Separation of Powers—Impeachment

Contents

Contacts

  • Brenda Erickson
  • Kae Warnock
  • If you have any questions, please contact Brenda in NCSL's Denver office at (303) 364-7700.  Also, please email us if you would like to recommend legislative resources or case law that may enhance the Separation of Powers website.

Background

Separation of powers is not absolute, and its system of checks and balances is designed to allow each branch to restrain abuse by another branch. As a result, legislatures often are granted the ability to oversee official government conduct and to remove executive or judicial public officers from their positions, called “impeachment.”   The word “impeachment” originates from Latin roots expressing the idea of being caught or entrapped, and it is the act of challenging the honesty or credibility of a person. Impeachment does not necessarily result in removal from office.     
The impeachment process was first used by the English Parliament in the 14th century. Following the British example, the U.S. Constitution and all state constitutions except Oregon’s include an impeachment doctrine.   

The impeachment process actually has two stages, and the responsibility for each stage usually is separated.  

  • The first stage is the impeachment—that is, the development of a formal accusation or statement of charges. Most often, the responsibility for this stage is given to the “lower” legislative chamber, i.e., the house or assembly. During this stage, accusations are heard and investigated. If the body believes that misconduct occurred, the charges—articles of impeachment—are developed and voted upon. If the requisite affirmative vote is reached, the articles of impeachment are forwarded to the body responsible for the second stage of the process. 

  • The second stage is the formal consideration of the charges laid out in the articles of impeachment, and the responsibility usually is assigned to the “upper” legislative body, i.e., the senate. This stage resembles a trial; both sides may call witnesses and present evidence. When the presentation of arguments is completed, the body must vote whether to find the person guilty of the charges, and a supermajority vote typically is required to convict the accused.    

Impeachment is relatively rare. For example, for more than 200 years, the U.S. House has impeached only 18 federal officials. In 1994, a state Supreme Court justice became the first Pennsylvania judge to be impeached in 183 years. In 2000, the New Hampshire House held an impeachment proceeding—something that the House had not done in 210 years. The 2004 impeachment of the state controller was the first impeachment in Nevada’s 140-year history. The Illinois House has impeached only two people in the state’s history—a judge in 1832-33 and a governor in 2008-09.   
Why do impeachments occur so infrequently? The reasons include: 

  • Impeachment is regarded as a power to be used only in extreme cases.

Individuals frequently resign before the impeachment proceedings begin or are completed.


Resources

American Judicature Society: Impeachment and Judicial Independence
Arizona: Arizona Legislative Manual, 2003
Cato Institute: Impeachment: A Constitutional Primer
Connecticut: Impeachment Inquiry Procedures of the Select Committee of Inquiry to Recommend Whether Sufficient Grounds Exist for the House of Representatives to Impeach Governor John G. Rowland Pursuant to Article Ninth of the State Constitution
Connecticut: Office of Legislative Research, Impeachment in Other States, 2004
Connecticut: Office of Legislative Research, Constitutional and Statutory Impeachment Provisions, 2004
Connecticut: Office of Legislative Research, Impeachable Offenses, 2004
Connecticut: Office of Legislative Research, Burden of Proof for Impeachment, 2004 
Connecticut: Final Report of the Select Committee of Inquiry Pursuant to House Resolution 702, 2004
Federal Judicial Center: Impeachments of Federal Judges
Illinois: Legislative Research Unit, Impeachable Offenses under American Law, 1997
Illinois House: Special Investigative Committee—Documents, 2008-2009
Illinois Senate: Senate Impeachment Tribunal Documents, 2009
Illinois Senate Republican Caucus: Impeachment in Illinois
Jurist: Impeachment Articles
Kentucky: Legislative Research Commission, Impeachment in Kentucky, 1991
Library of Congress: Research Guide on Impeachment
Nevada Assembly: Assembly Daily Journal, November 11, 2004
Nevada Assembly: Assembly Articles of Impeachment, 2004
U.S. Senate: Miscellaneous Senate Publications Related to the Impeachment of President William Jefferson Clinton
Watergate.info: Impeachment
Watergate.info: Judiciary Committee Impeachment Hearings
Watergate.info: Articles of Impeachment Adopted by the Committee on the Judiciary
Wikipedia: Impeachment


Case Law

Federal: Nixon v. United States, 506 U.S. 224 (1993)
Nebraska: State v. Hastings, 37 Neb. 96, 55 N.W. 774 (1893)
Nebraska: State v. Hill, 37 Neb. 80, 55 N.W. 794 (1893)
Nebraska: State v. Leese, 37 Neb. 92, 55 N.W. 798 (1893)
Nebraska: Conroy v. Hallowell, 94 Neb. 794, 144 N.W. 895 (1913)
Nebraska: Laverty v. Cochran, 132 Neb. 118, 271 N.W. 354 (1936)
Nebraska: State v. Douglas, 217 Neb. 199, 349 N.W.2d 870 (1984)
(for brief descriptions of these cases, go to the following link for Annotated Constitution III-17 )


Receiving Information or Recommending Additions

If you have any questions, please contact Brenda Erickson in NCSL's Denver office at (303) 364-7700.  Also, please contact Brenda if you would like to recommend legislative resources or case law that may enhance the Separation of Powers website.