A Vote of No Confidence for Presidents in the American System

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.