A Note On Why The Senate’s Jurisdiction Is Not Discretionary

So Ted Cruz voted on Tuesday to dismiss the impeachment case against Trump for lack of jurisdiction, but apparently he says that he absolutely believes that former presidents can be impeached. It’s just that, well, he thinks the Senate’s impeachment jurisdiction is always discretionary!

It’s kind of beautiful in its own way, the absolute craven nihilistic embrace of hypocrisy of it all. It reminds me a lot of where they ended up on the justification for Merrick Garland once they had to confirm Amy Coney Barrett last October. No pretense to principle, just “we get to do what we want.” I should probably remember it for when I maybe eventually write a book about all of that (among other stuff).

It’s also very wrong. And while I really shouldn’t dignify it like this, I also can’t resist, and the issues here actually involve kind of interesting ways of thinking about constitutional issues, so here’s why it’s wrong.

First, a note on what he means. A court’s jurisdiction can be either mandatory or discretionary. This is about whether the court is required to take a case that someone wants to bring before it. The Supreme Court’s jurisdiction, for the most part, is famously discretionary. You can’t just appeal a case to the Supreme Court: you petition for a “writ of certiorari,” and the Court only takes the case if four Justices vote to grant that writ. The federal courts of appeals, on the other hand, have mandatory jurisdiction. If you want to appeal your case up from the district court, you can do that! The appellate court cannot refuse to hear your case, unless it finds that it somehow lacks jurisdiction. And of course the district courts themselves, the trial courts, cannot refuse to hear a case properly brought before them, whether a civil suit or a criminal prosecution.

So what Cruz is saying that, although there wouldn’t have been anything unlawful or unconstitutional about putting Trump on trial after he’s left office, the Senate can always just refuse to hear an impeachment that the House has brought. And because this impeachment is politically motivated, he says, they should decline to hear it. This does convenient work reconciling the needs of this moment with the fact that a bunch of Republicans used to talk about how they should impeach Barack Obama in, say, 2019.

He has, as I understand it, exactly one legal argument for his position, and it’s not immediately absurd. Article I, Section 3 says the Senate has the “sole Power to try all Impeachments.” He seizes on the word “power,” arguing that it does not imply a duty to try impeachments. If the power belongs solely to the Senate, then surely so does the judgment of how to use it, and indeed of whether to use it.

This is analogous to some arguments that are actually correct! For example, Article II says that the president “shall have Power to grant Reprieves and Pardons for Offenses against the United States,” and “shall have Power … to make Treaties.” But no one would contend that the president must issue so much as a single pardon, or make any treaties! Conversely, it says that the president “shall nominate” various public officials, and there’s an argument that this does impose an obligation: the president can’t just not bother to make appointments to fill the positions Congress has created! A bunch of the students in my section when I was TA’ing an undergraduate con law course in the spring of 2016, when Justice Scalia died, made that argument on an exam; I had never thought of it before and was quite impressed.

So the idea that “power” implies discretion makes sense. And it’s very true in this case! The Senate’s “sole” power implies, the Supreme Court has held, that no one else, certainly not the courts of law, can second-guess how the Senate chooses to conduct impeachment trials.

But this doesn’t mean that the Senate’s jurisdiction is discretionary. And the reason, I think, is that the impeachment process involves two conjoined powers. The “sole Power of Impeachment” as such belongs to the House of Representatives, not the Senate. That means that the decision whether or not to bring impeachment charges, whether there should be an impeachment trial in the first place, belongs to the House! Giving the Senate an arbitrary discretion to decline jurisdiction altogether would let it nullify the House’s own discretion to prosecute. Note that giving the Senate arbitrary discretion over trial procedures does not in any way nullify the House’s role.

Also note the disanalogy with those provisions in Article II. There’s no linked power there, no one else who gets to say “I think maybe we should make a treaty here” whose constitutionally-confirmed discretion the president would be negating by just saying “nah.” It’s the unique structure of impeachment, analogous to the structure of a criminal prosecution, with the separate steps of charging and then trial: the first step is nothing but the decision whether to have the second step at all, and so it would be contradictory if the body charged with conducting step two could just go back and re-examine step one. Of course the Senate can frustrate the House’s ultimate goal of removing the president by refusing to convict; that’s the whole point of the two-step process. But it should not be able to nullify the House’s decision to impeach in the first place.

Brief post-script:

Now probably the Senate is allowed to dismiss impeachment charges before trial. This is analogous to how a criminal court cannot second-guess the prosecution’s charging decision but it can dismiss if the case is insufficient. And there’s a long practice of people making motions to dismiss at the outset of these trials, though not to my knowledge so much as a single case where one was granted. I’m kind of uncomfortable with the practice, which the text certainly doesn’t seem to envision. But I can’t really gainsay dismissing for lack of jurisdiction, if that could ever realistically apply here. And I might be on board with dismissing for what lawyers call “failure to state a claim upon which relief can be granted.” In other words, if (a majority of) the Senate believes that even if the House does conclusively prove every factual allegation in the articles of impeachment, it would not rise to the level of an impeachable offense, then maybe it’s fair to dismiss up front.

What I’m not comfortable with would be dismissing at the beginning of the case on the facts. This is a thing that happens in criminal court: the standard for indictment is generally probable cause, and the defendant can ask the court to inspect the prosecution’s evidence at the outset and dismiss if, in the judge’s view, they don’t actually meet that standard. The Senate should not do that. Again, the question of what merits impeachment as distinct from conviction belongs solely to the House. The Senate can say, when all is said and done, that the House failed to prove its case. But it should not say at the outset that the House’s evidence isn’t good enough, without giving the House an opportunity to put on their case. That’s what the trial is for.