A Constitutional Amendment about Impeachment

[StateBoiler]

There should seriously be talk about one.

For the sake of trying to keep the discussion on this bipartisan let's state up front the earliest said proposed amendment could take effect is Inauguration Day 2025.

I listened to a good podcast the past 2 weeks from Lawfare talking about how the Senate is really not the place to hold a trial because they all take an oath to be impartial jurors when that's not something Senators ever do for anything else the rest of their time in office: they always have a partisan affiliation behind them that colors their thinking on everything. Also, when the Constitution was written, the Senate was not popularly elected, they were appointed by state legislatures. That meant, as designed, the Senate could make a decision to replace the executive or not without having to worry about the whims of the public or making the public angry at their decision. This changed with a constitutional amendment (17th) in 1913. If Senators were popularly elected, I don't think it's a stretch to suggest Andrew Johnson almost certainly would've been convicted of impeachment at the time on what historians agree are inflated charges.

I've now followed and lived through 2 of the 3 times where the House impeached a president and the process has incredible flaws. There's also how every president Reagan onwards - a 40-year-long period - has had impeachment talk raised. Whether warranted or not, we've created a situation where if the House is held by the party opposite the White House, they could just do a party-line vote and poof, president's impeached, because all you need is a simple majority. I'm just looking into the future with the current state of partisanship in our country, I don't want to be dealing with impeachment talk crap for every single president.

The best thing I can come up with toward reform is this:

-Remove the Senate from being the jurors. The jurors in this instance become the U.S. Supreme Court and for conviction of impeachment requires two-thirds of the justices to vote in favor, or 6 out of a full bench of 9.

-Increase the House of Representatives' threshold for an article of impeachment from a simple majority to three-fifths (so if the Chamber is full and everyone votes, from 218 votes out of 435 to 261). This is to get rid of impeachment articles being realistically approved unless they have at least some support from members of both parties.

-I can support an article of impeachment that comes from either body being referred to the Supreme Court, so the context would be to make the House and Senate equal bodies in reference to this process. The magic number for the Senate threshold then would be 60. Not sure if you want to require three-fifths from both bodies, because then you run into what happened in Trump's impeachment where for the 1st time of the 4 (including Nixon's), you had separated control of Congress. All previous 3 instances both houses of Congress were controlled by the same party which was opposite the president. I think just keeping it at one house, then it goes to the Supreme Court is the best way to not have to deal with legislative body haggling with one another in what should be a serious thing.

-This would apply for all impeachments, which are mostly for judges than they are elected officials.

Now in practice, I don't believe Congress would ever approve this reduction in power. But that's why we have the Article V Convention process.

Other methods I thought of that I'm not in favor of but you could at least argue:

-Congress approves and some kind of public recall election is setup (a la Gray Davis' removal in California), would be a simple yes/no vote, majority wins

[brucejoel99]

By design, impeachment is a political process, & not a judicial process. Most democracies have some political mechanism to terminate their parliament/administration early. Of course, America is somewhat unique in that we have very defined terms for our government/administration, unlike most parliamentary democracies. This creates a problem, though, if you have a bad actor, etc. Hence the need for some mechanism of removal. This was just the solution which the Founding Fathers came up with when they were working all of this out 200+ years ago. It's meant to be a political process, but it has to be for "high crimes & misdemeanors" (i.e. actions not befitting the office, just to be clear) because they didn't want the legislative body to overthrow the government just whenever it was politically convenient. That's also why there's already a two-thirds supermajority requirement for removal from office: precisely because the Founding Fathers didn't want to make it easy. But, by design, there can't be a wrongful impeachment & removal.

Whether that's a good design or not is debatable, but that's the full intent, & in my opinion, it's an important check on judicial and executive power by the Congress.

[StateBoiler]

By design, impeachment is a political process, & not a judicial process. Most democracies have some political mechanism to terminate their parliament/administration early. Of course, America is somewhat unique in that we have very defined terms for our government/administration, unlike most parliamentary democracies. This creates a problem, though, if you have a bad actor, etc. Hence the need for some mechanism of removal. This was just the solution which the Founding Fathers came up with when they were working all of this out 200+ years ago. It's meant to be a political process, but it has to be for "high crimes & misdemeanors" (i.e. actions not befitting the office, just to be clear) because they didn't want the legislative body to overthrow the government just whenever it was politically convenient. That's also why there's already a two-thirds supermajority requirement for removal from office: precisely because the Founding Fathers didn't want to make it easy. But, by design, there can't be a wrongful impeachment & removal.

Whether that's a good design or not is debatable, but that's the full intent, & in my opinion, it's an important check on judicial and executive power by the Congress.

By design, impeachment is a political process, but how many times does it need to be demonstrated our politicians are not up to the task the Constitution calls them for in such a process? I'm not just talking the actual impeachments but all the attempted ones or calls for ones as well.

I'm all for Congress regaining its power because since the Roosevelt presidency it has steadily gotten weaker, but of all the politically-motivated impeachments on the record - from Samuel Chase to John Tyler to Andrew Johnson and on to Bill Clinton and Donald Trump - there's a grand total of one where the individuals involved were virtuous and Congress could be proud of themselves as a collective body (Nixon).

[StateBoiler]

For the record, I was unaware of Sen. Rick Scott's bill for a constitutional amendment proposal to raise the impeachment threshold of the House from simple majority to three-fifths as I state when I wrote my original post.

[MarkD]

In Missouri, my original home, the process of impeachment does indeed move from the legislative branch, after an impeachment vote is held, to the state Supreme Court where the trial is held and the determination is made whether to convict (remove from office). In 1994-1995 we had an impeachment process unfold in which the Secretary of State was accused of abusing the power of her office to help her son become a candidate for the state legislature and she was removed by the Supreme Court.

I do like the sound of your proposal. One thumb up from me.