Just five GOP senators vote Trump impeachment trial is constitutional

As I understand the US supreme court, they rule on the constitutionality of issues. Therefore it seems like the question of whether Trump's 2nd impeachment is constitutional is something they should be deciding. Why is the US Senate voting on it instead?

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    Before anyone gets any ideas about how this is a push question, Just five GOP senators vote Trump impeachment trial is constitutional is the title of the linked article, and if anyone is aware of a better source feel free to change the link in the question.
    – Allure
    Commented Jan 26, 2021 at 22:21
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    Notably the vote was over a point of order against proceeding with the trial raised by Sen. Rand Paul; the rationale for the objection was the constitutionality of the proceedings, but the practical issue at hand was process (and politics). Commented Jan 26, 2021 at 22:44
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    Does this answer your question? Can the Supreme Court overturn an impeachment?
    – divibisan
    Commented Jan 26, 2021 at 22:44
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    @divibisan no, and I have no idea how that question is related to this question (other than it uses the same words like "supreme court" & "impeach").
    – Allure
    Commented Jan 26, 2021 at 22:46
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    @Allure Whether convicting a former president is constitutional. Commented Jan 27, 2021 at 16:15

7 Answers 7


Because the US Supreme Court does not have the authority to rule on whether an impeachment is constitutional. That power lies solely with the US Senate, as part Article I, Section 3 of the US Constitution:

The Senate shall have the sole Power to try all Impeachments.

It is worth remembering that the President is not the only position that is subject to impeachment. Congress has, in the past, impeached and convicted members of the judiciary for various reasons. If the courts had the ability to rule on whether the impeachment of one of their members was constitutional, that would undermine one of the checks and balances in the constitution.

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    It depends on which aspect of impeachment you are talking about. The courts probably can't rule on things like what are impeachable offenses or what are the procedures of an impeachment trial, as those are not specified in the Constitution. But there are some things that are specified in the Constitution, e.g. it takes 2/3 of the Senate to convict, so if a Senate passed a rule that says it can convict on a majority and does so without a 2/3 majority, courts can probably rule that the conviction didn't happen.
    – user102008
    Commented Jan 27, 2021 at 18:20
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    In another question, it was generally agreed that someone who hasn't held federal office probably can't be impeached, as the Constitution specifies that "The President, Vice President and all civil Officers of the United States" can be impeached (though there is some debate as it's not clear if that's an exclusive list). The courts can probably rule that a conviction didn't happen if someone who hasn't held federal office were impeached and convicted. It's plausible that they can also rule on whether a former officer holder can be convicted.
    – user102008
    Commented Jan 27, 2021 at 18:23
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    The power to try an impeachment is not the same thing as the power to determine whether or not one is constitutional.
    – reirab
    Commented Jan 27, 2021 at 21:19
  • Comments are not for extended discussion; this conversation has been moved to chat.
    – JJJ
    Commented Jan 28, 2021 at 20:34
  • @reirab True, but I'll just note that the three branches of the US government - judicial, executive, and legislative - are decidedly not equal despite all trite aphorisms to the contrary. Only the legislative branch can raise taxes and appropriate spending. Only the legislative branch can remove members of the other branches from office. Neither the judicial or executive branches can remove Senators or House members from office. IMO the US House and Senate have largely abdicated their roles in overseeing the executive and judicial branches, however.
    – Just Me
    Commented Jan 28, 2021 at 20:44

@divibisan but this question isn't about reviewing impeachments. It's about whether impeaching a former president is constitutional.

@divibisan I do not understand your question. OP asks why it is the Senate voting on the question as opposed to the Supreme Court.

The supreme court never rules on the constitutionality of anything unless that question has a bearing on a case that has been brought before it. Nobody has sued anyone on any question that turns on the constitutionality of this impeachment, so the supreme court can't rule on its constitutionality. Furthermore, nobody is likely to sue, because it is in principle not possible to bring a suit unless the person bringing the suit has been harmed.

Furthermore, if such a question did come before the court, it's likely that it would determine that only the house and senate can make this determination, as described in Joe C's answer.

Part of the senate's sole power to try impeachments is the power to dismiss an impeachment as moot because the impeached party has left office (or for any other reason) or as unconstitutional (for any reason). The idea that the supreme court is the only body that can decide something is unconstitutional is incorrect. The executive can decide all by itself not to enforce a law because it believes the law to be unconstitutional, and the senate can decide all by itself that an impeachment is unconstitutional. Similarly, if the senate finds that a bill passed by the house is unconstitutional, the senate can refrain from acting on the bill for that reason.

If the supreme court is supposed to rule on this, how come after Rand Paul objected, the Senate didn't refer the question to the supreme court?

The supreme court does not issue advisory rulings. The senate cannot refer the matter to the supreme court.

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    I think the only person with standing to challenge the constitutionally of impeaching Trump after he's left office is Trump himself. He also may not be able to challenge it in court until he's actually negatively affected by it, like if a state government refuses to add his name to a presidential primary ballot because he's been disqualified after being convicted by the Senate.
    – Ross Ridge
    Commented Jan 27, 2021 at 18:52
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    Nobody is likely to sue...unless Trump is convicted and barred from holding future federal office, in which case he (or his campaign) is very likely to sue in order to gain access to ballots for the 2024 GOP primaries and/or general elections.
    – Kevin Troy
    Commented Jan 27, 2021 at 19:42
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    @RossRidge It's likely that he would lose his presidential pension if convicted, which would give him standing. Commented Jan 27, 2021 at 21:44
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    The Senate can decide that an impeachment is unconstitutional and choose not to pursue it, but that doesn't mean that the Supreme Court can't strike one down as unconstitutional if the Senate does decide to pursue it. If the Senate did indeed choose to convict, then I'd expect that a lawsuit would indeed be filed to overturn it as unconstitutional.
    – reirab
    Commented Jan 27, 2021 at 21:44
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    @reirab Well this is Trump we're talking about, of course he'd file a suit. He'll claim that every liberal is just a lizardman in disguise, and that the actual constitution, which is being hidden from us by radical leftist lizard-hippies, specifically states he's the Super President for all eternity, if he thinks it'll get him some attention and cheers. Commented Jan 28, 2021 at 20:57

As I said in a comment and phoog's answer also emphasized, (in the US unlike in some European countries) there's no accepted method by which the legislative body can "pre-inquire" the (supreme) judiciary as to the constitutionality of anything the legislative does. In fact

The United States Supreme Court has determined that the case or controversy requirement found in Article Three of the United States Constitution prohibits United States federal courts from issuing advisory opinions.

Furthermore, there's precedent against any individual Senator (or Representative) suing on behalf of the whole body by arguing their (voting) rights are being diminished. This was reiterated (by a lower court) recently in the lawsuit that Rep. Gohmert brought against the election of Biden:

Because Congressman Gohmert is asserting an injury in his role as a Member of Congress rather than as an individual voter, Raines controls

That refers to (the SCOTUS decision in) Raines v. Byrd.

Thus, there's no way for Rand Paul or any Senator to pass this buck, at this stage, to SCOTUS, even if they wanted to. (If they tried somehow, it's very likely SCOTUS would decline, finding that Paul or any other Senator does not have standing.)

Also of some interest in this case/controversy, although the Chief of SCOTUS normally presides over presidential impeachments, John Roberts has declined to do so for this 2nd impeachment of Trump, because under Roberts' interpretation of the relevant clause

When the President of the United States is tried, the Chief Justice shall preside.

Since it's no longer the case that Trump is president, Roberts concluded he doesn't have to preside. But that's all (someone from) SCOTUS has decided on this matter and can decide until the case progresses through the Senate.

On the other hand, SCOTUS found/decided in Nixon (the judge, not the president) case that the Senate has very wide latitude as to what constitutes an impeachment trial. So it's not entirely clear what they might decide if this case does end up in their lap somehow (with a conviction of Trump).

But the political odds of the Senate voting to convict Trump don't look good, given the votes on that motion of Paul. One interesting bit is that the House managers (i.e. the "prosecution") is planning to argue that the impeachment is constitutional. There's nothing (in theory) that prevents some Senators from changing their mind on that either, except public embarrassment etc.

The House managers are also preparing to make the constitutional argument -- they're led by Rep. Jamie Raskin of Maryland, a former constitutional law professor -- that the Senate can convict a former President, just as it's held trials for other former officials in the past. It's a case that's taken on newfound importance in the wake of the Senate's vote Tuesday that Sen. Rand Paul forced as part of his argument that most of the Republicans think the trial is unconstitutional -- and there simply aren't 17 Republican votes needed for conviction.

Indeed, CNN argues that focusing on the constitutionality issue gives the GOP (Senators) cover from actually having to discuss the evidence against Trump:

Senate Republicans have coalesced in recent days around the argument that the trial is not constitutional, giving them a way to push back on House Democrats' impeachment without condoning Trump's conduct when rioters attacked the Capitol on January 6, breaching the very chamber where the impeachment trial will be held.

  • It's Rand Paul (not Ron) and he wasn't trying to take the case before the Supreme Court, as far as I know. He raised a point of order in the Senate, which is perfectly within his powers as a Senator.
    – reirab
    Commented Jan 27, 2021 at 21:48
  • @reirab: Thank's I've corrected the typo. I know he wasn't trying to do that, but the OP is asking why there's not path to the Supreme Court straight from Senate. Commented Jan 27, 2021 at 23:16

Questions of constitutionality are determined by the Supreme Court, not Congress or the President. Why, then, is the Senate voting on the question? Because Rand Paul wanted to make a point – that's all.

The Senate has no power to rule on whether the impeachment is constitutional. If it passed, Paul's motion would dismiss the case, but it would have no effect on the Constitutionality of the impeachment. What it does do is say that most Republicans don't want to have the trial and are likely going to vote for acquittal.

“If you voted that it was unconstitutional, how in the world would you ever vote to convict somebody for this?” Paul told reporters. “This vote indicates it’s over. The trial is all over.”


As for why the Supreme Court isn't ruling on this: the Supreme Court doesn't simply hand out declarations; there has to be a court case, filed by someone with standing, which gets appealed to them. Further, as addressed in several other questions, the Supreme Court ruled in Nixon vs US that they do not have power to review impeachment: the House has sole power to impeach and the Senate has sole power to convict.

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    Because he's making a political point – that's the whole point! If there was a legitimate constitutional question that Paul wanted to challenge, then, yes, he should have tried to sue so that the Supreme Court could rule on it. But he didn't because there's nothing to argue – all precedent says that it's entirely up to the House and Senate to impeach and convict. Paul's motion was a motion to dismiss the trial (which is within the Senate's power) and a opening for Republicans to state publicly that they would vote to acquit.
    – divibisan
    Commented Jan 26, 2021 at 23:19
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    @Allure: there's no process under the US constitution under which the Senate can do that (solicit the opinion of SCOTUS, merely advisory or otherwise) even if they wanted to. If Trump's impeachment proceeds and probably only if he's convicted, SCOTUS might have a say as they did in the Nixon (judge not president) case. It's also entirely possible SCOTUS may just decline certiorari, i.e. not hear the case at all, in view of precedent. Commented Jan 26, 2021 at 23:35
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    The first sentence is incorrect. The senate is perfectly capable of deciding that it a certain impeachment is unconstitutional.
    – phoog
    Commented Jan 26, 2021 at 23:50
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    @acpilot Technically Trump was impeached while still president. And it’s pretty clear from past precedent that leaving office does not make an impeachment moot. Senators may vote to acquit because of he’s no longer in office or because they think impeachment was a bad idea, that’s their right, but I've never heard an argument against the overall constitutionality of the impeachment
    – divibisan
    Commented Jan 27, 2021 at 0:21
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    Let us continue this discussion in chat.
    – divibisan
    Commented Jan 27, 2021 at 23:00

Here's the simple answer. The Senate can vote on anything it wants, but that doesn't mean the vote settles the issue. The Senate has no authority to determine any constitutional question; only the federal courts can do that with the Supreme Court as the final authority. Rand made the motion solely for political reasons to telegraph the potential outcome of the actual trial. He knows the Senate has no authority to determine constitutional questions.

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    While this is true as a general principle, in this particular case a vote on impeachment is constitutional by definition because the constitution states that they have sole power over impeachment
    – Kevin
    Commented Jan 27, 2021 at 16:24
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    It's true that the Supreme Court is the ultimate authority on constitutional questions, but that does not mean that the Senate doesn't have authority to decide constitutional questions regarding its work that courts have not yet ruled on. Raising a point of order (as Senator Paul did) is exactly what members of Congress are supposed to do when they believe a matter before their house of Congress violates the Constitution, U.S. law, or congressional rules.
    – reirab
    Commented Jan 27, 2021 at 22:03
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    @JBentley Technically yes they could rule on whether or not the Senate has this power, but it would be perhaps the most trivial ruling in history since the Constitution literally says "The House of Representatives shall chuse[sic] their Speaker and other Officers; and shall have the sole Power of Impeachment" and later says of the Senate "The Senate shall have the sole Power to try all Impeachments." That is about as clear as it could possibly be, and any interpretation that denied them that power would be insane
    – Kevin
    Commented Jan 28, 2021 at 19:39
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    @KevinWells Yes, but let's be realistic here. Nobody is disputing the lines you have quoted. The part which is up for dispute is in Article II, Section 4: "The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.". There very much is a non-trivial question as to whether the Senate has the power to try an ex-President, and it is something the Supreme Court can rule on.
    – JBentley
    Commented Jan 28, 2021 at 20:25
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    @KevinWells Or to make the point more generally, it should be clear that the Senate doesn't have the power of impeachment over every citizen on earth. There are limits, notwithstanding the phrase "The Senate shall have the sole Power to try all Impeachments". The simple way of looking at it is to realise that the word "Impeachment" in that sentence has a specific meaning and it has to actually be a [valid] impeachment for the Senate's power to be effective. Whether something is an impeachment can be disputed.
    – JBentley
    Commented Jan 28, 2021 at 20:41

There's a simple answer that has so far been overlooked, which is that there really isn't any serious question about the Constitutionality of Trump's impeachment and trial. What you are seeing is a bunch of Republican Senators frantically trying to find some halfway plausible excuse not to hold a trial.

They are caught in a serious political bind. A majortity of Americans want to see Trump tried and convicted. (Per recent polls, e.g. https://www.politico.com/news/2021/01/25/majority-supports-trump-impeachment-462264 ) However, a majority of Republicans don't.

So if the trial is held and they vote to convict, they will likely face serious primary opposition from Trump supporters in the next election. But if they vote to acquit, they will win the primary but are very likely to lose in the general election.

Thus claiming that a trial can't be held is an obvious, and somewhat defensible, way of trying to weasel out of their bind.

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    "Somewhat defensible" is pretty generous don't you think?
    – Kevin
    Commented Jan 28, 2021 at 19:42
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    The point about the political bind - and the political advantages of deeming the trial unconstitutional - is certainly a very valid one, but the first sentence is not correct. There is indeed a legal question over whether someone who is no longer a government official can be tried in an impeachment. Personally, I'd like to see Trump banned from being able to run for office again, but my desire to see it happen doesn't mean it's legal. If you do indeed have an example of precedent that this is legal, then please cite it. Otherwise, don't claim it isn't an open question of law.
    – reirab
    Commented Jan 28, 2021 at 22:16
  • @reirab: It's not an open question, because it was done. In 1876, Secretary of War William Belknap was about to be impeached by the House. He resigned, the House impeached him anyway, and the Senate tried (and acquitted) him. So no serious question that it can be done, because it HAS been done.
    – jamesqf
    Commented Jan 28, 2021 at 23:02
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    @jamesqf If he was acquitted, then there was presumably no cause for the constitutionality of the trial to have been reviewed by a court. So, no, that does not mean that it is not an open question. Indeed, the reason for his acquittal was apparently precisely that an insufficient number of Senators to convict him believed that the Senate had jurisdiction as a result of his resignation prior to the trial.
    – reirab
    Commented Jan 28, 2021 at 23:07
  • @reirab: Accepting that for the sake of discussion, that would still mean that it's legally pointless for Senators to argue that the trial is unconstitutional, unless & until Trump is eventually convicted. Which doesn't get them out of their current bind re having to vote one way or the other in the trial.
    – jamesqf
    Commented Jan 29, 2021 at 17:38

If the senate wants to hold an impeachment trial, then the senate can hold an impeachment trial - end of story.

It would violate the principle of separation of powers for the supreme court to forbid the senate from holding certain proceedings. There's really no question - it's up to the senate to hold a trial or not.

Where the supreme court could potentially step in is after the fact. It might rule on the legal effect of whatever the senate did. However, a suit would need to be filed first and injury must be alleged. It's not clear to me what basis such a suit would have. Most likely such a suit would go nowhere because the point is moot.

However, if the senate votes to convict by a 2/3 majority and if congress also votes to forbid Trump from holding federal office again and if Trump runs for such an office anyway and if Trump wins that election, then there would be a reason for the supreme court to rule on the matter. But there are a lot of ifs there.

  • I think you have too many ifs there. After the first two ifs, there would be a reason because Trump would be forbidden from actually running for office. There's a pretty solid reason even after the first if given the huge reputational harm for the first ever convicted president.
    – JBentley
    Commented Jan 29, 2021 at 19:51
  • The text of the constitution doesn't forbid running for office, just holding it. It would be up to states to determine whether Trump can be on the ballot.
    – Thomas
    Commented Jan 29, 2021 at 22:41
  • True, but in practice the effect is the same (i.e. there is no point running for an office you can't hold), so there would still be a cause of action.
    – JBentley
    Commented Jan 30, 2021 at 10:39

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