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Is There an Optimal Constitutional Design for Presidential Impeachments?

Juliano Zaiden Benvindo, University of Brasília

Comparative constitutional law is now faced with a rich debate over the scope, limits, and consequences of impeachment proceedings. Since the Brazilian President Dilma Roussef was temporarily suspended from office and thereby replaced by the acting President Michel Temer after the Senate had voted to begin an impeachment trial against her on May 11, this instrument has attracted the attention of constitutional scholars worldwide. For example, in What We Could Learn from Brazil (and Vice Versa) about Presidential Impeachment Procedures (and Related Matters), Vikram David Amar provides thought-provoking insights about how constitutional design can better cope with the complexities of such a dramatic mechanism by comparing the Brazilian and American systems. In another article titled Two Courts, Two Interpretations, Igor de Lazari, Antonio G. Sepulveda and Carlos Bolonha follow a similar path, although focusing mostly on the role of supreme courts. In a context where many agree that “these are testing times for Brazil’s young democracy and the biggest economy in Latin America,”[1] debates over how to suitably design this mechanism have become quite important. Is there an optimal design for impeachment mechanisms? This post tackles that question by comparing the U.S. and Brazilian models for impeachment.

First of all, both constitutional designs define the basis for impeachment quite broadly, even if both ultimately require some kind of criminal conduct. In the American system, the Constitution states that “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” (Article II, Section IV). In Brazil, according to Article 85 of the Constitution, a President can be impeached if he or she commits a crime of malversation, which is very broad in scope, such as “attempt on the Federal Constitution” or an attempt against “the exercise of political, individual and social rights.” The Brazilian Law n. 1079/50, which defines these crimes and the impeachment proceedings, expands even further the possible criminal conduct which is an impeachable offense. Even though criminal activity is a requirement, both constitutional designs allow for a broad range of political interpretations. The constitutional parameters are ambiguous enough that they may be vulnerable to political bargains and maneuvers.

Second, both constitutional designs seem to leave the process of impeachment ambiguous and thus open to political considerations, rather than ensuring adequate due process or a more principled decision-making. In the United States, the impeachment bid must first pass the lower house, which has “the sole Power of Impeachment” (Article I, Section II, of the U.S. Constitution), by a bare majority, and then the Senate, which has “the sole Power to try all Impeachments” (Article I, Section III, of the U.S. Constitution), by two-thirds of its members. Brazil follows a similar framework, but instead of a simple majority in the lower house, the impeachment has to be first approved by two-thirds of the Representatives before being sent to the Senate. The Brazilian system, in this regard, provides an interesting mechanism. If a special commission in the Senate accepts the impeachment bid by a simple majority, thereby instituting the proceedings for trial, the President is suspended from his or her duties for a maximum period of 180 days. The Vice-President assumes office while the trial is going on, as has currently occurred in Brazil. The President is only impeached after, at the end of the trial, the two-thirds majority requirement in the Senate is reached. The trial in the Senate, both in the United States and in Brazil, is presided over by the Chief Justice of the Supreme Court.

In any case, in both cases constitutional designers may have fallen short of providing effective mechanisms to prevent impeachments from becoming a strategic instrument for political gain. More important, they also seem to have failed to foresee that impeachments are a viable source for abusing the constitution, thereby unsettling the democratic order.[2] Although both the United States and Brazil have historically been faced with few examples of presidential impeachment or impeachment inquiries (the most memorable cases are Andrew Johnson, Richard Nixon and Bill Clinton in the United States and Getúlio Vargas, Fernando Collor de Mello and Dilma Roussef in Brazil), at least the current Brazilian example shows that the rules still may be liable to abuse.

If we accept that it is important for government in presidential countries not to be continuously threatened by partisan politics[3] and increasing sectarianism, impeachments can work against this goal by giving the opposition the power to harass weak presidents. And if the political system is strongly fragmented and the majorities in Congress are volatile, as in Brazil, then impeachment can become a serious and unpredictable problem. Even interesting design mechanisms, such as the suspension for 180 days of the president from office in the Brazilian framework, may actually worsen rather than mitigate this problem. Vikram Amar, while comparing the American and Brazilian system, argues that this is a “very interesting provision”[4] because it would temporarily remove a president whose job would be severely affected while the trial is going on.[5] This might work in the United States, where the political system is much less fragmented and Vice-Presidents are usually close ideologically to Presidents.   But as the current Brazilian situation shows, the suspension can easily be used as a destabilizing political maneuver, if those conditions are not met. In this case, once the Vice-President takes office, he or she can entirely replace the cabinet and implement policies in strong contradiction to the previous chief executive as a way to strengthen his or her permanence in power. Rather than rationalizing the process, the 180 day suspension thus may enhance polarization and instability, while jeopardizing even further any expectation of a fair trial.

The central question is whether, if both politics and popular pressure play a fundamental role in impeachment, constitutional texts and interpretations can nonetheless have enough strength to bring some legal rationality to this procedure. Similarly to the inability of different tools to fend off abusive constitutionalism[6] or even to make formal constitutional changes more difficult,[7] reality proves that constitutional design is only the tip of the iceberg for impeachment. Nonetheless, constitutional designers must try to provide solutions to make constitutional democracies more rational and stable. After all, in such circumstances, as Dworkin puts it in his article A Kind of Coup, “the zealots will have stained the Constitution, and we must do everything in our power to make the shame theirs and not the nation’s.”[8]

Suggested citation: Juliano Zaiden Benvindo, Is There an Optimal Constitutional Design for Presidential Impeachments?  Int’l J. Const. L. Blog, June 22, 2016, at: http://www.iconnectblog.com/2016/06/is-there-an-optimal-constitutional-design-for-presidential-impeachment/


[1]        See Lourdes Casanova, in Kathleen Mary Corcoran, Impeaching Brazil’s President Roussef opens new era of institutional instability (Media Relations Office – Cornell University, May 12, 2016), at: http://mediarelations.cornell.edu/2016/05/12/impeaching-brazils-president-rousseff-opens-new-era-of-institutional-instability/.

[2]        See David Landau, Abusive Constitutionalism, 47 U.C. Davis L. Rev. 189–260 (2013).

[3]       See Margarida Lacombe Camargo, O Impeachment e o seu desenho institucional conflitivo, Jota (Jan. 20, 2016), at: http://jota.uol.com.br/o-impeachment-e-o-seu-desenho-institucional-conflitivo.

[4]       Vikram David Amar, What We Could Learn from Brazil (and Vice Versa) about Presidential Impeachment Procedures (and Related Matters), Verdict (Apr. 22, 2016), at: https://verdict.justia.com/2016/04/22/what-we-could-learn-from-brazil-and-vice-versa-about-presidential-impeachment-procedures-and-related-matters.

[5]        Id.

[6]       See Landau, supra, at 194.

[7]      See Tom Ginsburg & James Melton, Does the Constitutional Amendment Rule Matter at All? Amendment Cultures and the Challenges of Measuring Amendment Difficulty, 13 Int’l J. Const. L. 686–713 (2015)

[8]      Ronald Dworkin, A Kind of Coup, New York Review of Books (Jan. 14, 1999), http://www.nybooks.com/articles/1999/01/14/a-kind-of-coup/.

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Published on June 22, 2016
Author:          Filed under: Analysis
 

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