The Volokh Conspiracy
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Governor Cuomo has now resigned. But that resignation does not necessarily moot the impeachment process. Indeed, Charles Lavine, the state Assembly Judiciary Committee Chair, said there would still be a purpose to impeach Cuomo: "there would be the opportunity in the court of impeachment to prohibit him from ever occupying statewide office." Is this step even needed? Chuck Todd, for one, suggested that Cuomo could make a political comeback. The more important question is whether the New York Assembly can legally prevent Cuomo for running for re-election. Several commentators have stated, as a matter of fact, the Assembly could disqualify Cuomo from the Governor's mansion (see here, here, and here). The issue is not so clear.
In March, Seth Barrett Tillman and I performed a careful comparison of the New York Constitution of 1894 and the United States Constitution of 1788. Our research has some bearing on the disqualification question. I repost our work after the jump.
For those curious, this question easily checks all three of my boxes. If it were up to me, I would be happy to never see Governor Cuomo in political office. He threatened me over the phone, and flagrantly violated the religious liberty of my clients in his official and individual capacity (the latter claim remains against him). Thankfully, a written Constitution, and not the political passions of the day ought to control.
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 past—in 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).]