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03/07/2019

The Senate Has No Duty to Try Impeachments
David Weisberg

[The following response to this post is from occasional guest-blogger David E. Weisberg. -- Ed.]

If the House impeaches President Trump, would the Senate be constitutionally obligated to hold a trial, or would it be constitutionally permissible for the Senate simply to do nothing? Prof. Bauer argues that the Senate has an affirmative obligation, and in this he is joined by Prof. Tribe, who asserts that the obligation arises from the "structure, history, function, and logic of the impeachment Power, not from any mandating language." They both cite the failure to consider Merrick Garland's Supreme Court nomination as an unhappy example of the Senate refusing to fulfill an obligation that is implied, albeit not explicitly mandated, by the Constitution.  My opinion, as a constitutional textualist, is that the Senate did indeed have an affirmative duty implied under the Constitution to consider Garland's nomination, but it would have no duty, express or implied, to try articles of impeachment.  

The president has the power to nominate and appoint Justices "by and with the Advice and Consent of the Senate," but the Constitution is silent as to whether, or when, the Senate is obligated to advise and consent.  Nevertheless, the structure of government outlined in the Constitution does indeed create an implied obligation for senatorial action within a reasonable time.  If the Garland precedent is followed by all future Senates, it is conceivable--not likely as a matter of fact, but nevertheless conceivable in theory--that the last Justice will die or retire without anyone left to exercise Article III judicial power.  That is, if all future nominations to the Court are made by a president whose political party does not control the Senate, and those future Senates all follow the Garland precedent, none of those nominations will even be considered, and the last Justice will have no successors.

It might be argued that the foregoing "structural" argument is flawed, because a Senate controlled by one party certainly has the right to consider and then emphatically reject every nominee proposed by a president of a different party.  So, the last Justice might still be left without any successor, even if the Senate promptly considers every nominee.  This counter-argument, however, is itself flawed.  The truth is that the Senate refused to consider the Garland nomination precisely because Republican leaders feared that, if it were considered, it would have been approved rather than rejected.  Thus, the Garland precedent, if followed strictly in the future, makes it more likely that the judicial branch could be left without any officers.

The impeachment question is entirely distinguishable.  Our constitutional structure of government would not even conceivably be hamstrung or disrupted if the Senate ignores articles of impeachment.  All the branches of government could continue to function as usual; there is no threat that, if future Senates follow the precedent of ignoring articles of impeachment, one of the branches of government might be left with no officers.  Moreover, if, e.g., a Republican-controlled Senate were to refuse to take up articles of impeachment adopted by a Democratic-controlled House, the political consequences of that refusal would be indistinguishable from those that would follow if the same Senate considered and then rejected articles of impeachment.  Critics would be free to say that the Republicans were acting from purely political motives in either case--that is, whether they ignored the articles or voted to reject them--and voters would be free to decide how the Senate's action affects their own votes.

Some suggest that the senatorial precedent of invariably taking up articles of impeachment (if that in fact is the history) has by now created an obligation that the Senate do so in all future cases.  Obligations do not arise in that way--all of us have done certain things in certain ways over many years, and perhaps over our entire lifetimes.  It does not follow that we are "obligated" to continue to do those things in just those ways forever.  Powers exercised repeatedly do not, in and of themselves, create obligations.  

Because the impeached officer is "tried" in the Senate, does the Senate play a judicial role, and in that role does it have a judge-like duty to try the case?  I think not.  First, if the Senate never takes up the articles of impeachment, the analogy suggests that there is no "case" before the Senate at all.  Secondly, when the president is tried, the Chief Justice presides over the Senate.  Thus, if a trial in the Senate is likened to a civil or criminal trial, it would seem that the Chief Justice is the judge and the Senators are jurors.  Do jurors have an obligation to ensure that the trial proceeds?  No.  Is it conceivable that, if articles of impeachment were ignored by the Senate, the Chief Justice would order the Senate to conduct a trial?  I hope the answer is "no", because who would enforce the Chief Justice's order if the Senate ignores it too?  Would the president act to ensure the commencement of a trial that could result in removing him or her from office?  Let's not go there.