Saturday, July 26, 2014

Annals of Derp: Impeachy Keen

Impeaches and cream. Cornmeal shortcakes, via Foodland.
One of the rock-bottom silliest things about Speaker Boehner's little summer project of taking President Obama to court (for Subcriminal Neglect, I guess, or maybe it's just Alienation of Affections) is the alleged reason that he has to do it because our otherwise infinitely resourceful and perfect, God-given Constitution doesn't give him any options: as Forbes magazine's Transformational Humanitarian Populism correspondent, gold bug Ralph Benko, writes,
There is a quiet gap in the U.S. Constitution.  There is no explicit mechanism to discipline a president who fails to carry out his Constitutional duties.  This gap sat there, barely noticed, for centuries. 
Mind the quiet gap!

Now you might think, as I was saying the other day, that there is such a mechanism in Article II, 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.
But your Transformational Humanitarian Populist gold bug thinks different:
There is no explicit mechanism to sanction a president for failure to preserve the Constitution or faithfully execute the laws. The Constitution provides only for the impeachment and removal of a president from office and then only for “treason, bribery, or other high crimes and misdemeanors.”  Obama, manifestly, has not committed an impeachable offense. 
With the imputation that President Obama could be charged with failing to preserve the Constitution and/or faithfully execute the laws if those were high crimes or similarly high misdemeanors, but they aren't.

To which one can only say, "Wow, Founding Fathers, you certainly fucked that one up." But did they? I wonder if there's some research technique one could use, taking advantage of speedy modern technology, to find out if this is true.

Such an approach might lead one, for example, to Edward Brown Firmage's authoritative paper on "The Law of Presidential Impeachment", Utah Law Review, Winter 1973, and its citation of the House Committee on the Judiciary Opinion of 1926 that
the provision for impeachment in the Constitution applies not only to high crimes and misdemeanors as those words were understood at common law but also acts which are not defined as criminal and made subject to indictment, and also to those which affect the public welfare. Thus an official may be impeached for offenses of a political character and for gross betrayal of public interests. Also for abuses or betrayal of trusts, for inexcusable negligence of duty, for the tyrannical abuse of power, or, as one writer puts it, for “a breach of official duties….”
Or of Associate Justice of the Supreme Court Joseph Story in 1833,
Not but that crimes of a strictly legal character fall within the scope of the power [of impeachment]…; but that it has a more enlarged operation, and reaches what are aptly termed political offences, growing out of personal misconduct or gross neglect, or usurpation, or habitual disregard of the public interests, in the discharge of the duties of political office. These are so various in their character, and so indefinable in their actual involutions, that it is almost impossible to provide systematically for them by positive law.
Or at a more concrete level that
Less than one-third of the eighty-three articles the House has adopted have explicitly charged the violation of a criminal statute or used the word “criminal” or “crime” to describe the conduct alleged, and ten of the articles that do were those involving the Tenure of Office Act in the impeachment of President Andrew Johnson
whom the Senate, as we all recall, declined to convict. (And the crime Johnson was charged with in those ten articles, unsuccessfully trying to fire Secretary of War Edwin Stanton without the consent of the Senate, doesn't sound like a very high crime from the perspective of today. In fact Firmage says that the law Johnson attempted to violate, the Tenure of Office Act of 1867, designed expressly to stop Johnson from firing Stanton and repealed in 1887, was itself almost certainly unconstitutional.)

No, pal, if you really believe Obama
demonstrably is faithless in his execution of the laws
has failed faithfully to execute the laws so many times, in so many ways, so relentlessly, and so brazenly, that he may have changed the game
impeachment is totally your article. And you wouldn't have to deal with any of those silly little debates about standing, either, as in
The Supreme Court has made it clear in recent decades that members of Congress have no standing to file constitutional lawsuits. The justices have insisted plaintiffs must show they suffered a "personal injury" and are not merely in court to argue an abstract point of law. 
Unless maybe the whole point is to win back the affection of all those trial lawyers, who went Democrat decades ago, with a gesture of SUPPORT THE TORT.

Or unless maybe you all realize that you haven't got a case. And the case isn't really what it's about. Like it's merely to keep your elderly paranoid fans in a state of maximum churn, trembling with rage and fear as they watch the Fox, their wingnut checkbooks ever at hand. I'm putting my money on Haven't Got a Case.
Image from Sonic X.

Note: Article II, section 4, of the Constitution is modified by amendment 28.
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. And Torts. Those cool ones made with hazelnut flour. With Whipped Cream.

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