Presidential Removal Research Articles

Movement on Removal: An Emerging Consensus about The First Congress and Presidential Power

Abstract What did the “Decision of 1789” decide about presidential removal power, if anything? It turns out that an emerging consensus of scholars agrees about the First Congress’s lack of consensus. The unitary executive theory posits that a president has exclusive and “indefeasible” executive powers (i.e., powers beyond congressional and judicial checks and balances). This panel was an opportunity for unitary executive theorists and their critics to debate recent historical research questioning the unitary theory’s claims (e.g., Jonathan Gienapp’s The Second Creation and my article. “The Indecisions of 1789: Inconstant Originalism and Strategic Ambiguity.” Unitary theorists conceded problems with the claims of a “decision.” Most pivoted away from the traditional account that, based on the legislative debates, a majority of the First Congress endorsed an interpretation that Article II established a presidential removal power. Instead, they shifted to new claims: that the endorsement of even a minority faction was still substantial; that it was the quality of the argument, not the quantity of supporters, that counts (a subjective claim that contradicts the theory of original public meaning); or perhaps it is the quality or historical importance of the speakers that counts (nevermind that Madison, Hamilton, and Marshall also rejected presidential removal). None of these pivots rescue the “Decision” myth. Unitary theorists turned to later evidence: practices and debates further and further away from the Founding and Ratification. To their credit, they demonstrated a willingness to leave behind standard originalist methods and engaged in methods more consistent with common law constitutionalism and living constistutionalism. The challenge is whether they will acknowledge that they have to choose between originalism and the unitary theory. The broader significance of this debate is the questions it raises about the practice of originalism as a reliable method of interpretation.

The Early Years of Congress’s Anti-Removal Power

Abstract Judges and scholars have long debated whether the Constitution provides the president with a power to remove executive officials. The Constitution, however, undoubtedly gives Congress tools to discourage the president’s use of such power. Perhaps most notably, the Appointments Clause makes it more difficult for the president to remove principal officers—even those whose views are out of the step with the president’s—because the president cannot know whether the Senate will consent to a preferred replacement. This is an example of what is dubbed Congress’s anti-removal power: Even if the president can remove, a motivated Congress can discourage the president’s use of that power. In ‘Congress’s Anti-Removal Power’, we used game theory to show why anti-removal tools are effective—viz., they increase the costs of presidential removal, resulting in less of it—and argued that such tools have been a longstanding feature of interbranch relations. This article focuses on the founding era to argue that Congress’s anti-removal power not only comports with the Constitution’s language, but is also a deliberate feature of the constitutional bargain. Not only did James Madison and Alexander Hamilton bless anti-removal tools, but early Congresses enacted statutes that discouraged removal. While the question of presidential removal attracted debate in the first Congress, the same does not appear to be true for these anti-removal features. The article thus concludes—in the spirit of dogs that do not bark—that Congress’s use of its anti-removal power finds support in both the Constitution’s text and founding-era thought and practice.

Amicus Brief in SEC v. Jarkesy on Original Public Meaning of Article II & Presidential Removal

Amicus Brief in SEC v. Jarkesy on Original Public Meaning of Article II & Presidential Removal

Legal Pragmatism and Presidential Power: A Case Study

This essay explores the differences between legal pragmatism and formalism as working forms of legal thought. After a short overview of pragmatism and a discussion of Louis Brandeis as an exemplar, it turns to the evolving caselaw regarding presidential removal. This issue has led to notable faceoffs between formalists and pragmatist, from Taft v. Holmes and Brandeis, to Roberts and Thomas v. Kagan. Because of their preference for bright-line rules, formalists have tended to oversimplify Founding era history and post-Founding practice. Pragmatist judges have provided more nuanced historical accounts and have tried to come to grips with the tradeoffs involved in issues of institutional design. The choice between these styles of thought is not inherently tied to differences in ideology or substantive constitutional views. Legal pragmatism has the potential, however, to connect judicial decisions to issues that are meaningful to the public, to provide more transparency into the reasons that motivate decisions, and to promote better dialogue among judges.

Interring the Unitary Executive

This Article addresses a constitutional debate that began in 1789 and rages on yet today. While the U.S. Constitution unequivocally establishes a single President, it leaves open many questions about the officers who will necessarily assist the President in executing the law. Leading originalist scholars contend that Article II’s provisions vesting “the executive Power” in a single President and requiring her to “take Care that the Laws be faithfully executed” dictate a particular governmental structure: a “unitary executive” President with absolute power to remove (and thus control) all officers in the executive branch. An express presidential removal power appears nowhere in the text of the Constitution, and originalist proponents of a unitary executive have placed heavy emphasis on history. They claim that the Founding era never included independent regulatory structures designed to insulate executive officers from presidential removal and control. This Article refutes such claims and introduces a comprehensive historical record that earlier scholars have largely missed. My work establishes that independent structures were not only present at the Founding, but that they pervaded regulatory statutes passed into law by the First Federal Congress and President George Washington. Unitary scholars’ failure to recognize the independent structure of the Sinking Fund Commission — a Founding-era agency proposed by Alexander Hamilton and passed into law by President Washington and the First Congress — is just the tip of the iceberg. Unitarians have also missed dozens of early statutory provisions that repeat non-unitary aspects of the Sinking Fund Commission’s structure and require independent actors to autonomously reinforce the President’s duty to take care that the laws be faithfully executed. By scouring every public act passed by the First Congress, my research brings to light independent regulatory structures that pervaded the Founding era. The First Congress repeatedly dispersed executive decisions amongst multiple officers who checked one another as well as the President. This body also repeatedly delegated control over executive officers as well as significant executive power to independent judges and lay persons whom the President could not remove. All of these laws belie the conventional originalist view that the Constitution vests “exclusive control over the exercise” of “executive power” in the President of the United States. Independent regulatory structures have been with us since the beginning, and originalism provides no occasion for the Court to declare them unconstitutional now.

The Lava Jato investigation and the political instability in Latin America

Anti-corruption investigations have always been one of the main causes of political crises in Latin America. However, the last episodes of presidential removal have shown a new activism of the parliaments, which have re-interpreted the constitutional provisions on impeachment proceedings in order to legitimize a change in the governmental agenda. This practice affects the balance between the two representative powers, as it fails to observe the limits of the presidential accountability and paves the way to new instabilities.

The Indecisions of 1789: Strategic Ambiguity and the Imaginary Unitary Executive (Part I)

The unitary executive theory relies on “the Decision of 1789” in the first Congress to establish an originalist basis for a presidential removal power at will. However, these interpretations from Myers (1926) to Seila Law (2020) are incorrect. New historical evidence, plus many concrete misreadings of primary sources in the pro-unitary scholarship, raise doubts about the stare decisis deference that Justice Kagan afforded them in Collins v. Yellen. The unitary theory’s strict separation-of-powers argument depends on presidential exclusivity and indefeasibility (i.e., Congress may not set limits or conditions). This Article shows that the first Congress rejected the unitary model, both in the passage of the departmental acts and in many statutes delegating removal to judges and juries, against the unitary model. This new interpretation turns on two new approaches to the First Congress’s debates; two sets of new historical materials (a Senator’s diary and the removal-by-judiciary statutes); and identifying major errors in how the unitary scholarship interpreted many speeches and letters. The first new interpretive approach is to focus on the only day of debate (Monday, June 22d) that separated the unitary “presidentialists” (who thought Article II established presidential removal) from the “congressionalists” (who thought Article I gave Congress the power to delegate removal). These speeches clarify the members’ positions and the size of each faction, revealing that only one third of the House supported unitary presidentialism, and a broad majority rejected it. A second new interpretive approach is to put this debate in the context of the urgent legislative agenda in the summer of ’89: tariff and revenue fights, foreign policy, drafting a Bill of Rights, creating a national judiciary, as well as establishing departments. This context suggests that the pivotal votes, if they were not congressionalists, were more likely impatient pragmatists than presidentialists. Then a study of the first Congress’s drafting practices reveals that explicit explanatory clauses and preambles were common, raising doubts about why Madison would replace a more explicit clause with an ambiguous one to establish a constitutional interpretation, rather than the other way around. The answer: He did not have the votes. The first set of overlooked documents was Senator William Maclay’s diary and other private notes from the Senate debates, revealing initial Senate opposition to presidential removal and then confusion and obfuscation. They also offer a valuable clue about why Madison retreated in mid-June: The Senate had just blocked Madison’s anti-British tariff policies just before Madison proposed softer language in the departmental bills. This context of House-vs.-Senate conflict explains why the ostensible “decision” was, in fact, strategic ambiguity, compromise, and retreat. Opponents immediately mocked Madison’s turn to ambiguity as a retreat and attacked his masculinity. One of Madison’s allies even conceded on the House floor that they shifted in order to “obtain the acquiescence” of the Senate. The second set of documents are a series of statutory clauses that delegated removal power to judges and juries, regardless of a president’s wishes, a contradiction of the unitary theory. Additionally, Madison proposed a “good behaviour” Comptroller. Other statutes and debates show little support for tenure “at the pleasure” of the president. This closer look at the evidence and at significant misreadings by the pro-unitary scholarship not only raise questions about stare decisis for Free Enterprise and Seila Law, but they also raise more general concerns about the practice of originalism.

The Decisions of 1789 Were Non-Unitary: Removal by Judiciary and the Imaginary Unitary Executive (Part II)

The Roberts Court and supporters of the unitary executive rely on “the Decision of 1789” to establish an originalist basis for presidential removal power at will. However, the first Congress’s legislative debates and a senator’s diary (missed by legal scholars) suggest strategic ambiguity and retreat on the constitutional questions, and the Treasury Act contradicted the unitary model. Here are six overlooked moments from 1789 that dispel unitary assumptions: Part I: 1) The “decision” was actually strategic ambiguity that avoided any clear grant of power to the president and any constitutional interpretation, even though explanatory clauses were common in other acts by the first Congress. James Madison and the “presidentialist” bloc switched from an explicit grant of power to an ambiguous contingency clause because they lacked the votes in House and faced resistance in the Senate. The debates and votes suggest that only one third of the House supported Madison’s theory. 2) A senator’s diary shows that a Senate majority initially opposed the bill. Critics emphasized the bill’s confusion and its “illy concealed… design,” but proponents implied the clause had no “design” against the Senate’s power. The diary suggests that the bill’s supporters followed through on a strategy of ambiguity, confusion, and retreat, instead of clarifying the text. Part II (Here): 1) Justices have asserted that the first Congress decided officers served “at will,” but very few members of Congress spoke in favor of presidential removal at pleasure in 1789. Members discussed justiciability of for-cause removals in the English writ tradition, suggesting an oversight role for Congress and the courts. The debates over Treasury and the Judiciary indicate Congress did not think “at will” was the rule for removal. 2) A tale of two Roberts: two scandalous finance ministers, one English, one American during the Revolution, as context for independent checks on executive power. The “Robinarchy” was a caution against executive corruption, and the first Congress focused on presidential corruption of finance, a president who would abuse the removal power to raid the Treasury and build a “throne.” 3) In the Treasury debate, Madison proposed that the Comptroller, similar to a judge, should have tenure during good behavior, a point misunderstood by many modern judges. Madison withdrew his proposal, but the debate elicited that Madison thought the House had not reached any consensus for “at pleasure” tenure, and the debate reflected more openness to executive design and independence from presidents. 4) The Treasury Act’s anti-corruption clause established removal by the judiciary, empowering relatively independent prosecutors and judges to check presidential power. Congress frequently enabled removal by judges and juries, without necessarily connecting removal to imprisonment or criminal penalty, over the next 50 years. Because unitary theory explicitly states that removal power is “exclusively” or “solely” presidential, the first Congress rejected the unitary theory by delegating removal power to judges and juries (with relatively independent prosecution under Treasury and arguably without relying on federal prosecutors at all given the institutional arrangements of the eighteenth century). A majority of the first Congress opposed the powers cited by unitary theorists (the constitutional basis for presidential removal power, offices held “during pleasure”). On whether the president had exclusive removal power, the first Congress decisively answered no. In Seila Law v. CFPB, Chief Justice Roberts misunderstood and misused the decisions in the first Congress, and should correct these errors in Collins v. Mnuchin in 2021.

Amicus Brief in Collins v. Mnuchin on Original Public Meaning of Presidential Removal and the 'Decision of 1789'

Petitioners and the en banc Court of Appeals below have rested their contention that the Constitution grants the President at-will removal authority over the head of the Federal Housing Finance Agency (FHFA) on historical claims about the first Congress’s ostensible “Decision of 1789.” In so doing, Petitioners are following Chief Justice Taft’s account in Myers v. United States, upon which this Court relied on in 2010 and again last term for an originalist interpretation of Article II. New historical research shows that Myers was incorrect. The “Decision of 1789” actually supports, rather than undermines, Congress’s power to limit presidential removal. Myers asserted that the first Congress’s “Decision of 1789” declared that the Constitution assigned removal power to the President alone: “[T]here is not the slightest doubt, after an examination of the record, that the [Foreign Affairs] vote was, and was intended to be, a legislative declaration that the power to remove officers appointed by the President and the Senate vested in the President alone.” 272 U.S. 52, 117 (1926). New evidence calls for a re-examination of this record, raising more than just a doubt. Originalism depends upon clear historical evidence of public meaning. Seila Law LLC v. Consumer Financial Protection Bureau noted that the first Congress’s view “provides contemporaneous and weighty evidence of the Constitution’s meaning.’” 140 S. Ct. 2183, 2197 (2020) (internal quotation omitted). Overlooked Senate records show no consensus in the first Congress to support Myers’s interpretation. To the contrary, this new evidence suggests a very different decision in 1789. The first Congress rejected “presidentialism,” the more general constitutional claim that the President alone can remove principal officers confirmed by the Senate, even the heads of the Departments of Foreign Affairs, War, and especially Treasury; and it rejected the more specific claim of exclusive or “indefeasible” presidential removal under Article II (a claim by the Petitioners here), that presidential removal is “at pleasure” or “at will.” Both positions rely on a claim that Article II establishes “unitary” or exclusive presidential removal, unchecked by other branches. The most significant new evidence: 1) Senator William Maclay’s diary reveals initial opposition to presidential removal (of any source) in the Senate, which is the most plausible explanation for Madison’s sudden retreat from a clear removal clause to an ambiguous one. Madison’s opponents and allies identified this shift as evasion or reconciliation with the Senate. 2) The first head-count of the House by constitutional categorization demonstrates that only about one third of the House supported the “presidential” interpretation, and a wide majority rejected it. 3) New evidence from the Treasury debate and from a series of statutes reveal further rejection of exclusive presidential removal, especially in the domain of finance. Congress delegated removal power, even of the Secretary of Treasury, to the judiciary. 4) This widespread opposition to presidentialism in 1789 prompts a re-reading of the Constitution’s text, the Convention, and the Ratification debates. New research on “vesting” shows that this text likely did not have a public meaning of “exclusive” or “indefeasible.” Myers was mistaken. The first Congress opposed this interpretation of Article II, forced the deletion of the clear removal language in the Foreign Affairs bill, and then enacted six anti-presidentialist removal clauses. It would be an error in terms of originalism to rely on the first Congress or the Executive Vesting Clause to invalidate the FHFA structure.

Teaching about Impeachment in Law School: What Changes to Make after the Mueller Report?

This short essay discusses my motivation for and the process that I went through over the past two years developing a law school course on presidential impeachment and related topics. I recommend that those law school faculty members who may have only a modest constitutional law background, but who feel as I do that more sustained discussion of the questions that would be presented by an attempt to remove President Trump from office through impeachment is called for, consider also developing and offering such a course. I found that through reading a few accessible books and supervising a handful of student individual research papers, one can fairly quickly develop sufficient command of the material to offer a valuable elective course on presidential impeachment and other non-electoral presidential removal procedures. But the proper scope of coverage of such a class in the current environment is a rapidly moving target, and the course that I will teach this fall semester will have to be substantially restructured from my prior spring semester offering to reflect the damning findings of the Mueller Report, the Trump Administration’s mischaracterization of that Report and subsequent stonewalling response to congressional oversight and testimony requests, the damning whistleblower complaint and revealed Administration cover-up efforts and subsequent near-universal embrace of impeachment by House Democrats, and the implications of the continued and ever more fervent and cult-like partisan embrace of President Trump by Senate Republicans even after the Mueller Report and the whistleblower complaint.

Developing a Law School Course on Presidential Impeachment

This short essay discusses my motivation for and the process that I went through over the past two years developing a law school course on Presidential Impeachment and related topics. I recommend that those law school faculty members who may have only a modest constitutional law background, but who feel as I do that more sustained discussion of the questions that would be presented by an attempt to remove President Trump from office through impeachment are called for, consider also developing and offering such a course. I found that through reading a few accessible books and supervising a handful of student individual research papers one can fairly quickly develop sufficient command of the material to offer a valuable elective course on Presidential Impeachment and other non-electoral Presidential removal procedures. But the proper scope of coverage of such a class in the current environment is a rapidly moving target, and the course that I will teach this fall semester will have to be substantially restructured from my prior spring semester offering to reflect the damning findings of the Mueller Report, and the Trump Administration’s mischaracterization of that Report and subsequent stonewalling response to Congressional oversight and testimony requests, and the implications of the continued and ever more fervent and cult-like partisan embrace of President Trump by Senate Republicans even after the Report’s issuance.

How Do We Solve a Problem Like the Donald? The Democratic Challenge of Trump Supporters and the Politics of Presidential Removal

ABSTRACTPolitical observers have debated whether and how to remove Donald J. Trump from the office of the presidency. This article explains the difficulties associated with both the Twenty-Fifth Amendment’s incapacity route and impeachment. These difficulties illuminate a larger underlying problem with American democracy that the Trump presidency both crystallizes and reinforces: the emergence of an energized core of political participants who unite around racialized identity and reject some core principles of democracy.

Restraining the Energetic Executive: Can Administrators Legitimately Check Presidential Power?

The strong “unitary” executive dominates present theory and practice regarding presidential power. A particular focus of continuing debate about the theory concerns the extent to which presidents control discretion in determining what the law means and how it is to be executed, and whether other executive officials can exercise a check on such presidential discretion. I review the scholarly debates about the historical, constitutional underpinnings of strong unitary executive theory claims about presidential control and direction of subordinate executive officials. Strong unitary executive theorists claim validation in particular from the Decision of 1789 and the establishment of a presidential removal power based on responsibility to popular will. I consider the consequences of that validation in our own time, which include weak legal checks on presidential discretion and normative confusion about the legitimacy of administrative resistance to questionable presidential commands. I conclude by sketching several potential remedies, from modest to radical, to bolster administration as a barrier to an overly-energetic executive posing a threat to the stability of the republic.

Desempeño económico y protesta ciudadana como detonantes de las caídas presidenciales: el caso ecuatoriano

In this article, we identify economic crises ( X 1) in the presence of social mobilization ( X 2) as jointly conditional causes of premature president exit ( Y ). After identifying common points and tension in the literature, we propose that the study of presidential removal can benefit by incorporating a multiple conjunctural causation framework. Using two case studies of presidential instability in Ecuador, the article suggests that theoretical-empirical discrepancies in the existing literature can be resolved be incorporating more analytically rigorous approaches such as the one we identify.

Dodd-Frank Regulators, Cost-Benefit Analysis, and Agency Capture

The Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank) has raised the stakes for financial regulation by requiring more than twenty federal agencies to promulgate nearly 400 new rules. Scholars, regulated entities, Congress, courts, and the agencies themselves have all recognized — even before Dodd-Frank — the lack of rigorous cost-benefit analysis in the context of financial rulemaking. The D.C. Circuit has struck down several financial regulations because of inadequate cost-benefit analysis, with three more challenges to be decided this summer. Members of Congress have introduced legislation to address this problem, including a call for the President to intervene to require more exacting economic analysis. Regulated entities and investor protection groups are vigorously debating whether (and how) financial regulators should engage in cost-benefit analysis, as are a variety of policymakers, academics, and commentators. Absent from these debates, however, is a serious discussion of the importance of cost-benefit analysis in promoting good governance and democratic accountability. This Essay seeks to fill that void. The lack of attention to accountability is particularly troubling in the Dodd-Frank context, where most regulators are independent agencies and thus less democratically accountable via presidential oversight. In particular, independent agencies are not required to submit proposed rules and accompanying economic analyses for presidential review. Nor are their high-ranking officials subject to plenary presidential removal authority. Without another means of accountability — e.g., a robust cost-benefit analysis embedded in notice-and-comment rulemaking — independent agencies are more vulnerable to agency capture. This Essay argues that Dodd-Frank regulators should consider more seriously the democratic accountability concerns at play when regulating the financial markets. And those who regulate the regulators (via statutory command, executive order, or judicial review) should pay more attention to the good governance rationales for cost-benefit analysis when deciding whether and how to encourage Dodd-Frank regulators to engage in more rigorous and transparent economic analysis.

The Transformative Twelfth Amendment

This paper argues that the Twelfth Amendment represents far more than a mechanical adjustment of the electoral college. Rather, it is the constitutional text that gives us the political presidency that we know today. The Twelfth Amendment worked a major structural change in the relationship between the legislative and executive branches and for that reason bears directly on the debate over the unitary executive and the meaning of “executive power.” Specifically, presidential removal power is best justified not by the original Article II, but by the constitutional structure the Twelfth Amendment created. And the scope and definition of executive power more broadly is best fixed by reference to the political character of the presidency the Twelfth Amendment constitutionalized. Contrary to conventional wisdom, the executive designed at Philadelphia was not a political office, but rather an apolitical administrator standing above partisan conflict. The office was not designed as a political policymaker or representative of the people. The Twelfth Amendment changed this. It quite deliberately converted the electoral college into a form of public election and in so doing, linked the presidency to popular majorities. The Amendment facilitated political competition for the office, unified the executive branch internally, and distanced it politically from Congress. The result was to give the executive a democratic warrant to take political action. This in turn changed the available scope, and perhaps the meaning, of the President’s “executive powers.” The new constitutional structure the Twelfth Amendment created indicates the President must have political control over the policymaking apparatus of the executive branch, and thus the power to remove principal officers, including heads of independent agencies. This structure also justifies significant presidential involvement in agency rulemaking, and may help more generally to fix the bounds of the President’s “executive powers.”

Report to the Commission on Truth and Reconciliation of Honduras: Constitutional Issues

The Spanish version of this paper can be found at http://ssrn.com/abstract=1950411This report has been prepared for the Commission on Truth and Reconciliation of Honduras. It has two aims: first to give a legal and constitutional analysis of the events surrounding the removal of President Jose Manuel Zelaya Rosales from power in June 2009 (Part IV of the report), and second to make recommendations for constitutional and legal reforms in order to avoid similar happenings in the future (Part V of the report). The report also includes, in Part III, a brief summary of the relevant facts.The events surrounding the June 2009 removal of President Zelaya Rosales from power involved three distinct dangers to democratic governance. The first is the risk that sitting chief executives or other powerful political actors will abuse their power in order to aggrandize themselves or to undermine other democratic institutions. There is a significant risk in many countries that these actors may be able to erode democracy from within. The second is the significant risk that militaries may become involved in political events, and in particular with irregular transfers of power. It is critical that militaries not take on the political role that they once commonly possessed in Latin America. The third is the lack of clarity in constitutional texts about the institutional role that should be played by different institutional actors during a crisis. The constitutional texts of numerous countries neither provide clear guidance as to how different actors should act during a crisis, nor explain how to manage conflicts between these actors.An observer would be most likely to conclude that both President Zelaya Rosales and many of the institutions involved in his removal from power acted illegally and unconstitutionally at certain points. Zelaya Rosales most likely acted unconstitutionally when he proposed the Fourth Urn “consultation” or “poll,” and when he pushed forward with that project despite judicial orders to the contrary. At the same time, Zelaya Rosales was probably not removed from office by a legal process. Congress passed a bill purporting to remove Zelaya Rosales from office, but Congress did not appear to have the constitutional power to remove the President. And members of the Armed Forces acted unconstitutionally when they removed Zelaya Rosales from the country.The three dangers to democracy identified in this case – executive erosion of democratic governance, military intervention in politics, and lack of clarity about the institutional roles of different political actors – are difficult for a constitutional text and for political actors to manage. One of the major problems in the Honduran case is that the constitutional text is vague or silent on several critical points. Most importantly, there is no clear constitutional roadmap laying out the substantive grounds for presidential removal, the process of removal, and the roles of various institutions during the removal process. We therefore highlight potential recommendations to the text. We also recommend reforms aimed at strengthening the rule of law in the country, and particularly the judiciary. Making the judiciary a more effective arbiter during an institutional crisis would lessen the possibility of resort to extraconstitutional processes.

The Spatial Model and the Senate Trial of President Clinton

Most accounts of the Clinton Senate trial are based on legal theories and description or suggest that the Senate trial was sui generis, unrelated to regular Senate business. Alternatively, we argue that presidential removal trials can best be explained through a spatial voting model, with ideological estimates for senators best predicting the trial outcome. To examine these hypotheses, we generate (a) ideal-point estimates using Markov chain Monte Carlo methods on roll-call data as well as (b) text-based (wordscores) point estimates scaled from public statements. Our results support the spatial hypothesis, but not legal or idiosyncratic accounts. Moreover, the significant discrepancy between text- and vote-based estimates provides support for Mayhew’s contention that position taking for constituency benefit is rather costless. We conclude that when asked to be judges, senators, faced with multifarious political incentives, are more likely to act like legislators.

The Spatial Model and the Senate Trial of President Clinton

Most accounts of the Clinton Senate trial are based on legal theories and description or suggest that the Senate trial was sui generis, unrelated to regular Senate business. Alternatively, we argue that presidential removal trials can best be explained through a spatial voting model, with ideological estimates for senators best predicting the trial outcome. To examine these hypotheses, we generate (a) ideal-point estimates using Markov chain Monte Carlo methods on roll-call data as well as (b) text-based (wordscores) point estimates scaled from public statements. Our results support the spatial hypothesis, but not legal or idiosyncratic accounts. Moreover, the significant discrepancy between text- and vote-based estimates provides support for Mayhew’s contention that position taking for constituency benefit is rather costless. We conclude that when asked to be judges, senators, faced with multifarious political incentives, are more likely to act like legislators.

Presidential removal: unzipping the constitutional provisions

Impeachment proceedings are a rarity in the African context. This is not surprising given the history of executive dictatorships, all-powerful one-party states and a subservient media. With the dramatic change in the constitutional landscape of the 1990s, attention should be focused on the adequacy of the presidential removal provisions in African constitutions. This article therefore undertakes a critical review of the relevant provisions in anglophonic African states. It argues that they are unsatisfactory in several respects and calls for them to be thoroughly revised.