Yesterday, House impeachment managers transmitted the two articles of impeachment against Department of Homeland Security Secretary Alejandro Mayorkas to the Senate, which the House approved back on February 13. Democrats understandably don’t want to highlight the Biden Administration’s flooding of illegal aliens into the country ahead of the 2024 election season, and their Senate caucus is reportedly considering not holding an impeachment trial.
But can the Senate refuse to try articles of impeachment voted out by the House?
The structure of the U.S. Constitution, and its separation of powers suggests “No.”
Back in 2021, some Republicans, prominently Texas Senator Ted Cruz, had made the argument that the Senate’s impeachment jusidiction is discretionary, when the Senate was confronted with the then-Nancy Pelosi-led House’s impeachment articles against President Trump after he left office. Discretionary jurisdiction would be like that of the appellate jurisdiction of the U.S. Supreme Court, where the Court doesn’t have to take up consideration of an appeal if they choose not to, and those seeking to appeal to the Supreme Court must ask permission first, using a legal filing called a “writ of certiorari” (which the Court most often doesn't grant).
The opposite of discretionary jurisdiction would be mandatory jurisdiction, like that of trial courts, which are open to all who want to bring a case, and the court cannot refuse to hear it.
In the U.S. Constitution, the power to impeach public officials, including the elected President, is given to the House of Representatives in Article I, Section 2, thus:
The House of Representatives shall chuse their Speaker and other Officers; and shall have the sole Power of Impeachment.
And the power to try impeachments is given to the Senate, in Section 3 of Article I:
The Senate shall have the sole Power to try all Impeachments.
There’s nothing in the text of the Constitution that explicitly says whether the Senate has to try all impeachments, only that they have the sole power to.
Argument from analogy
But looking at Congress’ impeachment and trial powers as a political equivalent to an indictment and trial, the criminal trial courts are obligated to hold a trial when charges are brought, unless the charging document is somehow defective on its face, to where a trial cannot occur. For example, a charging document has to identify what acts are considered criminal with enough detail that the defendant can know what charges they have to defend against. But aside from that unusual situation, trial courts don’t have discretion to deny a trial.1 By contrast, the U.S. Supreme Court is the ultimate court of appeals, and has to be able to manage its docket, given that it serves the entire United States. If the U.S. Supreme Court had to take every possible appeal, its workload would quickly become unmanageable.
The Senate has only once before in U.S. history been called upon to consider impeachment of a cabinet secretary, the 1876 impeachment of President Ulysses Grant’s Secretary of War, William Belknap, on public corruption charges, so it’s not like the Senate (so far) has an unmanageable number of impeachment cases such that discretionary jurisdiction would be justifiable on policy grounds. The Senate, in impeachment proceedings, is analogous to a trial court, which argues in favor of its jurisdiction being mandatory, and so it must hold an impeachment trial.
Argument from separation of powers
The U.S. Constitution’s structure reflects a carefully considered separation of powers between the different branches of the federal government, and with the states. The House of Representatives was originally the sole directly-elected legislative chamber, and was thus considered closest to the People, and expressed the popular or democratic exercise of power. The Senate, by contrast, was originally indirectly elected through the state legislatures, and was intended as a check against the excesses of democracy expressed by the House. Giving the House the power of impeachment over other constitutional offices, it makes sense to give the Senate the power to try impeachments, because it would make no sense (and be unjust) to have the impeachment tried by the same body that issued it.2 Another alternative would be to have the trial in the U.S. Supreme Court, but impeachment is a political remedy, not a criminal one, as the remainder of the impeachment clause in Article I, §3 points out:
Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.
So the Framers considered it best left with the political branches, and the Constitution gives the Senate the “sole” power of trying impeachments.
The use of “sole” in both impeachment clauses in the Constitution emphasizes the importance of maintaining the separation of powers on impeachment, and if the Senate’s jurisdiction were truly discretionary, and they didn’t have to hold a trial, that would thwart the House’s power to impeach by giving the Senate an effective veto over the House’s exercise of its impeachment power. Separation of powers principles, too, suggest that the Senate’s jurisdiction over impeachments isn’t discretionary, and that they must hold some form of a trial when impeachment articles are presented to them.
Further constitutional implications
The Constitution gives no other body the power to try impeachments than the Senate, so there is no alternative forum. While the Sixth Amendment’s guarantee of the right to a “speedy and public trial” applies only to criminal defendants, similar policy considerations suggest that impeached officials should have an opportunity to defend against the political charges brought by the House.
Due to its having the “sole” power to try, the Senate failing to hold an impeachment trial of Secretary Mayorkas would leave the charges unresolved, and break with both the Senate’s historic precedent and the U.S. Constitution.
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Nor would it be just, under the U.S. Constitution’s speedy trial provision in the 6th Amendment, which guarantees criminal defendants a “speedy and public trial,” so as to not have a criminal charge hanging over their reputation indefinitely.
Or, in the case of impeachment of an executive branch official such as Belknap or Mayorkas, it would make no sense (and be a conflict of interest) to have had the trial power assigned to the executive branch.
How does this compare to Turtle McConnell's handling of the Trump imepachments? He never really acted on them, IIRC.