Faithless Execution. Andrew C McCarthy

they do not have in the House, Republicans also have the votes, right now, to stop new Obama initiatives and to support the House were the latter to stop financing the president’s excesses. And yet, cowed by the Obama-friendly media, they have offered nothing but token resistance. Republicans are paralyzed at the very thought of using the power of the purse. The one time that House conservatives did so—in attempting to defund or delay the implementation of Obamacare in 2013—they were savaged by the Beltway GOP leadership.

      I do not see any of this changing after the midterm elections. Even if Republicans win, the same Republican leaders will still be running the show. Moreover, Republicans are not going to come close to winning the lopsided majorities necessary to override Obama vetoes. As a practical matter, that means the president will not need to veto many bills. Democrats, unlike Republicans, would stick together in the Senate and coordinate closely with House progressives to kill any GOP-sponsored legislation aimed at rolling back Obama’s agenda. If past is prologue, Republicans will rarely even attempt such legislation. They will shrug and tell us that resistance is futile.

      Perhaps more significantly, American presidents have enormous power over the conduct of foreign affairs and over the direction of the sprawling executive bureaucracy. If Congress becomes more of a dead end for Obama than it is now, he will simply redouble his determination to rule by international agreements and executive orders—to be imposed on Americans by the administrative agencies that run the country day to day, and by the federal courts whose benches the president has been filling with hundreds of like-minded progressives since 2009.

      The Constitution provides two congressional avenues for reining in presidential lawlessness: the power of the purse and the authority to impeach the president. They are extraordinarily powerful remedies—and they are the only remedies available. Some lawmakers appear to think there is a third: Unwilling or unable to persuade their colleagues to use the constitutional powers available to the legislature, they hope to have the courts do the work for them, and to look as if they are mounting real resistance by filing their ballyhooed lawsuits against the administration. It is a feeble strategy.¹⁴

      It is not the purpose of the federal courts to resolve national controversies. They were created to remedy individual injuries but given no power to enforce their judgments. That, indeed, is why Alexander Hamilton anticipated that the judiciary would be the “least dangerous” branch: Controlling neither sword nor purse, it would be “least in a capacity to annoy or injure” the “political rights of the Constitution.”¹⁵ In fact, the law of “standing,” which addresses what grievances litigants may bring before courts, teaches that the more a controversy affects the body politic rather than the individual citizen, the less appropriate it is for judicial resolution. It is for just such controversies that we have political rights.

      American jurisprudence counsels the judiciary to stay out of “political questions,” disputes between the two political branches over the extent of their competing authorities. Most judges will not give such suits the time of day. Even if some unexpectedly do, litigation takes years to resolve. When it finally ends, we are reminded that courts are powerless to give effect to their own orders. Indeed, the Obama administration is already scoffing at judicial rulings that, for example, stripped the federal government’s power (under the 1965 Voting Rights Act) to “preclear” state election laws, such as new voter ID provisions; and that invalidated the president’s “recess” appointments—when Congress was not in recess—to the National Labor Relations Board.¹⁶ When a federal judge in New Orleans ruled that the administration’s announced moratorium on deepwater drilling following the BP oil spill in the Gulf of Mexico was illegal, the administration simply stopped issuing drilling permits—in effect, imposing an unannounced moratorium that continued the lawlessness.¹⁷

      In the unlikely event that judges presume to rule against the president, they must depend on his executive branch subordinates to enforce their directives. Good luck with that.

      If Congress is unwilling to use its command over the treasury to coerce the president into heeding the limits of his power, impeachment is the only other alternative to the current Congress’s obviously preferred course of abdication. If you won’t defund malfeasance, you have to remove it—or accept it. There is no other course. Plus, as we shall see, the Framers saw impeachment as the appropriate response to presidential corruption, lawlessness, and infidelity to the Constitution. It is the designed tonic for faithless execution.

      In the final analysis, though, my belief that President Obama should be impeached counts for nothing (beyond the duty of full disclosure to the reader). In fact, it counts for very little that members of Congress may believe that they can prove numerous impeachable offenses, and thus that the president should be impeached. Impeachment is not a legal matter of proving “high crimes and misdemeanors.” It is a political matter of will.

      Senator Cruz was right. Although it is true that a simple House majority can vote out articles of impeachment, successfully impeaching a president means removing him from office—actually purging the lawlessness. Removal requires, in addition, the president’s conviction on articles of impeachment by a two-thirds vote of the Senate.¹⁸ That vote will never happen in the absence of extraordinary political pressure on these elected officials. That is, there would have to be such a robust national consensus that the president must be ousted that at least 67 of the 100 senators would vote to do it, notwithstanding the partisan and ideological ties many have with the president, the security of the six-year term that tends to make a senator (especially in the early years) less responsive than a House member to his constituents’ wishes, and the guarantee of media demagoguery over the very thought of impeaching a liberal Democrat.

      At this point, while there is increasing angst over Obama’s policies and growing disapproval of his presidency, there is no public consensus that he should be removed from office. The legal case for impeachment is very strong. The political case lags far behind—and it is the only case that matters. Political cases have to be built.

CHAPTER TWO

       THE MISCONDUCT OF PUBLIC MEN

      “Shall any man be above justice? Above all, shall that man be above it who can commit the most extensive injustice?”

      These epigrammatic questions were posed by George Mason at the Philadelphia convention in 1787. They elucidate the Framers’ rationale for including in the Constitution a procedure for the impeachment and removal of a president.¹

      Few matters at the convention addled the delegates as much as the dangerous potential that the president of the United States—the powerful new position they were creating, the single official in whom they decided to vest the entirety of federal executive power—could become a king. The purpose of the Constitution was to safeguard liberty, not sow seeds for the very tyranny from which the American colonies had liberated themselves. Much of the convention, therefore, was dedicated to foreclosing that possibility.

      First, the president would have to face election every four years. He would have immense authorities as the chief executive, but they would be checked in every important particular. For example, the president would be commander in chief, but Congress would retain the power to declare war and hold both the purse and significant powers over the armed forces. The president could make treaties and broadly conduct foreign affairs, but international agreements could not amend the Constitution (there being a separate process for that), treaties could not take effect unless approved by a Senate supermajority, and Congress was empowered to regulate foreign commerce. The president would appoint major government officials, but they could not take office without Senate approval.

      While the Framers took care to set limits on executive powers, they also sought to ensure accountability by vesting those awesome powers in a unitary executive rather than a committee or a minister advised by a privy council.² Ultimately responsible for all executive conduct and unable to deflect blame