modern left proves how prescient the Framers were. The left’s class warfare strategies mean that election campaigns are actually conducted against the Constitution’s safeguards of freedom. Supporters of the Constitution’s federalist framework of limited central government and its protection of liberty and property rights are demagogued as enemies of social justice. Statist candidates construe electoral victories as a mandate to undo constitutional constraints that impede their authority to do “the right thing,” as Obama puts it. Winning office becomes a license for lawlessness.
The power of the purse, too, has been eviscerated as a practical check against an outlaw president. The Constitution presumes that the different branches of government will protect their institutional turf. The Framers reasoned that Congress, faced with a president who usurps legislative prerogatives, would fight back by cutting off money the president would need to carry out the usurpation.5 Even after partisan politics took over, it was assumed that politicians took their constitutional responsibilities seriously, either out of noble statesmanship or in the practical calculation that voters expected the Constitution’s protections of liberty to be honored. A congressman of the president’s party would see himself, first and foremost, as a congressman. Valuing the duties of his office over party loyalty, he would join with other legislators to rein in executive excess.
Today’s Democrats, however, are members not just of a party but, perhaps even more, of the movement left. Their objective, like Obama’s, is fundamental transformation of a society rooted in individual liberty and private property into one modeled on top-down, redistributionist statism. Since statism advances by concentrating governmental power, Democrats—regardless of what governmental branch they happen to inhabit—rally to whatever branch holds the greatest transformative potential. Right now, that is the presidency.
Congressional Democrats want the current president to use the enormous raw power vested in his office by Article II to achieve statist transformation. If he does so, they will support him. They do not insist that he comply with congressional statutes—which must be consistent with the Constitution in order to be valid, and thus may reflect the very constitutional values the left is trying to supplant. Democrats will get back to obsessing over the “rule of law” if and when Republicans win another presidential election.
While Democrats quite intentionally defy the Framers’ design, Republicans frustrate it by aggressive passivity. They incessantly tell supporters that they are impotent to rein in Obama’s excesses because the GOP controls “only one half of one third of the government.”6
This argument ignores the fact that the Constitution divides power by subject matter, not percentage of governmental control. The party that controls the House has full primacy in taxing and spending, every bit as much as the party that controls the executive branch has plenary control over prosecution decisions. Constitutional authorities are not contingent on how much (if any) control the party in question has over the rest of government.7 In theory, then, nothing in government can happen unless the House, with ultimate power over the purse, agrees to fund it. If a corrupt administration uses the IRS as a partisan weapon to audit and harass its detractors, the House can refuse to fund the IRS—or other parts of the executive branch—in order to curb executive overreach.8
Historically, congressional Democrats have used the power of the purse to stop Republican presidents from, say, prosecuting the Vietnam War or aiding the Nicaraguan Contras. Yet when today’s conservatives in the House or the Senate urge fellow Republicans to use their command over the purse to stop Obama’s excesses, the GOP leadership turns on them with a ferocity rarely evident in their dealings with the president.
The late political scientist Aaron B. Wildavsky noted that “the power of the purse is the heart of legislative authority and thus an essential check on the executive branch.” Indeed, he observed, “An executive establishment freed from dependence for funds upon the legislature (and hence the public) would be a law unto itself and ultimately a despotism.”9 Alas, with Democrats energized by Obama’s law breaking and Republicans paralyzed by fear of being blamed for government shutdowns if they use their constitutional muscle, there is no realistic prospect that Congress will starve Obama of funding.
That leaves impeachment as the sole remaining constitutional safeguard against executive imperialism. There is nothing else.
Republicans have talked themselves—petrified themselves—into the canard that the failed Clinton impeachment effort cautions against any conceivable impeachment scenario (just as they construe the mid-nineties budget showdown with Clinton as a caution against any conceivable government shutdown scenario). At the aforementioned hearing on presidential lawlessness, Congressman King steered awkwardly around the elephant in the room. After lumbering through other theoretical checks on the executive that had, as a practical matter, proved impotent against President Obama’s enterprising lawlessness, King finally muttered, “Then the next recourse is, as Mr. Rosenkranz said, the word that we don’t like to say in this committee and that I’m not about to utter here in this particular hearing.”
Well, the word needs uttering. Absent a frank discussion of what impeachment is, what it’s for, when it should apply, and why it is necessary (that is, why other remedies are inadequate), we will never know whether political support for impeachment can materialize. Analyzing constitutional remedies for executive lawlessness without discussing impeachment makes as much sense as analyzing Islamic terrorism without discussing Islam—and the fact that the latter is Obama administration policy ought not elevate incoherence into binding precedent. We must not fear the word, Rosenkranz aptly insisted. “A check on executive lawlessness is impeachment,” he said. “And if you find the president is willfully and repeatedly violating the Constitution. . . . I think that would be a clear case for impeachment.”10
A clear legal case, to be sure. Willful and repeated violation of the Constitution is the textbook example of high crimes and misdemeanors. But the legal case is not the half of it when it comes to removing a president.
Unlike the simple majority vote required for the House to approve articles of impeachment, a conviction by a two-thirds supermajority of the Senate is necessary to impose the Constitution’s impeachment penalty: “removal from office, and disqualification to hold and enjoy any office of honor, trust or profit under the United States.”11 Unless the point of the exercise is mere partisan foot stamping, it is not enough to have sufficient legal grounds for impeachment, even lots and lots of grounds. Real impeachment, removing the president from power, requires political support.
On that score, Republicans have vastly overinterpreted the Clinton impeachment episode. They construe it to mean that the societal turmoil inevitably caused by attempting to impeach a president—a cynic might say, the bad press ensured by any effort to impeach a left-wing Democratic president—is so much worse for the country than any offenses the president might be committing that it is simply not worth the effort—cynic again: simply not worth turning the Republican Party into the media’s punching bag. Such thinking results in paralysis, and thus in abdication of Congress’s duty to protect the constitutional framework—a duty just as solemn as the president’s.
This does not mean that Congressman King is wrong when he asserts, “You’ll never get an honest [impeachment] verdict out of the United States Senate if Harry Reid is going to be the majority leader.”12 But someone like Reid will always be the majority leader if the minority party is too craven to make a dynamic stand against unprecedented executive lawlessness. Changing the dynamic requires moving public opinion, which in turn hinges on forcing the president’s myrmidons to defend his high crimes and misdemeanors under an intense spotlight.
The decision whether to remove a president is political. As Senator Cruz said, you need to have the votes. Not just enough votes to win in a squeaker; you need 67 out of 100. As we’ve seen, the Framers did not want impeachment to be a power play. The
