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Somebody asked:Why is the Senate, and not the Supreme Court, deciding whether the current impeachment is constitutional? As an Australian lawyer, I was thinking the same way. If a valid impeachment is on foot, only the Senate can resolve it. But the question here is whether the Constitution allows the impeachment AT ALL, once the person is out of office. If that question is one for the Chamber, every impeachment can be thrown out by the majority party?

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  • John Roberts appears to have no interest in wading into politics and further jeopardizing the court's legitimacy by deciding whether the impeachment is unconstitutional. He knows that the Court if ruled that it was, the Democrats would view it is illegitimate and renew calls to expand the size of the Court and fill it with their nominees, and that if the Court ruled that it was not, Republicans would declare all the justices anathema and there could be riots. Since the impeachment would fail in the Senate because of Republican partisanship, he probably sees no need to take any case.
    – Obie 2.0
    Jan 28 at 7:57
  • Most of this question is answered at Can the Supreme Court overturn an impeachment? and Why isn't the constitutionality of Trump's 2nd impeachment decided by the supreme court?. However, If that question is one for the Chamber, every impeachment can be thrown out by the majority party? appears to be a new question.
    – Panda
    Jan 28 at 8:23
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    The answer to your last question in the body (which is substantially different than the one in the title) is trivially yes, at least in theory. It actually took a fairly long time for the House to decide to proceed with Nixon's impeachment. You'll want to read up on the history of that. I've voted to close this q until it's made more clear what the focus really is here.
    – Fizz
    Jan 28 at 13:32
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It is absolutely true that every impeachment can be throw out by the majority party. This is not so unusual, in Australia, as long as the government represents the majority party, the majority party can throw out every vote of no-confidence.

In fact, except in the historically rare case of a 2/3 senate supermajority, every impeachment can be throw out by the minority party.

The constitution makes it hard to impeach a President. The process requires a bipartisan agreement that the President should be impeached. This is because the President has a source of Legitimacy independent from Congress (the Electoral College, and ultimately Election by the people). While the President carries the support of even a minority in the Senate he/she may continue in the role.

It seems that the Constitutional question can be decided by the Supreme Court, but only if there is a case before them. If the Senate convicts Trump and disqualifies him. Then if Trump files, and a state refuses to let him run, citing the Senate disqualification. And if Trump sues the state arguing the disqualification was unconstitutional, such a case could end up in the Supreme Court. But courts can't decide hypothetical cases. There has to be a litigant who has been harmed.

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    "The constitution makes it hard to impeach a President. The process requires a bipartisan agreement that the President should be impeached." - Though as I keep reading, there weren't supposed to actually be any parties in congress, let alone partisanship.
    – Jontia
    Jan 28 at 11:33
  • Impeachment requires a majority in the house, conviction is what the senate can control.
    – Joe W
    Jan 28 at 13:21
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    @Jontia that's the most egregious mistake the founding fathers make, expecting people with similar political beliefs to not work together against people with different political beliefs. Amazingly naive considering how smart they were about pretty much everything else.
    – Ryan_L
    Jan 28 at 17:21
  • @JoeW, indeed, which is why I was careful in my phrasing, the impeachment sent by the House can be thrown out by 34 vote minority in the Senate trial.
    – James K
    Jan 28 at 19:38
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    @Ryan_L it is subordinate to the assumption that each state would represent itself. Compare with the EU. At least in the council of ministers it is clear that each minister represents the interests of their own government. It was thought that the differences between Virgina, Caroliana, New York and New Hampshire (etc) would keep the factions from forming into parties, and it was only the rise of Democratic Republicanism that broke this model.
    – James K
    Jan 28 at 19:42

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