During most impeachment trials, the Vice President presides over the Senate. But when “the President of the United States is tried,” the Constitution states that “the Chief Justice shall preside.” If President Trump were impeached by the House of Representatives, we can expect Chief Justice John G. Roberts, Jr. to cross the street from the Supreme Court to the Capitol. But what if Roberts can’t, or won’t do the job? Does President Trump get off scot-free? We don’t think so. Instead, the most senior Associate Justice would serve as acting Chief Justice. As a result, Clarence Thomas would preside.
Farfetched? Certainly. Impossible? Absolutely not. Seventeen people have served as Chief Justice. Nine of them died while in office. Historically, several months have elapsed before a new Chief Justice is selected. In the last two centuries, we have had two presidential impeachments. In both cases, the chief justices who presided over those trials subsequently became seriously ill and then died in office. Chief Justice Salmon P. Chase suffered a debilitating stroke two years after he presided over President Johnson’s impeachment trial. And Chief Justice William H. Rehnquist was diagnosed with thyroid cancer less than five years after he presided over President Clinton’s impeachment. It is difficult to imagine a circumstance in which Chief Justice Roberts would not be ready, willing, and able to preside over a presidential impeachment trial. But this unlikely scenario should be considered now, and not during a potential constitutional crisis.
As a threshold matter, can someone other than a Chief Justice act as a substitute and preside at the President’s impeachment trial? The text of the Constitution is silent about this question. Recently, Gerard Magliocca suggested that only the Chief Justice could preside. In contrast, Akhil Amar maintained that “the senior associate justice might presumably fill in temporarily” during a presidential impeachment trial if the Chief Justice had resigned. Long-standing congressional procedure with regard to temporary officers in the House and in the Senate suggests that Amar is correct.
Consider the practices in both houses of Congress. Article I, Section 2, Clause 5—the House Officers Clause—provides that “[t]he House of Representatives shall choose their Speaker and other Officers.” Here, the Constitution considers the Speaker a House officer. But Article I does not expressly empower the House to choose a deputy Speaker. The analogous provision controlling Senate procedure is somewhat different. Article I, Section 3, Clause 5—the Senate Officers Clause—provides that “The Senate shall choose their other Officers, and also a President pro tempore, in the Absence of the Vice President, or when he shall exercise the Office of President of the United States.” In other words, the Constitution expressly empowers the Senate to choose an alternate presiding officer, known as the Senate President pro tempore, when the regular presiding officer (the Vice President) is absent.
Did the Framers treat the House and Senate differently in this regard? Some scholars contend that they did: this different language suggests that a deputy Speaker and a President pro tempore are different types of congressional officers. (These arguments arose in the separate context of whether congressional officers could be elevated to the presidency.) Specifically, the former position falls within the “other Officers” language in the House Officers Clause. In contrast, the latter position does not fall within the “other Officers” language in the Senate Officers Clause. Why? These scholars rely on Article I, Section 3, Clause 5, which seems to distinguish between the President pro tempore from “other [Senate] Officers.”
For example, in 1949, two years after the modern Presidential Succession Act was passed, Ruth Silva put forward the view that the “Constitution does not even recognize the President pro tempore as an officer of the Senate.” Professor John Harrison seems to agree: the Senate Officers Clause “could even be read to suggest that the President pro tempore is not an ‘officer’ of the Senate.” (This sentiment was relayed in an article published by Professor Stephen G. Calabresi.) Professor John Manning contended that, generally, the Senate President pro tempore was not an “officer” of the Senate. However, he would become a Senate officer when the Vice President is absent, and the conditions for his service as presiding officer came into effect.
We read the House Officers Clause and the Senate Officers Clause differently. The textual distinctions between these two provisions do not mean that a House deputy Speaker and a Senate President pro tempore are different types of congressional officers. We think there is a simpler reason which explains the textual disparity between these two clauses. Specifically, the differing language in Article I clarified that the Senate could choose an alternate presiding officer when the regular presiding officer was not available, even though the Senate could not ordinarily choose the usual presiding officer (the Vice President).
We start from a general background principle in constitutional law: the greater power to create (by statute) or fill (by vote) a position, implicitly includes the lesser power to select temporary substitutes for or when that position goes vacant. The Constitution does not expressly empower the House of Representatives to choose an alternate presiding officer when the Speaker is absent. Yet, the House has always claimed the power to do so. This understanding explains the House’s long-standing, settled, and uncontested practice.
Likewise, this practice also explains why the Constitution expressly empowers the Senate to choose a deputy, alternate, or pro tem presiding officer. As a general matter, the House can always choose its presiding officer, and therefore, it may choose an alternate. The same rule does not apply to the Senate. The Senate can only elect the Vice President in the rare case where no vice presidential candidate receives a majority of the electors’ votes for vice president in the electoral college. Only one Vice President in U.S. history has been selected in this manner by the Senate. Ordinarily, the Vice President, like the President, is elected by the electors. Can the Senate select an alternate to the Vice President, when it cannot ordinarily select the Vice President himself? The additional language in the Senate Officers Clause answers this question: the Constitution expressly grants the Senate the power to choose an alternate presiding officer.
The Framers addressed this structural difference between the two chambers by expressly granting a power to the Senate, but only implicitly giving this power to the House. The former needed that express delegation of authority. The latter could rely on the widely agreed-upon background principle: the greater power to create (by statute) or fill (by vote) a position, implicitly includes the lesser power to select temporary substitutes for or when that position goes vacant. Our position explains why the House has regularly chosen deputy Speakers, was right to do so, and why this practice was never contested. Our position also explains the different language used in the two clauses. Some scholars draw a different conclusion from the different language in the two clauses: the deputy Speaker is a house officer, but the Senate President pro tempore is not a senate officer. We doubt that the Framers drafted these two provisions as merely to teach us that the President pro tem is not a Senate officer. These scholars’ interpretation leaves us without any indication why the Framers would want to give voice to a legal abstraction: Who is or is not a Senate officer? The better reading of this language is that the Framers intended to clarify how the Senate could choose a President pro tempore.
Our understanding of the House Officers Clause and Senate Officers Clause also informs a contemporary and unsettled question: What would happen if the Chief Justice was unable to preside at a presidential impeachment trial? We suggest that the Constitution treats the position of Chief Justice in a similar fashion as it does the Speaker. In both cases, the greater power to create (by statute) or fill (by vote) a position, includes the lesser power to select temporary substitutes for or when that position goes vacant.
There is some evidence from the first Congress which supports our position. The Judiciary Act of 1789 established a 6-member Supreme Court composed of a “chief justice and five associate justices” having “precedence according to the date of their commissions.” Through this seminal law, the First Congress recognized that the greater power to create an office by statute, i.e., the Chief Justice’s position, embraces the lesser power to create temporary alternates. If, for whatever reason, our first Chief Justice, John Jay, had been unable to attend to matters at the Court, the Associate Justice with the most seniority would preside. Indeed, the Constitution and the text of the Judiciary Act provide evidence of this principle: the Constitution refers to a Chief Justice and “judges of the Supreme Court”—not “Associate Justices.” The Judiciary Act of 1789, and not the Constitution, introduced the term Associate Justice. This statute’s language suggests that the First Congress intended that the other judges of the Supreme Court could serve as substitutes for the Chief Justice.
A more modern statute, from 1948, offers on-point guidance. It provides that “[w]henever the Chief Justice is unable to perform the duties of his office or the office is vacant, his powers and duties shall devolve upon the associate justice next in precedence who is able to act, until such disability is removed or another Chief Justice is appointed and duly qualified.” In other words, if the Chief Justice cannot perform his duties, then the associate justice with the most seniority—known as the Senior Associate Justice—serves as acting Chief Justice.
To be sure, this statute appears in the chapter of the United States Code that governs the Supreme Court. This provision could be read in a narrow fashion: it may only apply to the Chief Justice’s regular Supreme Court duties (and other duties conferred by statute), but, perhaps, it does not extend to the Chief Justice’s constitutionally-mandated role during a presidential impeachment trial.
There is no good policy reason why this statute should be read so narrowly—especially in the unlikely event that Chief Justice cannot preside. The existence of this statute could avert something close to, if not an actual constitutional crisis, in which a presidential impeachment trial is unable to proceed to a verdict. We know that the House has the greater power to fill the Speaker’s position, and also has lesser power to choose a substitute. Likewise, Congress has the greater power to create, by statute, the position of Chief Justice. Therefore, Congress should have the lesser power to provide, by statute, for temporary alternates during a presidential impeachment trial. Moreover, the 1948 statute reflects the original practice of the government in regard to temporary alternates for positions specified by constitutional text.
By all accounts, Chief Justice Roberts is in good health. (He was briefly hospitalized after a seizure in July 2007.) Moreover, we do not put any weight in claims that Roberts would have to recuse from the trial. Roberts’ pointed opposition to President Trump’s criticism of “Obama judges” was well-measured, and it does not give rise to the appearance of impropriety. But in the unlikely scenario that Roberts is unavailable, Clarence Thomas, the most senior Associate Justice, would preside. Indeed, if Roberts and Thomas both were to bow out, Ruth Bader Ginsburg—the next most senior Associate Justice—would be called upon to preside. Albeit, her own comments about Trump would give rise to a much stronger case for recusal.
We think these substitutions would be constitutional, even in the absence of the 1948 statute. However, the existence of the 1948 act ensures that there is a statutory basis by which Justice Thomas, or even Justice Ginsburg could preside. All should hesitate before calling this statute into constitutional doubt, at the moment of a presidential impeachment, especially when both background principles and long-standing congressional procedure support the law’s validity.
Fortunately, these scenarios are unlikely, but it is worthwhile to consider all possibilities before they arise. When position of Chief Justice is vacant, and when the Chief Justice is unable or unwilling to preside over a presidential impeachment trial, our government should not and need not grind to a halt.
Josh Blackman is Associate Professor of Law at the South Texas College of Law. You can reach him by e-mail at joshblackman at gmail.com. Seth Barrett Tillman is Lecturer in Law at Maynooth University Department of Law. You can reach him by e-mail at sbarretttillman at yahoo.com.