The Uses and Abuses of Presidential Impeachment

58 Pages Posted: 9 Oct 2019 Last revised: 3 Feb 2020

See all articles by Tom Ginsburg

Tom Ginsburg

University of Chicago Law School

Aziz Z. Huq

University of Chicago - Law School

David Landau

Florida State University - College of Law

Date Written: January 29, 2020

Abstract

Impeachment is again a central preoccupation of United States constitutional law and politics. This article casts new light on this debate by examining the law and practice of presidential impeachment globally. It draws first on case studies from countries such as South Korea, Paraguay, Brazil, and South Africa, and then large-n empirical analysis of constitutional texts. Contrary to current American practice, it shows, impeachment is not primarily about removing criminals or similar “bad actors” from the presidency. Instead, it is a tool to exit deep political crises. At its best, impeachment enables a ‘hard reset’ of the political system by triggering new elections. This systemic, rather than individualistic, conceptualization of impeachment is normatively desirable. It ameliorates the rigidity that sometimes characterizes presidential systems, and as we show has no negative impact on the quality of democracy. This comparative analysis has significant implications for the design and practice of impeachment, especially in the United States. In particular, it supports a broader, more political gloss on the famously cryptic phrase “high crimes and misdemeanors.” It also implies that impeachment standards should vary for different kinds of actors such as presidents, judges, and cabinet members, rather than being uniform. Finally it shows how impeachment’s integrity, contra current case-law, can be materially aided by judicial involvement.

Keywords: impeachment, comparative constitutional design, executive power

JEL Classification: K1

Suggested Citation

Ginsburg, Tom and Huq, Aziz Z. and Landau, David, The Uses and Abuses of Presidential Impeachment (January 29, 2020). U of Chicago, Public Law Working Paper No. 731. Available at SSRN: https://ssrn.com/abstract=3461120 or http://dx.doi.org/10.2139/ssrn.3461120

Tom Ginsburg (Contact Author)

University of Chicago Law School ( email )

1111 E. 60th St.
Chicago, IL 60637
United States

Aziz Z. Huq

University of Chicago - Law School ( email )

1111 E. 60th St.
Chicago, IL 60637
United States

David Landau

Florida State University - College of Law ( email )

425 W. Jefferson Street
Tallahassee, FL 32306
United States

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