George Will: 'Stopping a lawless president'

Yesterday, the South Dakota Republican party called for the impeachment of President Obama.

The resolution says Obama has "violated his oath of office in numerous ways." It specifically cites the release of five Taliban combatants in a trade for captive U.S. soldier Bowe Bergdahl, Obama's statement that people could keep insurance companies, and recent EPA regulations on power plants.

"Therefore, be it resolved that the South Dakota Republican Party calls on our U.S. Representatives to initiate impeachment proceedings against the president of the United States," the resolution reads.

Allen Unruh of Sioux Falls sponsored the resolution.

"I've got a thick book on impeachable offenses of the president," Unruh said, calling on South Dakota to "send a symbolic message that liberty shall be the law of the land."

Delegate David Wheeler of Beadle County disagreed.

"I believe we should not use the power of impeachment for political purposes," Wheeler said. "By doing this, we would look petty, like we can't achieve our political goals through the political process."

If lying for political reasons was an impeachable offense, no president would ever complete a term of office. As far as the EPA carbon rules, the Supreme Court has ruled that the agency has jurisdiction over the release of CO2 into the atmosphere. What the EPA is doing is perfectly legal, if idiotic and stupid.

In short, the SD resolution misses the mark. If you want a summary of potential impeachable offensives, George Will is your man:

Serious as are the policy disagreements roiling Washington, none is as important as the structural distortion threatening constitutional equilibrium. Institutional derangement driven by unchecked presidential aggrandizement did not begin with Barack Obama, but his offenses against the separation of powers have been egregious in quantity and qualitatively different.

Regarding immigration, health care, welfare, education, drug policy and more, Obama has suspended, waived and rewritten laws, including the Affordable Care Act. It required the employer mandate to begin this year. But Obama wrote a new law, giving to companies of a certain size a delay until 2016 and stipulating that other employers must certify they will not drop employees to avoid the mandate. Doing so would trigger criminal perjury charges; so he created a new crime, that of adopting a business practice he opposes.

Presidents must exercise some discretion in interpreting laws, must have some latitude in allocating finite resources to the enforcement of laws and must have some freedom to act in the absence of law. Obama, however, has perpetrated more than 40 suspensions of laws. Were presidents the sole judges of the limits of their latitude, they would effectively have plenary power to vitiate the separation of powers, the Founders’ bulwark against despotism.

All the Constitution says about impeachment is that it must be for "high crimes and misdemeanors." But must it be for one, specific act? Or can a pattern of behavior, or a series of transgressions - perhaps none taken by themselves enough to trigger impeachment - be impeachable?

That, I believe, is the dilemma facing Congress. Impeachment is for acts for which there is no defense. I thought the Clinton impeachment was the right thing to do because there was no defense for lying to a grand jury - sex or no sex. But for every executive decree from Obama, there is a rationalization in the law that would make convicting him a futile effort.  The rationalization may be bogus, or a stretch, but it's enough to provide cover to most Democrats who would never vote to impeach or convict in the Senate.

How about a congressional lawsuit? This is an idea advanced by a couple of law professors and would expose Obama's executive overreach while supplying the added benefit of overturning the laws the president changed:

Courts, understandably fearful of being inundated by lawsuits from small factions of disgruntled legislators, have been wary of granting legislative standing. However, David Rivkin, a Washington lawyer, and Elizabeth Price Foley of Florida International University have studied the case law and believe that standing can be obtained conditional on four things:

That a majority of one congressional chamber explicitly authorizes a lawsuit. That the lawsuit concern the president’s “benevolent” suspension of an unambiguous provision of law that, by pleasing a private faction, precludes the appearance of a private plaintiff. That Congress cannot administer political self-help by remedying the presidential action by simply repealing the law. And that the injury amounts to nullification of Congress’s power.

Hence the significance of a House lawsuit, advocated by Rivkin and Foley, that would unify fractious Republicans while dramatizing Obama’s lawlessness. The House would bring a civil suit seeking a judicial declaration that Obama has violated the separation of powers by effectively nullifying a specific provision of a law, thereby diminishing Congress’s power. Authorization of this lawsuit by the House would give Congress “standing” to sue.

Congress’s authorization, which would affirm an institutional injury rather than some legislators’ personal grievances, satisfies the first criterion. Obama’s actions have fulfilled the rest by nullifying laws and thereby rendering the Constitution’s enumeration of Congress’s power meaningless.

True, Obama would still be in office. But his wings would be clipped. And there's another reason a lawsuit would be better than impeachment:

Advocates of extreme judicial quietism to punish the supine people leave the people’s representatives no recourse short of the extreme and disproportionate “self help” of impeachment. Surely courts should not encourage this. The cumbersome and divisive blunderbuss process of impeachment should be a rare recourse. Furthermore, it would punish a president for anti-constitutional behavior but would not correct the injury done to the rule of law.

Impeachment is as much a political calculus as it is a legal and Constitutional remedy. For that reason, a congressional lawsuit would actually accomplish more than simply getting rid of the offending executive. It would restore law and order and the balance of powers, while returning the country to Constitutional government.

 

Yesterday, the South Dakota Republican party called for the impeachment of President Obama.

The resolution says Obama has "violated his oath of office in numerous ways." It specifically cites the release of five Taliban combatants in a trade for captive U.S. soldier Bowe Bergdahl, Obama's statement that people could keep insurance companies, and recent EPA regulations on power plants.

"Therefore, be it resolved that the South Dakota Republican Party calls on our U.S. Representatives to initiate impeachment proceedings against the president of the United States," the resolution reads.

Allen Unruh of Sioux Falls sponsored the resolution.

"I've got a thick book on impeachable offenses of the president," Unruh said, calling on South Dakota to "send a symbolic message that liberty shall be the law of the land."

Delegate David Wheeler of Beadle County disagreed.

"I believe we should not use the power of impeachment for political purposes," Wheeler said. "By doing this, we would look petty, like we can't achieve our political goals through the political process."

If lying for political reasons was an impeachable offense, no president would ever complete a term of office. As far as the EPA carbon rules, the Supreme Court has ruled that the agency has jurisdiction over the release of CO2 into the atmosphere. What the EPA is doing is perfectly legal, if idiotic and stupid.

In short, the SD resolution misses the mark. If you want a summary of potential impeachable offensives, George Will is your man:

Serious as are the policy disagreements roiling Washington, none is as important as the structural distortion threatening constitutional equilibrium. Institutional derangement driven by unchecked presidential aggrandizement did not begin with Barack Obama, but his offenses against the separation of powers have been egregious in quantity and qualitatively different.

Regarding immigration, health care, welfare, education, drug policy and more, Obama has suspended, waived and rewritten laws, including the Affordable Care Act. It required the employer mandate to begin this year. But Obama wrote a new law, giving to companies of a certain size a delay until 2016 and stipulating that other employers must certify they will not drop employees to avoid the mandate. Doing so would trigger criminal perjury charges; so he created a new crime, that of adopting a business practice he opposes.

Presidents must exercise some discretion in interpreting laws, must have some latitude in allocating finite resources to the enforcement of laws and must have some freedom to act in the absence of law. Obama, however, has perpetrated more than 40 suspensions of laws. Were presidents the sole judges of the limits of their latitude, they would effectively have plenary power to vitiate the separation of powers, the Founders’ bulwark against despotism.

All the Constitution says about impeachment is that it must be for "high crimes and misdemeanors." But must it be for one, specific act? Or can a pattern of behavior, or a series of transgressions - perhaps none taken by themselves enough to trigger impeachment - be impeachable?

That, I believe, is the dilemma facing Congress. Impeachment is for acts for which there is no defense. I thought the Clinton impeachment was the right thing to do because there was no defense for lying to a grand jury - sex or no sex. But for every executive decree from Obama, there is a rationalization in the law that would make convicting him a futile effort.  The rationalization may be bogus, or a stretch, but it's enough to provide cover to most Democrats who would never vote to impeach or convict in the Senate.

How about a congressional lawsuit? This is an idea advanced by a couple of law professors and would expose Obama's executive overreach while supplying the added benefit of overturning the laws the president changed:

Courts, understandably fearful of being inundated by lawsuits from small factions of disgruntled legislators, have been wary of granting legislative standing. However, David Rivkin, a Washington lawyer, and Elizabeth Price Foley of Florida International University have studied the case law and believe that standing can be obtained conditional on four things:

That a majority of one congressional chamber explicitly authorizes a lawsuit. That the lawsuit concern the president’s “benevolent” suspension of an unambiguous provision of law that, by pleasing a private faction, precludes the appearance of a private plaintiff. That Congress cannot administer political self-help by remedying the presidential action by simply repealing the law. And that the injury amounts to nullification of Congress’s power.

Hence the significance of a House lawsuit, advocated by Rivkin and Foley, that would unify fractious Republicans while dramatizing Obama’s lawlessness. The House would bring a civil suit seeking a judicial declaration that Obama has violated the separation of powers by effectively nullifying a specific provision of a law, thereby diminishing Congress’s power. Authorization of this lawsuit by the House would give Congress “standing” to sue.

Congress’s authorization, which would affirm an institutional injury rather than some legislators’ personal grievances, satisfies the first criterion. Obama’s actions have fulfilled the rest by nullifying laws and thereby rendering the Constitution’s enumeration of Congress’s power meaningless.

True, Obama would still be in office. But his wings would be clipped. And there's another reason a lawsuit would be better than impeachment:

Advocates of extreme judicial quietism to punish the supine people leave the people’s representatives no recourse short of the extreme and disproportionate “self help” of impeachment. Surely courts should not encourage this. The cumbersome and divisive blunderbuss process of impeachment should be a rare recourse. Furthermore, it would punish a president for anti-constitutional behavior but would not correct the injury done to the rule of law.

Impeachment is as much a political calculus as it is a legal and Constitutional remedy. For that reason, a congressional lawsuit would actually accomplish more than simply getting rid of the offending executive. It would restore law and order and the balance of powers, while returning the country to Constitutional government.