Impeach the Czars!

Since taking office, President Obama has adorned himself with a crown of czars.  It's time for Congress to pry them loose. 

The United States Constitution requires that most senior federal officers must be confirmed by the Senate before assuming office.  Included are appointments for positions throughout the federal government, for the Cabinet and subcabinet, for members of regulatory commissions, for ambassadorships, for judgeships, and for members of numerous advisory boards.

Over the last two years, there has been extensive and prolonged political grumbling over President Obama's appointment of numerous "czars": administration officials with considerable management and sometimes almost dictatorial authority, arbitrarily made not-subject to the constitutional requirement for Senate approval of their appointments.  In many cases, these positions were filled by individuals whose approval by the Senate would have been extremely unlikely, and their activities have often usurped the normal and constitutional role of Cabinet Secretaries and other duly appointed and confirmed officials.  This is a conspicuously devious maneuver by Obama (and a gross expansion of the practices of previous presidents) to circumvent the constitutional requirement of congressional confirmation.  It has also been resented by members of both parties and by both Houses of Congress, whose power has been arrogated by the Presidency.

During the final maneuvering of Congress to fund the government for 2011, the House of Representatives attached a rider to HR 1473, the Full Year Continuing Resolution Act of 2011, that specifically denied funding for several of President Obama's "czars."

Sec. 2262 of HR 1473 reads:

None of the funds made available by this division may be used to pay the salaries and expenses for the following positions:

(1) Director, White House Office of Health Reform.  [Cabinet responsibility: Secretary of Health and Human Services]

(2) Assistant to the President for Energy and Climate Change.  [Cabinet responsibility: Secretary of Energy]

(3) Senior Advisor to the Secretary of the Treasury assigned to the Presidential Task Force on the Auto Industry and Senior Counselor for Manufacturing Policy.  [Cabinet Responsibility: Secretary of the Treasury]

(4) White House Director of Urban Affairs.  [Cabinet responsibility: Secretary of Housing and Urban Affairs]

When this critical budget bill was passed by both Houses of Congress, and presented to the President for signature, he had the constitutional choice of either accepting it as written and signing it, or rejecting it by vetoing it (and being solely responsible for a government shutdown).

The concept of a "line item veto" has been specifically rejected by the Supreme Court[1] as unconstitutional, after Congress actually voted to grant that authority in 1996.  Justice John Paul Stevens (widely regarded as a very liberal justice) wrote the majority opinion, stating "there is no provision in the Constitution that authorizes the president to enact, to amend or to repeal statutes[.]

Nevertheless, President Obama decided to create his own personal version of a line item veto, by signing the legislation while using a "signing statement," in which he declared his intent to violate the law that he was signing:

Section 2262 of the Act would prohibit the use of funds for several positions that involve providing advice directly to the President. The President has well-established authority to supervise and oversee the executive branch, and to obtain advice in furtherance of this supervisory authority. The President also has the prerogative to obtain advice that will assist him in carrying out his constitutional responsibilities, and do so not only from executive branch officials and employees outside the White House, but also from advisers within it.

Legislative efforts that significantly impede the President's ability to exercise his supervisory and coordinating authorities or to obtain the views of the appropriate senior advisers violate the separation of powers by undermining the President's ability to exercise his constitutional responsibilities and take care that the laws be faithfully executed. Therefore, the executive branch will construe section 2262 not to abrogate these Presidential prerogatives.[2]

Despite his arrogantly stated intent to "construe" the meaning of the law to mean exactly the opposite of what it says, unless Obama's czars serve without pay from now on, he will have to illegally re-allocate funds appropriated by Congress for some other purpose, to fund their continuing salaries and expenses.  When President Reagan's administration attempted this same illegal diversion of funds to support the Contras in the Iran-Contra scandal, they at least had the decency to keep it a secret, rather than to brazenly declare the intention to defy the Constitution that he had sworn to protect and defend. 

Ironically, constitutional scholar Obama relies upon the "separation of powers" to justify his plan to fund his czars, when the sole power of appropriations resides constitutionally in the Congress, and when it is this very doctrine that he seeks to circumvent.  He states categorically that he does not intend to comply with the unmistakable intent and unequivocal language of the law.  Clearly, by continuing to employ these Czars as Civil Officers of the United States, that have not been approved by the Congress, and after their employment has been explicitly disapproved, Obama is in violation of the Constitution and the Laws that he has sworn to protect, and could be a valid target for Impeachment.  However, such a strategy would be politically undesirable and practically unsuccessful toward any goal of removing him from office.

However, Article II, Section 4 of the Constitution states: "The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for ... Treason, Bribery, or other High crimes and Misdemeanors."[3]  In the term "civil officer" are included all officers of the United States who hold their appointments under the national government, whether their duties are executive or judicial, in the highest or the lowest departments of the government, with the exception of officers of the army and navy[4].  Thus, the czars are all "Civil Officers" of the United States, and therefore, they too are subject to impeachment by the House of Representatives, for "High crimes and Misdemeanors."

It should immediately be stated emphatically that there is no indication that any of these officers has committed a "crime" -- that is, any malfeasance, or violation of any portion of the criminal law.

The phrase "High crimes and Misdemeanors" as employed by the Founding Fathers in writing the Constitution was a "term of art" with a specific and definite meaning derived from centuries of English common law and practice, of which they had detailed awareness, and which Alexander Hamilton stated was "the model from which [impeachment] has been borrowed." 

The Rodino Report[5], issued by the congressional staff of the House Judiciary Committee in 1974, analyzes the various causes for impeachment, through English and United States history.  Ironically, impeachment was developed by the early English parliament as a means of establishing a measure of control over the actions of the king and his ministers, who otherwise served to advance his absolutist purposes, in much the same way as Obama's czars serve his regal aspirations today.  As Rodino states, impeachment, at least in its early history, has been called "the most powerful weapon in the political armoury, short of civil war."

Thus impeachment has historically been used to accuse and remove government officials who have in some way acted against the legitimate functions or interests of the government, the essence of the charge being "damage to the state" particularly as assessed by the legislature.  In 1970, then-House Minority Leader Gerald R. Ford defined the criterion as he saw it: "An impeachable offense is whatever a majority of the House of Representatives considers it to be at a given moment in history."[6]

In this specific instance, the impeachable offense or activity is tendering advice and performing actions that usurp the legitimate authority of validly appointed and confirmed Civil officers of the United States.  In other words, the very existence of the czars in a constitutionally illicit office is offensive and damaging to the United States.

The House of Representatives has the power to impeach each and every one (or only some of the most objectionable) of the czars, requiring the Senate to decide whether to retain these czars in office, or to remove them from office.  The political implications and embarrassment of impeachment of the czars would be extremely negative for Obama, but would avoid a direct attack on, or an attempt at impeachment of President Obama himself, a tactic that would be fraught with all the uncertainties of political pitched battle, including the inevitable allegations of racism, as well as the governmental paralysis associated with Presidential impeachment and trial by the Senate.  In most if not all cases, the impeached officers would be expected to preemptively resign, eliminating the problem while simultaneously emphasizing the embarrassment to the President. 

The Republican leaders of the House of Representatives should strongly consider immediately taking action to impeach the unconstitutionally appointed and unlawfully maintained positions of the Czars of Obama.

Notes

[1] Clinton v. City of New York, 524 US 417

[2] Source:  http://www.whitehouse.gov/the-press-office/2011/04/15/statement-president-hr-1473

[3] Phrase "...and Conviction of, ..." was deleted for clarity.

[4] Rawle on the Const. 213; 2 Story, Const. Sec. 790; a senator of the United States, it was decided, was not a civil officer, within the meaning of this clause in the constitution. Senate Journals, 10th January, 1799; 4 Tuck. Bl. Com. Appx. 57, 58; Rawle, Const. 213; Serg. on Const. Law, 376; Story, Const. Sec. 791.

[5] http://www.uhuh.com/Starr/rodino.htm

[6] http://en.wikipedia.org/wiki/Impeachment#United_States

Since taking office, President Obama has adorned himself with a crown of czars.  It's time for Congress to pry them loose. 

The United States Constitution requires that most senior federal officers must be confirmed by the Senate before assuming office.  Included are appointments for positions throughout the federal government, for the Cabinet and subcabinet, for members of regulatory commissions, for ambassadorships, for judgeships, and for members of numerous advisory boards.

Over the last two years, there has been extensive and prolonged political grumbling over President Obama's appointment of numerous "czars": administration officials with considerable management and sometimes almost dictatorial authority, arbitrarily made not-subject to the constitutional requirement for Senate approval of their appointments.  In many cases, these positions were filled by individuals whose approval by the Senate would have been extremely unlikely, and their activities have often usurped the normal and constitutional role of Cabinet Secretaries and other duly appointed and confirmed officials.  This is a conspicuously devious maneuver by Obama (and a gross expansion of the practices of previous presidents) to circumvent the constitutional requirement of congressional confirmation.  It has also been resented by members of both parties and by both Houses of Congress, whose power has been arrogated by the Presidency.

During the final maneuvering of Congress to fund the government for 2011, the House of Representatives attached a rider to HR 1473, the Full Year Continuing Resolution Act of 2011, that specifically denied funding for several of President Obama's "czars."

Sec. 2262 of HR 1473 reads:

None of the funds made available by this division may be used to pay the salaries and expenses for the following positions:

(1) Director, White House Office of Health Reform.  [Cabinet responsibility: Secretary of Health and Human Services]

(2) Assistant to the President for Energy and Climate Change.  [Cabinet responsibility: Secretary of Energy]

(3) Senior Advisor to the Secretary of the Treasury assigned to the Presidential Task Force on the Auto Industry and Senior Counselor for Manufacturing Policy.  [Cabinet Responsibility: Secretary of the Treasury]

(4) White House Director of Urban Affairs.  [Cabinet responsibility: Secretary of Housing and Urban Affairs]

When this critical budget bill was passed by both Houses of Congress, and presented to the President for signature, he had the constitutional choice of either accepting it as written and signing it, or rejecting it by vetoing it (and being solely responsible for a government shutdown).

The concept of a "line item veto" has been specifically rejected by the Supreme Court[1] as unconstitutional, after Congress actually voted to grant that authority in 1996.  Justice John Paul Stevens (widely regarded as a very liberal justice) wrote the majority opinion, stating "there is no provision in the Constitution that authorizes the president to enact, to amend or to repeal statutes[.]

Nevertheless, President Obama decided to create his own personal version of a line item veto, by signing the legislation while using a "signing statement," in which he declared his intent to violate the law that he was signing:

Section 2262 of the Act would prohibit the use of funds for several positions that involve providing advice directly to the President. The President has well-established authority to supervise and oversee the executive branch, and to obtain advice in furtherance of this supervisory authority. The President also has the prerogative to obtain advice that will assist him in carrying out his constitutional responsibilities, and do so not only from executive branch officials and employees outside the White House, but also from advisers within it.

Legislative efforts that significantly impede the President's ability to exercise his supervisory and coordinating authorities or to obtain the views of the appropriate senior advisers violate the separation of powers by undermining the President's ability to exercise his constitutional responsibilities and take care that the laws be faithfully executed. Therefore, the executive branch will construe section 2262 not to abrogate these Presidential prerogatives.[2]

Despite his arrogantly stated intent to "construe" the meaning of the law to mean exactly the opposite of what it says, unless Obama's czars serve without pay from now on, he will have to illegally re-allocate funds appropriated by Congress for some other purpose, to fund their continuing salaries and expenses.  When President Reagan's administration attempted this same illegal diversion of funds to support the Contras in the Iran-Contra scandal, they at least had the decency to keep it a secret, rather than to brazenly declare the intention to defy the Constitution that he had sworn to protect and defend. 

Ironically, constitutional scholar Obama relies upon the "separation of powers" to justify his plan to fund his czars, when the sole power of appropriations resides constitutionally in the Congress, and when it is this very doctrine that he seeks to circumvent.  He states categorically that he does not intend to comply with the unmistakable intent and unequivocal language of the law.  Clearly, by continuing to employ these Czars as Civil Officers of the United States, that have not been approved by the Congress, and after their employment has been explicitly disapproved, Obama is in violation of the Constitution and the Laws that he has sworn to protect, and could be a valid target for Impeachment.  However, such a strategy would be politically undesirable and practically unsuccessful toward any goal of removing him from office.

However, Article II, Section 4 of the Constitution states: "The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for ... Treason, Bribery, or other High crimes and Misdemeanors."[3]  In the term "civil officer" are included all officers of the United States who hold their appointments under the national government, whether their duties are executive or judicial, in the highest or the lowest departments of the government, with the exception of officers of the army and navy[4].  Thus, the czars are all "Civil Officers" of the United States, and therefore, they too are subject to impeachment by the House of Representatives, for "High crimes and Misdemeanors."

It should immediately be stated emphatically that there is no indication that any of these officers has committed a "crime" -- that is, any malfeasance, or violation of any portion of the criminal law.

The phrase "High crimes and Misdemeanors" as employed by the Founding Fathers in writing the Constitution was a "term of art" with a specific and definite meaning derived from centuries of English common law and practice, of which they had detailed awareness, and which Alexander Hamilton stated was "the model from which [impeachment] has been borrowed." 

The Rodino Report[5], issued by the congressional staff of the House Judiciary Committee in 1974, analyzes the various causes for impeachment, through English and United States history.  Ironically, impeachment was developed by the early English parliament as a means of establishing a measure of control over the actions of the king and his ministers, who otherwise served to advance his absolutist purposes, in much the same way as Obama's czars serve his regal aspirations today.  As Rodino states, impeachment, at least in its early history, has been called "the most powerful weapon in the political armoury, short of civil war."

Thus impeachment has historically been used to accuse and remove government officials who have in some way acted against the legitimate functions or interests of the government, the essence of the charge being "damage to the state" particularly as assessed by the legislature.  In 1970, then-House Minority Leader Gerald R. Ford defined the criterion as he saw it: "An impeachable offense is whatever a majority of the House of Representatives considers it to be at a given moment in history."[6]

In this specific instance, the impeachable offense or activity is tendering advice and performing actions that usurp the legitimate authority of validly appointed and confirmed Civil officers of the United States.  In other words, the very existence of the czars in a constitutionally illicit office is offensive and damaging to the United States.

The House of Representatives has the power to impeach each and every one (or only some of the most objectionable) of the czars, requiring the Senate to decide whether to retain these czars in office, or to remove them from office.  The political implications and embarrassment of impeachment of the czars would be extremely negative for Obama, but would avoid a direct attack on, or an attempt at impeachment of President Obama himself, a tactic that would be fraught with all the uncertainties of political pitched battle, including the inevitable allegations of racism, as well as the governmental paralysis associated with Presidential impeachment and trial by the Senate.  In most if not all cases, the impeached officers would be expected to preemptively resign, eliminating the problem while simultaneously emphasizing the embarrassment to the President. 

The Republican leaders of the House of Representatives should strongly consider immediately taking action to impeach the unconstitutionally appointed and unlawfully maintained positions of the Czars of Obama.

Notes

[1] Clinton v. City of New York, 524 US 417

[2] Source:  http://www.whitehouse.gov/the-press-office/2011/04/15/statement-president-hr-1473

[3] Phrase "...and Conviction of, ..." was deleted for clarity.

[4] Rawle on the Const. 213; 2 Story, Const. Sec. 790; a senator of the United States, it was decided, was not a civil officer, within the meaning of this clause in the constitution. Senate Journals, 10th January, 1799; 4 Tuck. Bl. Com. Appx. 57, 58; Rawle, Const. 213; Serg. on Const. Law, 376; Story, Const. Sec. 791.

[5] http://www.uhuh.com/Starr/rodino.htm

[6] http://en.wikipedia.org/wiki/Impeachment#United_States

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