Bench Memos

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The Perennial Publius, part 66


In his second essay on the Senate’s power to try impeachments (and the last of all on the Senate itself), Alexander Hamilton turns aside several objections to the power in Federalist No. 66.  Each of them is a variation on a basic concern of the separation of powers–that one branch of government not be permitted to become too powerful, aggrandizing itself at the expense of the others and threatening the balance of the Constitution.

Does making the Senate an impeachment court produce an improper mixing of legislative and judicial powers?  No, says Hamilton; like the presidential veto, it is “a partial intermixture” of these powers “for special purposes,” namely the self-defense of the branch in question.  Impeachment is a power of the two houses of Congress to defend the legislative authority against the encroachments of the executive and judicial powers, and the quasi-judicial character of the process mimics but does not invade the business of the judiciary.

Will the Senate’s role here make it more important and powerful than the House?  It isn’t obvious how that can happen when the House has “the sole right of instituting impeachments: Is not this a complete counterballance to that of determining them?”  Yet the power is to be used against officials in the other branches whose appointments have been approved by the senators.  “It is imagined that they would be too indulgent judges of the conduct of men, in whose official creation they had participated.”  But look, Hamilton says, at “the nature of the agency of the senate, in the business of appointments,” which will make the appointees anything but the Senate’s creatures:

It will be the office of the president to nominate, and with the advice and consent of the senate to appoint.  There will of course be no exertion of choice on the part of the senate.  They may defeat one choice of the executive, and oblige him to make another; but they cannot themselves choose–they can only ratify or reject the choice, he may have made.

What was that Hamilton said in the previous essay, about leaving a discussion of the appointment power to await the essays to come on the presidency?  Never mind; it came up.  Like a blogger (only better than any blogger yet living), Publius is writing in a hurry on a virtually daily basis, and the argument will go where it must.

In a final argument here, Hamilton answers an objection that senators might act corruptly in the exercise of the treaty power (in collusion with the executive), and then how can the Senate be expected to sit in judgment of its own?  Hamilton’s answer is a good one that I won’t rehearse here.  But it also constitutes one of only two places in the Federalist I have encountered where Publius (both times Hamilton) plainly misinterprets the Constitution.  For his reply to this objection wrongly assumes that senators can be impeached at all.  But the proper expedient for a corrupt senator is expulsion by his colleagues, not impeachment by the House and a trial by the Senate.  The senators themselves were to figure this out in 1799 when the House’s impeachment of Senator William Blount of Tennessee, and the Senate’s trial of him, led to the conclusion that members of Congress are not subject to this process at all.  Talk about “never mind”!

(For explanation of this recurring feature, see here.)


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