Time for impeachment?

August 2006

Abstract:
The movement to impeach President Bush may be gaining momentum as a result of his assault on the legislative and oversight authorities of Congress.  His assertions in written bill-signing statements that he has broad authority to ignore the law may turn out to be the last straw.  With thoughts on how to proceed.

Yet, for all the talk of impeachment over the past years, there has been zero chance that the Republican-controlled Congress would seriously consider this.  For one thing it would, of course, be damaging to the party, and for another, most of the charges levied against Mr. Bush by impeachment enthusiasts relate to actions he has taken with implicit or explicit consent of the Congress:

• The invasion of Iraq:  The Senate voted bipartisan approval.
• The continuing occupation of Iraq:  Congress funds it year after year.
• The prison camp at Guantanamo Bay:  Congress could have closed it at any time.
• The secret wiretaps:  Congress has again lacked the gumption to forbid them.

Most of these matters will go nowhere as fodder for the several "Impeach Bush" campaigns.  But another matter has surfaced over the past year that may very well turn the tide;  a matter in which the President appears to have declared war on Congress over their respective constitutional authorities:  With Mr. Bush's hyperactive and aggressive use of "Presidential Signing Statements", he has attempted to restrict the legislative authority of the Congress over the Executive branch of the federal government.  Such statements, attached to the approved bill by the President, are nothing new;  they've been used by Presidents since James Monroe to clarify the President's interpretation of the new law, mainly as guidance to Executive departments.  Mr. Bush, however, has taken use of this tactic to a new level.  Not only has he issued more signing statements than all his predecessors combined, but taken together with the fact that he has only vetoed one bill in his 5 ½ years in office  – the fewest of any President –  one is led to the conclusion that Mr. Bush is using signing statements as a de facto method of line item veto.  Although several recent Presidents have asked Congress for authority to veto selected provisions ("line item veto") of laws that come to his desk, Congress has consistently refused to grant the President this power.  (The Constitution gives the President only two options:  sign the bill or return it to Congress with a veto message.)  President Clinton attempted to use a line item veto anyway  – presumably to have it tested in court –  but he was rebuffed by the Supreme Court (Clinton v. New York, 1998), which found the practice unconstitutional in that the President was attempting to exercise legislative authority, which is reserved, in the Constitution, to Congress.

So President Bush has turned the signing statement into a kind of line item veto.  He comes from the view that the President has dictatorial power within the Executive branch, and that neither the legislative branch (Congress) nor the judicial branch (the Supreme Court) has authority to interfere with or limit this presumed power.  He proffers the same argument with respect to his dictatorial power over the military (and  – by his extension –  over anything remotely connected to his "War on Terror") in his capacity as "Commander in Chief".  By issuing a signing statement that a given provision in a new law constitutes an intrusion of Congress on the President's authorities, he labels it as unconstitutional and thereby instructs federal departments not to enforce or follow the particular provision of law.  In effect, he voids such provisions in the new law, while signing and purportedly approving the law.  Mr. Bush's irrational insistence that Congress may not regulate the running of the Executive department or the military services flies directly in the face of the Constitution's direct charge to Congress in Article I, Section 8: Powers of Congress.  There we read,  "To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof."  That's pretty clear:  Congress can make laws to regulate any department and officer, including the President's department and the President himself.  Congress' authority over the military is equally clear:  "To make Rules for the Government and Regulation of the land and naval Forces."  That authority could not be stated more clearly.

Most previous Presidents, if they held a provision of a law to be unconstitutional, would veto the bill, returning it to Congress where that body would have another chance to amend and/or pass the bill over his veto with a two-thirds majority.  Most Presidents would also communicate such concerns to Congress during the development and debate of the proposed bill, so that the concerns could be discussed and perhaps resolved.  Mr. Bush generally chooses to do neither, and the reason now seems clear:  By claiming immunity from interference by Congress and the courts, both in his roles as Executive and as Commander in Chief, and by using his presumed authority to void bothersome provisions of law through his signing statements rather than through veto, President Bush has taken from Congress the right to override his rejections of legislative provisions.  Unfortunately, the Congress does not have access to direct judicial remedy under current law, something that it may attempt to correct (see below).

The case that more than any has stuck in Congress' craw occurred in the current congressional session, when Mr. Bush, who had long opposed Senator McCain's effort to pass legislation prohibiting cruel or degrading treatment of military prisoners, invited the Senator to the White House and made a public show of his change of heart:  He declared as U.S. policy that all military prisoners would henceforth be well treated, and he was now going to support McCain's bill.  But he was just kidding.  When the enacted bill reached Mr. Bush's desk for approval, the President signed the bill as he said he would, but appended a signing statement stating that he would abide by the anti-torture provision to the extent that he considered it useful to do so.  The President's wording is typical of his signing statements, and is instructive:  "The executive branch shall construe...(the anti-torture provision)...in a manner consistent with the constitutional authority of the President to supervise the unitary executive branch and as Commander in Chief and consistent with the constitutional limitations on the judicial power..."  Much of this is code;  a fair clarifying rewording would be:  "The President will interpret and enforce this provision as he chooses, given that he has sole authority over the executive branch, including the military, and given that the courts are barred from intruding on the President's power."  Scary, eh?  Mr. Bush's actions amount to a Mussolini-like amassing of absolute power in his own person.  I should say Mr. Bush is walking on thin ice, but I like the expression of a friend, he's "walking on thin water."  He's already beyond the ice.

What are the chances that Congress has finally been goaded enough to act against this President?  It's clear that Mr. Bush has gotten away with his devious practices up to this point largely because his party has had control of the Congress.  It's nearly unthinkable that a party in control of the House of Representatives would consider impeachment of a President of the same party.  That hasn't happened before.  But an election is coming up, and it remains to be seen whether the Democrats succeed in giving this issue legs.  Admittedly, the issue of "signing statement abuse" is somewhat abstruse, and doesn't lend itself well to bumper sticker electioneering, but the concept of abuse of power by the President, and the Republican Congress' failure to contain it should have some potential as a campaign issue.  If the Democrats gain control of the House in the coming election, we might expect that the President will be given the choice of either changing his stripes or facing impeachment proceedings.

In the latest developments in this flap:  This week, the American Bar Association issued a report by its "Task force on Presidential signing statements and the Separation of Powers Doctrine"  (PDF link – 150KB).  The ABA finds the President's abuse of signing statements "contrary to the rule of law and our constitutional system of separation of powers".  The report recommends that Congress adopt legislation to require the President to justify any reservations about provisions of law as reflected in signing statements, by submitting to Congress "a report setting forth in full the reasons and legal basis" for his objection.  The report further recommends legislation to permit Congress or others to seek judicial review of any such use of signing statements by the President.  (Federal courts do not currently have such review authority, nor does Congress have standing to sue.)  A couple of days after the release of the ABA report, Republican Senator Arlen Specter of Pennsylvania introduced an amendment in line with the ABA recommendations.  (The amendment lacks only the useful provision that failure by the President to comply with its provisions shall be considered a "misdemeanor" in the sense of the Constitution's grounds for impeachment.  Write Senator Specter to get such language included!)  Again, the chances of its passage in this session are probably slim, but it may be used to draw battle lines over this President prior to the November election.

So where's all this headed?
It's my personal judgement that impeachment of a President is an exceedingly serious matter, a time- and attention-consuming course of action that should only be resorted to as a last resort where other correctives fail.  (The impeachment of Clinton was hogwash, and was a blot not on Clinton  – he was covered with blots already –  but on a trivia-minded Congress.)  Such of Mr. Bush's past actions as had the consent of Congress, even if only by its silence, did not merit talk of impeachment.  But what now has emerged as a conscious effort to amass dictatorial power in the presidency in a fascistic manner, by robbing the Congress of its legitimate oversight and control authority, must be an impeachable offense.  Its most egregious acts have been the infamous signing statements, but this President has also shown his contempt for Congress in the wiretapping case and several others.  His aversion to consultation with anyone outside his circle of lieutenants has shown itself as much in his lone-wolf approach to foreign affairs, earning him and our nation scorn throughout the world, as in his pathetic fear of open discussion with Congress.

There is little doubt that Mr. Bush has committed impeachable offenses.  If the Democrats take over leadership of the House next January, they should immediately pursue a course to correct the balance of power that has been skewed by Mr. Bush's actions.  This does not suggest an immediate impeachment.  There are other avenues that should be tried first, though they have the drawback that they rob us of the titillation of seeing the mighty fall.  But if we are mature enough to delay that gratification, a course such as the following would be seen as scrupulously fair toward the President:

1. Pass such legislation as that proposed by Senator Specter, preferably with the additional provision I've proposed above.
2. In the unlikely event that such legislation gets through the Senate (perhaps still Republican-controlled) and is signed by the President, file suit for judicial review of the President's arrogation of power through illegal signing statements.  (It would be the ultimate irony if the President signs this bill with a signing statement declaring his intention to not comply!)
3. If this matter goes to court and the President's power grabs are ruled unconstitutional and the signing statement exemptions illegal, the President will presumably comply, unless he continues with the fiction that the courts can't touch him, in which case we have a "Seven Days in May" type meltdown.
4. In the much more likely event that such legislation is rejected by a Republican Senate or vetoed by President Bush, a letter from the House to the President notifying him that the House considers specified acts, and the totality of them, to be impeachable offenses.  The President is given the opportunity to withdraw his illegal interpretations by Executive Order, which he naturally will refuse.
5. Having exhausted these efforts, the House commences impeachment hearings.