Balkinization: Tyler Too?

Tyler Too?

Mark Graber

During the Jacksonian Era, Whigs in the Senate first censured President Andrew Jackson for removing the deposits from the national bank and then made an abortive effort to impeach President John Tyler for exercising the veto power too aggressively. Henry Clay’s speech on the censure resolution strongly hinted that had Whigs controlled the House of Representatives, the censure resolution would have been an impeachment. The Republican effort to impeach President Andrew Johnson was based almost entirely on policy differences, and policy differences played crucial roles in both the Nixon and Clinton impeachments. The first federal judge to be impeached, John Pickering of New Hampshire, was almost certainly impeached as much for incompetence (he was a habitual drunk and senile) as for malfeasance.

One question this practice raises is whether, in fact, impeachment for maladministration or policy differences de facto exists in the United States. Given that Daniel Webster in response to Andrew Jackson’s bank veto in 1832 raised no objection to presidential vetoes on policy grounds, no good reason exists for taking seriously Whig claims in 1843 that Tyler was guilty of high crimes and misdemeanors for doing the same thing. Whigs drummed Tyler out of the party because he fought against their cherished American system. Had they the votes, Tyler would have been impeached. The interesting question presently raised by the abortive Tyler impeachment is the extent to which that incident casts light on contemporary politics. That Republicans are not actively seeking to remove President Bush or drumming him from the party may suggest that they are more invested in the Bush presidency or in maintaining Bush’s core supporters than Whigs were invested in the Tyler Presidency or in maintaining Tyler’s core supporters. Alternatively, one might read the abortive Tyler impeachment and the expunged censure resolution as creating a constitutional precedent that an impeachment must ostensibly be based on a consensual high crime and misdemeanor. Just as Keith Whittington in Constitutional Construction (another must read) has pointed out how the failed Chase impeachment in 1803 came to stand for the proposition that justices cannot be impeached solely for taking constitutionally controversial positions, politicians by the mid-nineteenth century may have regarded the abortive Tyler impeachment as establishing that presidents should not be impeached solely for political disagreements with Congress.

I suspect a bit of both are true. Over time a minor constitutional consensus does seem to have developed that the censure resolution and abortive Tyler impeachment were unconstitutional (the consensus is minor because the incidents are not well known outside of the academy and because the consensus is not strong). Still, politicians who feel their electoral interests are best served by impeachment find reason to impeach. I do confess to thinking that the latter better explains Republican support of Bush. Whigs could drum Tyler out of the party because, by 1843, no Whig constituency had any interest in supporting the Tyler presidency. By comparison, Bush’s 32% approval rating means, in effect, that he is supported by more than half the Republican party, support that may make impeachment or a vote of no confidence too poltiically costly for most Republicans. Curiously, I think Jacksonians might have supported a Tyler impeachment had the result been a special election rather than replacement by, say, Henry Clay or a more orthodox Whig. This may suggest that while a president removed for high crimes and misdemeanors ought to be replaced by the vice president, a new election ought to follow the removal of a president for maladministration or policy differences.

Posted 8:54 PM by Mark Graber [link]

Comments:

One of the things the Bush presidency has served to demonstrate is that we have a basic structural weakness in the way government is organized.

It's as if we have a problem requiring a screwdriver, when all we have available is a sledgehammer.

As long as the only remedy for a failed president is impeachment, the chances of getting rid of the boob are practically nil, absent obviously provable criminal acts. That was Nixon's downfall. Too many of his former henchmen in the wings ready to rat out his criminal acts to save themselves.

The most obvious answer to this problem is to provide Congress a tool short of impeachment so they can remove a President who has failed.

Many successful democracies have such a tool, called a "vote of no confidence." No criminal act on the part of a President required, no painstakingly gathered evidence required. Just a vote.

Normally, a successful vote of no confidence is quickly followed by an election to replace the dullard just ousted.

One additional benefit of having this sort of tool available is that it tends to make Presidents and Prime Ministers less imperial.

# posted by

Anonymous : 9:42 PM

As long as the only remedy for a failed president is impeachment, the chances of getting rid of the boob are practically nil, absent obviously provable criminal acts.

These exist: the FISA violations reasonably satisfy this requirement (as John Dean recognized when the NYTimes first revealed them). In addition, there's good historical ground for impeachment based on misrepresentations leading to war. What's lacking is the political consensus that removal of Bush is essential.

I think Jacksonians might have supported a Tyler impeachment had the result been a special election rather than replacement by, say, Henry Clay or a more orthodox Whig.

Depending on the timing, Tyler's replacement would have been one of his Secretaries of State: Webster, Abel Upshur, or Calhoun. I'm not sure what political support there would have been for any of these men as replacements. Upshur is the only one who might have gotten Democratic support, but then the Whigs would never have impeached. The converse would have been true for Webster and probably Calhoun.

# posted by

Mark Field : 10:41 PM

Oh, and by the way, JaO, who sometimes posts here, posted the following at Glenn Greenwald's:

"After listening again to clips on cbsnews.com from the Bush interview on 60 Minutes, here is a more accurate quote:

Scott Pelley: Do you believe as commander-in-chief you have the authority to put the troops in there no matter what the Congress wants to do?

President Bush: I think I've got, in this situation, I do, yeah. Now I fully understand they will -- they could try to stop me from doing it. But I've made my decision, and we're going forward."

Could be quite a ride.

# posted by

Mark Field : 11:14 PM