Federalist Papers: Impeachment Is a Critical Check

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What is the view of the Federalist Papers on impeachment? Who has the power to impeach? How is the power of impeachment discussed in The Federalist Papers?

Federalist 66 is all about the power of impeachment. In The Federalist Papers, impeachment is identified as an important check on power.

Read more about The Federalist Papers and impeachment, including Federalist 66.

The Power of Impeachment in The Federalist Papers

Who has the power to impeach? The House would also have the sole authority, with a simple majority vote, to impeach members of the executive branch, including the president, for high crimes and misdemeanors.

This was a crucial check on executive power according to Federalist 66. The House would not, however, have the authority to convict officials and remove them from office. That power rested solely with the Senate, which we’ll explore later in the chapter.

Who Has the Power to Impeach and Remove?

In The Federalist Papers, impeachment is the first step. The Senate has the sole authority to convict members of the executive (including the President) for high crimes and misdemeanors by a two-thirds vote, following impeachment in the House. This high threshold for conviction made it highly unlikely that a President would be removed from office for purely partisan reasons. Only those who had committed truly heinous offenses would be convicted.

(Shortform note: This has indeed proven to be a high bar. Although three presidents have been impeached by the House as of 2020—Andrew Johnson, Bill Clinton, and Donald Trump—none has been convicted in the Senate. Richard Nixon likely would have been both impeached and convicted had he not resigned from office in 1974 amid the Watergate scandal.)

The Senate was the best place to house this crucial function. The Supreme Court was too weak, too distant from the people, and too small in numbers to have the legitimacy to remove high-ranking officials. The members of the Supreme Court would also have been nominated to their office by the president, and thus might be too biased in favor of the executive branch to behave impartially.  It would be unjust and contrary to basic principles of the rule of law to give the House the power to both charge and convict an official. 

Impeachment of Judges

In The Federalist Papers, impeachment isn’t just for the President. Judges were to serve for life, provided that they maintained “good behavior” on the bench. Absent any egregious offenses like soliciting bribes, which would violate the Good Behavior Clause, judicial appointments would be permanent.

(Shortform note: Impeachment by Congress of federal judges has proven exceedingly rare. As of 2020, only 15 judges—and zero Supreme Court justices—have been impeached, most of them on charges related to bribery and making false statements.)

Pardons of Impeachment and The Federalist Papers

The Federalist Papers, impeachment pardons and their limitations are also discussed. The presidential pardon power was likewise, constrained by the Constitution. Importantly, the president could not issue pardons in cases of impeachment. This meant that he would not be able to inoculate his co-conspirators in high crimes and misdemeanors for which they had been duly punished by Congress. But it was nevertheless important to vest the pardon power in the executive branch. The legislative branch, composed of representatives of many parties and factions, would be less able to use the pardon power fairly, especially in situations of national insurrection. A single, more sober-minded executive would be able to wield their pardons more justly, wisely, and effectively. 

Checks and Balances

For example, the British constitution (at the time regarded as the world’s finest) gave the monarch (the executive) the power to veto laws passed by Parliament (the legislative branch).

Similarly, the various state constitutions blended the powers to one degree or another. Some states had the legislature appoint the executive cabinet, and even the chief executive himself. Others allowed the legislature to impeach members of both the executive and judicial branches. In other states, the executive branch had sole authority for appointing members of the judiciary.

Simply declaring on paper that the three branches ought to be separate was a totally insufficient way to guarantee this end. And instead of striving for complete separation of powers (which was an impossibility), it was far more important to imbue the Constitution with the principle of checks and balances. 

One of the primary objections to the Constitution was that it contained no bill of rights. The Federalist Papers, however, argued that a Bill of Rights was entirely unnecessary. The Constitution already guaranteed the liberties that such a bill could plausibly contain a guarantee that impeachment could only result in removal from office.

Federalist Papers: Impeachment Is a Critical Check

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Rina Shah

An avid reader for as long as she can remember, Rina’s love for books began with The Boxcar Children. Her penchant for always having a book nearby has never faded, though her reading tastes have since evolved. Rina reads around 100 books every year, with a fairly even split between fiction and non-fiction. Her favorite genres are memoirs, public health, and locked room mysteries. As an attorney, Rina can’t help analyzing and deconstructing arguments in any book she reads.

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