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Thursday, December 07, 2006

A Vote of No Confidence for Presidents in the American System

JB

After hearing Gerhard Casper deliver a fascinating lecture on Caesarism in American politics, my colleague Bob Gordon asked me if there were any way for America to introduce a vote of no confidence to get rid of incompetent presidents without amending the Constitution.

I replied that we could interpret the impeachment test of "high crimes and misdemeanors" as referring to mere incompetence. I noted that this was not the original intention; indeed, the convention rejected a test of maladministration. However, I pointed out, we almost approached that result (for judges) early in the Jefferson Administration, when the convention debates were still secret. If the precedent had been set that high crimes and misdemeanors meant mere incompetence, the precedent might have stuck. In any case, it wouldn't be the first time that constitutional practice deviated from the original understanding.

If it had, if would radically change American politics. The President would be much more at the mercy of Congress. If the opposition party were in power, they would try to remove him. If the President's party were in power, they might try a intra-party coup, in the way that the Tories got rid of Margaret Thatcher and Laborites are now trying to get rid of Tony Blair.

Although the President would be in a better position than his British counterpart because of strong bicameralism and the requirement of a two thirds vote in the Senate to oust him, he would also be in a weaker position in comparison to his British counterpart. The British Prime Minister can always call for a new election to rally the public behind him; the American President faces a fixed constitutional calendar. Moreover, members of Congress might try to depose a President near the end of his term in order to take control and have the advantage of incumbency going into the new election cycle.

I noted that despite these disadvantages, we might move toward such a system if we had a President who was truly despised by most of the American people, creating a new precedent that read "high crimes and misdemeanors" to mean incompetence, or simply by creating trumped up charges. That would serve as a precedent for future deposings. But an equally likely scenario would be an attempt to bend the language of the Twenty Fifth Amendment, by which the Vice President and the cabinet would engage in what would effectively be a coup d'etat by asserting that the President was no longer fit to serve and then using Congress to confirm the legitimacy of their actions.


Comments:

Hi,

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Amin
 

It is hard to see what difference it makes how we interpret "high crimes and misdemeanors." We have a president now who has committed innumerable high crimes and misdemeanors -- the front-page story in Monday's NY Times about the torture of Padillo ought to be enough by itself to get him impeached. Yet the previous president was impeached for a relative triviality.
 

I think you're being hopelessly idealistic about the role of the no confidence vote in parliamentary systems. The last time an Australian or New Zealand government fell to a no confidence vote was in 1941, although there are more recent cases in Britain and Canada. No confidence votes are just not very common and they are certainly not non-partisan events based on an empirical test of the prime minister's competence.

The most common way a prime minister loses office in the Westminster system is removal by the party caucus. There are recent example of that from Westminster countries within the last 20 years (hawke, Thatcher, Bolger).

Adopting the counterfactual of a Westminster US, what would be the prospect of the Republican caucus removing Bush from office?

There may be a case for removal on grounds of competence alone, but providing for a vote of no confidence will not do it. On the other hand, the US is now facing a catastrophic failure of competence and there is a need for some appropriate test.

One way might be to adopt the Citizens Assembly idea and let Congress call an assembly for that purpose.
 

@alan: and the reason why these people were removed by there own causus? They even lost the confidence of their own party and were sure to lose a vote of non confidence in congress.

I can't speak for Canada and Australia, but in The Netherlands 3 months ago Congress held a vote of non confidence on our Secretary of Immigration. The administration did not accept her departure and the whole administration fell.

Overhere a vote of non confidence is a last resort, but still an axioma with great importance. Secretaries and Administrations rather step down than being voted out of office. From the requirement of confidence the rule has developped that giving Congress wrong information is a "capital sin" that leads to the loss of confidence.

So I don't agree with your premise that you can deduct the importance of the rule of confidence from the number of times someone had to step down.
 

It's interesting that the no-confidence vote in the Netherlands extends to ministers. This would be an interesting change in the US, where political appointees are only beholden to the president. They can't be fired by congress. This would be a very effective way of hobbling the power of the presidency.

On the other hand, "Facts" in the US are treated quite differently than in the Netherlands, where there is still significant respect for experience and education over charisma. Remember Oliver North? The voting public, and the congress, have very little patience for facts.

I'm American, but I worked in the Netherlands for 4 years, and I just don't see the US adopting the kind of relatively cautious, rational approach used there. Consider that the president is completely isolated from alternative opinions. The neglect of 'fact' has been particularly apparent in this presidency, where it has become something of a joke, as well as an outrage to the scientific community.

I am absolutely sure that there is ample evidence to impeach Bush under the existing 'high crimes and misdemeanors', but there doesn't seem to be any political will to do so in the US congress. There is no culture of accountability, either in congress or nationally. I am hoping that the new congress will, in fact, change things, but I am not holding my breath.

Can't we just get a psychiatrist to declare Bush delusional and unfit for office?
 

Two comments. First, the practical problem of impeaching Bush is that you would probably want a two-fer; there would be the need to impeach and convict the current VP as well. Given current succession rules, the change in party in creating a President Pelosi could only engender charges of partisan hijacking of the presidency. Or to put it another way, getting 2/3 of the Senate when there are 49 Republicans seems, shall we say, remote.
Second, the candidate-centered manner of presidential nominations, for an office elected independently of Congress, results in an arms-length distance between the President and the rest of his Congressional party members. What is remarkable then is the nearly total lack of oversight by a Republican Congress over a Republican President over the past six years. Does this arms-length distance ironically contribute to lack of oversight, rather than engender it? (The reason might be because members of Congress don't have a day-to-day connection to governmental administration, and that frees them to be as irresponsible as they have been.) This, of course, is a logic that runs counter to Madison's Fed. 51.
 

@suz: these days I can no longer say that I agree with you that over here we've got a "kind of relatively cautious, rational approach".

The day after the installment of the newly elected House of representatives, Geert Wilder, newly elected populist on the far right, decried the "anarchy" that was already being caused by the new leftleaning majority (after one bloody day!).
 

@suz: Is there a reason why, without amending the constitution, a vote of no-confidence cannot be introduced for Secretaries in the US?

My US Constitutional law is a bit rusty, but doens't the Consitution only says that the president appoints "public Ministers" with consent of the Senate. Why couldn't the Senate with the same majority have a vote of no-confidence?

I am not convinced by the mere existence of an article on impeachment. In the Netherlands there is a possibility of impeachment in the Constitution, but this doens't preclude a vote of no-confidence.
 

Chausovsky makes a very important point about the line of succession. I have posted elsewhere the suggestion that Rep. Pelosi and Sen. Byrd, the speaker- and president pro tem-elects, respectively, co-sponsor a bill to repeal the present Succession in Office Act (which Yale professor Akhil Reed Amar argues, altogether convincingly, is unconstitutional) and return to the pre-1947 Act, whereby next in line to the VP is the secretary of state. It is a terrible reflection on the lack of seriousness of discussion of our basic structures that we have a system whereby a heart attack could conceivably lead not only to a change of person, but also a change of party. There was no excuse for Newt Gingrich to be second in line to Bill Clinton, nor for Nancy Pelosi to be second in line George Bush. This is an opportunity for the Democrats to prove that they can actually rise above crass party interest, though I'm not holding my breath, not least because of the absurd commitment to Sam Rayburn's idea that whoever becomes president should have the imprimatur that comes from having been elected to some office. (This rationale, obviously, does not survive the 25th Amendment.)

As to the final point raised by Anne, there was an extended debate in the very first Congress about the "removal power." For better or worse, the conclusion was that only the President could remove a member of the Cabinet. Congress had the power to confirm, but not thereafter to remove because of a loss of confidence. Who knows if that was the optimal outcome, but it has become a basic operating rule of our political system.
 

@prof Levinson: Thank you for your answer to my question. So if I understand the interpretation that the removal of Secretaries can only be done by the president, comes from the first congress... I know this isn't the way it works in the US, but I would say that if they came to that conclusion then, than now congress can come to another conclusion. An interpretation of congress is not what the constitution says, even if the framers were in congress.

Consider the case where congress would have a vote of no-confidence and shuts down if the booted Secretary is not cooperating. Would there be a forum where the Secretary or the President could argue that this would be unconstitutional (except for the Court of public opinion?).
 

I believe that arguments between the president and congress are mediated by the supreme court, but this usually goes back to precedent.

As Sandy Levinson put it:
"Congress had the power to confirm, but not thereafter to remove because of a loss of confidence. Who knows if that was the optimal outcome, but it has become a basic operating rule of our political system."

It seems to me that there are many such outcomes which are now somehow enshrined in how the US runs the government, whether or not they are the best outcomes. However, somehow to change them requires tampering with the system, and that immediately invokes the 'unpatriotic' label. I never once heard that concept floated during my
4 years in the Netherlands.

The Republican congress has indeed been at arms length, and it is hard to say why. Certainly, in the parlimentary system, whether in Westminster or in the Netherlands, the conversation between the head of state and the congress is far more continuous discussion than in the US, where they operate as independent, and often adverserial entities.
 

@Anne

Sorry, but I don't understand exactly how the government shuts down? Our congress would probably not agree to shut down just because a minister hadn't listened to a vote of no confidence. It is more likely that the congress would have to sue the government and take the case to the high court, which is not very likely. I don't think there is any true leverage written into the constitution for that. But I'm quite rusty, too.
 

sorry, would have to sue the executive. But again, I don't think there is any such thing as 'in contempt of congress'.
 

@suz: well the way the vote of no confidence was established in the Netherlands, was as follows. There was a conflict between the King, his administration and Congress. Congress wanted the administration to step down and had a vote of no confidence. The King refused to let go the administration.

Congress proceded to block the budget proposed by the administration. The administration dissolved congress and called for new elections. The newly elected congress again refused to approve the budget, thus forcing the administration to step down.

My point is that íf a parliament wants to change the rules it can, but it has to be prepared to resort to drastic measurements.

I concur that in American politics fear and partisanship exceed the desire to have a proper functioning government, but this does not mean that changing the rules cannot be done.

Oh, by the way I misspelt Geert Wilders' name in an earlier post.
 

@Suz: true, we don't throw arround the label "patriotic". But what helps with us as well is that (and I never thought I would say this), our Supreme Court is barred from checking the constitunionality of acts of parliament. It is up to parliament (and mostly to our senate) to deem whether an act is constitutional or not. We see the judgement of an act as unconstitutional as an inherently political judgement. (The system is actually changing because of the European Treaty on Human Rights).

On a final note: our vote of no confidence is an unwritten rule of constitutonal law. For us, Dutch, it is remarkable that we have more unwritten constitutional law than a common law country (my impression is that you use for instance the opinions of the first congress as a way to interpret what the constitution means, while we see this as actual rules that can be changed without requiring an amendment)
 

So if I understand the interpretation that the removal of Secretaries can only be done by the president, comes from the first congress... I know this isn't the way it works in the US, but I would say that if they came to that conclusion then, than now congress can come to another conclusion. An interpretation of congress is not what the constitution says, even if the framers were in congress.

Since then, the Supreme Court has held that the removal power lies in the President. Myers v. United States.

As the Wiki article indicates, there is good authority for the opposite view. Among other sources, Federalist 77 expressly states the contrary:

"IT HAS been mentioned as one of the advantages to be expected from the co-operation of the Senate, in the business of appointments, that it would contribute to the stability of the administration. The consent of that body would be necessary to displace as well as to appoint. A change of the Chief Magistrate, therefore, would not occasion so violent or so general a revolution in the officers of the government as might be expected, if he were the sole disposer of offices. Where a man in any station had given satisfactory evidence of his fitness for it, a new President would be restrained from attempting a change in favor of a person more agreeable to him, by the apprehension that a discountenance of the Senate might frustrate the attempt, and bring some degree of discredit upon himself. Those who can best estimate the value of a steady administration, will be most disposed to prize a provision which connects the official existence of public men with the approbation or disapprobation of that body which, from the greater permanency of its own composition, will in all probability be less subject to inconstancy than any other member of the government."
 

@Anne: "But what helps with us as well is that (and I never thought I would say this), our Supreme Court is barred from checking the constitunionality of acts of parliament."

Wow. The supreme court of the US is not allowed to decide cases. It can ONLY decide on a constitutional basis: is the claim within the guidelines of the consitution or not? Then, if not, the original case goes back to a lower court with the new ruling from the supreme court as a deciding factor. Thus, there is no final word on the subject. Also, in order to get a case considered by the supreme court, it has to be framed as a consitutional question.

I have to say, Dutch law and politics was always pretty murky when I was in the Netherlands, but then everyone around me seemed pretty confused by it, too.
 

Then again, the system isn't that strange if you stop and think about it. In the end the constitution says what people say it says. The only difference between The Netherlands and the US is the organ which decides on the constitutionality.

Our Supreme Court does use binding international and european law, and common principles of (dutch) law to check the validity of statutes.
 

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