Rudy Giuliani has an op-ed in the Daily Caller today. In it, he argues that the Supreme Court should step in and declare the ongoing impeachment of President Trump unconstitutional. He begins with the familiar criticism that “abuse of power” and “obstruction of Congress” do not amount to the “Treason, Bribery, or other high Crimes and Misdemeanors” prescribed as the criteria to which impeachable offenses must conform.
Mr. Giuliani does not stop here. He proceeds to cite Marbury v. Madison (1803) for the proposition that the Supreme Court should declare the impeachment of President Trump unconstitutional, and that judicial review warrants such a declaration:
“The reasoning of Marbury v. Madison certainly supports the court having the power to declare an impeachment as unconstitutional if it is an overreach of the carefully balanced separation of powers.”
Mr. Giuliani’s statement is inaccurate, and demonstrates that he (1) does not understand the separation of powers; (2) does not know (or care) about precedent; or (3) does not understand the separation of powers and does not know or care about precedent.
The Supreme Court has refused to interfere with impeachment proceedings for fear of violating the “carefully balanced separation of powers” that Mr. Giuliani claims to value. See Nixon v. United States. Nixon is a landmark case, commonly discussed in conjunction with the political question doctrine. Mr. Giuliani is certainly aware of these fundamental tenets of Constitutional Law, and the fact that his ignores them is disturbing.
He eagerly cites Article II’s “High Crimes” language. Curiously, he declines to cite the Constitution’s explicit commitment of impeachment to the House and the power to try impeachments to the Senate in Article I. These explicit textual commitments formed the basis for the Supreme Court’s ruling in Nixon, that questions of impeachment are unfit for judicial review. The Supreme Court has been properly deferential to Congress in these matters.
Giuliani’s failure to acknowledge these fundamental textual commitments is especially interesting given his paean to the separation of powers, and the dangers in violating this structural foundation.
If the Supreme Court were to step in and declare this impeachment unconstitutional as suggested, it could effectively give the Court oversight in impeachment proceedings. This is dangerous because impeachment is one of the only constitutional checks on life tenure granted to the justices. Further, if the Court were to grant Mr. Giuliani’s wishes, it would infringe on powers textually committed to the Legislative Branch as mentioned above.
The Constitution grants the power of impeachment to the House and Senate jointly, and the Supreme Court has duly acknowledged this fact.
Mr. Giuliani would do well to follow suit.
Expounding the Constitution 