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03/11/2021

Josh Blackman and Seth Barrett Tillman on Impeachment in the U.S. Constitution and the New York Constitution
Michael Ramsey

At Volokh Conspiracy, Josh Blackman and Seth Barrett Tillman: Comparing the Impeachment Process under the United States Constitution (1788) and the New York State Constitution (1894).  From the introduction: 

On Monday, Republican members of the New York State Assembly drafted a resolution to impeach Governor Andrew Cuomo. In this post, we will compare the impeachment process under the United States Constitution (1788) and the New York Constitution (1894). First, the quorum rule makes impeachment more difficult in New York. Second, the New York Constitution does not impose substantive limitations on the scope of impeachable offenses. Third, the New York Constitution creates a specially constituted court to try impeachments, and that court includes members of the state judiciary. Fourth, it is unclear whether the New York Constitution permits the legislature to disqualify an impeached office holder from holding elected state positions.

With apologies, I can't help but focus on this paragraph:

Under the U.S. Constitution, the House can impeach a covered officeholder for "treason, bribery, or other high crimes misdemeanors." U.S. Const. art. II, § 4. The scope of this language has long been debated. To this day, people disagree about whether this provision includes only statutory crimes, or wrongs specifically related to the duties associated with the impeachment defendant's position, or both. Yet, historically, there has been and remains widespread agreement that this language furnishes a substantive limit on what charges the House can proffer in articles of impeachment.

Yes, it does.  But if it does, why doesn't it also limit the people who can be impeached (that is, "the President" but not private citizens who used to be President)?  Either Article II, Section 4 is a limit on the impeachment power or it isn't.  (See my earlier argument here).  If it is read as a limit (as almost everyone agrees) with respect to impeachable conduct, it also should be read as a limit as to impeachable persons.  (Apologies for the digression.)

Interestingly, as Professors Blackman and Tillman note:

New York's first post-independence state constitution also had a substantive limitation on the impeachment power. Under Article 33 of the New York Constitution of 1777, the power to impeach was limited to "mal and corrupt conduct in their respective offices." But that limitation was dropped in a subsequent state constitution: the New York Constitution of 1846. Article VI, § 1 of the 1846 state constitution simply states that "The assembly shall have the power of impeachment, by the vote of the majority of all the members elected." There was no substantive limitation on the nature of the charges which the Assembly may bring. Likewise, under the current state constitution, i.e., the New York Constitution of 1894, there is no substantive limitation on the nature of the charges which the Assembly may bring.