The Volokh Conspiracy

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Volokh Conspiracy

Is Impeachment a "Constitutional Duty"?

Identifying impeachable offenses is only the first step in deciding what should be done to address them.


Elizabeth Warren has asserted that the House of Representatives has a "constitutional duty" to impeach President Donald Trump. House members certainly have a constitutional responsibility to take actions to defend American national interests, preserve the American constitutional order, and maintain their own institutional prerogatives. Impeachment might sometimes be the right step to take in order to accomplish those things.

But in the Washington Post, I argue that the decision to impeach is never mandatory. It always requires political judgment, even when House members are convinced that a government officer has committed impeachable offenses. An impeachment vote should not just be an exercise in virtue signalling. It should reflect a considered judgment that impeachment is the right remedy for a particular set of political problems. Making that judgment requires a clear understanding of what the House is trying to accomplish and how it might best accomplish those goals. It is easy to imagine Democrats voting for a long list of complaints about how Donald Trump has conducted himself in the presidency, but the real constitutional duty is not for House members to express their feelings. The real constitutional duty is to do what is necessary, useful and productive for preserving the American republic. Needless to say, the Democratic members of the House are not the only ones who should be taking that duty seriously.

Here's a taste:

The House has a constitutional duty to safeguard the nation's interests against abusive government officials and to protect its own ability to engage in oversight. Impeachment is sometimes the necessary means for fulfilling that duty. But it is not the only way to tie the hands of errant officials, and impeachment of a single president will not, by itself, address the long-term problem of excessive executive power and the potential for abuse. Leaders of both parties should learn some lessons from this presidency, no matter how it ends, and reexamine Congress's capacity to do its job — and the extent to which we have been relying on the good character and judgment of individuals in the White House to keep the government on an even keel.