The Day After: Do We Need a "Twenty-Eighth Amendment?"

By Grossman, Joel B.; Yalof, David A. | Constitutional Commentary, Spring 2000 | Go to article overview

The Day After: Do We Need a "Twenty-Eighth Amendment?"

Grossman, Joel B., Yalof, David A., Constitutional Commentary

Having decided on a fixed term presidency and quadrennial electoral assessment of a president's performance, and having all but abandoned the parliamentary model of a "president" beholden to Congress for his power, the framers of our Constitution decided to hedge their bets. They provided that the president (as well as other officers) could be removed by the Congress, but only through the extreme measure of impeachment. Only two presidents have ever been impeached, and none has been convicted and removed from office. In fact, only seventeen persons have been impeached in the 210 years of government under the Constitution: two presidents, one Supreme Court justice, one cabinet member, one senator (whom the Senate refused to try), and twelve lower federal court judges. In the twentieth century, prior to the impeachment of President Clinton, only judges have been impeached (although President Nixon would almost certainly have been impeached had he not resigned).(1)

Notwithstanding the ambiguity of the constitutional impeachment standard of "treason, bribery, or other high crimes and misdemeanors,"(2) it is now generally accepted that a president should be impeached only if he or she has engaged in conduct that constitutes substantial misconduct in office, akin to what the 1974 House Judiciary Committee Task Force later termed a serious "constitutional wrong."(3) Andrew Johnson clearly and knowingly refused to comply with an act of Congress (albeit a politically inspired one later held to be unconstitutional(4), Richard Nixon was accused of obstructing justice, and Bill Clinton was accused of both that offense and of committing perjury before a grand jury. Other presidents have engaged in activities of dubious legal or constitutional validity (e.g., FDR's Lend Lease policies to aid Britain, JFK's Bay of Pigs invasion, and the Reagan-Bush Iran-Contra affair), but were never seriously threatened with impeachment. Thus it may be said that impeachment of a president is the unpredictable product of perceived misconduct and political opportunity.

When the Supreme Court ordered the release of the Watergate tapes in 1974, there was widespread and ultimately bipartisan agreement that Nixon's behavior constituted an impeachable offense. Debate about President Clinton's behavior, however, revealed no similar consensus. Indeed, Clinton was impeached by a slim, partisan majority contrary to the overwhelming judgment of the American people who, while condemning his inappropriate behavior, wanted him to remain in office for the duration of his term. Despite these differences, however, the proximity of the Nixon and Clinton cases suggest that we are entering a new era in which impeachment may not be limited to extraordinary abuses of presidential power or serious threats to governmental legitimacy, but may extend to executive actions that are merely offensive or improper.

President Clinton's impeachment and subsequent trial before the Senate have revealed worrisome ambiguities in the Constitution's impeachment provisions, and have created understandable concerns about the absence of any formal check on potential congressional abuse of the impeachment process. These concerns may have been alleviated somewhat by Clinton's acquittal in the Senate, but they have certainly not been put to rest. This is particularly true since the Supreme Court has all but decided that it will not resolve such ambiguities or provide such a check. In the Court's view, impeachment is a nonjusticiable "political question" that is not reviewable because it is committed by the Constitution to the sole discretion of a coordinate branch.(5)

It is thus likely that every time a president is subjected to impeachment these same constitutional issues will be debated again and again, without much hope of increasing coherence or resolution. Self-imposed congressional restraints may regress into license, the concept of the fixed-term presidency will be further eroded, and governmental stability fostered by the separation of powers principle will be endangered. …

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