Summary: President Trump might spark a change in our politics both unexpected and (as it will seem afterwards) inevitable, making our 18th century constitutional regime more similar to modern parliamentary systems. If he continues to act wildly and weirdly, the Republicans in Congress might impeach and remove him — putting the solidly far-Right Mike Pence at the helm. Trump would be the first President removed by Congress, but not the last. The occasional impeachment of Presidents would make Congress the Federal power center the Founders intended it to be.
Get ready for impeachment.
— Maxine Waters (@MaxineWaters) March 21, 2017
A long-time concern of constitutional lawyers and political scientists has been the fundamental instability of presidential governance systems, like that of the USA. How are deep and irreconcilable conflicts between Congress and the President resolved? Worse, what happens if we get an incompetent President after he loses the confidence of Congress, the public, and perhaps even senior executive branch officers? Especially at a time of national crisis, the result could be disastrous — with no obvious remedy. For example, see “American democracy is doomed” by Matthew Yglesias at VOX.
In the early 1980s Bruce Ackerman (Prof Law, Yale) began to study the process of constitutional change in America. He found an informal method of evolution other than the formal processes specified in the Constitution, which he called “higher lawmaking” (summary here). After the great crises of the Civil War, the Great Depression, and WWII — America’s political regime bears little resemblance to its form during Washington’s administration. The Trump years might create its next great test.
Much of America’s social change since WWII results from elites’ recognition that they can break the informal social norms that govern their behavior. Doctors can practice medicine as a business and become rich. CEOs can arrange corporations to pay themselves fantastic sums and so become plutocrats. Elected representatives can arrange to become almost permanent fixtures, retiring wealthy.
All of these changes seemed impossible before they happened, until they realized that the social norms that constrained them were just paper shackles. In the next few years Congress might realize that they can impeach a President at will, drastically changing the structure of US government to more closely resemble the parliamentary governments used by almost all other republics (for good reason few nations have copied our odd structure). Trump might force this break in precedent; its effects will change America’s government forever.
To better understand this, let’s turn to someone from a nation with a longer history and who sees the Constitution more clearly (distance gives perspective, allowing a dispassionate analysis). He shows that the Constitution’s 175 words about the impeachment process give Congress a powerful tool with few limits, limited mostly by Americans’ customs — which can change.
Excerpt from “Impeachment clauses and
the different meanings of ‘constitution’ in the United States of America“
By Denis Baranger.
From Responsibility of the Head of State (La responsabilité du chef de l’État
Volume 12 of the Colloques Collection (October 2009).
Slightly paraphrased for clarity. Links added.
Interpreting the impeachment clauses.
“In the 1787 Constitution, lawyers identify a series of provisions known as ‘impeachment clauses’ {4 of them, listed here}. These include Section 4 of Article II of the Constitution with which it is customary to begin. This text provides that ‘The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery or other high Crimes and Misdemeanors’.
“The best starting point is observing that the Constitution creates a removal procedure without specifying whether it is ‘criminal’, ‘political’ or whatever else. The constitution is silent about the nature of the procedure. …
“I will outline three series of problems of interpretation posed by the impeachment clauses: (1) Who can be subjected to impeachment? (2) To what extent and in what way does the Constitution determine the behaviour of those who intend to bring an accusation? (3) What does ‘removal’ mean? …
“{The answers} cannot be deduced from the impeachment clauses themselves, but arise from a sort of interpretive convention. Such conventions are very common in impeachment law. It might even be said that this law is paved exclusively either with questions for which there are no answers or with answers consisting only in stating such constructive conventions. Controversy has arisen over just about every possible question, with each party being able to assert reasonable arguments. …
“There seems to {agreement} that impeachable acts are limited to {offenses} of criminal law …Except for ‘Treason’, which is defined elsewhere in the Constitution …there is no principle of strict definition of offences. …the founding fathers did not grant an unlimited power to impeach and condemn, but a limited one. …We cite Madison’s criticism of Mason’s proposal to extend removal to take in ‘maladministration’: ‘so vague a term will be equivalent to a tenure during pleasure of the Senate’. …In 1970 Gerald Ford declared:
“An impeachable offense is whatever a majority of the House of Representatives considers it to be at a given moment in history; conviction results from whatever offense or offenses two-thirds of the other body considers to be sufficiently serious to require removal of the accused from office.” (Speaking in the House on 15 April 1970); recorded in the Congressional Record.)
Impeachment as a form of constitutional accountability.
“…Political accountability in parliamentary regimes is a test of the agreement in political views between the executive and parliament. It is a governmental accountability. Who will govern and how?
“This is where presidential impeachments take on a special prominence. Because of the President’s central constitutional mission, because he takes an oath to abide by and uphold the Constitution, the accusations that may entail his removal must bring out the character of his relation with the Constitution. They must state what the holder of the presidential office must or must not do. This is a form of what Bruce Ackerman has called ‘higher lawmaking’. Each impeachment is a new opportunity to state the Constitution. Conversely, resort to impeachment is a danger for the state and its stability. …
“The kind of accountability in impeachment procedure is a ‘constitutional’ one. By ‘constitutional accountability’ I mean that which is incurred for calling into question the constitutional equilibrium. That appears in the impeachment articles passed by the House of Representatives against Johnson, Nixon and Clinton. In all these instances, the President was criticized for violating the Constitution: by ignoring the obligation it imposed (especially ‘that he should take care that the laws be faithfully executed’); by ignoring his oath of office by which he undertakes to uphold the Constitution; or by a more general formula observing that he has acted ‘in violation of the Constitution and laws of the United States.'”
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It should be noted that both the officials close to Pence and Hillary Clinton spoke of moving towards an ‘impeachment’ not other action.
— Julian Assange (@JulianAssange) March 14, 2017
My conclusions
The remainder of Baranger’s essay discusses the meaning of violating the constitution, the clashing authority of Congress and the President to determine what the Constitution says, and the inevitable involvement of values and morality in determining what violates the words of the Constitution. It is valuable reading for those who want to understand what might lie ahead.
Baranger forces us to realize we can interpret the 175 words describing the impeachment process in many ways. If a majority in the House and two-thirds of the Senate decide that Trump must go, they can remove him. That would require bipartisan support, politicians voting for the usual combination of patriotism and short-term political advantage.
But once done, Congress will see that it can be done again. The second time is always easier. The requirement for a super-majority in the Senate means that it will always be rare, but this leash on the imperial presidency and empowerment of Congress might create a firmer foundation for the Republic.
Abstract of Baranger’s paper
“The purpose of the present article is not to review all the aspects of executive accountability in the United States. Rather, I will attempt to make a few steps towards a better understanding of the removal procedure applicable, among others, to the President of the United States and that is commonly termed ‘impeachment’.
“Impeachment is central to the Constitution, exerting both an attractive and an inhibitive effect. It is attractive because the political will to hold the President accountable must fit into the mould of impeachment. It is inhibitive because impeachment has such solemnity that it is not an instrument for everyday use. Lawyers consider impeachment as a procedure of an exceptional nature.”
About the author
“Denis Baranger is a professor of Public law at Panthéon-Assas University and a fellow of the Institut universitaire de France. He graduated from Panthéon-Assas, as well as Sciences-Po Paris and the University of Cambridge. He specializes in French and comparative constitutional law, history of political thought.” {From his University profile.}
Follow him on Twitter at @DenisBaranger. See his Wikipedia entry and his books
For More Information
About the mechanics of impeachment.
- “Will Trump be impeached – or is it just a liberal fantasy?” in The Guardian — “Only two presidents in history have been impeached, but murmurs continue to surround Trump. Here’s how the process would work – if it would at all.” They do not say why liberals fantasize about having as President the competent and far-Right Pence.
- For a detailed analysis of the 25th Amendment: “Presidential Succession and Inability: Before and After the Twenty-Fifth Amendment” by John D. Feerick (Prof Law, Fordham Law School), Fordham Law Review, 2011.
- Important: “Impeachment and Removal” by Jared P. Cole and Todd Garvey (Legislative Attorneys) of the Congressional Research Service, 29 October 2015.
- “So what exactly counts as an impeachable offense?” by Keith E. Whittington in the WaPo, May 2017.
- “What Are Impeachable Offenses?” – book reviews by Noah Feldman and Jacob Weisberg in the NY Review of Books, Sept 2017.
About Trump’s weakening support.
Polls show Trump losing support, a key requirement for successful impeachment. A Pew Poll taken on Feb 7-8 found that 46% were in favor of impeachment and 46% opposed. Another leading indicator is Trump’s job approval ratings. A March 16-21 Quinnnipiac University poll found 37% approve vs. 56% disapprove. Gallup’s March 21 poll found 37% – 55%, record lows since 1945 for a President two months after inauguration.
Articles about ways to replace Trump.
- To see how large forces are turning against Trump, see “The Media Have Finally Figured Out How to Cover Trump’s” Lies by Will Oremus at Slate — “Not just falsehood by falsehood, but as the defining feature of his presidency.” Even Fox News and the WSJ are defining him as a liar.
- The WaPo describes the other way to replace a President: “Trump opponents have rediscovered the 25th Amendment. Here is what you should know about it.“
- See this history of how other nations dealt with incompetent or even mad rulers: “The Madness of King Donald” by Richard Evans at Foreign Policy — “When people start asking questions about a king’s mental stability, the story usually doesn’t end well for the monarch.”
- About the increasingly desperate attempts to fit “Russiagate” into the “Watergate” template: “A ‘narrative’ outworn” by James Bowman in The New Criterion.
For more information on the FM website.
If you liked this post, like us on Facebook and follow us on Twitter. See all posts about the Constitution, about ways to reform America, about Trump and the new populism, about Russiagate, and especially these…
- Important: Forecast: Death of the American Constitution.
- Conservatives tells us not to worry about the Constitution’s death.
- Can Constitutional amendments save the Republic? — By John Nichols at The Nation.
- Is it time to take the drastic step of calling a Constitutional Convention?
- Was the 1787 Constitutional Convention a runaway, in effect a second revolution?
- Could a new Constitutional Convention help reform America? Is it worth the risk?
- We’ve worked through all 5 stages of grief for the Republic. Now, on to The New America!
Recommended books about the Republic.
The Executive Unbound: After the Madisonian Republic
Impeachment: A Citizen’s Guide
