Comparing the Impeachment Process under the United States Constitution (1788) and the New York State Constitution (1894)

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[This post was co-authored by Josh Blackman and Seth Barrett Tillman]

On Monday, Republican members of the New York State Assembly drafted a resolution to impeach Governor Andrew Cuomo. In this post, we will compare the impeachment process under the United States Constitution (1788) and the New York Constitution (1894). First, the quorum rule makes impeachment more difficult in New York. Second, the New York Constitution does not impose substantive limitations on the scope of impeachable offenses. Third, the New York Constitution creates a specially constituted court to try impeachments, and that court includes members of the state judiciary. Fourth, it is unclear whether the New York Constitution permits the legislature to disqualify an impeached office holder from holding elected state positions.

I. The Quorum Rules Make Impeachment More Difficult In New York. 

Under both constitutions, an impeachment is brought by the lower legislative chamber: the New York Assembly and the United States House of Representatives. And, under both constitutions, it takes a majority to impeach. U.S. Const. art. I, § 2, cl. 5; id. art. I, § 5, cl. 1; N.Y. Const. art. VI, § 24; id. art. III, § 9. But what precisely constitutes a "majority" under each procedure is not the same. The quorum and voting rules differ.

First, in an impeachment before the House of Representatives, a quorum must be present. And under the Constitution, a simple majority constitutes a quorum. If a quorum is present, a covered officeholder can be impeached by a simple majority of those voting yea or nay. Currently, the House has 435 authorized members. Assume all 435 authorized members are elected, and none have died, resigned, or been expelled. A majority, or 218 members, will constitute a quorum. Given a 218 member quorum, a President or other covered officeholder could be impeached by a 110-to-108 vote. Indeed, if 217 of 218 members are merely present but fail to vote, then, in theory, a vote of 1-to-zero will carry an impeachment resolution. 

Second, by contrast, the New York impeachment process requires a majority of all elected members, whether they are present or not. In the New York Assembly, it is not enough to have a majority of those voting. Members of the Assembly who do not vote have, in effect, cast a vote against the impeachment resolution. Currently, in the New York Assembly, there are 150 authorized members. Assume all 150 members are elected, and none have died, resigned, or been expelled. 76 members are needed to carry an impeachment resolution—without regard to whether the other members are present or vote against the impeachment resolution. 

The quorum rule makes impeachment more difficult in New York. In the federal system, about 1/4 of the members of the House (if not fewer) can carry an impeachment resolution. However, in New York, an impeachment resolution requires just over 1/2 the members of the Assembly.

II. The New York Constitution (1894) Does Not Impose Substantive Limitations On The Scope of Impeachable Offenses.

Under the U.S. Constitution, the House can impeach a covered officeholder for "treason, bribery, or other high crimes misdemeanors." U.S. Const. art. II, § 4. The scope of this language has long been debated. To this day, people disagree about whether this provision includes only statutory crimes, or wrongs specifically related to the duties associated with the impeachment defendant's position, or both. Yet, historically, there has been and remains widespread agreement that this language furnishes a substantive limit on what charges the House can proffer in articles of impeachment. 

Similarly, New York's first post-independence state constitution also had a substantive limitation on the impeachment power. Under Article 33 of the New York Constitution of 1777, the power to impeach was limited to "mal and corrupt conduct in their respective offices." But that limitation was dropped in a subsequent state constitution: the New York Constitution of 1846. Article VI, § 1 of the 1846 state constitution simply states that "The assembly shall have the power of impeachment, by the vote of the majority of all the members elected." There was no substantive limitation on the nature of the charges which the Assembly may bring. Likewise, under the current state constitution, i.e., the New York Constitution of 1894, there is no substantive limitation on the nature of the charges which the Assembly may bring. Article IV, § 13 of the 1894 state constitution, which is now in force, provides, "The Assembly shall have the power of impeachment, by a vote of a majority of all the members elected." Thus, unlike the U.S. House acting under the aegis of the U.S. Constitution, the New York Assembly is vested with the widest possible discretion. Governor Samuel J. Tilden recognized the breadth of the Assembly's authority in his commentaries on the New York Constitution. Tilden compared the New York Constitution to the Massachusetts Constitution (1780), which defines the scope of impeachment as extending to "misconduct and maladministration." Tilden wrote: 

The doubt which seemed to exist in the mind of that great jurist [Massachusetts Supreme Judicial Court Chief Justice Shaw] arose from the words of description [that is, limitation] of impeachable offenses in the Constitution of Massachusetts [of 1780], which literally relate only to acts done or omitted in office.

The Constitution and laws of the State of New York have left us free from any possibility of so narrow a construction as that which Chief Justice Shaw disputed in its application to the Constitution of Massachusetts. They recognize the principle that a personal crime may create a personal disqualification to exercise the functions of a public office, although the particular offense may be totally disconnected with that office. They do not limit the range of impeachable acts, omissions, or defaults which may work such a disqualification to any term of office or to any time or place, but leave the whole judgment as to whether or not the disqualification is produced to the supreme and exclusive jurisdiction of the High Court of Impeachment . . . .

1 The Writings and Speeches of Samuel J. Tilden 482 (John Bigelow, ed., N.Y., Harper Brothers 1885) (emphasis added); see also id. ch. XXV—What are Impeachable Offenses, 472–82.

III. The New York Constitution Creates A Specially Constituted Court, That Includes Members of the Judiciary. 

Under the U.S. Constitution of 1788, impeachments are tried in the Senate. The presiding officer of the Senate is the Vice President. However, if the President is the defendant in an impeachment trial, then the Chief Justice presides. (There is some debate about what happens under the federal Constitution if the Vice President is on trial.) Conviction by the Senate requires 2/3 of the members present (a quorum being present). U.S. Const. art. I, § 3, cls. 4 and 6. 

Under the New York Constitution of 1894, impeachments are tried in a specially constituted court for the trial of impeachments. That court is composed of the (1) lieutenant governor, or in some circumstances, the president of the state Senate, (2) members of the Senate, and (3) members of New York's highest court: the Court of Appeals. The New York Constitution provides a modified process if the governor or lieutenant governor is tried: in these circumstances, then the lieutenant governor and the temporary president of the Senate are not members of the impeachment court. Conviction requires two thirds of the members present. N.Y. Const. art. VI, § 24; id. art. III, § 9 (explaining that "the senate shall choose a temporary president"). One expert on New York impeachment has asserted that the Chief Judge of the Court of Appeal would preside where a governor is on trial. However, in an 1872 New York State impeachment, the Lieutenant Governor presided over the trial proceedings.

IV. The Consequences of Impeachment and Disqualification under the New York State Constitution are Unclear. 

The current impeachment process under the federal constitution of 1788 is defined by Article I, § 3, Clause 6. It provides: 

Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.

The current impeachment process under the New York State Constitution is defined by the New York State Constitution (1894). Article VI, § 24 states: 

Judgment in cases of impeachment shall not extend further than to removal from office, or removal from office and disqualification to hold and enjoy any public office of honor, trust, or profit under this state; but the party impeached shall be liable to indictment and punishment according to law.

Section 24's language can be traced back, nearly word-for-word, to Section 33 of New York Constitution of 1777:

[N]o judgment of the said court shall be valid unless it be assented to by two third parts of the members then present; nor shall it extend farther than to removal from office, and disqualification to hold or enjoy any place of honor, trust, or profit under this State. But the party so convicted shall be, nevertheless, liable and subject to indictment, trial, judgment, and punishment, according to the laws of the land. (emphasis added)

The only significant difference between the 1777 provision and its 1894 successor is that "place" was changed to "office." This change was first made in 1821. See New York Constitution of 1821, art. V, § 2. The New York Constitution of 1821 was New York's second post-independence constitution, and the first one to follow ratification of the federal Constitution in 1788. In 1821, New York revised its impeachment provision. Specifically, in 1821, the phrase "place of honor, trust, or profit under this State" was changed to "public office of honor, trust, or profit under this state." We think the decision to replace "place" with "office" in the 1821 constitution was deliberate. In 1821, the public would have understood this change to suggest that the scope of disqualification under the state system mirrored the scope of disqualification under the then extent federal system.

The disqualification language in Section 33 of the New York Constitution of 1777 bears a striking resemblance to its 1788 analogue in the federal constitution. Indeed, in Federalist No. 66, Hamilton drew comparisons between the impeachment process under the New York Constitution and the process under the proposed federal constitution. Likewise, the Office of Legal Counsel observed, the language used in the New York 1777 constitution was "strikingly similar" to the language used in the federal constitution. OLC wrote that the state provision "may well have been the source of the wording for the federal clause." Whether a Former President may be Indicted and Tried for the same Offenses for which he was Impeached by the House and Acquitted by the Senate, 24 U.S. Op. Off. Legal Counsel 110, 2000 WL 33711290, at *4 (2000) (Moss, Ass't Att'y Gen.). 

The scope of this "office … under the United States"-language and "office … under this state"-language has not been settled. We have discovered no instances in which a New York officeholder was convicted and disqualified in impeachment proceedings, and subsequently sought to hold state positions in New York. Likewise, none of the three officeholders who were convicted and disqualified by the Senate under the federal system subsequently sought to hold other federal positions. In New York, one governor was impeached. He later held an elected state position, but he had not been disqualified. The scope of this language has not been settled by precedents arising from practice. Likewise, the scope of this language has not been settled by definitive federal or state court decisions. Thus, the scope of this language remains subject to legitimate debate. 

We have long argued that, as a matter of original public meaning, the phrase "office . . . under the United States" in the Impeachment Disqualification Clause extends to appointed federal officers in all three branches of the government, but not to any elected federal officials. Thus if a covered federal officeholder is impeached, tried, convicted, removed, and disqualified, he would not be precluded from running for and holding elected federal positions, such as Representative, Senator, and President. 

We think the scope of the phrase "office under . . . this state" in the New York Constitution of 1821 mirrored the scope of the phrase "office under . . . the United States" in the federal Constitution of 1788. We think the original meaning of both phrases extended to appointed officers, but not to any elected officials. We have no reason to believe that the 1821 New York Constitution deviated from its federal analogue. And the language of the 1821 New York Constitution has remained substantially unchanged to this day.

Therefore, we conclude that Article VI, Section 24 serves as a bar against a disqualified former state officeholder holding appointed state positions. Indeed, we are reasonably confident that this interpretation is the better reading of Section 24. Thus, if Governor Cuomo is impeached, tried, convicted, removed, and disqualified, he would not be precluded from running for and holding state elected positions, such as member of the state Assembly, member of the state Senate, Lieutenant Governor of New York, and Governor of New York. 

That said, the case for limiting the scope of Article VI, § 24 of the New York Constitution to appointed positions is somewhat weaker than limiting the scope of Article I, § 3, Clause 6 of the federal Constitution to appointed positions. The text of the United State Constitution consistently uses different language for members of Congress and appointed officers. For example, the U.S. Constitution's Oaths and Affirmations Clause provides:

The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution …. 

U.S. Const. art. VI, cl. 3. The Oaths and Affirmations Clause, above, illustrates an important drafting principle: the federal constitution uses the language of "member" for elected positions in Congress. By contrast, "officer" is used in connection with positions in the other two branches. 

Article XIII, Section 1 of the New York Constitution provides:

Members of the legislature, and all officers, executive and judicial, except such inferior officers as shall be by law exempted, shall, before they enter on the duties of their respective offices, take and subscribe the following oath or affirmation: "I do solemnly swear (or affirm) that I will support the constitution of the United States, and the constitution of the State of New York, and that I will faithfully discharge the duties of the office of ……, according to the best of my ability …." (emphasis added)

Article XIII of the New York Constitution illustrates a different drafting principle: the word "office" embraces both "members" of the legislature, and "officers" in the other two branches. Thus under New York law it is possible that there is no "hard" distinction, in the disqualification context, between elected officials and appointed officers. However, for the reasons we have extensively elaborated in the pastin journal articles, briefs, blog posts, etc.we do not think this position is the better view. Instead, we believe, if Governor Cuomo is disqualified, he is free to run again for and to hold elected state positions.

[Seth Barrett Tillman is a Lecturer in the Maynooth University Department of Law, Ireland (Roinn Dlí Ollscoil Mhá Nuad).]

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  1. “Judgment in cases of impeachment shall not extend further than…”

    What’s being missed here, and with POTUS impeachments, is that this is a limitation on what can be done to the guy — that you can’t “draw and quarter” him because, in England, they sometimes did.

    I don’t see this as an authorization as much as a limit…

    Just my opinion…

  2. Serious question: who is this “three-name” professor (h/t Glenn Lowry) from Ireland(?) constantly writing on American, and now stare-level, legal questions? Did any of you know if him before these many, many co-authored pieces with Blackman?

    Not a knock. Just curious. I wonder if Blackman writes (with SBT) about Irish legal matters for an Irish audience. Is Blackman Ireland’s Seth Barrett Tilman?

    1. Sorry. Glenn Loury, not Lowry. Two very different Glenns.

      1. “From glen to glen, and down the mountain side….”

    2. They’re working on this great new tool ‘Gooly’ or something like that, you type in ” Seth Barrett Tillman” and up come results like
      https://www.maynoothuniversity.ie/people/seth-barrett-tillman

    3. There are other persons and other academics named “Seth Tillman” in the world. Using a middle name cuts down on confusion.

      I see you have a lot of useful things to do, while writing anonymously. For those of us who don’t write anonymously, we like to think we get to choose how to spell and write out our own names.

      Seth Barrett Tillman

      Cf. Seth P. Tillman: A Select Bibliography, New Reform Club (June 21, 2019, 2:07 PM), .

      Cf. Books by Barrett Tillman, New Reform Club (Aug. 18, 2019, 1:28 PM), ;

  3. Ironic. This Democrat Governor kills millions of people by his quack lockdown. He steals $billions in Medicare fraud with false COVID death certificates. He destroys the economy of his City and of his State. Not a word.

    A few ugly Democrat floozies allege he got fresh, and now, he must go. Someone, explain why Democrat women are so ugly, and so nasty. If you are a really ugly woman, try being nice. You just may get a man’s attention.

    All PC is case. Feminism is not even real. It is a masking ideology for lawyer plunder of the assets of productive people.

    1. Cuomo clearly saved lives–just Google “NY Covid deaths by day” and you will see he cleaned up the mess after Trump failed to protect Americans from an existential threat . So by August Florida was having around 200 deaths per day while NY was having around 10 a day. So DeathSantis’ “leadership” killed around 3000 people…but many Americans are under the impression he did a good job so maybe the economic toll NY took wasn’t worth it??

      1. And I have 50 acres of swampland, but I’d be happy to sell it to you for a development…

        And then I can get you a great deal on this bridge in Brooklyn…

        1. You are free to believe #fakenews…or you can simply use your brain and look at the deaths per day and timeline of all of the major events and orders. Cuomo’s 3/25 nursing home order was part of a strategy that prevented deaths. DeathSantis’ “leadership” led to deaths when states that had stricter lockdowns prevented deaths. Cuomo’s lockdowns in March through May were necessary…but one can argue since May the measures haven’t been worth it from an economic perspective.

          1. or you can simply use your brain

            Perhaps you could try leading by example.

      2. It’s remarkable that you not only apparently believe that narrative, but that you repeat it so vociferously.

        Isn’t it clear, at this stage of the game, and witnessing the very recent revelations of the cover-up by Cuomo and his staff regarding the true numbers of deaths due to his nursing home policy, that he screwed up?

        How on earth is this a mess made by Trump that Cuomo cleaned up?

        As far as numbers go, Florida peaked at about 175 deaths per day, NY peaked at 200.

        How did Desantis kill 3000 people?

        (The fact that you mock Desantis with “Deathsantis” is childish and a seemingly common technique of the progressive left; why didn’t you call Trump “Drumpf,” too?)

        1. (The fact that you mock Desantis with “Deathsantis” is childish and a seemingly common technique of the progressive left; why didn’t you call Trump “Drumpf,” too?)

          You see the same thing on the right as well (look no Dr. Ed). I’d say it’s a mark of unserious and unsophisticated thinkers of all types, rather than anything with a particular partisan valence.

        2. Everyone has access to the numbers—-NY doesn’t have an anomalous number of nursing home deaths. Cuomo didn’t cover up nursing home deaths, he mishandled an attack from an extremely irresponsible opponent just like Obama mishandled the initial stage of the Benghazi questioning from the irresponsible Republican Party. Trump hasn’t mishandled questioning surrounding his 5 Benghazi type events because Democrats didn’t try to make political hay out of the tragedies.

          NY was hit first and hardest and by May we had better treatment and by October we had even better treatment. So all of the states that got hit in March had really bad death rates…but that failure is on Trump and not the governors and mayors. At some point dealing with a pandemic becomes a local issue but because it’s an existential threat the president is the person in charge of keeping it out of America.

          DeathSantis did a poor job protecting lives but he did a good job keeping the economy chugging along. Voters will get to decide if they agree with DeathSantis that the economy was more important than saving several thousand lives. I have stated I support a higher interstate speed limit even though I know it will result in more deaths. Florida has a high speed passenger rail that upon opening led to tens of people getting killed crossing tracks thinking it was a slow moving freight train.

          1. You still have not explained how Trump is responsible for this, you only blame him. It’s quite ridiculous. He acted quickly to stop travel from China over the objections and name calling of the Democrats and the media. Pelosi and Cuomo and De Blasio ENCOURAGED people to continue to gather, even while Trump was trying to shut down travel. And, Trump administered a historically short development time for vaccines. What did Cuomo do?

            On numbers, you’re making stuff up. This, from AP in January:

            “ALBANY, N.Y. (AP) — New York Gov. Andrew Cuomo’s administration confirmed Thursday that thousands more nursing home residents died of COVID-19 than the state’s official tallies had previously acknowledged, dealing a potential blow to his image as a pandemic hero.

            The surprise development, after months of the state refusing to divulge its true numbers, showed that at least 12,743 long-term care residents died of the virus as of Jan. 19, far greater than the official tally of 8,505 on that day, cementing New York’s toll as one of the highest in the nation.”

            One of the highest in the nation. And, since then we know there has been more cover-up, so it gets worse.

  4. Among the many, many reasons Cuomo should be impeached, one cannot forgive his foremost sin. The “Governor Mario M. Cuomo Bridge”.

    Not that there’s anything wrong with the bridge itself. But the sheer hubris in naming it AFTER himself, while he is still in office….

    The first order of business should be renaming it the Tappan Zee bridge.

    1. But the sheer hubris in naming it AFTER himself, while he is still in office….

      The Governor Mario M. Cuomo Bridge is not named after Andrew Cuomo. One way to tell is that Andrew Cuomo’s first name is Andrew, not Mario.

    2. While I agree with you on the latter, the schmuck named it after his father…

  5. This is maybe interesting, but Fredo’s brother is not going to be impeached, and he is not going to resign. I still predict he gets the Nobel Prize for Medicine (euthanasia subspecialty with two oak clusters for blaming Trump for killing all those old people who were just going to die sometime anyway and they didn’t make political contributions anymore because they were on fixed incomes and we don’t need their votes because we have enough votes from cemeteries already), and is the Democratic nominee for vice-president (he and Kamala have a thing going, don’t you know).

    1. DeathSantis should get that prize—his “leadership” led to an 3000 dying that could have been saved. Cuomo cleaned up Trump’s mess…unless you blame Giuliani for failing to stop the 9/11 attacks?!?

      1. Actually, you forget the 30,000 Martians who were running amuck in the midst of this.

        My data is no less bogus than yours…. 😉

        1. DeathSantis’ lack of leadership clearly led to unnecessary deaths…but maybe those deaths are acceptable from an economic perspective. People die on the interstate system every day but I think the speed limit should be 85 mph which would lead to more deaths.

  6. I suppose Josh is correct in dating the Constitution from the year it became binding as opposed to when it was drafted, but it’s still odd to see it dated as 1788 instead of 1787.

    1. It did not become binding in 1788.

      Created: September 17, 1787
      Presented: September 28, 1787
      Ratified: June 21, 1788
      Date effective: March 4, 1789

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