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Sunday, November 05, 2006
Pelosi & Impeachment
I have an article that will be published in the Legal Times tomorrow about Nancy Pelosi's pronouncements on impeachment. Here's a taste:
Although her pre-commitment on impeachment seems politically savvy, it does raise a number of puzzles from the perspective of constitutional law and the theory of political representation. In the final analysis, the potential legal problems with her “pledge” are less troublesome than what her pledge means for the people whom she has sworn to represent: the voters of San Francisco.
Read the whole thing -- registration-free -- here.
Posted by Ethan Leib on November 5, 2006 at 06:29 PM in Article Spotlight | Permalink
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Tracked on Nov 6, 2006 7:37:28 PM
Comments
I stand happily corrected! Meanwhile let the investigations begin!
Posted by: Bart Motes | Nov 8, 2006 3:19:50 AM
"(raising taxes to pay for this war--that costs every man, woman, and child in the United States $6, 000 a day)."
Ummm...the war does *not* cost every man, woman and child in the United States six thousand dollars a day. Are you really saying that the war costs $1,800,000,000,000 (6000 x 300,000,000) a day? I know that some have alleged that democrats have an affinity for "fuzzy math," but this is just ridiculous.
The war *does* cost each citizen a few dollars a day (although generally only the rich pay taxes, so poors aren't getting hit with the bulk of the burden anyway), and it is (in my view) a fiscal embarrassment, but saying that we are each paying 6000 dollars a day is a bit of an overstatement.
Posted by: andy | Nov 7, 2006 8:46:22 PM
Bart,
I don't disagree with any point of your analysis (excepting that, being a good democrat, you think that the way to pay for it is to raise taxes, and like a good republican, I think the way to pay for it is to reduce non-defense spending), I just disagree on the remedy. I think you'll find that there are a lot of people on my side who supported the war from the outset, but who have been appalled by the bungling and incompetence. Fixing what is wrong starts with firing Rumsfeld. But once that has been done, we need to pour into the breech whatever is necessary to win. Pulling the troops out - which is what the Democratic party's leadership advocates - is waving the white flag, and the result will be catastrophic.
I realize that there are Democrats who don't want to pull out immediately, but you must realize that there are also pro life democrats in Congress. That doesn't mean that when Pelosi takes the Speaker's gavel in January that those pro-life Democrats are going to manage to get pro life legislation through the House, just by virtue of being members of the majority party, and similarly, it doesn't mean that just because some democrats oppose cut and run that they can stop a majority that is absolutely comitted to collapsing this house of cards.
The Democrats have staked a great deal politically on our venture in Iraq being a failure. The idea that, given some gavels, they're going to turn around and work to prevent that from coming to pass, that they will do everything they can to make our mission a success, is simply absurd. The only question in my mind is whether they will do everything short of defunding the mission, or if they actually have the stones to turn off the spigot.
Posted by: Simon | Nov 7, 2006 3:11:40 PM
Simon, it's pretty off topic, but I think it's ironic that you're talking about sacrifice and giving our military what they need in light of the fact that it was a general appointed by Clinton who urged that the invasion of Iraq have 450, 000 troops, only to be overruled by Rumsfeld, et al. And, in terms of sacrifice, it is the Republicans who have refused to ask people to sacrifice either in terms of blood (a draft) or treasure (raising taxes to pay for this war--that costs every man, woman, and child in the United States $6, 000 a day). The problem now is that you cannot put humpty dumpty back together. If we had gone into Iraq with a force sufficient to not only win the war, but also the peace and if Bremer had not disbanded the Iraqi army, effectively signing an order creating the Iraqi resistance, we might be talking about how George W. Bush is one of the greatest (or at least most transformative) presidents in history, instead of perhaps the worst failure in memory. But you can't unbreak the egg. The only solution is a redeployment, perhaps with partion of Iraq along a loose central government/federalist scheme, and something on the order of McCain's expansion of the military ideas, whether you want to do it via the free market (raise salaries), national service (draft, coercion), and/or Blue to Green.
I really don't think any elected Democratic politician sees the choice as starkly as you do.
Posted by: Bart Motes | Nov 7, 2006 8:28:04 AM
And I apologize for my breezy concession that assuredly contributed to this; sometimes my not taking myself seriously can be very grating.
Posted by: Ethan Leib | Nov 6, 2006 5:50:28 PM
You're right, Ethan; I apologize for that. It was way over the line.
Posted by: Orin Kerr | Nov 6, 2006 4:54:44 PM
After addressing why I did not think any "constitutional" argument against her pledge could work, I pursued whether there was any other argument for why her pledge may be suspect from the standpoint of political morality. After rejecting certain potential duties that the Framers did not themselve endorse, I wondered whether there aren't certain core or central constituent preferences that representatives should not rule "off the table." I offered some reasons for thinking impeachment may be one of them (in San Francisco?) -- especially if certain mechanisms of democratic accountability are difficult to achieve. You rightly pressed me on how one can tell which preferences these are -- and I conceded not to have any clear test. Paul has a nice summary of my article in the comments.
I wasn't offended by this line of questioning at first (but I appreciate Bart's help nevertheless!) -- these are good faith arguments. But I believe at some point you stopped casually needling me on an op-ed and started expecting a bit too much from the format. If you really didn't understand my set of points, I can only apologize; others haven't had as much trouble. Here's the real lesson, in any case: Calling someone's writing "gut feeling dressed up as constitutional discourse and deep theory" is pretty conventionally deemed aggressive.
Posted by: Ethan Leib | Nov 6, 2006 4:50:36 PM
Ethan, I certaunly didn't mean to offend. I just had trouble understanding what your argument was, and I was trying to figure it out. At first I thought your argument was that there is some sort of constitutional or moral duty to vote for majority preferences, which is why I asked in my first question if that is what you had in mind. I didn't understand your response, to be candid, so I tried to push you on what you meant. You then seemed to blow off my concerns with your "Just got to use your moral compass" line. In any event, I'm sorry if my questions seemed obnoxious; I thought I was just trying to figure out what you are saying. Lesson learned.
Posted by: Orin Kerr | Nov 6, 2006 4:29:00 PM
Ethan can answer that better than I can, but as far as an answer is found in the piece is that he thinks it is a troublesome thing to preclude impeachment and to do so categorically may be to abdicate constitutional responsibilities.When reading an opinion piece discussing whether pledging not to impeach the President is deriliction of duty on Pelosi's part, knowing what the author's opinion is clearly has relevance to how credible the argument is, and how it should be read, especially if the author declines to specify his or her opinion.
I am exceedingly skeptical of the concept of "value freedom." I'm just not persuaded that it's possible. The best way to deal with inherent bias - as much so when writing as teaching - is to make it clear up front what your opinion is, allowing one's readers or students to evaluate one's statements with that knowledge in mind.
I don't think your assertion that the Democratic "foreign policy strategy is basically unilateral surrender" is fair or accurate. Care to defend it?Sure. Does the present Democratic leadership in the U.S. House of Representatives favor setting any kind of a priori timetable for withdrawing U.S. troops from Iraq, or do they favor sending as much men and materiel over there -- including such sacrifices as is necessary in terms of domestic spending -- that our military says they need to sucessfully conclude operations? In short, is the Democratic Party willing to do what it takes to win the war in Iraq, or do they want to bug out and leave the South Vietnamese Iraqis to whatever fate awaits them?
Posted by: Simon | Nov 6, 2006 4:14:53 PM
Prof. Kerr,
You seem to be ignoring Leib's argument in favor of attacking his motivations. I wonder why that is.
Posted by: Bart Motes | Nov 6, 2006 4:08:40 PM
Orin,
I really find it hard to understand what you expect a short op-ed to do -- and I find your aggressive posture completely misdirected (given, moreover, that you got my position on impeachment exactly wrong). I wanted to highlight some interesting questions that her pledge raised. I wanted to provide some evidence to suggest that her pledge probably wasn't constitutionally problematic. I similarly wanted to draw attention to some difficulties in representation theory and the practice of presidential succession that her pledge creates -- and take a position on what I think about some of those difficulties without deriving tests about "core" or "central" political preferences that representatives ought to respect. Maybe my op-ed was a "gut feeling" dressed up as "deep theory" or "constitutional discourse," as you (obnoxiously?) suggest. But I think the representation issues are deep and that constitutional discourse helps resolve the claim that her pledge is unconstitutional. You want more from an op-ed than this? Next thing you know, you'll be forcing us to have perfectly coherent and persuasive blog posts.
Posted by: Ethan Leib | Nov 6, 2006 3:59:25 PM
Bart,
I don't think I understand your questions, or what relevance they have to Ethan's op-ed or the comments I have made. However, the basic question here is when should politicians stop acting like politicans and start recognizing a higher duty. As best I can tell, Ethan's answer is that they should do this when Ethan's moral compass indicates it is appropriate. I guess I don't find that persuasive.
Posted by: Orin Kerr | Nov 6, 2006 3:32:28 PM
Professor Kerr,
I'm sure its the case that you disagree on the subject of impeachment. I think you may be insufficiently cynical, however. Isn't it just as likely that Prof. Leib thinks that this subject represents a good article topic not the express of a deeply held belief? If you're a partisan Democrat, I think the last thing you want to be being bandied around right now when you are appealing to dissaffected Republicans and independents is impeachment.
Further, do you think it's impossible that investigations and hearings will uncover impeachable offenses? If so, do you think that the Democrats should act as they did in Reagan's second term when they declined to impeach the old fellow on grounds of national unity? Is there no circumstance that you yourself would see impeachment as the remedy for a Presidential offense?
Posted by: Bart Motes | Nov 6, 2006 3:18:20 PM
Bart,
I guess I'm just sensitive to dressing up personal opinion as if it were constitutional discourse or deep theory. Seems to me that if you want to make a position based on your gut feeling, just say its based on your gut feeling.
Posted by: Orin Kerr | Nov 6, 2006 3:01:22 PM
Simon,
"I was just trying to ascertain if Ethan is saying that he's opposed to impeachment, or if he simply doesn't regard it as the prudent thing to do."
Ethan can answer that better than I can, but as far as an answer is found in the piece is that he thinks it is a troublesome thing to preclude impeachment and to do so categorically may be to abdicate constitutional responsibilities. I don't find his argument that she should bow to the wishes of her constituents in pursusing impeachment to be so compelling, to say the least.
I don't think your assertion that the Democratic "foreign policy strategy is basically unilateral surrender" is fair or accurate. Care to defend it?
Posted by: Bart Motes | Nov 6, 2006 2:53:20 PM
Bart,
I'm sorry if my comment appeared to be an attack on Ethan, blunt or otherwise - it certainly wasn't so intended. I was just trying to ascertain if Ethan is saying that he's opposed to impeachment, or if he simply doesn't regard it as the prudent thing to do. I think the answer to that changes the way that the article reads.
That's some interesting history about Speaker Albert, but I would respond in to ways: first, that even if the Speaker was having none of it, the thought clearly occurred and appealed to at least some members of the majority; second, you have to ask yourself if the Democrats of today have that kind of character, and quite frankly, I really doubt it. I think the mere fact that their foreign policy strategy is basically unilateral surrender suggests that they have bought into the mindset of their base, which is that the GOP has to be evicted from office at all costs. If they had the votes, I don't doubt for a single second that they'd do it.
Posted by: Simon | Nov 6, 2006 12:48:07 PM
Ethan, you raise fun questions throughout, but by the end of the piece I wonder if you haven't pretty well dispensed with each of them. She is not in dereliction of duty, you point out, because impeachment is a discretionary remedy. She may be defying the wishes of some or many of her constituents, you point out, but they have an electoral remedy -- an especially pertinent point because, by purportedly taking impeachment off the table before the election, she has put her intentions directly to her electorate, who can vote accordingly.
Ah, you say, this is cold comfort because they are unlikely to vote to sacrifice a representative who offers them so much power in the House. But, of course, one of the reasons she has so much power in the House is that she has signaled her willingness not only to engage in narrow representative politics on behalf of her district, but to engage in a larger political game in the House that requires her to make decisions about what would be good for a national Democratic constituency in the House. And if that's so, aren't the constituents saying precisely that they have authorized her to act contrary to their own strong wishes, if it will help her do her job as, first, Minority Leader, and now, possibly, Speaker? Or to put it differently, haven't Pelosi's constituents made a first-order determination that Pelosi should have the license to make all kinds of second-order determinations about how Democrats should proceed if they become the party of power in the House?
In short, I'm not sure you've really pointed out anything problematic about Pelosi's behavior, except that one could argue that the promise not even to consider impeachment arguably violates higher political morality in that one might argue that a representative has a constitutional obligation to thoughtfully *consider* impeachment if the proper occasion arises. I think you rightly point out that impeachment itself is discretionary and political considerations can factor into it, but one could argue that, as a constitutional oath-taker, one ought nevertheless to leave open that possibility, and that the discretion involved is indefeasible. Of course, it is likely that many of her local constituents want her to impeach the President no matter what, which also would violate the notion that her discretion on such weighty matters ought to be indefeasible.
I admit, parenthetically, that my take may be different on these issues because I think representatives are generally smarter than their constituents and ought to act like it, until they are voted out of office for doing so. I'm not much of a populist. Even Nancy Pelosi may be smarter than her constituents, although I admit to thinking that she represents a wing of the Democratic Party that needs clipping, and that anyone who can seriously talk about making Alcee Hastings the chair of the Intelligence Committee rather than Jane Harman already flunks any test of either political morality or intelligence.
Posted by: Paul Horwitz | Nov 6, 2006 11:34:52 AM
I'm kind of surprised by the bluntness of Kerr's attack here. And particularly Simon's. As it appears to me, Leib's point is this: by suggesting that impeachment is not an option, Pelosi is seeking to soothe fears of a Democratic takeover, but may be abdicating her constitutional duties if in fact an impeachable event were to be uncovered in the investigations that Pelosi herself says are inevitable. This is quite different from this nonsense about majority preference or political advantage.
Simon, the situation that you describe came up in the Nixon impeachment. At the time that the hearings began, there was no Vice-President and a number of the Democratic Speaker of the House's aides started referring to him as Mr. President. He would have none of it, sternly saying that they would confirm whatever nominee for the Vice Presidency that Nixon put forward in a timely fashion.
It turns out that this was actually a topic of interest at the time, however, see
http://www.time.com/time/magazine/article/0,9171,944648,00.html
http://en.wikipedia.org/wiki/Carl_Albert#Albert.2C_Twice.2C_Only_.22A_Heartbeat_Away.22
Posted by: Bart Motes | Nov 6, 2006 11:25:37 AM
No bright line rules, my friend. Just got to use your moral compass. Mine -- as you can tell, no doubt -- is finely tuned.
Posted by: Ethan Leib | Nov 6, 2006 11:00:01 AM
Ethan, then what's the test to determine whether a political preference is sufficiently "core" that taking it "off the table" justifies criticism "from the standpoint of political morality"? Or, perhaps more directly, what principle of "political morality" speaks to off-the-tableness vs. on-the-tableness?
Posted by: Orin Kerr | Nov 6, 2006 10:41:26 AM
Counterfactuals about impeachment aren't very interesting to me. As I made clear in the article, the Framers envisioned that "cost considerations" are perfectly appropriate in the impeachment context.
It is true that the rules of presidential succession are completely pathological -- but one has to realize that the VP is first in line (and that this could make sense (and could also be considered insane) back in the day when the Prez and VP were from different parties). Why anyone would want to unseat Bush to put Cheney in office is beyond me, of course. At least this went somewhat less noticed during the Clinton affair: the Republicans were looking to unseat Clinton, which would have elevated Gore. That, in turn, might have given him a bit of an edge in 2000. So may it be true, after all, that the Republicans were somewhat principled? In the current situation, by contrast, the Democrats would have to impeach both Bush and Cheney (they were obviously complicit in the predicate high crimes and/or misdemeanors as Clinton and Gore were not) -- and then Pelosi starts looking self interested in this impeachment fantasy. Mike Dorf talks about this stuff a bit on his blog.
Posted by: Ethan Leib | Nov 6, 2006 10:39:25 AM
Incidentally, your column raises a point that I've pondered from time-to-time, which is this: doesn't it raise separation of powers concerns that the Speaker of the House of Representatives is third in line to the Presidency, when the House has the power to initiate impeachment? Doesn't that create an inappropriate incentive for the Speaker? Wouldn't it make more sense that an officer that the House cannot initiate proceedings against be third in line?
Posted by: Simon | Nov 6, 2006 9:16:48 AM
In any case, I'm against it for the very reason Pelosi is: it would be a waste of time and would be counterproductive for Democrats.That's a little lukewarm, isn't it, Ethan? Suppose it weren't a waste of time, that you had the necessary majorities to actually ram it through. Are you against impeachment because you don't think it's warranted, or are you opposed to it merely because it carries immediate practical and political costs for the Democratic party?
Posted by: Simon | Nov 6, 2006 9:13:52 AM
I'm not exactly sure I understand your comments, Orin. As I made clear, I don't think representatives have to reflect the views of their constituents for every policy preference. No one really takes such a view. However, I tend to think certain core political preferences stand on different footing -- and mobilized and active support for impeachment (if it existed) may be one such preference sufficient not necessarily to require her to vote for impeachment today but sufficient not to take it "off the table" as a pledge. Nothing follows from something being "suspect," I suppose, other than that I can say it is suspect and that it justifies criticism from the standpoint of political morality.
I don't quite see what my views about impeachment have to do with anything. In any case, I'm against it for the very reason Pelosi is: it would be a waste of time and would be counterproductive for Democrats.
Posted by: Ethan Leib | Nov 6, 2006 12:15:06 AM
I don't think I understand, Ethan. Is every decision that a Representative makes that is contrary to the majority preference in the district "suspect," and if so, what does it mean for a decision to be "suspect"? If we lived in a world in which Representatives always voted majority preferences, we would have to pick Speakers of the house from only some districts, and representatives from San Francisco would presumably never be picked.
Or is the point that you favor impeachment?
Posted by: Orin Kerr | Nov 5, 2006 11:29:43 PM
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