Balkinization  

Saturday, January 27, 2007

Redesigning the Presidency, Part II

JB

In his Nation piece opposing impeachment, Sandy argues that
this might be the perfect time to hold a serious national conversation about whether we should have an alternative to the cumbersome impeachment process to remove an incompetent President. The reason, paradoxically, is that because of our very political divisions, it is impossible to know who will be President in 2009. The stars are aligned for a truly bipartisan discussion, among serious Democrats and Republicans alike, over the extent to which we are well served by the eighteenth-century Constitution, since members of both parties are behind a "veil of ignorance" as to who would benefit from any changes. Even the most partisan among them have every incentive to think of the national interest, since it is impossible to discern what the party's interest will turn out to be.

Actually, we do not face anything like a veil of ignorance. Rules that would make presidential expulsion easier would be most dangerous for Presidents during a time of divided government, when the other party controls Congress. Given the Democrats' modest majority in the House and the fact that more Republican than Democratic Senate seats will be contested in 2008, there is good reason to believe that the Democrats will retain at least one branch of Congress in 2008 and probably two. Thus, if the Republicans win the presidency in 2008, there is a good chance that they will face an opposition Congress. Hence they would probably have little interest in making it easier for Democratic majorities to oust their next successful presidential candidate.

Put another way, what to do about incompetent presidents does not involve one issue, but three issues. The first, which Sandy identifies in his essay, is the standard of judgment for removing a President. Currently it is high crimes and misdemeanors, but it could be changed to maladministration, or incompetence, or mere political preference. The second issue is the level of support necessary for a successful motion in the branches of Congress. Currently the Constitution requires a majority vote in the House, and a two-thirds vote in Senate. The third issue is the remedy for a successful vote for expulsion. Currently the consequence of a successful vote is removal of the President, with the Vice-President assuming office, or, if there is no Vice-President, the next person in the statutory line of succession.

These three issues greatly complicate the political calculations for possible reform proposals; they suggest that we will rarely, if ever, work under a veil of ignorance, unless, that is, we make the new set of rules operative only a generation from now.

Even under a maladministration standard, it's not clear that Democrats would try to remove Bush from office if the alternative were Dick Cheney. In this case, the next in line is a political ally of the President who would likely continue many of his bad policies. To be sure, sometimes Vice-Presidents are selected from the opposite wing of the Party to balance the ticket, but the last three presidencies (Bush I, Clinton, Bush II) suggest that ideological ticket balancing may be less common.

Removing Cheney as well as Bush would, under current circumstances, lead to a Democratic takeover of the Presidency. That, however, is because (in my opinion) the current succession in office act is probably unconstitutional-- only officers in the executive branch, and not members of Congress, should be in line to succeed the President. So to reform the Presidency, we would also have to reconsider the line of succession, which is partly constitutional and partly statutory.

Instead of the existing remedy, two possibilities would be (1) new popular elections for the President or (2) nomination by the caucus of the President's party in either the Senate or the House, followed by confirmation by both Houses of Congress. My guess is that Congressmen and Senators would prefer (2) over (1) because it would give them more power. Here again we don't have a veil of ignorance, but for a different reason than party affiliation-- Most Congressmen and Senators know that they will be Congressmen and Senators in the near future. Thus, any constitutional proposal coming out of Congress would probably be tilted toward enhancing Congressional control over the President.

The remaining issue is what level of support would be required to expel the President. Here Congress's institutional interest in increasing control over the Presidency would be balanced by the fear that a Presidency of a minority party would always be in danger of being jettisoned by a Congressional majority of the opposite party. Hence Republicans (in today's political configuration) would probably resist reducing the margin for expulsion. That margin is currently a mere majority in the House and two thirds in the Senate. I could imagine it going down to 60 votes in the Senate-- the de facto standard for ordinary legislation. But I would doubt Republicans would want to reduce it to a simple majority. (One might think that a Congressional minority might accept a lower threshold if they were guaranteed the right of nomination of the President's replacement, but this overlooks the fact that there would be considerable pressure by the Congressional majority to choose someone acceptable to the majority in order to win confirmation.).


Comments:

Prof. Balkin:

The idea of serving his country or his party by resigning, which in retrospect would clearly have been the best option once it was clear that he did indeed commit perjury by any common-sense definition...

Beg pardon to disagree with you, but "common-sense" definition doesn't count. It's the legal definition that counts if you want to take legal action, and it's not in the least obvious that any alleged lies were "material" (in the Kungys sense), not to mention perjury requres the affiant to believe that what he's saying is false (rather than just being misleading or evasive; see Beckstrom).

Not to mention that perjury is far more common than the Republicans pretended it was. In many civil cases, what the two parties swear in testimony is mutually irreconcilable and one or the other is wrong; the answer is to let the jury determine who's not being truthful and let the punishment be they lose the case.

There were many reasons to exclude the questionable testimony in the Jones case, and in the the end, that's what Judge Wright did.

As such, it's hard to make the case that it was "material", much less that these peripheral facts dug up in a extrajudicial attempt to embarass Clinton, using the power of the judiciary, deserve a perjury prosecution on such facts. Letting the law be used for such an onvious political purpose demeans the law.

Cheers,
 

Oooops, never mind. Wrong post. Please delete this comment.

Cheers,
 

It would of course be possible to simply enact a one-time constituional amendment that removes Bush and Cheney and names their replacements at the same time.

People simply have to make up their minds to be don'e with these criminals.

And whatever happens, all of us must resolve to see them punished for their crimes no matter what, including a constituional amendment and / or international tribunal to repudiate any attempt to pardon them.
 

Arne, my friend, you should be able to delete both posts, if I am not mistaken, much more easily than Prof. Balkin. Sign in to blogger and navigate to the interface for posting on the thread, where it says you are currently posting as____. Scroll down to your comments, you should see a little trash can icon under those comments you authored. Click that. Give it a try. One of the nice things about blogger. Commenters can delete their own posts if they don't like, or wish to redo them.

Cheers.
 

I'll make a suggestion that has been posted elsewhere.

Only go after Cheney. Impeach him for the Plame fiasco and perhaps, the lying anti-intelligence shop he set up.

Bush keeps his job, but not his credibility. This also gives the senior republican leadership to replace Cheney with someone they trust, since it's clear THEY don't trust Cheney any more.
 

Impeaching Cheney, however laudable a goal, could present the political problem of enabling Bush to choose a vice president who might then be better positioned to win the presidency in the 2008 election.

Of course, given Bush's widespread unpopularity, it's possible that any person he chose would immediately be disqualified in the minds of the voters.

If, for example, Guiliani was selected, it could dissolve the one major weakness on his resume: a total lack of foreign experience, even though the MSM curiously chooses to only mention that deficit as a problem for Edwards and Obama, despite the fact that both have served in a national office, unlike Guiliani.
 

Ah, but Bush didn't pick his Veep the first time around (Cheney picked himself), and given his hatred of effete Northeasterners....

Guilliani? Not Gonna Happen. Particuarly when his wife #2 found out about the impending divorce proceedings from a Rudi press conference.

Too tacky even for the endlessly tacky Bushies...

As with 2000, someone from the GOP establishment will pick the Veep. And Guillani is definitely too tacky for most of the GOP (He's not going to run....Too many pictures of him in drag--lord does he have strange tastes...)
 

Gratehf blog :)
It's my blog:
Buy Fioricet
 

jt davis:

Arne, my friend, you should be able to delete both posts, if I am not mistaken, much more easily than Prof. Balkin. Sign in to blogger and navigate to the interface for posting on the thread, where it says you are currently posting as____. Scroll down to your comments, you should see a little trash can icon under those comments you authored. Click that. Give it a try. One of the nice things about blogger. Commenters can delete their own posts if they don't like, or wish to redo them.

My "Blogger" home gives me my blog, not "Balkinization". On my blog, the trash can comes up for the blog owner, and for the persn who posted the comment. But I don't see the trash can when on the Bloogger comments page for "Balkinization"....

Cheers,
 

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