an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
"High crimes and misdemeanors" = "morally unconscionable"?
Why wait for the proof in this case? I mean, can't we impeach for a "morally unconsionable" decision to go to war in Iraq?
How about the "morally unconscionable" tax cuts?
Shouldn't we expect a showing of treason or abuse of office, and shouldn't we insist that mere policy disagreements aren't sufficient to demonstrate those?
All good questions.
One should wait for proof because that should be required for impeachment.
Ordinarily the fact that Congress thinks the President has acted immorally should not, without more, be grounds for impeachment. But the allegations in this case concern much more than that. The charges, if true, suggest a real abuse of power (and abuse of office) and violations of both domestic and international law.
I noted earlier that the Administration's torture memo tried to offer a very narrow standard of torture, and so his lawyers might claim that what was ordered was not technically "torture" under the (unreasonable) interpretation that the OLC torture memo gives to that word. Nevertheless, if the allegations are correct, it would very possibly make the President guilty of war crimes. And it would almost certainly be in violation of the Geneva Conventions. Not all violations of international law should be impeachable offenses, but surely ordering the abuse and torture of prisoners should be.
I hardly think that ordering tax cuts and ordering torture deserve equal degrees of moral opprobrium. Nor do I think that criticizing a presidential decision to order torture evidences a mere "policy disagreement." If we have become so jaundiced as to reach that conclusion, we have surely lost our way as a nation.
I think there are two questions. The first question is whether Bush could be impeached for authorizing "inhumane treatment" of prisoners, regardless of whether such treatment is determined to be unlawful. In your original post you suggested the answer was yes, and what seemed to be doing the work in reaching that conclusion was the fact that the authorization of such treatment is "morally unconscionable."
The second question is whether Bush could be impeached for authorizing violations of international law--in particular, for authorizing the "abuse and torture" of prisoners barred by the Geneva Conventions. You answer that question yes, in your latest post, and in that answer illegality seems to be a necessary condition, even if illegality isn't ultimately sufficient.
Those don't seem entirely consistent, but perhaps I've misinterpreted your blog posts.
In any case, I'm curious about how this standard would work. You say that tax cuts are different, but you're silent on the Iraq war. Would Bush be subject to impeachment for the Iraq war? Many think that beginning the war was morally unconscionable. And there are good and non-trivial arguments that it was a violation of international law. So, impeach Bush for the war? If not, why not?
It isn't 'criticism' of a presidential decision that you're offering or proposing, but impeachment of a president. If an appropriate reaction to the policy disagreement over Iraq--if I may still refer to that as a mere policy disagreement--is impeachment of the president, rather than the ordinary mechanisms of democracy, then we've truly lost our way.
We have heard too often that a grand jury can indict a ham sandwich. We know that a Republican House can impeach a Democratic President for sex lies. We surely know that a Republican House will not impeach a Republican President whose actions or inactions surely have been more egregious than Clinton's which did not cost loss of lives.
Thomas employs the phrase "rather than the ordinary mechanisms of democracy" in his last paragraph. This could include the 2004 election which failed to cure the problems. This could include the Senate Democrats challenging cabinet and judical appointments, even resorting to filibusters. This could include trying to change the makeup of Congress in 2006. Meantime, the quagmire of Iraq and terrorism continues with Bush Jr. as a sitting duck. What other "ordinary mechanisms of democracy" are available during the next four years? Is there time for the ordinary to function or must the extraordinary to be resorted to?
The two questions seem connected in that the degree of inhumane treatment involved arguably violates int'l law. Furthermore, since technically impeachment is constitutionally applicable for a large range of offenses, clearly the ultimate test would be if the offenses involved was truly great.
That is, so great that half the House would impeach and 2/3 of the Senate might realistically convict. Thus, though there are arguments that say the war itself was impeachable, it is not illogical or anything to suggest either way, perhaps the current subject matter is.
Bringing up tax policy, policy differences, or even "pre-emptive war" arguments is of some interest, I suppose, but ultimately the implication is that Prof. Balkin is being somehow disigenious here. Maybe, it's just my inference, but your exaggerated hypotheticals don't help matters.
As to regular political techniques, the whole point of impeachment is that they are shown to be inoperative. Given the current matter wasn't even really discussed in the campaign, it is questionable if the 2004 elections cleared anything up. The 2006 elections are two years away. And, opposition to cabinet officers is somewhat limited in scope, especially in answer to wrongs already done.