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10/19/2019

Bad Textualism (Again) [Updated]
Michael Ramsey

At Balkinization, Richard Primus argues that, under a textualist interpretation, the President could be impeached for matters in addition to high crimes and misdemeanors: It Doesn’t Say “Only”: A Textual Point About Impeachment.  He argues:

Article II, Section 4 of the Constitution reads as follows: “The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.”  As a matter of practice, people have taken that language to state the exclusively valid grounds for removal.  On that understanding, someone who has committed neither treason, nor bribery, nor a high crime or misdemeanor is not subject to impeachment.  In other words, everyone speaks as if Article II, Section 4 said that the officeholders specified shall be removed from office only on impeachment for and conviction of those offenses. 

But the word “only” does not appear in the text.  Read strictly, Article II, Section 4 does not purport to define the exclusive grounds for impeachment and removal.  If its language is given its most natural meaning, Section 4 specifies scenarios in which removal shall follow from impeachment and conviction, but it does not say that there are no other grounds for impeachment and removal than the ones specified.  The text might be saying “In cases of treason, bribery, or high crimes and misdemeanors, impeachment and removal are warranted,” while saying nothing about whether Congress also has the discretion to impeach and remove in other circumstances.  In other words, the function of the Clause might be to rule certain grounds for impeachment and removal in, not to rule everything else out.   

In a prior post I raised some doubt about Professor Primus' supposedly textualist interpretation of Title VII.  Here I'll go further and say this argument is simply bad textualism.

The question is whether the high crimes and misdemeanors clause (Art. II, Sec. 4) implies that it is exclusive.  The answer is: of course it does.  Otherwise, there would be no point to it.  He says that its purpose might be to clarify that high crimes and misdemeanors are a ground for impeachment, not that they are the only ground.  But if one reads the impeachment clause of Article I, Section 2 to license impeachment without limitation (as he must, else there is no source of an impeachment power), then there is no point in saying that some types of impeachment are authorized.  The high crimes and misdemeanors clause only makes sense as a limitation (or, one might say, a limited authorization).

There's a handy canon of construction that helps out here -- expresio unius est exclusio alterius (the negative implication canon).  Where some grounds for impeachment are mentioned, others are excluded by implication.  (E.g., "Dogs on leashes are permitted" means dogs not on leashes are not permitted; "You kids can have dessert after you finish your dinner" means kids cannot have dessert before dinner.)

Professor Primus anticipates this objection and responds:

But compare the last section of Article II, which discusses impeachment, with the last section of Article III, which discusses treason.  The language of Article I, Section 3 [ed.: a typo; he means Article III, Sec. 3] begins as follows:  “Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort.”  (I’ve italicized the word “only.”)  Here, the Constitution’s text specifies that it is providing the sole grounds for treason convictions.  When it wants to, the Constitution is perfectly capable of saying “only.”

I'm thoroughly unpersuaded.  The use of "only" one place in the Constitution overturns (indeed, apparently reverses) the expresio unius canon for the entire document?  So the President can appoint Justices without the consent of the Senate?  (Art. II, Sec. 2 says he can appoint them with the advice and consent of the Senate, but it doesn't say "only").  Federal courts have jurisdiction over all manner of cases, not just those specified in Article III, Section 2?  (Art. III, Sec. 2 says "[t]he judicial Power shall extend to ..." but it doesn't say "only").  The President can rule by decree?  (Art. I, Sec. 1 says all legislative power is vested in Congress, but it doesn't say it is vested "only" in Congress).  To the contrary, the entire Constitution is premised on expresio unius (so that it doesn't have to repeat "only" about a hundred times).

The use of "only" in the treason clause is entirely understandable from context.  Treason had been defined much more broadly in English law, including imaging ("encompassing") the death of the king.  The Constitution's framers wanted to be especially clear that they were rejecting that broad version of treason (luckily for some people today!).  So the "only" in the treason clause is belt-and-suspenders, not leaving it (as elsewhere) to negative implication.  It's not a rule of construction for other clauses.

But even without the context, it's clear from other parts of the document that the drafters repeatedly used negative implications, notwithstanding the "only" in the treason clause.  Thus it seems overwhelmingly likely that the high crimes and misdemeanors clause should be read with a negative implication, especially given the implausibility of reading it the other way.

I'd bet there's not a single self-identified textualist judge or scholar in the country that would read the high crimes and misdemeanors clause as Professor Primus suggests -- which itself suggests that he isn't doing it right.

UPDATE:  Scalia and Garner have a good discussion of exclusio unis in Reading Law, pp. 107-111.  Among other things, they caution against going too far with it: "'No dogs allowed' cannot be thought to mean that no other creatures are excluded -- as if pet monkeys, potbellied pigs and baby elephants might be welcome."  They also give an example that seems quite a bit like the impeachment example:

Consider United States v. Giordano, decided by the Supreme Court of the United States in 1974.  A statute established procedures for obtaining court orders authorizing the interception of wire and oral communications.  It said that the "Attorney General ... or any Assistant Attorney General ... specifically designated by the Attorney General" could authorize application for such orders.  In Giordano's case, it was the Attorney General's executive assistant who applied for the court-authorized wiretap. Hence Giordano argued that the conversation to be used as evidence had been "unlawfully intercepted" and should be suppressed.  A unanimous Court agreed with him: The statute named two types of high-ranking officials -- and all other were excluded.