I'm Even Smarter Than Bruce Ackerman: Why the President Can Veto His Own Impeachment

Article excerpt

I'll admit it. I've always been envious of Yale Law School Professor Bruce Ackerman: He's brilliant, creative and clever. Nowhere are these attributes more spectacularly displayed than in Ackerman's ingenious argument that the House impeachment of President Clinton lapsed at the end of the 105th Congress. The Senate of the 106th Congress, Ackerman has argued, cannot constitutionally try Clinton on articles of impeachment voted by the House in the 105th Congress. Ackerman's argument, in a nutshell, is that impeachment by the House and trial by the Senate must occur in the same Congress, just like enactment of a bill--but only when the impeachment occurs during a lame duck session of Congress.(1)

Why Professor Ackerman limits his argument to lame duck impeachments, as opposed to carry-over impeachments generally, is not clear at first glance. Ackerman concedes that legislative acts by a lame duck Congress are constitutionally valid; the framers of the Twentieth Amendment may have expected that by shortening the period between elections and the start of a new Congress they had eliminated lame duck sessions of Congress, but the text of the Twentieth Amendment plainly does not accomplish this result.(2)

The weight of Ackerman's argument against carry-over impeachment trials is borne not by lameduckism, but by Ackerman's far more inspired premise that impeachment-and-trial is a single act and, therefore, like any other ordinary bill, must pass both the House and the Senate during the same Congress. The fact that the House's action occurred during a lame duck session is entirely incidental to Ackerman's claim. But the lame duck limitation, even if it serves no other purpose, at least formally distinguishes Bill Clinton's case from earlier ones in which the Senate has held impeachment trials based on impeachments returned by the House of Representatives in the previous Congress. (That, of course, is reason enough to justify Ackerman's ingenius resort to the limitation.)

Bruce Ackerman's argument is one of which Bill Clinton himself could justly be proud. Its "one-from-column-A, one-from-column-B" hybrid nature does for logic what Clinton has done for word definitions. It therefore seems a shame--a cruel slap in the face to one of our nation's most inventive constitutional theorists--that Clinton's lawyers declined to make the argument to the Senate, reportedly out of fear that the senators would find it offensive or contrived. (Those philistines!) And, sadly, Ackerman's brilliant argument will never be recognized in the courts, as the Supreme Court ruled in 1993, in Nixon v. United States, that issues of impeachment procedure are nonjusticiable "political questions" committed to the Senate's sole power.(3)

But it is important that scholars recognize the value of the argument, for the sake of posterity. And on this point, I feel it is important to elaborate on an argument Ackerman seems to have overlooked. This is not to say that Ackerman is wrong. By no means! Rather, he has missed the even more brilliant implication of his inspired analysis--for which I now claim credit: Since impeachment and conviction are two steps in a single process of legislative enactment (just like passing a bill), not only must they occur in the same Congress, but the result is also subject to presidential veto.

The argument for a presidential veto over "bills of impeachment" is even stronger than Ackerman's argument for a same-Congress limitation (on which my argument builds). The same-Congress position, even as applied to ordinary bills, was always merely an inference from the Constitution's text and structure. The veto power, however, is explicit. Article I, section 7 plainly provides:

   Every Order, Resolution, or Vote to which the Concurrence of the Senate and
   House of Representatives may be necessary (except on a question of
   Adjournment) shall be presented to the President of the United States; and
   before the Same shall take Effect, shall be approved by him, or being
   disapproved by him, shall be repassed by two thirds of the Senate and House
   of Representatives, according to the Rules and Limitations prescribed in
   the Case of a Bill. …