CRS Annotated Constitution

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The President’s Subordinates.—While the courts may be unable to compel the President to act or to prevent him from acting, his acts, when performed, are in proper cases subject to judicial review and disallowance. Typically, the subordinates through whom he acts may be sued, in a form of legal fiction, to enjoin the commission of acts which might lead to irreparable damage739 or to compel by writ of mandamus the performance of a duty definitely required by law,740 such suits being usually brought in the United States District Court for the District of Columbia.741 In suits under the common law, a subordinate executive officer may be held personally liable in damages for any act done in excess of authority,742 although immunity exists for anything, even malicious wrongdoing, done in the course of his duties.743

Different rules prevail when such an official is sued for a “constitutional tort” for wrongs allegedly in violation of our basic charter,744 although the Court has hinted that in some “sensitive”[p.583]areas officials acting in the “outer perimeter” of their duties may be accorded an absolute immunity from liability.745 Jurisdiction to reach such officers for acts for which they can be held responsible must be under the general “federal question” jurisdictional statute, which, as recently amended, requires no jurisdictional amount.746


Section 4. 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.

Few provisions of the Constitution were adopted from English practice to the degree the section on impeachment was. In Eng[p.584]land, impeachment was a device to remove from office one who abused his office or misbehaved but who was protected by the Crown.748 It was a device that figured in the plans proposed to the Convention from the first, and the arguments went to such questions as what body was to try impeachments and what grounds were to be stated as warranting impeachment.749 The attention of the Framers was for the most part fixed on the President and his removal, and the results of this narrow frame of reference are reflected in the questions unresolved by the language of the Constitution.


739 E.g., Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952) (suit to enjoin Secretary of Commerce to return steel mills seized on President’s order); Dames & Moore v. Regan, 453 U.S. 654 (1981) (suit against Secretary of Treasury to nullify presidential orders on Iranian assets). See also Noble v. Union River Logging Railroad, 147 U.S. 165 (1893); Philadelphia Co. v. Stimson, 223 U.S. 605 (1912).
740 E.g., Marbury v. Madison, 1 Cr. (5 U.S.) 137 (1803) (suit against Secretary of State to compel delivery of commissions of office); Kendall v. United States ex rel. Stokes, 12 Pet. (37 U.S.) 524 (1838) (suit against Postmaster General to compel payment of money owed under act of Congress); Decatur v. Paulding, 14 Pet. (39 U.S.) 497 (1840) (suit to compel Secretary of Navy to pay a pension).
741 This was originally on the theory that the Supreme Court of the District of Columbia had inherited, via the common law of Maryland, the jurisdiction of the King’s Bench “over inferior jurisdictions and officers.” Kendall v. United States ex rel. Stokes, 12 Pet. (37 U.S.) 524, 614, 620–621 (1838). Congress has now authorized federal district courts outside the District of Columbia also to entertain such suits. 76 Stat. 744 (1962), 28 U.S.C. Sec. 1361 .
742 E.g., Little v. Barreme, 2 Cr. (6 U.S.) 170 (1804); Bates v. Clark, 95 U.S. 204 (1877); United States v. Lee, 106 U.S. 196 (1882); Virginia Coupon Cases, 114 U.S. 269 (1885); Belknap v. Schild, 161 U.S. 10 (1896).
743 Spalding v. Vilas, 161 U.S. 483 (1896); Barr v. Mateo, 360 U.S. 564 (1959). See Westfall v. Erwin, 484 U.S. 292 (1988) (action must be discretionary in nature as well as being within the scope of employment, before federal official is entitled to absolute immunity).

Supplement: [P. 582, add to n.743:]

Following the Westfall decision, Congress enacted the Federal Employees Liability Reform and Tort Compensation Act of 1988 (the Westfall Act), which authorized the Attorney General to certify that an employee was acting within the scope of his office or employment at the time of the incident out of which a suit arose; upon certification, the employee is dismissed from the action, and the United States is substituted, the Federal Tort Claims Act (FTCA) then governing the action, which means that sometimes the action must be dismissed against the Government because the FTCA has not waived sovereign immunity. Cognizant of the temptation set before the Government to immunize both itself and its employee, the Court in Gutierrez de Martinez v. Lamagno, 515 U.S. 417 (1995) , held that the Attorney General’s certification is subject to judicial review.

744 An implied cause of action against officers accused of constitutional violations was recognized in Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971). In Butz v. Economou, 438 U.S. 478 (1978), a Bivens action, the Court distinguished between common–law torts and constitutional torts and denied high federal officials, including cabinet secretaries, absolute immunity, in favor of the qualified immunity previously accorded high state officials under 42 U.S.C. Sec. 1983 . In Harlow v. Fitzgerald, 457 U.S. 800 (1982), the Court denied presidential aides derivative absolute presidential immunity, but it modified the rules of qualified immunity, making it more difficult to hold such aides, other federal officials, and indeed state and local officials, liable for constitutional torts. In Mitchell v. Forsyth, 472 U.S. 511 (1985), the Court extended qualified immunity to the Attorney General for authorizing a warrantless wiretap in a case involving domestic national security. Although the Court later held such warrantless wiretaps violated the Fourth Amendment, at the time of the Attorney General’s authorization this interpretation was not “clearly established,” and the Harlow immunity protected officials exercising discretion on such open questions. See also Anderson v. Creighton, 483 U.S. 635 (1987) (in an exceedingly opaque opinion, the Court extended similar qualified immunity to FBI agents who conducted a warrantless search).
745 Harlow v. Fitzgerald, 457 U.S. 800, 812 (1982).
746 See 28 U.S.C. Sec. 1331 . On deleting the jurisdictional amount, see P.L. 94–574, 90 Stat. 2721 (1976), and P.L. 96–486, 94 Stat. 2369 (1980). If such suits are brought in state courts, they can be removed to federal district courts. 28 U.S.C. Sec. 1442 (a).
747 Impeachment is the subject of several other provisions of the Constitution. Article I, Sec. 2, cl. 5, gives to the House of Representatives “the sole power of impeachment.” Article I, Sec. 3, cl. 6, gives to the Senate “the sole power to try all impeachments,” requires that Senators be under oath or affirmation when sitting for that purpose, stipulates that the Chief Justice of the United States is to preside when the President of the United States is tried, and provides for conviction on the vote of two–thirds of the members present. Article I, Sec. 3, cl. 7, limits the judgment after impeachment to removal from office and disqualification from future federal office holding, but it allows criminal trial and conviction following impeachment. Article II, Sec. 2, cl. 1, deprives the President of the power to grant pardons or reprieves in cases of impeachment. Article III, Sec. 2, cl. 3, excepts impeachment cases from the jury trial requirement.
The word “impeachment” may be used to mean several different things. Any member of the House may “impeach” an officer of the United States by presenting a petition or memorial, which is generally referred to a committee for investigation and report. The House votes to “impeach,” the meaning used in Sec. 4, when it adopts articles of impeachment. The Senate then conducts a trial on these articles and if the accused is convicted, he has been “impeached.” See 3 A. Hinds’ Precedents of the House of Representatives of the United States (Washington: 1907), 2469–2485, for the range of forms.
748 1 W. Holdsworth, History of English Law (London: 7th ed. 1956), 379–385; Clarke, The Origin of Impeachment, in Oxford Essays in Medieval History, Presented to Herbert Salter (Oxford: 1934), 164.
749 Simpson, Federal Impeachments, 64 U. Pa. L. Rev. 651, 653– 667 (1916).
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