Brian C. Kalt | Michigan State University
The more power is ceded to presidents, the more important it is for Congress to be watchful and restrain that power when appropriate. But important or not, the rise of the imperial presidency did not invigorate congressional checks on the president. Instead, it degraded them.
In 1973, Arthur Schlesinger, Jr., chronicled the presidency’s rise and Congress’s corresponding retreat in The Imperial Presidency.1 Schlesinger worried about a future in which elections would constrain presidents every four years, but not much would check them in between.2 To hem in such a “plebiscitary” presidency and preserve our constitutional order, Schlesinger wrote, the impeachment process would need to be revitalized.3
Since Schlesinger wrote that, the impeachment process has been used more than ever before. But it has not really been revitalized. Indeed, as far as combating presidential arrogation of power is concerned, it was never “vitalized” much in the first place.
Part I of this paper examines how the impeachment process (by which I mean both impeachment and removal) was historically a non-factor in checking the expansion of presidential power. Part II reviews the history since 1973 and assesses where the impeachment process stands today, concluding that impeachment is unlikely to inhibit further imperialization of the presidency—at least not directly.
I. Impeachment and the Arrogation of Presidential Power
A. The Framers
Schlesinger explained that “the Constitution intends a strong Presidency within an equally strong system of accountability.”4 He understood the impeachment process to be an important, if blunt, part of that system. It is, but the Framers did not set up the impeachment process with an eye toward hindering presidential power grabs.
Initially, the Convention was unsure about making the president impeachable at all. Perhaps, some thought, presidents could be kept in check simply by their desire to get reelected (a proto-plebiscitary presidency).5 The Framers rejected this notion, obviously. The potential for presidential corruption and abuse of power was simply too great—it required providing a way to remove presidents immediately.6
Strikingly, though, the Framers’ concerns seemed to be limited to abuses of power rather than usurpation of it. The impeachment debaters fretted about things like “corruptibility,”7 “perfidy,”8 “peculation,”9 “the danger of seeing the first Magistrate in foreign pay,”10 and other such delinquencies.11 They expressed no such visions of the impeachment process dealing with, say, a president starting a war without congressional approval, or impounding appropriated funds on a whim.12
In short, the Framers did not picture the impeachment process as a safeguard against an imperial presidency. Quite the opposite, in fact; they were concerned that a too-broad impeachment process would make the presidency subordinate to Congress.13 Thus, the Framers raised the bar for federal impeachment above that of pre-constitutional state impeachments, which had dealt with “tawdry, mid-level corruption and incompetence.”14 In any case, the focus remained on misconduct that betrayed the public trust, not on arrogation of power.
B. Jackson and Censure
Schlesinger recognized that while early presidents largely stayed in their constitutional lane, fear of impeachment played no role in that restraint.15 He offered Andrew Jackson’s presidency as an example of this relative moderation, downplaying Jackson’s highly controversial expansion of domestic presidential power.16 Significantly, though, the impeachment process was absent from that scene too.
In 1834, Jackson wanted to kill the Second Bank of the United States by withdrawing federal deposits from it. To make this happen, he removed his unwilling Treasury Secretary and recess-appointed a compliant one in his place. The Senate censured Jackson, arguing that such use of the removal and appointment powers exceeded his constitutional authority.17
Stung, Jackson attacked the legitimacy of the Senate’s action,18 arguing that the censure was “in substance an impeachment,” because it had accused him of “usurp[ing] authority not conferred upon him.”19 When the Senate was in more friendly hands in 1837, it expunged the 1834 resolution.20
Schlesinger endorsed Jackson’s “unassailable” logic and contended that with Jackson’s victory, “the idea of censure as a halfway house on the road to impeachment was eliminated.”21 This is not true; there have been other censures.22 But the important thing here is that this was a dispute over an alleged arrogation of power, and Jackson had suggested impeachment as the proper venue for it.
That said, the whole point of the censure fight was that there had not been an impeachment. While the “Bank War” was a pivotal event in American history—helping spur the birth of the Whig Party, named for its opposition to “King Andrew”23—impeachment played no role in the resistance to an increasingly monarchical presidency.
C. Johnson, Nixon and Impeachment in the Two-Party System
Jackson avoided impeachment because of his strong support in the House. The two-party system, which was not envisioned by the Framers, had become a defining element of the impeachment process.24
Gerald Ford famously opined that an impeachable offense is whatever a House majority says is one, and a removable offense is whatever a two-thirds Senate majority says is one.25 But plenty of things are arguably high crimes and misdemeanors, including actions taken by nearly every president.26 Thus Ford’s formulation is really more of a limit: an impeachable offense is only what a House majority is willing to say is one, and a removable offense is only what a two-thirds Senate majority is willing to say is one.27
As a practical matter, this means that removal will require senators from the president’s own party to agree that he has to go. There has only ever been one exception; only once has a president faced an opposing two-thirds supermajority in the Senate. That president was Andrew Johnson.28
In an echo of Jackson’s censure episode, Johnson was impeached after he fired a resistant Cabinet member and replaced him with a more subservient one. Johnson was in apparent violation of the newly passed Tenure of Office Act, which—with an eye toward teeing up an impeachment—declared violations of its terms to be a “high misdemeanor.”29
Johnson had a decent argument that the Tenure of Office Act did not apply in this case, and that if it did apply it was unconstitutional.30 Also helping Johnson’s cause was that his team bribed some senators to vote in his favor.31 He was acquitted by one vote.
Significantly, Johnson’s real conflict with Congress centered not on his removal power but on Reconstruction. The Radical Republicans who dominated Congress pressed for voting rights for freedmen and for maintaining a military presence in the South. Johnson stridently opposed this and favored swift mercy for former rebels.32 This was a policy dispute, fought over bills, vetoes, veto overrides and pardons.33 But it was also a dispute over constitutional roles; Congress and the president were both claiming the authority to direct Reconstruction.
Here, then, were impeachers reacting not to a president corruptly abusing his powers, but rather to one who they thought was arrogating power to himself at Congress’s expense. They did not present their case as such; they chose instead to focus more narrowly on the Tenure of Office Act. But this narrower dispute dealt with the relative constitutional powers of the presidency versus Congress as well. The Johnson impeachment thus represents the sole example of the impeachment power being used in a constitutional power struggle rather than as a remedy for simpler misconduct.
In other words, Johnson’s case remains an outlier. Perhaps this is due to the freakishness of the accident that led to a president facing a Senate with an 80+% opposition majority.34 But regardless, Johnson was acquitted. Had he been removed, it could have changed the role of the impeachment process going forward . . . but he was not removed. Though the Lincoln-Johnson upsurge in presidential power initially was reversed in favor of congressional government, the longer-term trend toward a more powerful presidency soon resumed.35 When that happened, and for decades after, the impeachment process was nowhere to be found.36
2. The Would-Be Nixon Impeachment
In 1973, Schlesinger was looking back on the astounding transformation from the Framers’ presidency to the imperial presidency. It would be another year before President Nixon was forced from office, but even then two things were clear. First, Nixon’s crimes had gotten him into big, impeachment-flavored trouble. Second, Nixon faced no impeachment trouble at all from his arrogation of power.
True to the two-party system version of impeachment, it was only when enough Republicans wanted Nixon removed that he was forced out. When the House Judiciary Committee approved articles of impeachment, several committee Republican voted for them, but most did not.37 Nixon retained significant support among Senate Republicans almost until the end.38 But with the release of the “smoking gun” tape, featuring Nixon planning the Watergate cover-up, his protestations of innocence were revealed incontrovertibly to be lies. Republican senators abandoned Nixon and the end followed swiftly, as he resigned to avoid an inevitable impeachment and removal.39
Nixon was forced from office because of a second-rate cover-up of a third-rate burglary. Nixon was not forced from office for his secret, unilateral warmaking—the Judiciary Committee specifically voted down an article of impeachment on the deceptive, clandestine bombing of Cambodia.40 Representative John Conyers commented at the time that the article failed because approving it “would also have required us to indict previous administrations and to admit that Congress has failed to meet its own constitutional obligations.”41 In other words, Nixon’s imperial conception of his war powers rested on a foundation of precedent and congressional acquiescence.
Nixon also was not forced from office for asserting the power to overrule congressional policy decisions by impounding appropriated funds and selectively enforcing the law.42 Nor was the impeachment effort against him based on his hobbling of congressional oversight by radically expanding claims of executive privilege and transferring power from the Cabinet to the White House staff.43
In his epilogue, written in 1989, Schlesinger described some Watergate-era measures Congress took to reassert its authority against the president.44 But, as Schlesinger also described, these steps did not amount to much.45
II. Impeachment: Post-Watergate and Today
In the Republic’s first century, one president was impeached and was acquitted by a single vote. In the Republic’s second century, one president was driven from office in the shadow of impeachment. All told, then, only two of the first 40 presidents faced serious impeachment efforts.
Looking backward from 2020, by contrast, two of the last four presidents have been impeached. But at the same time, neither came close enough to conviction to warrant attaching the adjective “serious” to the proceedings.
In other words, House impeachment has become a more likely proposition at precisely the same time that Senate removal has become a less likely proposition. And even to the extent that half of presidents get impeached these days, it is still for misconduct rather than for arrogating presidential power. There is little hope that the impeachment process will operate to keep the imperial presidency in check any more than it has in the past (which is to say, not much at all).
A. The Clinton Impeachment
The two parties became more polarized between Nixon’s exit in 1974 and President Clinton’s impeachment in 1998–99. In Nixon’s day, there were enough liberal northern Republicans and conservative southern Democrats that any ideological point supported by all of one party would also be supported by a not-insignificant chunk of the other party. That overlap was almost entirely gone by the time Clinton was impeached.46 Removal still required the support of a substantial number of senators from the president’s party, and that was now a taller order.
By the late 1990s there was also a reduction in the extent to which members of Congress acted across party lines to safeguard congressional interests from presidential incursions. Instead, congressional politics were just another theater in the all-out war between Democrats and Republicans.47 A member of Congress might accuse a president of overstepping his constitutional bounds, but probably not if that president was a member of his party acting in pursuit of a policy goal the member shared.
The Clinton impeachment was not about overstepping constitutional bounds anyway; it was about Clinton’s perjury and obstruction of justice. There was a strong argument that impeachment covers official misconduct only, so that it was inappropriate to use against private misdeeds like Clinton’s. The partisan atmosphere was such that very few Republicans accepted that argument—though they surely would have found it more compelling had the president on trial been a Republican—and it did not matter to them that they had no chance of attaining a two-thirds Senate majority. The point of impeachment was no longer to obtain a conviction.
B. The Trump Impeachment
When President Trump was impeached in 2019, the point was again something other than obtaining a conviction. The parties’ polarization had intensified even further; not only was there no ideological overlap between the parties, there was now a fair amount of space in the center between them.48 The Ford formulation prevailed—Trump was impeached because a majority of the polarized House was interested in impeaching him, and he was acquitted because there was not a two-thirds majority (or even a simple majority) in the polarized Senate interested in removing him.
This partisan divide, combined with media fragmentation, has created a situation in which the two sides disagree not just on ideology but increasingly on reality itself. The impeachers’ side and the president’s side wove separate, incompatible narratives. Before, a removable offense was only one that a significant number of senators from the president’s party agreed warranted removal. Now, a removable offense is only one that a significant number of senators from the president’s party agree warrants removal under their side’s version of reality.49
The failure to remove Trump, and Clinton before him, was wrapped in language that evokes Schlesinger’s notion of the plebiscitary presidency. Removal, the president’s defenders dubiously insisted, was improper because it would “overturn an election” (as though Hillary Clinton or Bob Dole would take office as opposed to Mike Pence or Al Gore).50 In the case of Trump’s trial, it being an election year, the defenders also urged the Senate to simply let the voters decide what to do about Trump.51
Unlike Clinton, Trump faced allegations of official misconduct.52 But yet again, the issue was abuse of power and not arrogation of it. To be sure, the second article of impeachment concerned Trump’s obstruction of Congress, but this was for covering up his misconduct, not for engaging in a broader, freestanding attempt to make the presidency unaccountable to Congress.53
C. Where We Stand
“It could well be,” Schlesinger posited in 1973, “that, if continuing structural compulsions were likely to propel future Presidents in the direction of government by decree, the rehabilitation of impeachment would be essential to contain the Presidency and preserve the Constitution.”54 Rule by presidential decree, while constitutionally suspect, has indeed become more widespread in the past two decades.55 Perhaps impeachment is essential to contain the presidency. But it has not done so and there is little reason to think that it will do so in the future.
The bottom line is that while impeachment is now more common than ever before, removability looks now to be more difficult than ever before. The impeachment process remains a feeble tool for combating further imperialization of the presidency.
D. Impeachment as Deterrent
This dreary outlook is not a proper note on which to end; the impeachment process is not useless. The impeachment process’s force goes beyond actual removals; its main power is as a deterrent. Richard Nixon is the only president to have been driven from office. But the possibility of impeachment and removal has constrained every president. As James Iredell noted at the North Carolina ratification convention:
A man in public office who knows that there is no tribunal to punish him, may be ready to deviate from his duty; but if he knows there is a tribunal for that purpose, although he may be a man of no principle, the very terror of punishment will perhaps deter him.56
However unbridled Donald Trump’s presidency has been, it is easy to imagine things he might have done differently if he were guaranteed a full term without any possibility of early removal. For instance, he might have been more likely to fire Robert Mueller, to disregard statutory restrictions on his authority or to ignore certain court orders.
Schlesinger’s history makes clear that Congress not only failed to protect its powers over the centuries, it actively collaborated in handing those powers over to the presidency. But without the possibility of impeachment, presidents could have arrogated power even without this acquiescence. The constitutional order would have been transformed much more quickly—if not fallen apart entirely. The impeachment process had a role, and still has a role, even if it is only an indirect and limited one.
Brian C. Kalt is professor of law and the Harold Norris Faculty Scholar in the College of Law at Michigan State University. He earned his juris doctor from Yale Law School, where he was an editor on the Yale Law Journal. Professor Kalt’s research focuses on structural constitutional law and juries. He is the author of numerous books and articles, including Unable: The Law, Politics, and Limits of Section 4 of the Twenty-Fifth Amendment (Oxford University Press) and Constitutional Cliffhangers: A Legal Guide for Presidents and Their Enemies (Yale University Press).
- Arthur Schlesinger, Jr., The Imperial Presidency (1973).
- Id. at 377.
- Id. at 417.
- Arthur Schlesinger, Jr., The Imperial Presidency 420 (2d ed. 1989) [hereinafter SchlesingerII].
- See, e.g., 2 The Records of the Federal Convention of 1787, at 53 (Max Farrand ed., 1911) [hereinafter Records] (comments of Gouverneur Morris); id. at 66–67 (comments of Rufus King).
- See id. at 64 (comments of William Davie); id. at 65–66 (comments of James Madison); id. at 103 (comments of Gouverneur Morris).
- Id. at 86 (comments of George Mason).
- Id. at 65 (comments of James Madison).
- Id. at 65–66 (comments of James Madison).
- Id. at 68 (comments of Gouverneur Morris); see also 4 The Debates in the Several State Conventions on the Adoption of the Federal Constitution 126 (Jonathan Elliot ed., 2d ed., Washington 1836) [hereinafter Debates] (recounting James Iredell’s concerns about foreign bribery of presidents).
- See Brian C. Kalt, Presidential Impeachment and Removal: From the Two-Party System to the Two-Reality System, 27 Geo. Mason L. Rev. 1, 4–5 (2019) (noting Framers’ intention to use impeachment to combat “abusive pardons, perfidious treaties, [and] improper emoluments”); cf. Zephyr Teachout, The Anti-Corruption Principle, 94 Cornell L. Rev. 341 (2009) (highlighting the Framers’ anti-corruption designs).
- This is not to say that there was no discussion of war powers or tyranny when talking about impeachment. There were, but they did not amount to anything. See, e.g., 2 Records, supranote 5, at 67 (comments of Edmund Randolph) (promoting impeachment as a remedy for presidents who abuse their powers during wartime, but not speaking of presidents usurping Congress’s authority); id. at 65–66 (comments of James Madison) (referring to “oppression” in passing); 4 Debates, supra note 10, at 33 (comments of Joseph Taylor) (speaking of “tyranny and oppression” but not in the context of the presidency); id. at 127 (comments of James Iredell) (discussing presidents withholding information from the Senate, but in a fraudulent way rather than in the power-shifting way Schlesinger chronicles). In any case, while the Framers were concerned about presidents overstepping their bounds, they relied on other mechanisms besides impeachment to prevent it.
- See, e.g., 1 Records, supra note 5, at 86 (comments of George Mason); id. at 69 (comments of Gouverneur Morris); id. at 550 (comments of James Madison); see also Schlesinger, supra note 1, at 11. One Framer opined that the Constitution would “so circumscribe” the president’s power that having impeachments would be unnecessary. 2 Records, supra note 5, at 68 (comments of Charles Pin[c]kney).
- See Frank O. Bowman III, High Crimes and Misdemeanors: A History of Impeachment for the Age of Trump 98 (2019).
- See Schlesinger, supra note 1, at 29–33.
- See id. at 28–29, 33. See generally Gerard N. Magliocca, Veto! The Jacksonian Revolution in Constitutional Law, 78 Neb. L. Rev. 205 (1999) (considering Jackson’s innovative use of the veto power as an instrument of constitutional change).
- See Cong. Research Serv., R45087, Resolutions to Censure the President: Procedure and History5–6 (2019), https://perma.cc/HP83-T5Y8.
- 10 Reg. Deb. 1317 (1834) (reproducing Jackson’s “Protest” to the Senate). Jackson also defended himself on the merits, asserting his prerogative to use his removal and appointment powers to effectuate his policy aims.
- Id. at 1320.
- See Cong. Research Serv., supra note 17, at 6.
- See Schlesinger, supra note 1, at 33.
- Three presidents since Jackson have been the subject of condemnatory one-house resolutions, among numerous other attempts. See Cong. Research Serv., supra note 17. None of the three actions used the word “censure,” but neither had Jackson’s. Id. at 5. Notwithstanding Jackson’s and Schlesinger’s dim views, censure remains as an option for chastening presidents—for whatever a non-binding resolution is worth. See Michael J. Gerhardt, The Constitutionality of Censure, 33 U. Rich. L. Rev. 33 (1999).
- See Michael F. Holt, The Rise and Fall of the American Whig Party: Jacksonian Politics and the Onset of the Civil War 17, 23–28 (1999).
- See Schlesinger, supra note 1, at 29–30; Kalt, supra note 11, at 2–10.
- See Kalt, supra note 11, at 1. To be precise, Ford said that an impeachable offense is “whatever a majority of the House of Representatives considers to be at a given moment in history,” and that “conviction results from whatever . . . two-thirds of the [Senate] considers to be sufficiently serious to require removal of the accused from office.” 116 Cong. Rec. 11,913 (1970).
- See Kalt, supranote 11, at 2.
- See id. at 1–2.
- See Party Division, U.S. Senate, https://perma.cc/VDR6-Y7RH.
- Act of Mar. 2, 1867, ch. 154, § 6, 14 Stat. 430, 431.
- See Bowman, supra note 14, at 169–70.
- See David O. Stewart, Impeached: The Trial of President Andrew Johnson and the Fight for Lincoln’s Legacy 186–87 (2009).
- See generally Michael Les Benedict, The Impeachment and Trial of Andrew Johnson 6–25 (1973).
- See Schlesinger, supra note 1, at 73.
- See Stewart, supra note 31, at 69. This extreme imbalance between White House and Senate only happened because of Johnson’s unusual status (a Democratic vice president elected on a unity ticket with a Republican president) coupled with America’s first presidential assassination.
- See Schlesinger, supra note 1, at 58–93.
- Cf. id. at 75 (“Johnson’s acquittal made it more certain than ever that impeachment could be used against Presidents only in the case of major offenses.”).
- See Emily Field Van Tassel & Paul Finkelman, Impeachable Offenses: A Documentary History from 1787 to the Present 259–60 (1999).
- See Kalt, supra note 11, at 14–15.
- See id.
- See Van Tassel & Finkelman, supra note 37, at 259.
- 120 Cong. Rec. 29,296 (1974) (Rep. Conyers).
- See Schlesinger, supra note 1, at 235–46.
- See id. at 220–22.
- See Schlesinger II, supra note 4, at 422–23.
- See id. at 435–36; see also Arthur Schlesinger, Jr., The Imperial Presidency xvii–xxi (3d ed. 2004) (describing post-9/11 imperialization of the presidency).
- See Drew DeSilver, The Polarized Congress of Today Has Its Roots in the 1970s, Pew Res. Ctr. (June 12, 2014), https://perma.cc/6HMJ-P3PD.
- See Kalt, supra note 11, at 16.
- See DeSilver, supra note 46.
- See Kalt, supra note 11, at 18–26.
- See, e.g., 145 Cong. Rec. 2390 (1999) (Sen. Conrad); id. at 2395–97 (1999) (Sen. Biden); id. at 2425 (Kerrey); 166 id. at S834 (2020) (Sen. Perdue); id. at S882 (Sen. Sasse); id. at S898 (Sen. Scott).
- See, e.g., id. at S844–45 (Sen. Portman); id. at S932 (Sen. Cotton).
- Schlesinger noted the fifty-year periods separating the corruption scandals of Presidents Grant, Harding, and Nixon, and wrote: “Around the year 2023 the American people would be well advised to go on the alert and start nailing down everything in sight.” Schlesinger, supranote 1, at 418.
- See H.R. Res. 755, 116th Cong. (2019).
- Schlesinger, supra note 1, at 417.
- See generally Daniel P. Gitterman, Calling the Shots: The President, Executive Orders, and Public Policy (2017).
- 4 Debates, supra note 10, at 32.