March 21, 2008

On Saturday, March 8, 2008, President George W. Bush vetoed a congressional bill that would have explicitly banned interrogation techniques like waterboarding. In doing so, Bush cemented his worthiness of impeachment.

The impeachment power allows Congress to keep the other two branches from grasping at powers that the Constitution gives to the Legislative Branch. Congress is described in Article I of the Constitution, and its structure was the chief issue in the Philadelphia Convention. Why?  Because in a republic, it is to be the most important branch.

People commonly repeat the idea today that the federal government features three equal branches. This is an error. Congress is to be the most important branch. The Founders generally feared the power of the executive and assigned the traditional royal powers in foreign policy to Congress instead of the president. The courts were to be even weaker, the “€œleast dangerous”€ branch.

Yet, over time, the three have come to be more equal. This is the result of Congress’s supine attitude toward the other branches”€™ overreaching. When federal courts legislate, Congress does nothing. When presidents and their subordinates”€”generals, cabinet officials, and others”€”ignore statutory law, refuse to comply with congressional demands for information, or flat-out lie to Congress, Congress does nothing.

Each instance of the other branches”€™ grabbing at congressional power is later cited by that branch as a precedent justifying additional arrogations. Over time, the sum of these usurpations has been to reduce Congress’s stature within the federal government, and to make the federal government more unaccountable.

Bush vetoed a law banning a type of torture. Federal law already bans torture in general, but Bush has declared that his administration will continue to reserve the right to inflict this treatment on captives.

Called to say whether waterboarding was torture, numerous of Bush’s subordinates have refused to answer. The Senate alternately has confirmed their nominations to high office anyway and has simply allowed them to refuse to answer.

Congress’s remedy to situations like this, in which the executive flouts clear laws, is to impeach the offenders. It might start in this instance with the attorney general, or it might go straight to the top.

England experienced a similar period of executive overreaching in the 17th century.  Ultimately, Parliament responded with a series of impeachments. Those culminated in the House of Lords”€™ execution of the king’s foremost advisor. From then on, royal advisors were on notice that failure to comply with Parliament’s decisions would cost them their heads.  This left the matter between Parliament and the king himself. In the end, Charles I paid for his refusal to submit to the authority of the law with his life, and the principle of the king’s subordination to the law was established.

The grounds for impeaching Bush extend beyond his simply refusing to be bound by the ban on torture. Bush has demonstrated contempt for Congress’s role in the constitutional system in other ways.

So, for example, George W. Bush has made extensive use of signing statements to redefine the meanings of statutes he dislikes. While his predecessors have used such statements, Bush has been especially aggressive in saying that he would read particular statutory language with which he disagreed in a way that was satisfactory to him. One is reminded of the way that Congress has allowed the Supreme Court to behave in a similar way; justices guilty of the same crime against the Constitution merit the treatment Bush merits.

Thirdly, Bush merits impeachment because of his ongoing policy of remaking Iraq, even by, as one prominent Bush supporter put it, a hundred-year occupation. He has no constitutional authority for this.

Congress has the sole constitutional power to declare war. Its substitute for doing this was a joint resolution empowering the president, in relevant part, to use force to “€œdefend the national security of the United States against the continuing threat posed by Iraq.”€  Unless Iraq poses an ongoing threat to the national security of the United States, Bush no longer has constitutional authority to occupy Iraq. He should remove American troops from that country as soon as possible.

In furtherance of his Iraq policy, Bush has also endeavored to secure perpetual basing in Iraq; Congress should be involved in his efforts in this area, but it has not been. Bush can use the veto power to prevent Congress from legislating itself into this process. The only way for Congress to defend its constitutional role in this area, then, is via the impeachment power.

I do not arrive at this conclusion lightly. In fact, I twice voted for George W. Bush for president. The first time, I did so because I thought that Bush was more likely than Vice President Al Gore to appoint constitutionalist judges, limit federal taxing and spending, and pursue a noninterventionist foreign policy. At the time, I was discontented with Bill Clinton’s appointment of judges such as Ruth Ginsburg, sponsorship of the largest nominal tax increase in history, and intervention on the side of the Islamists in Bosnia and Kosovo. I mistrusted the Bush family, but it seemed clearly the preferable option.

The second time around, with incumbent Bush opposed by Sen. John Kerry, who had once promiscuously accused Vietnam veterans such as my father of war crimes, I had no problem in choosing Bush. It was clear by then that “€œCompassionate Conservatism”€ meant reckless spending, but Kerry had never done anything, either in foreign policy or in domestic, to please me.

Today, for the reasons described above, Bush should be removed from office.  Congressional failure to employ the impeachment remedy against this lawless president will move us further from the original constitutional design toward executive dictatorship, as Bush’s behavior will constitute still more precedents for future presidential lawlessness.

Kevin R. C. Gutzman is the author of The Politically Incorrect Guide to the Constitution, Virginia’s American Revolution: From Dominion to Republic, 1776-1840, and, with Thomas E. Woods Jr., Who Killed the Constitution?: The Fate of American Liberty from World War I to George W. Bush (forthcoming in July).


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