Redesigning the Presidency, Part II

JB

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.

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.).