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How Impeachment Has Changed
Let me add one more note to my discussion with Peter about the legality of how President Obama has handled the Bowe Bergdahl situation. Peter wrote in response to yesterday’s post:
What I find staggering, though–and I suppose this is really something I should have known, but then Obama has never been president before, has he?–what I find staggering is that when the President of the United States engages in genuine lawlessness, no one can take him to court. Obama enforces ObamaCare selectively, ignores the requirement to report to Congress before releasing prisoners, and permits the IRS to engage in political vendettas…and all Congress can do is hold hearings and sputter. Either that or resort to the very blunt instruments of withholding appropriations or–dare one breathe the word?–introducing resolutions of impeachment.
Can this be so, Professor Yoo?
Just a word about impeachment. It is a constitutional option; but it’s not a political one.
I think it is clear that the Framers would have allowed impeachment for cases like this. Congress should be able to impeach a president for failing in his constitutional duties, such as violating the law (with one exception — the President should not enforce an unconstitutional statute). The original understanding of the Constitution designed impeachment not as a punishment for a crime, but as a means to remove government officers for incompetence as well as dereliction of duty. In the years leading up to our revolution, for example, the British parliament impeached members of the cabinet because of serious setbacks in a war against the Dutch. The ministers had committed no crime.
The Right made a mistake on impeachment during the Clinton administration. By putting so much attention on whether Bill Clinton’s perjury qualified as a high crime or misdemeanor, conservatives focused impeachment too narrowly on actual criminal behavior, leaving most people to think that dereliction of duty or incompetence fall outside of its reach. Of course, with that broader scope, Democrats could have argued that they were entitled to impeach President Bush for bad judgment in Iraq. I wouldn’t disagree that they could have tried, though they would have failed.
Published in General
I’d like to add the important distinction that, as far as I can tell, impeachment implies that the president knowingly acted in wrong behavior. That is to say, you could argue that Bush made some bad guesses about Iraq, but you can’t impeach him for that – only if you could prove that he knew the guesses were wrong but he did them anyway. An impeachable action can’t be purely something a working majority doesn’t like. It has to involve actual criminality or at least negligence.
That’s why I’d make a distinction with Obama about impeachment. I wouldn’t want to impeach him for Obamacare, because even though Obamacare is a disaster, it’s a policy decision for which there is no evidence of criminality. (Stupidity is not necessarily criminal.) But on the other hand, I’d seriously go after Obama for his frequent refusal to obey the requirements of law. This Administration’s standard policy is to obstruct Congress and evade oversight. That isn’t unfortunately missing deadlines, that’s willful negligence.
The President brags that he has a phone and a pen.
So does Congress.
So can the next Republican president simply not enforce all the Unconstitutional laws (like Obamacare) because to do otherwise would be a dereliction of duty?
Exactly correct. Constitutional option, but not a political option.
The zone of latitude for Presidential behavior was ironically expanded rather than constrained post-Clinton.
Obama has (rightly) never viewed impeachment threats as anything other than a chance to rev up his base, juice his email fundraising, and tut-tut to the press about the Republican yahoos who are so trifling as to want him to follow the law.
Bush got some of the same benefit when Democrats tried to play the game, but their hearts were never really in it.
Obama could be caught dead-drunk in an Al Qaida-owned brothel wearing a bloody clown suit, carrying a briefcase of coke in one hand and a decapitated head in the other and absolutely nothing would happen.
He knows it.
We know it.
We’re a less accountable nation because of it.
There’s a pretty thought.
Would it be possible to make it easier to have standing to go to Court asking for a writ of mandamus?
And when the Brits impeached cabinet members for incompetence, did they justify it as impeachment for high crimes and/ or misdemeanors?
I’m glad you brought up Bush 43, because he ran his reelect on GWOT, then pursued everything but until the surge. The Dems werent going to hold him to account for that cognitive dissonance with real impeachment hearings…it might make Bush successful and popular a la Clinton.
Next impeachment ought to include, for giggles, the charge that the Chief Executive ate, at one time or another, a ham sandwich, so as to reinforce the point Gerald Ford made about Congressional impeachment powers.
The Constitution gives Congress authority over prisoners of war.
Clause 11. To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;
Hello All Happy Monday!
I am really concerned that the Republicans are completely ignoring criminal activity and later the will be complicit. You only stand on one side or the other of criminal actions. To sit on both sides makes you just as guilty? We need a real leader! Thx Chainsaw