds for impeaching the President and removing him from office if convicted of treason, bribery, or high crimes and misdemeanors. Treason is straightforward; it’s clearly a violation of the president’s oath. Bribery is likewise a clear violation of his oath and obligation to faithfully execute the laws. But what constitutes “high crime and misdemeanors?”
"At the time of the Constitutional Convention, the phrase—borrowed from British legal practice and the ongoing impeachment proceedings against the former British governor of India, Warren Hastings—was intended to address the problem of when an executive exercises legitimate authority but does so in a manner, as Alexander Hamilton put it, in “violation of some public trust.” A president, for example, has virtual plenary power to grant pardons, but if he exercises that authority so as to hide a crime, at a minimum he has violated his duty to faithfully (that is, in good faith) execute the laws.
"Again, at the time of the Convention, a key problem the Framers wanted to address was the absence of an independent executive under the Articles of Confederation. They succeeded in establishing an office that could act with energy, decision, dispatch, and, if necessary, secrecy. The circle they had to square was providing for removal in the case where a president abused his broad discretion, without giving Congress the power to control presidential behavior by making removal from office too easy. Poor policy choices, ineffective administration, boorish behavior would be too low a bar for such removal. But an abuse of office—either obvious in the case of treason or bribery or less so in instances in which a president breaks the constitutional norms he is sworn to uphold—had to be on the docket if the newly crafted and powerful chief executive was to gain popular acceptance and the office not be amended by the state ratifying conventions.
"Obviously, in comparison with treason and bribery, deciding whether a president has committed a high crime and misdemeanor will always be more of a judgment call. Hence, those calling for impeachment on these grounds will not readily escape the charge they are acting politically. Indeed, because impeachment only requires a simple majority vote in the House, it appears that the Constitution makes it relatively easy to impeach. However, the Constitution likewise makes it difficult to remove a president from office, requiring a two-thirds majority in the Senate for a conviction.
"In sum, the Constitution’s structure frames the question of impeachment and removal around its textual insistence that with great executive power comes great responsibility. And because the Constitution seems to have created a relatively open door when it comes impeachment, a plausible assumption is that impeachment, qua impeachment, was never meant to be such an exceptional oversight mechanism. Just as it is plausible to argue that removal would be rare.
"There is no question that a more routine use of impeachment inquiries might be disruptive to the presidency. On the other hand, the threat of it being employed more often might just put some ballast back into our constitutional system in the face of the expansive sway of the modern presidency. It might temper just a bit presidents who think that, once popularly elected, they have a mandate to govern as they wish and ignore the constitutional fact that they have both powers and duties.
Gary J. Schmitt is a resident scholar in strategic studies at the American Enterprise Institute.
because of an urgent situation.