GOP Claim that Impeachment Overturns an Election is Spurious but Real Intra-Constitutional Conflict Exists: A Dorf on Law Classic

by Michael C. Dorf

Happy new year. For today's classic post, I've chosen to rerun an essay from just over a year ago, which focused on the spurious GOP claim that the impeachment of Donald Trump was a spurious effort to overturn a presidential election of three years earlier. It seems timely now because . . .  well . . . you can figure it out.

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Among the many mutually incompatible and shifting defenses that Donald Trump and his apologists and enablers have offered against his impeachment in the House is the claim that it is an effort to overturn the result of the 2016 election. Like many spurious claims made in bad faith, this one has a point of contact with reality: If the House were to impeach a President of a different political party simply in response to genuine policy differences within the realm of reasonable contestability, that could indeed be an illegitimate effort to overturn the result of the then-most-recent presidential election.

In the prior paragraph, I hedged with phrases like "realm of contestability" and "could" because I regard the impeachment of Andrew Johnson as legitimate, even though it was about a policy difference; that policy difference was whether to reconstruct the Union on more just grounds (the view of Congress) or to frustrate Reconstruction so as to preserve white supremacy and institute apartheid (Johnson's position.) Some policy differences are not mere policy differences. Nonetheless, I will concede that in general, mere policy disagreements, even sharp ones, do not afford permissible grounds for impeachment. There must be evidence of treason, bribery, or other high crimes or misdemeanors. The Constitution says as much.

Accordingly, if it were true that the House Democrats were motivated to support Trump's impeachment by disagreement with his policies or even by dislike of his personal style, that would be problematic. But of course that's not remotely true. The Republican claim that Democrats are acting improperly or unconstitutionally by using impeachment to overturn the result of a Presidential election is thus wholly parasitic on the further claim that there is insufficient evidence that Trump has engaged in impeachable conduct. The Republican strategy is like a defense attorney arguing to the jury that the jury can't convict someone if he didn't commit the crime charged when the jury believes the evidence shows that he did commit the crime charged. It's true sort of, but it's a non sequitur.

One of the more confused versions of the Trumpian critique of impeachment as improperly political is the suggestion that there is some sort of contradiction between, on one hand, Article II, Sec. 1 and the 12th Amendment, which set the rules for presidential elections, and, on the other hand, the impeachment provisions of Article I, Sections 2 and 3, and Article II, Sec. 4, which govern impeachments. There is no tension or contradiction. The impeachment provisions set the impeachment rules. A breach of those rules would be unconstitutional (albeit not subject to judicial review), but that only shows the complementarity of the presidential election provisions and the impeachment provisions: The former govern how a president is elected; the latter (along with the 25th Amendment) govern how one is removed.

So much for the Trump-inspired spurious claims of conflict between different provisions of the Constitution. There are genuine such conflicts, however.

Prof Buchanan and I explained in our series of articles on the debt ceiling--especially the first one--that circumstances can arise in which all options faced by a government actor are unconstitutional. In such circumstances, complying with one or more constitutional provisions requires violating one or more other constitutional provisions. In addition to describing the choice a president might have to face among usurping congressional taxing, spending, or borrowing authority, we also discussed the general problem, pointing to the one prior case in which the SCOTUS came closest to recognizing a true conflict between constitutional provisions.

In Nebraska Press Ass'n v. Stuart, there was a tension between a defendant's Sixth Amendment right to a fair trial and the press's First Amendment right of access to open court. Although claiming that both rights were of equal value, the Court adopted a decision procedure that essentially gave a presumptive right to the press, which a defendant's right could displace. As Prof Buchanan and I wrote: "The Court said, in substance if not in form, that the fair trial right is more important than the free press right, at least in a case of unavoidable conflict."

A new case on the SCOTUS docket also presents the possibility of intra-constitutional conflict. In Carney v. Adams, the Supreme Court will consider whether provisions of the Delaware Constitution that require partisan balance in selecting members of the state judiciary violate the federal First Amendment. As I explained in my Verdict column last week, the US Court of Appeals for the Third Circuit invalidated the Delaware judicial selection provisions by relying on a line of cases holding that patronage jobs--i.e., government jobs limited to members of the political party in power--violate the First Amendment right of expressive association by effectively penalizing job seekers who do not choose to associate with the party in power. There are exceptions to this anti-patronage rule, but the Third Circuit found none of them applicable. My column questions that result.

The Delaware Governor in Carney v. Adams raises an additional argument I did not discuss in my column. He says that even if the anti-patronage rule would apply in most circumstances, special considerations make it inapplicable to state rules governing selection and retention of state judges. This argument relies on a clear-statement rule laid down in the 1991 case of Gregory v. Ashcroft. At issue in Gregory was the application of the federal Age Discrimination in Employment Act (ADEA) to state court judges, who were required by the Missouri Constitution to retire at age 70.

The Supreme Court held in Gregory that even though the ADEA contained no particular exceptions, it should not apply, given the state's sovereign interest in controlling how judges are selected. Justice O'Connor's majority opinion cited the Tenth Amendment and general principles of federalism but stopped short of saying that the ADEA would be unconstitutional if applied to state court judges. Instead, the Court held that at a minimum, Congress must make plain in the language of the statute its intent to alter the state/federal balance before the Court will apply a statute in such a way. I discussed the application of Gregory to another issue--the Trump policy of making immigration arrests at and near state courthouses--in another Verdict column late last month.

In Gregory the Court applied a clear statement rule to Congress; finding no clearly expressed intent to apply the ADEA to state judges, the SCOTUS construed the ADEA as inapplicable. That option is not exactly available in Carney v. Adams, however, because there the federal provision that arguably displaces state power governing the selection and termination of state judges is not a statute that Congress can go back and clarify but the First Amendment. Hence, Carney v. Adams poses what looks like a conflict between the Tenth Amendment-inspired clear statement rule of Gregory and the First Amendment line of cases limiting patronage.

Does that mean that the SCOTUS will see the case this way? Not necessarily. The Court could find the anti-patronage rule inapplicable on its own terms, per one of the arguments I discussed in last week's Verdict column. Or the Court could say that the clear statement rule of Gregory is only inspired by the Tenth Amendment but not strictly required by the Tenth Amendment. To use a phrase coined by my former colleague Prof Henry Monaghan, the Court could deem the Gregory rule a constitutional common law rule, not a rule required by the Constitution itself. If so, then the Gregory rule would yield to the anti-patronage rules, which are deemed required by the First Amendment.

But while I and many other scholars find the category of constitutional common law attractive, the Supreme Court itself has been lukewarm to it. There thus remains a possibility that five justices would bite the bullet and endorse the proposition at which Justice O'Connor was hinting in Gregory: that even with a clear statement, the federal government may not tell states how to choose or terminate state judges. If that's the meaning of the Tenth Amendment, then it would seem to come into direct conflict with the anti-patronage interpretation of the First Amendment--assuming the Court in Carney v. Adams does not find reasons internal to the anti-patronage line of cases to hold the doctrine inapplicable. And if that happens, we might finally see the Justices directly confront the question of how to reconcile genuine intra-Constitutional conflict.