In the twentieth century, the legislative powers of Congress became essentially unlimited. Is the Congressional subpoena power likewise unlimited?
Proper as it is to dismiss President Obama’s daring his opponents to impeach him as childish posturing for his political base – secure as he is that the Senate’s Democratic majority would prevent his conviction regardless of any Constitutional evidence brought against him – nevertheless we must note that Obama risks disaster, as do children who play with matches in the presence of gasoline. His flaunting of impeachment sets up the alternative between the unfettered power of any president supported by a Senate majority and, on the other hand, the unfettered power of any Congressional majority coherent enough to remove presidents politically unpalatable to it.
Either way, Obama is opening the door to the partisan erasure of the distinction between executive and legislative power.
The question before us has far less to do with President Obama than it does with whether America will be governed by a succession of parties, each working its unfettered will. Anyone (including Obama) who imagines that the Democratic Party is an extension of the Obama presidency and hence that Obama is merely adding to the presidency’s powers has reality precisely backward. By underlining that the foundation of presidential power – what keeps the president in office – is partisan power in Congress rather than the Constitution, Obama is transforming the American system into a parliamentary one, just like in Europe, just as Woodrow Wilson advocated in 1885. Obama, by breaking down the separation between the presidency and his party in Congress, is eliminating the distinction between the executive and legislative branches – a distinction that makes the United States government different from any other in the world (except Switzerland). Absent that division, the only practical question becomes: “which party shall work its will?”
A glance at the record of the 1787 Constitutional Convention as well as at the Federalist Papers removes doubt about what impeachment is supposed to do and not do. It should lead Democrats, Republicans, and the rest of us to ask whether we really want to continue down the road that Obama is tracing for us.
Connecticut’s Roger Sherman, “contended that the legislature should have power to remove the Executive at pleasure.” Nobody agreed. Virginia’s George Mason expressed the general sentiment when he argued that, while “the fallibility” of electors and “the corruptibility of the man chosen” makes indispensable “some mode of displacing an unfit magistrate,” nevertheless he “opposed decidedly making the Executive the mere creature of the Legislature in violation of the fundamental principle of good government.” New York’s Gouverneur Morris agreed, but was wary, lest impeachment “render the Executive dependent on those who are to impeach.”
Having agreed to provide for the president’s impeachment, the question became how to define the occasions of it so as to prevent impeachment from becoming a mere tool of political control. Everyone agreed that “treason and bribery ” ought to be causes. But George Mason noted that “Treason as defined in the Constitution will not reach many great and dangerous offenses….He movd. to add after “bribery” “or maladministration.” Mr. Gerry seconded him. Virginia’s James Madison objected: “So vague a term will be equivalent to a tenure during pleasure of the Senate.” Seeing the sense of that, “Col. Mason withdrew “maladministration” & substituted “other high crimes and misdemeanors”
That solution-by-vagueness, adopted eight states to three, simply left safeguarding the separation of powers to future generations’ patriotic good sense.
Immediately, Alexander Hamilton warned that this would be in short supply. In Federalist 65 he wrote: “A well-constituted court for the trial of impeachments is an object not more to be desired than difficult to be obtained in a government wholly elective.” That is because the “subjects of its jurisdiction…are of a nature which may with peculiar propriety be denominated POLITICAL… The prosecution of them…will connect itself with the pre-existing factions, and will enlist all their animosities, partialities, influence, and interest on one side or on the other; and in such cases there will always be the greatest danger that the decision will be regulated more by the comparative strength of parties, than by the real demonstrations of innocence or guilt.”
A president’s flouting of the Constitution, sustained by his party, is precisely the danger that Obama and the Democratic Party are bringing upon America. Let us look closely at the joint nature of this enterprise.
No one in the Democratic Party has evinced the slightest opening to the possibility that he or she might consider seriously the merits of accusations that president Obama has refused to enforce laws that are on the books or that he has enforced laws contrary to the wording of those very laws. On the contrary: the Party seems quite united in the proposition that anything at all that its president might do in the service of its constituencies’ desires is cause for celebration. No exceptions.
How is any opponent of those desires to regard this? Impeaching Obama misses the bigger part of the problem, namely a Democratic party so partisan that it places its desires above the Constitution. This party not only supports its own executive regardless of the Constitution but, in the past, was ready and willing (but it lacked the requisite majority) to remove the opposite party’s president simply because it disagreed with him. Quite simply, the Democratic Party is moving beyond the Constitution because a majority of its voters is doing so. But how does one impeach a party that represents a substantial part of the body politic?
What is the solution? The Constitution offers only the prayer that patriotic good sense will prevail. But in its absence? The Hydra-like Administrative State in which we now live offers so many temptations to stick it to one’s least favorite people as to render it unlikely that rival sectors of society will divorce amicably and agree to let the other live in its own way. Most likely, we will get one form or another of what Woodrow Wilson wanted: alternating governments by parties so partisan as to unite legislative and executive power. It won’t be America. In fact, it’s already ceasing to be.