The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
OK, just one more post—probably.
The U.S. Constitution gives to the House of Representatives the "sole Power of Impeachment." But what exactly is this power to impeach and how and when is it exercised? In particular, is the "power of impeachment" the power to go into the Senate, level an accusation, and demand a trial? Or, is the "power of impeachment" the power to pass a resolution declaring that someone has committed high crimes and misdemeanors?
For over a hundred years, the U.S. House presumed the correct answer was the first one and oriented its practice to that. It drafted resolutions authorizing a member to go to the Senate and impeach someone. Since the early twentieth century, the House has behaved as if the second answer is correct, passing resolutions declaring officers to have been impeached. It did not matter much how the House impeached someone because the Senate did not start an impeachment trial until the House exhibited articles of impeachment in the Senate chamber and nothing turns on when an officer is impeached.
The states are different because some state constitutions direct that an impeached officer is suspended pending trial. In that context, it matters when exactly an officer is impeached. Even so, states have not wrestled with this problem very much either. One exception was a Florida court during Reconstruction, which pointed to English and congressional practice as indicating that impeachment occurred when the House leveled an accusation in the Senate. As it noted, the early American constitutional treatise writer William Rawle had emphasized that impeachment is "a known definite term" inherited from England and meant "bring[ing] the charge before the other branch." The early congressional practice reflected the proper understanding of the power to impeach as it was incorporated into the American constitutions.
But wait, there's more. In 1923, the Oklahoma supreme court was asked to weigh in on when the acting governor assumed the duties of an impeached governor. The court concluded that the governor was impeached "when articles of impeachment are duly filed with the Senate and duly accepted and filed by the Senate."
The Florida court had pointed to English and American practice as providing the proper definition that Florida institutions were bound to follow. The Oklahoma court, by contrast, pointed in part to the legislature's own constitutional authority to define the term.
While the Constitution does not attempt to define the terms "impeachment," nor the extent of its meaning, nor expressly authorize the Legislature to define its meaning, yet it nowhere prohibits the Legislature from defining the term and the extent of its meaning; hence, having given the Legislature exclusive jurisdiction in impeachment matters, and not having limited the Legislature in defining the term, it was a valid exercise of legislative authority for the Legislature to define what is meant by the term "impeachment" as used in the Constitution.
The legislature itself had said in a statute that impeachment "is the prosecution," and the courts were bound by that interpretation. The court also offered a textualist rationale that to impeach means "to charge (a public officer), before a competent tribunal." The legislature's definition of impeachment was at least consistent with the weight of authority, according to the state court.
An interesting wrinkle here is that the Oklahoma court seems to suggest that, in the absence of a more specific definition in the constitutional text, the legislature itself had the authority to give concrete meaning to the term. The legislature had chosen to adopt the same understanding that seemed to be regnant in Congress and the states until the early twentieth century—impeachment occurred when the accusation was presented to the upper chamber. But the court seems to have left the door open to the legislature to adopt a different understanding of the meaning of "impeachment," as Congress seemed to do starting with the impeachment of Judge Robert Archbald in 1912.
All of which raises the interesting question of whether "impeachment" has a fixed meaning as a matter of originalist constitutional interpretation or whether we are in the "construction zone."