A great, unchecked power is now unfolding in the impeachment hearings concerning President Donald Trump. Congress alone decides, on our behalf, whether a president remains in office or is removed. This is one of the very few areas of American public life where the law does not govern.
It is often said by reporters that an impeachable offense is whatever the House of Representatives says it is.
That is literally true. There is no place to challenge a decision by the House to impeach a federal official, including the president. And there is a reason that the House is unchecked. Impeachment and removal are not matters of law. Instead, they are an expression of the sovereign will of the American people. They are our deepest politics.
Since Marbury v. Madison so proclaimed in 1803, America has been known as having a “government of laws.” We are not China, in which Communist Party officials decide what is lawful. Marbury established judicial review, which means that every American can go to court to challenge government actions as unconstitutional.
But, there is an exception to our rule of law. That exception is called the political question doctrine. When matters involve political questions, then, even if illegal government action harms someone, federal courts cannot hear the case.
One such area is impeachment and removal. In 1993, in a case involving federal Judge Walter Nixon, Jr., the Supreme Court held that removal by the Senate is just such a political question. Undoubtedly, impeachment is too.
Another political question is amending the Constitution. In 1939, the Supreme Court held that whether a State had ratified an amendment was a matter for Congress to decide, not the courts.
A third area that legal experts assume is a political question is the power of Congress to suspend the Writ of Habeas Corpus. And it is in that power to suspend that the true extent of the authority of the Congress, and the real meaning of a political question, become clear.
Habeas Corpus permits any person to contest the legality of detention by the government. It is by use of this Writ that government by law, rather than by the arbitrary will of Kings, became our tradition. Its suspension is only to be countenanced “in Cases of Rebellion or Invasion.” But, whether that condition is met, is left to Congress.
The nature of the power to suspend Habeas Corpus was debated in 2004 by two Justices normally aligned on the Court—Antonin Scalia and Clarence Thomas—in the case of of Yaser Esam Hamdi, a U.S. citizen who was being detained indefinitely as an illegal enemy combatant after being captured in Afghanistan.
Thomas argued that the government had authority to detain Hamdi without trial, a position that a majority of the justices actually shared, although they required more protective process than would Thomas.
Only Scalia, joined by John Paul Stevens, argued that in the case of a U.S. citizen, the government had only three choices—try the citizen, let the citizen go, or suspend the Writ of Habeas Corpus.
Thomas argued that suspension of the Writ only removed a remedy for illegal detention. It could not actually justify unconstitutional action.
But, for Scalia, suspension of the Writ is akin to a lawful declaration of martial law—a suspension of the Constitution itself: “[w]hen the writ is suspended, the Government is entirely free from judicial oversight.”
For Scalia, suspension is a sovereign act by the representatives of the people, on our behalf. Here, Congress is beyond law.
Impeachment and removal, like amending the Constitution, manifest a similar Congressional power free from oversight.
But, removal is even more fearful than the others powers. When impeachment and removal were assigned to Congress, it could be said that these branches were more representative of the popular will than were any officers in the government.
The president, in the original Constitution, was to be chosen by electors designated in a process determined by each state’s legislature. In half the states, the legislatures chose the electors. Impeachment in those circumstances might well reflect the popular will. At least all the members of the U.S. House were elected by the people.
Today, however, we are far more democratic in selecting the president. We see ourselves as electing our President—the electors pledging to vote the way the voters decide. Thus, in removing a president today, even one who did not win the national vote, Congress is reversing a decision made by the people.
For this reason, impeachment and removal must truly represent the sovereign will of the American people in order to be legitimate. The process must not be thought of as a parsing of ancient texts or even as a vindication of the rule of law. It certainly cannot be a partisan decision. It must be the people’s choice.
This responsibility is a heavy burden in a time of deep national division. Americans are unable to reach consensus in a variety of areas, including this one. What is a representative in Congress supposed to do when, in good faith, that representative concludes that a president has shown himself unfit for office and indeed dangerous to our institutions?
Surely, this warrants impeachment and removal.
But, at the same time, the country remains divided. A large portion of the population is unconvinced. How, under these circumstances, can a decision to impeach and remove Trump claim to be a sovereign act of the people?
There is no easy answer to this question. I have written here that I would not vote to impeach. But the matter is far from easy.
Whatever the decision is to be, however, one thing is clear: That decision should not be based on law. For good or ill, if it is not to further poison public life, the decision must be one that truly reflects the judgment of the American people.
Capital-Star Opinion contributor Bruce Ledewitz teaches constitutional law at Duquesne University Law School in Pittsburgh. His work appears biweekly on the Capital-Star’s Commentary Page. Listen to his podcast, “Bends Toward Justice” here.