If an impeachment for something clearly not a ‘high crime or misdemeanor’ were to go though for example for increasing tariffs, would the Supreme Court have the power to overturn their judgement?

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    "something clearly not a ‘high crime or misdemeanor’ " what would that be? --> "High crimes and misdemeanors,” however, is an undefined and indefinite phrase, which, in England, had comprehended conduct not constituting indictable offenses." law.cornell.edu/constitution-conan/article-2/section-4/… Commented Jan 9, 2021 at 7:06
  • See also reuters.com/article/us-usa-trump-whistleblower-crimes-explai/… "According to several constitutional lawyers, “high crimes and misdemeanors” is a purposefully vague term and can be defined by members of Congress." Commented Jan 9, 2021 at 7:12
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    @TheMamba It's hard to assert "no one would think it qualifies" while also asserting "the House impeaches them and the Senate convicts them". That's a few hundred people, who collectively answer to millions for their jobs, who apparently think it qualifies right off the bat. And under the sort of interpretation Fizz points out, "high crimes and misdemeanors" can encompass any action which might stain the appearance of good governance, and if Congress decides $500 of misappropriated funds has done that then it qualifies. Commented Jan 9, 2021 at 7:22
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    @TheMamba I think the only place where you're going to find where the courts wouldn't just bow out and let Congress do whatever it does is on something that grossly violates a constitutional protection. If, for example, the impeachment was specifically and expressly done for the reason "The President is a Muslim", then now we've got a constitutional crisis because the courts probably would want to step in to address a violation of the first amendment, but yet would also not want to for the reasons in my answer. But Congress would have to be really dumb, or goading the judiciary, to do that. Commented Jan 9, 2021 at 7:31
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    The language has changed since the Constitution was written. Misdemeanor mean bad behavior in general, not as today, a minor crime like a traffic offense. So an official could be impeached for something that was not actually a crime, like frequently being too drunk to perform the duties of his office.
    – jamesqf
    Commented Jan 9, 2021 at 18:45

2 Answers 2


Unknown, but unlikely

The constitution uses the word "sole" in only two places:

  1. The House shall have the sole Power of Impeachment;
  2. The Senate shall have the sole power to try all impeachments.

There are very few impeachment related judicial precedents, but the decision in Nixon vs. US (this is a Judge Nixon, not the former President) indicated that the use of the word "sole" is exceptionally important, in part because this is the only place it is used in the Constitution, and that the courts really should not get involved in impeachment matters.

Most of the constitution is about building up a system of checks and balances, where a power in one branch is balanced by checks/powers in another. But only in impeachment, which can be applied to both the Executive and Judicial branches, does the constitution seem to single out that there is no corresponding ability for those branches to "check" the power (in large part because this power is itself a check on those branches). Part of the dicta (aka non-binding ramblings) of a concurrence in the aforementioned decision suggested that maybe they could get involved in really extreme cases, namely when the trial doesn't even remotely resemble a trial. While it's not specified, my impression is that this Justice was thinking of an inquisitorial, banana-republic show trial, sort of thing; not a questionable political move or let's-argue-by-dictionary type of problem. The Judiciary has long established that they will presume the other branches are acting in good faith unless there's clear evidence to the contrary, and clear legal power for them to consider it.

Any judicial involvement would immediately run afoul of the Senate's grant of the "sole power to try all impeachments", as now any court getting involved and attempting to change things would be asserting that it, too, has power and jurisdiction over impeachments, and that it can change the Senate's results or order the Senate to change its procedures (and then redo the whole thing). And that opens up a whole can of worms of how Congress is supposed to be able to use impeachment as a check on the Judiciary when the Judiciary can just step in and reverse things. While one can never confidently assert what a hypothetical SCOTUS might rule in a hypothetical situation, frankly your hypothetical doesn't seem to come even remotely close to warranting judicial involvement.

I think the only place where we might expect the courts wouldn't necessarily just bow out and let Congress do whatever it does is on something that grossly violates a constitutional protection. If, for example, the impeachment was specifically and expressly done for the reason "They're a Muslim"—and I'm not talking a hidden reason, but that it is expressly as such on the most superficial and trusting of readings of the impeachment and trial documents—, then now we've got a potential constitutional crisis. The courts probably would want to step in to address a violation of Article VI Clause 3 (the "No Religious Tests" clause) and possibly the first amendment, but yet may not be able to justify themselves as having the power to do so (or even the power to provide relief for the injury). But Congress would have to be really dumb, or weirdly goading the judiciary, to do that.

  • I guess you mean violation of the 14th (not first) amendment with that hypothetical impeachment for being Muslim. (They're not making a law prohibiting Muslims from professing their faith, but discriminating against one in terms of office/employment.) This is basically how SCOTUS framed women's rights politics.stackexchange.com/a/56773/18373 Commented Jan 9, 2021 at 8:32
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    @Fizz: Nope, the 14th amendment restricts the states, and Congress is not a state. However, there is language in the Constitution which forbids religious tests, and this would (probably) run afoul of that.
    – Kevin
    Commented Jan 9, 2021 at 19:36
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    @Kevin: that would be Article VI, clause 3, then; en.wikipedia.org/wiki/No_Religious_Test_Clause However, by your strict standard, Congress could impeach someone simply because she's a woman! Commented Jan 9, 2021 at 19:44
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    @Fizz Yeah, it would be Article VI that would be violated, not the 1st Amendment. Kevin is right that the 14th doesn't restrict the actions of Congress (or at least the privileges and immunities clause doesn't.) Congress could indeed (theoretically) impeach someone because she's a woman. But good luck getting 1/2 of the House and 2/3 of Senators to do something that would surely end their political careers. The 14th explicitly declined to even grant a right to vote to women, let alone a right to hold federal office. The right for women to vote wasn't granted until the 19th Amendment.
    – reirab
    Commented Jan 9, 2021 at 20:33
  • @reirab and women held federal offices before the 19th took effect.
    – phoog
    Commented Jan 9, 2021 at 22:07

Note that President Johnson was impeached for violating the 1867 Tenure of Office Act The act explicitly declared that any violation would be a "High Misdemeanor" and was obviously designed to be the ocasion of an impeachment. No court at the time challenged the impeachment as unwarranted. However, in the later case Myers v. United States, 272 U.S. 52 (1926) The US Supreme Court found a similar restriction unconstitutional, and gave its opinion that had the 1867 Tenure of Office Act not been repealed (in 1887) it would have been struck down.

It is hard to argue that violating an unconstitutional law is a "High Crime" or "High Misdemeanor".

I think the conclusion must be that "High Crimes and Misdemeanors" include whatever Congress says that they do, possibly short of a direct and explicit violation of constitutional protections. (If a president were impeached for exercising his constitutional powers, as by giving commands to the military, or for exercising a constitutional right, as for practicing a particular religion, perhaps the Court would intervene.)

  • I don't think any individual has a Constitutionally protected "right" to hold the office of President. An individual may be granted such authority, but I don't think revocation of that authority by the Senate, no matter how outrageous the reason, could be a violation of any Constitutionally protected rights, unless the person had a fundamental right (as opposed to a revocable grant of authority) to continue in office.
    – supercat
    Commented Jan 9, 2021 at 21:21
  • @supercat I don't see any assertion of a constitutionally protected right to hold office in this answer. But even if there were one, it would be subject to the constitutionally mandated impeachment process, just as the constitutional right to "one person, one vote" inferred from the equal protection clause is subject to the constitutional provisions for unequal representation of people in congress.
    – phoog
    Commented Jan 9, 2021 at 22:11
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    @supercat The unconstitutional aspect of the tenure of office act was not that it declared violations to be impeachable but that it created an unconstitutional process for dismissing senate-confirmed presidential appointees from their offices.
    – phoog
    Commented Jan 9, 2021 at 22:14

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