Pro Logica

August 21, 2010

The Impeachment Process

Of late there have been numerous calls for the impeachment of the current POTUS, President Obama. Most of these are made by noted Republican Party members if one pays attention to the media. Ex-president Bush had the same problem but with noted    Democratic Party members. It is probably true to say that some constitutional experts were/are in favor of such speculation but not having the name recognition as the party members, they were very seldom cited.  Whatever one’s opinion on whether some federal government official should be impeached, it is to no avail because the U. S. Constitution assigns that specific function to the House of Representatives.

Before delving into the constitutional details of the impeachment process, it is probably safe to assume that those persons calling for impeachment are desirous of implementing the entire impeachment process, impeachment being but one step, and hopeful of removing the person impeached.

Impeachment process provisions are  directly mentioned in Articles I and II, and indirectly referred to in Articles I and III.

Article I, Section 2 states,

The House of Representatives … ; and shall have the sole Power of Impeachment.

Article I, Section 3 states

The Senate shall have the sole power to try impeachments.  When sitting for that Purpose, they shall be on Oath or Affirmation.  When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two-thirds of the Members present.

Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment according to Law.

Article II, Section 4 states,

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.

Article I, Section 5 states,

Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members, …

Article III, Section 1 states,

The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behavior, …

Note: the phrase “Chief Justice” appearing in Article II must refer to the titular head of the judicial Branch, since the Constitution itself does not provide any structure to that Branch.

In a nutshell, the impeachment process is not unlike the judicial process of a criminal suspect. It consists of four stages: Impeachment,Trial, Judgment and Punishment, wherein the impeachment stage corresponds to the arraignment stage of the criminal process, while the other three stages are very much similar to their corresponding namesakes; however, the differences are manifest and so the entire process must be described.

IMPEACHMENT

The House of Representatives is designated as a legislative body and under parliamentary law, any member of the body may submit a resolution to the body and its members can enact resolutions which may or may not be representative of the original resolution since amendments may alter the  original resolution.  The actual rules governing the submission, amending and enactment of resolutions is determined solely by the body itself.  An impeachment is, therefore the enactment of a resolution in the House which states that a specific person is to be impeached, and also sets forth the reasons for impeachment, similar to the section of the Declaration of Independence listing the “crimes” of the King of England.  “Sole responsibility” also means that no one or no body outside of the House need approve of an impeachment resolution.  Strictly speaking, there is no absolute requirement for stating the crimes of the accused but without them the impeachment may be dismissed out of hand.

Who may be impeached?  Any person in the executive Branch–Article II, Section 4–and any judge in the judicial Branch–Article III, Section 1.  Members of the legislative Branch may not be impeached but are subject to each House’s disciplinary rules–Article I, Section 5.  The wording of Article II, Section 4 might be interpreted as not applying to the lowest level executive Branch employees, but that is misleading since the House has sole responsibility for impeachment.  On the other hand, the writers of the Constitution were well aware that court systems include other personnel than judges so that “judge” in the Constitution means a judge and not any of the supporting clerks.

What may they be impeached for?  Specifically, Treason or Bribery for executive Branch Officers as stated in Article II, Section 4.  Since these crimes can hardly be classified as good Behavior, they would also apply to judicial Branch judges–Article III, Section 1.  However, high Crimes, Misdemeanors  and good Behavior are not defined in the Constitution and, hence, can be defined by the House itself.

TRIAL and JUDGMENT

Article I, Section 3 gives to the Senate, a legislative body of the USA, the sole responsibility of the trial and judgment of an impeachment.  Again  there are no specific rules prescribing the manner of trial except that of imposing the Chief Justice as presider over the trial when impeaching the POTUS.  The judgment of the impeachment must be in the form of a resolution stating the guilt or innocence of the person impeached and must be passed by a two-thirds majority of the Senate members present at the voting on the resolution.

PUNISHMENT

If the person impeached has been found guilty by the Senate, that person can removed from their position in the government if they currently enjoy such and are forever barred from holding any government position in the future including  honorary titles–Article I, Section 3.

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While the above description renders the Constitutional aspects of the impeachment process, it must be pointed out that the Constitution does not give any reasons for specifying this particular form.  I’m sure the Founding Fathers had their reasons but I should like to attempt to give my reasons for this particular form being essential to our republican government.

The primary “Truths”  followed by the Founding Fathers in crafting both the “Articles of Confederation” and the “Constitution of the United States of America” can be found in the “Declaration of Independence”.

WE hold these Truths to be self-evident, that all MEN are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the Pursuit of Happiness—That to secure these Rights, Governments are instituted among Men, deriving their just Powers from the Consent of the Governed,…

Obviously, “Truths” , as used here, does not refer to facts, but to beliefs which govern the actions of MEN.  Granted, everything in the above quote can be questioned by individuals who have different beliefs but I find it difficult to devise a just governing system without the above truths.  The last “truth” in the above phrase has been paraphrased in the Declaration itself as “Government of the People, by the People, and for the People”.

The first attempt at devising a government was the “Articles of Confederation”, essentially a pact between sovereign states, which turned out to be ineffective since these sovereign states were very independent minded.  The reality of the situation at the time consisted of sovereign bodies, each having its own citizens, meeting to form a government uniting these bodies, hence, the United States.

The Constitution, which replaced the Articles, still recognized the sovereign states–no name change–but beefed up the Federal Authority over these states.  It created a republican government, democracy being too unwieldy, of three independent branches, wherein the People of the United States of America have direct input into one of the legislative houses, the House of Representatives.  The Senate, the other house, was intended to temper the House by considering the House’s resolutions from the point of view of the sovereign states.  The Constitution provides absolutely no input from the People in the determination of any officer or judge serving in the other two branches.  Amendment XVII provided for the direct election of members of the Senate, and insofar as Congressional law requires certain officials appointed by the POTUS to be approved by the Senate, we may conclude that the People have some input into appointed positions but it is very indirect.  As far as the POTUS is concerned, the Constitution requires no input by the People of the U. S.  The fact that people vote for the President and Vice-president is due entirely to the States who choose the electors who do actually vote.  These States do direct their electors to cast their votes in a certain manner which does not necessarily correspond to the popular election results.

The key to the impeachment process are twofold:  three independent branches  and only one branch, the legislative, which represents the joint will of both, the People and the States; it is the only way to remove executive officers and judges who flout the Constitution and Congressional laws from their posts.

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Let’s consider the most recent calls for impeachment.  One, a military man professed his homosexuality openly and was not removed from the military, contrary to the direct rules of the military under the “Don’t ask, don’t tell” policy.  By all the rules of the law, the man should have been removed from the military, and all officers in the chain of command disciplined.  Clearly, a Congressional law has been flouted but there is no threat of impeachment to anyone involved, and since the POTUS has ultimate responsibility for the actions for all executive branch personnel, he, himself, is subject to the impeachment process.  While I have not researched all the actions of the House since the open declaration of homosexuality, I am not aware of any resolution for  impeachment having been presented to the House members, nor am I aware of any member or coalition of members of the House talking to the POTUS using the threat of impeachment in this matter.

We might ask ourselves why the members of the House do not seem to be interested in pursuing the impeachment process in this particular case.  I would imagine one or more combinations of the following three reasons would be most popular.

1) We are planning to change the law so that openly gay persons may legally serve in the military.                                                                                   2) There is no chance that the Senate would judge the POTUS guilty.          3) I wouldn’t vote to impeach the POTUS since he belongs to my political party.

Now, all three of these reasons are just excuses without merit.  The first excuse assumes that something will happen but there is no guarantee that, in fact, it will.  The second excuse misses the point since an impeachment resolution by the House sends a message from the People to the person being impeached that his/her behavior is considered faulty.  The third excuse is just plain despicable since it puts political party above country, an attitude that is mildly treasonous.

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In summary, members of the legislative branch can be removed from their office by resolution or, since the Constitution is silent, by a recall vote, while members of the other two independent branches can be removed only through the impeachment process.

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August 16, 2010

Alan Keyes and Constitutional Interpretation

Filed under: Interpretation, U. S. Constitution, U. S. Government — Tags: , , — Ron Toczek @ 10:41 am

WND has posted an article by Alan Keyes wherein he asserts that the Supreme Court has original jurisdiction in all cases involving the separate states of the United States.  The citation in the article appears

In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make. (U.S. Constitution, Article III, Section 2)

From this he reasons that the federal circuit court is an inferior court and as such it does not have jurisdiction over the Arizona Immigration Law dispute.  He discounts arguments by other scholars citing their the opposite conclusion but gives no details of their arguments.

On the surface his argument sounds good but it is totally inaccurate.

First, he has misquoted the U. S. Constitution by using a capital “S” in the double occurrence of the word “Supreme”.  The actual occurrence is “supreme Court”.  By using the capital “S” he gives the impression that the Constitution actually refers to the existing body of nine justices constituting what we now call the “Supreme Court”.  This existing body along with its circuit and appellate courts has been authorized by Congressional law as the official structure of the judicial branch or supreme Court, its alternate name.

Second, Article III of the Constitution does not even hint of any actual structure of the judicial branch leaving this aspect  to  the control of Congress.

An inferior court is therefore any court established by Congress that operates outside of the federal court system, two examples of which are the military court system and the NLRB, but not the circuit and appellate courts.

I rest my case.

August 4, 2010

What’s wrong with the U. S. Constitution?

I.  Complaints.

Many news articles over recent years have bemoaned the low standing of the Federal Government in the eyes of its citizens and Congress fares the worst where only about 25 to 30 per cent of the people polled feel that Congress can be trusted to do its job effectively; this has dropped to 11 per cent recently.  Some have even proposed a constitutional convention.  Now, a constitutional convention is a serious undertaking and in my opinion should not be attempted for  petty reasons; it is warranted only for a change in the type of government–like going from a republic to a constitutional monarchy, a rearrangement of governmental functions–like going from a separation of powers system to a parliamentary system, or for simplifying its language after multiple amendments make some of the sections confusing or even contradictory.  I don’t believe that our American system is in need of any major overhaul yet; so the answer to this post’s topical question is  “nothing”.

Let’s examine the complaints a bit further.

The major complaint seems to center on Congress’s inability to operate effectively.  Consider  health reform.  Most everyone knows that our current system is inefficient, overly expensive and abused by many of its participants, i.e., highly in need of reform, and it has been this way for many years.  When the Democrats had control in 1992, health reform was attempted but was primarily blocked by the Republicans, and the same is happening this time; however, the Democrats persuaded all but a few of their cohorts to vote for a health bill and enacted the same–no Republican voted for the bill.  Personally, I believe this bill is currently unacceptable for many reasons even though some Republican ideas have been incorporated.   The real problem is not the form of government but the inability of the two parties to negotiate and compromise and come up with an effective bill for the good of the country.  I have often wondered why our two major parties never consider the fact that the American voters hardly ever let the President and Congress be controlled by the same party for any length of time–could it be that they don’t believe that either party has their country’s welfare at heart.  If Congress is not filling the expectations of its constituents, the people of the United States of America (voters) have only themselves to blame.  It is to be noted that the Constitution does not forbid recalls–Whomsoever the voters elect can be recalled by those voters.  If Congress is not filling the expectations of its constituents, the people of the United States of America (voters) have only themselves to blame.  It is to be noted that the Constitution does not forbid recalls–whomsoever the voters elect can be recalled by those voters.

The major complaint about the Judicial Branch is that it makes law–“Roe vs. Wade” is a good example (the ruling’s  conclusion might be stated as “No state of the United States of America shall prevent any female citizen from having an abortion).  I have outlined the general status of a Supreme Court (SC) ruling in an earlier blog on the basis of the separation of powers between the branches, but let’s  review what the U.S. Constitution says about the SC.  As explicitly stated therein the SC resolves disputes (Article III, Section 2 and Amendment XI–cases of law and equity arising under  the Constitution, its Laws and ratified treaties; since “equity” in this context cannot refer to its financial meaning, it must refer to fairness of treatment which poses the problem of the necessity of the ” equal protection of the laws” clause of the 14th Amendment).  Due to their equal status, a SC ruling can become a legitimate Congressional law in only one of two ways: Congress passes a law which, in effect, requires the Executive Branch to enforce the ruling or Congress does nothing and the Executive Branch does enforce the ruling.  In the situation where the SC ruling declares a law to be unconstitutional, if Congress does not rescind the law and the President of the United States of America (POTUS) continues to enforce the law, the SC ruling is essentially nullified until the POTUS (the same one or someone different) at some later time decides to enforce the ruling or Congress (the same one or a different set of law makers) decides to pass a law legitimizing the ruling.  POTUS Obama was thoroughly convinced that the SC’s McCain-Feingold ruling was wrong but he could have said, “As the President of the United States of America, I disagree with the ruling of the Supreme Court for these reasons…(states his reasons)…and until Congress changes or rescinds this law, I will continue to enforce it as it is written”, a statement that is fully constitutional.   The kingpin in this process is Congress since it has the power to impeach the  POTUS and keep impeaching successors until it gets one to do its bidding.  Incidentally, if Congress thought that the SC ruling was egregiously unconstitutional, it could impeach those justices who concurred in that ruling.  Unfortunately, our two-party system has a tendency to under use the threat of impeachment as a governing tool.  When the SC ruling involves a state law and the ruling declares that law to be unconstitutional the same mechanics can still happen but what if the State does not accept the SC ruling and Congress does not pass a law legitimizing that ruling and the POTUS cannot effectively enforce the ruling or even decides not to enforce the ruling.  Again a SC ruling can be effectively nullified, at least for the time being.   One might raise the question, “What about those Federal marshals who carry out the judges orders?”  Remember, the Judicial Branch has no enforcement powers, those Federal marshals are employed by the Executive Branch and under the orders of the POTUS.  He has the power to prevent them from carrying out any orders given by the judges.

The SC ruling in the case “Roe vs. Wade” is just one example of many cases where the SC has been accused of legislating.  The current Chief Justice has stated in his confirmation proceedings that “‘Roe vs.Wade’  is settled law” and he is correct since all States have acquiesced to that ruling, Congress appropriates money to support the abortion activities of Planned Parenthood  and similar organizations, and the POTUS has dispersed funds to Planned Parenthood.  Yes, “Roe vs. Wade” is settled law but it is not Congressional Law since there has been no bill passed by Congress espousing this particular ruling.  A puzzling aspect in this picture is the presence of the Hyde Amendment.  If it does say what it is purported to say, how can Congress and the POTUS justify their give-away of Federal funds to an organization like Planned Parenthood, which, in fact, do perform elective abortions?

The legitimacy of elective abortion is an example of a de facto law, in English, a law in fact but not explicitly written as a law.  Some States still retain their criminal abortion statues and it might be interesting to see what would happen if one of them actually challenged the Federal Government for I can envision many obstacles to Federal enforcement.  Back to the point, the SC cannot legislate but they can be the source of de facto laws.  Those who oppose particular de facto laws originating in the SC must either win the support of the other two branches or wait for a reversal ruling from the SC itself.

In summary and only on a procedural basis, a SC ruling can become a de facto law only with the cooperation of a second branch of government and without opposition from the third branch.  Of course, this process does not pronounce any judgment as to the worthiness or unworthiness of the law itself.  Historically, the world is and has been rife with bad laws   and will probably continue to have them far into the future.

There are two major complaints  concerning the executive branch but they are usually directed against the POTUS; not enough emergency powers and too much overall power.  It shouldn’t be difficult to see how the executive branch complaints can be resolved within the Constitutional dictate of the separation of powers.  The Executive Branch of the Federal Government is the only branch having the authority to enforce all the provisions of the U. S. Constitution, in fact, the POTUS is the only member of the Federal Government required by the Constitution to take an oath in defense of the Constitution and its Republic.

As to the POTUS not having any emergency powers. this clam is patently false, since the Executive Branch is fully independent from the other two.  The POTUS can write presidential directives with the full expectation that they will be carried out by his/her employees, even if they do not follow a strict reading of the U. S. Constitution.  Proper manners indicate that a declaration of some sort be presented to the other two branches stating the precise reasons for the POTUS’s action in order to facilitate a unified government response, but there is no constitutional requirement for it.

So, what happens next?  If the SC agrees with the POTUS, they can refuse to hear any case that questions the enforcement or the constitutionality of that directive, and if they disagree they can hear such a case and render their disagreement in a ruling.  Congress, being totally independent from the other two branches can also act independently.  If they agree with the POTUS they need to do nothing, thus nullifying a possible SC ruling to the contrary; however, if they disagree to the extent that something different must be done, they must do something positive, even if the SC has ruled against the POTUS.

And just what are the positive things that Congress can do?  First, they would probably try to discuss their differences with the POTUS in order to resolve their disagreement and have a common understanding of the needed action, probably involving the rewording or cancellation of the concerned directive or the passage of a law or some combination.  In this discussion, Congress can use the threat of impeachment as a tool for persuading a president to change or cancel his/her directive.  It was interesting to note the Republican Party Congressional members’ complaints about President Bush’s memos on how he planned to enforce some particular laws passed by Congress; many members stated that he was subverting Congress’s intent.  Did any of them suggest impeachment?

Similarly, if Congress thinks that the  POTUS is wielding too much power they can pass a bill limiting that power.  Since the POTUS  would probably not sign the bill, the bill will become law after ten days or if the POTUS veto the bill, Congress could then override the veto. In either case the bill limiting presidential power becomes law and then the POTUS could then be impeached for not enforcing the law.

II.  A short summary of the basic rules of operation of the Federal Government.

1) The U. S.  Constitution authorizes three independent branches of the government.  Congressional bills, presidential directives and SC rulings are limited only by the Preamble to the Constitution when there is no specific wording which directly applies.

2) The SC cannot initiate any rulings unconnected to a dispute brought before it and has no power of enforcement for any of its rulings.

3) While Congress is the only branch which is authorized to write laws, a presidential directive by itself or enforcing a SC ruling can become a de facto law when Congress does nothing to stop that enforcement.

4) Congress trumps the other two branches by having the authorization to remove a president and can keep removing them until they get a president who enforces their laws.  They also can impeach any member of the judicial branch–good behavior can certainly be defined by the legislative branch.

5) As the amended U. S. Constitution now states, the American people vote for the members of Congress and, therefore, control its make-up.

6) States, having limited sovereignty but, nevertheless, a sovereignty recognized by the U.S. Constitution, can challenge any Federal action that does not pertain to expressly written provisions in the Constitution.

III.  So, what’s wrong with the U.S. Constitution?

As stated at the beginning of this essay, there is nothing wrong with the U.S. Constitution as it is written but what is wrong is:                                                                                                    1) The U.S. citizen’s and politician’s understanding of how it is supposed to work and acting as if their wrongful interpretations are constitutionally correct.                                                 2) Political parties prioritizing power over the good of the country.                                             3) Political fanatics, both left and right, who know positively what’s good for the American people.  Unfortunately, these are the people who do the most preaching, and yes, it is almost a religion to them.                                                                                                                     4) Dare I say it but voter incompetence.  I must confess that when voting for a candidate who has very little background to judge any of his future congressional behavior, a voter may not know what to expect, but when voters keep electing the same incompetents election after election something is wrong.                                                                                      The only constitutional change that could possibly avoid these wrongs would be a one party dictatorship (of which a monarchy is an example) simply because they could rule without needing the support of its people.  Need I say more.

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