What constitutional scholarship assesses ‘creation of an unlawful office’ and ‘usurpation of appropriations’ as standalone grounds for impeachment?
Executive summary
The dominant body of constitutional scholarship treats “creation of an unlawful office” and “usurpation of appropriations” not as narrowly defined, freestanding categories but as species of the broader constitutional concept of abuses of power or usurpation that can constitute “high Crimes and Misdemeanors,” a view reflected in canonical commentary and congressional analyses [1] [2] [3]. Recent congressional practice, however, demonstrates that House drafters routinely convert those specific behaviors into discrete articles of impeachment, even where academic consensus on doctrinal independence is limited [4] [5].
1. Scholarly foundations: broad categories, not neat labels
Foundational commentators and modern scholars emphasize that the Constitution does not provide a tight catalogue of impeachable offenses; Joseph Story argued impeachment must reach “political offences” including usurpation and neglect, signaling that actions like creating unlawful offices or diverting appropriations fit within a capacious conception of impeachable misconduct rather than a fixed list [1] [2]. Contemporary treatments—reflected in law-review style committee prints and Congressional Research Service overviews—repeat this theme: impeachment covers improper abuse or usurpation of power, conduct incompatible with office, and misuse of office for improper ends, categories broad enough to encompass both the creation of unauthorized offices and impoundment or diversion of funds [3] [6].
2. Congress and committees: practice that treats these acts as standalone articles
Congressional materials and recent House resolutions show a practical willingness to draft standalone articles for particular conduct: the 119th Congress’s H.Res.353 includes explicit articles labeled “usurpation of Congress’ appropriations power” and “creation of an unlawful office,” demonstrating that legislative drafters assert these as discrete bases for impeachment even where doctrine is broader and more flexible [4]. Committee prints and House inquiry reports likewise frame actions that “usurp and destroy” congressional prerogatives or impound appropriations as impeachable abuses of power, giving institutional weight to treating these specific acts as proper articles [6] [7].
3. Academic debate and limits: theory versus practice
While scholars and institutional reports acknowledge the plausibility of impeaching for usurpation of appropriations or for creating unauthorized offices, they stop short of unanimous endorsement of those labels as standalone constitutional categories separate from “abuse” or “usurpation” generally; commentators warn against an overly expansive reading that would turn ordinary political disputes into impeachable infractions and emphasize the framers’ intent that impeachment be serious and analogous to treason or bribery in gravity [8] [3]. Major scholarly treatments referenced by Congress, such as Michael Gerhardt’s work, situate these behaviors within a historical and structural analysis, showing that practice and precedent have fleshed out, rather than strictly defined, the scope of impeachable conduct [2].
4. How courts and historians treat the claims: descriptive not prescriptive
Historical surveys and House history draw on British precedents and Revolutionary-era “bill of particulars” language—abuses and usurpations—to justify treating actions like impounding funds or arrogating legislative functions as impeachable in gravity and character, but they do so descriptively, mapping how lawmakers have thought about impeachment, not pronouncing binding doctrinal tests for courts or the Senate [9] [7]. That distinction matters: scholarship and institutional reports provide interpretive frameworks that support impeachment articles for these acts, but they leave the ultimate constitutional judgment to the political processes of the House and Senate [3].
5. Bottom line and evidentiary implication
The constitutional literature consistently frames “creation of an unlawful office” and “usurpation of appropriations” as plausible bases for impeachment insofar as they are manifestations of usurpation or abuse of power, yet there is no settled doctrine in the scholarship treating them as independent, inviolable categories outside the larger rubric of “high Crimes and Misdemeanors”; Congress, by contrast, has shown it will and does label such acts as standalone articles when political and evidentiary circumstances warrant [1] [4] [6]. Where scholarly guidance is thin on doctrinal specificity, institutional practice supplies the operative precedent: the House may draft discrete articles, but scholarly sources counsel caution about expanding impeachment into routine political disagreements [8] [3].