by Jon N. Hall 6/30/14
One of the big virtues of the American system is that it allows itself to be changed. But changing our system, i.e. amending the Constitution, requires a supermajority of three-quarters of the states. That’s a bigger supermajority than what’s needed to override a veto, and it’s a bigger supermajority than what’s needed to convict and remove an impeached president. So while change of the system is possible, it’s very difficult; it takes a “super-consensus,” and that’s a good thing.
However, there are those who will have no truck with that nonsense. For them, all that’s needed for change is a telephone and a pen.
For those Americans who are fond of an imperial presidency, this must be the best of times, a veritable Golden Age; for constitutionalists, not so much. It’s been said that Barack Hussein Obama is the president Richard Milhous Nixon wanted to be. But the initial crimes of Watergate only affected the Democrat party, while Obama’s lawlessness strikes at our very system. It’s time to ratchet back the power of the office of president.
One of the places where presidential power could be curbed is the pardon. America has an entire branch of government devoted to ascertaining guilt and innocence, and the determinations of such are the result of the collective wisdom of judges and juries. To have those decisions and the entire judicial process nullified by any one person is too much, especially if that person is not above using power for purely political purposes, or whose judgment has been shown by recent events to be sorely under par. Even before Obama, the power of the pardon was abused, as in the case of the FALN terrorists pardoned by Clinton.
The only iteration of the word “pardon” in the entirety of the Constitution is in Article II, Section 2, Paragraph 1: “The President […] shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.”
In Federalist No. 74, “The Command of the Military and Naval Forces, and the Pardoning Power of the Executive,” Alexander Hamilton presents the original reasoning behind vesting this power solely in the president.
Another area where presidential power should be checked came to light in the recent prisoner swap of five top Taliban commanders for Sgt. Bowe Bergdahl. This was a monumentally bad decision; it exposes Americans abroad and at home to more depredations by radical Islamists; it’s akin to “moral hazard.” But the president has the power to do it. I say he alone shouldn’t have that power.
Blood and treasure were expended in capturing those five Taliban leaders. That any one man should have to power to nullify the sacrifice in taking them off the battlefield is too much. The law requires the president to notify Congress 30 days before such a swap. Obama did not comply with that law.
Just as the amendment process makes it very difficult to change our system, it is also very difficult to change elected officials, and that can be a bad thing. The Constitution has been amended 27 times, but no impeached president has ever been convicted by the Senate and removed from office, even though a smaller supermajority is required. What does that tell you: that changing the system is easier than changing temporary leaders?
Progressives are always talking about what other countries do. Well, in other nations, when the chief executive is seen as weak or wrong, a vote of no confidence can be taken, elections can be called, and a feckless leader can in short order be ousted and replaced. But in America we seem to have to endure bad leadership until the next election. And then the electorate may well elect more bad leadership, as they did in 2012.
There is also more of a “tradition” in other countries for discredited leaders to resign, as Neville Chamberlain did in 1940. Nixon is the only American president to resign, but he had to do so, having lost support of his own party in Congress; he was facing forced removal. If Republicans had operated like Democrats by voting in lockstep, Nixon would have been able to finish his second term, because in both the 93rd and 94th Congresses, the Democrats were shy of the requisite supermajority to convict and remove.
The sobering truth is that Republicans could win every Senate contest in November and still not have the requisite supermajority to convict and remove our lawless president. Conviction would require major Democrat defections. In the Clinton impeachment, not a single Democrat senator voted to convict. To contrast: on Clinton’s perjury charge, there were ten Republican senators who voted not to convict.
Perhaps if Obama got caught snorting “maybe a little blow” in the Oval Office some Democrats would reluctantly agree to ouster. But Democrats will most likely circle the wagons to protect their boy. So unless there is a Republican supermajority, it seems unlikely that any Democrat president will ever be removed from office.
On June 20 in “Stopping a lawless president”, George Will wrote:
Serious as are the policy disagreements roiling Washington, none is as important as the structural distortion threatening constitutional equilibrium. Institutional derangement driven by unchecked presidential aggrandizement did not begin with Barack Obama, but his offenses against the separation of powers have been egregious in quantity and qualitatively different.
Mr. Will explores the possibility that the U.S. House could actually bring suit against the president for “nullification of Congress’s power” and failure/refusal to execute the law. A snag with that action is the issue of “standing,” (also here and here). Does Congress have standing to sue the president? Will has found two attorneys who believe they have a way to establish standing, David Rivkin and Elizabeth Price Foley. The two presented their ideas on standing back in January at Politico Magazine with “Can Obama’s Legal End-Run Around Congress Be Stopped?”
Mr. Will begins to wind up his essay with this: “Some say the judicial branch should not intervene because if Americans are so supine that they tolerate representatives who tolerate such executive excesses, they deserve to forfeit constitutional government.”
Our Constitution doesn’t do us much good if government isn’t willing to abide by it. If Obama isn’t going to abide by the law, should Americans abide by Obama?
(THIS JUST IN at The Blaze: “House Speaker John Boehner is talking about suing President Barack Obama for allegedly exceeding his constitutional authority”; and at CNN this video report from Michelle Kosinski (the webpage has been updated and Kosinski’s video is now below).)
Jon N. Hall is a programmer/analyst from Kansas City. • (988 views)