Monday, November 10, 2014

The "I" Word - As In "Impeachment"



The following piece by Andrew C. McCarthy has had me - literally - sick to my stomach with dread since Friday night - when I first read it.

While I'm not totally on-board with McCarthy's analysis, I'm worried enough that... well... literally... my stomach has been "off" since first reading the piece last night!

(Geezus... I'm repeating myself!)

Anyway... it's long... but stick with me. PLEASE stick with me!

*  *  *  *  *  *

There is high anxiety over President Obama’s impending unilateral amnesty order for millions of illegal aliens. How many millions? The estimates vary. On the low end, three to eight million ... On the high end, as many as nine to thirty-four million, factoring in likely categorical expansions of amnesty and their ramifications over the next several years.

The anxiety stems from a remorseless truth that no one — most especially Mr. Obama’s most ardent detractors — wants to confront. It is the truth I have addressed (to much groaning and teeth-gnashing) in "Faithless Execution," my recent book on presidential lawlessness.

It is this: The nation overwhelmingly objects to Obama’s immigration lawlessness, but it has no stomach for the only effective counter to it — the plausible threat of impeachment.

* DOES ANYONE... ANYONE AT ALL... BELIEVE MCCARTHY IS WRONG IN THIS?

* I DON'T JUST "FEAR" HE'S CORRECT; I KNOW HE'S CORRECT!

To hear the demagogue-in-chief tell it, the controversy over how to deal with the approximately 12 million illegal aliens currently in the U.S. is a Manichean debate between enlightened humanitarians and vulgar xenophobes. (To be fair to the president, he is far from alone in peddling this smear.) But objections to Obama’s reckless immigration policies — indeed, to his policies in general, as this week’s historic election reaffirmed — cut across party and philosophical lines.

On immigration, the president has managed to unite much of the country - against him!

Nevertheless, Obama made clear again this week that he intends to push ahead with massive amnesty by executive order. Further infuriating the public with his cynicism, he has strategically but quite openly delayed his directive until after the election, as if to say, “The rubes are too stupid to grasp what I’m doing even when I make no secret of it!”

As Faithless Execution recounts, the delegates at the 1787 Philadelphia convention included impeachment in the Constitution because they believed it to be “indispensable” (as Madison put it) to preventing the abuse of executive power. Congressional authority to remove a president would be a decisive check. Still, the Framers reckoned it would rarely be invoked.

To turn back most instances of executive overreach, less drastic remedies would do the trick. The ballot box, for one: The Framers high-mindedly assumed that an imperious, corrupt, or incompetent candidate would not be elected, much less re-elected.

* MCCARTHY OVER-SIMPLIFIES... BUT ASIDE FROM THAT THE LOGIC OF HIS BASIC ANALYSIS REMAINS CORRECT. (THE AMERICA WE LIVE IN TODAY... THE AMERICAN PEOPLE WE ARE TODAY... VERY DIFFERENT FROM THE AMERICA OF OUR FOUNDERS.)

In addition, the power of the purse would enable Congress to cut off the funds a president would need to carry out reckless or lawless enterprises; and requiring Senate approval of presidential appointments would give lawmakers additional leverage to bend the president into compliance with the law and the public will.

* IN THEORY. BUT THIS MEANS NEVER ALLOWING MEN AND WOMEN OF SUSPECT INTEGRITY TO RISE TO THE TOP APPOINTED RANKS OF THE EXECUTIVE BRANCH. OBVIOUSLY SCUMBAGS ARE APPOINTED - AND CONFIRMED - TO THE HIGHEST OFFICES IN THE LAND ON A REGULAR BASIS IN MODERN DAY AMERICA.

* FOLKS... THINK OF THE OLD LEGAL CLICHÉ THAT A GOOD PROSECUTOR CAN GET A GRAND JURY TO INDICT A HAM SANDWICH. WELL... IT DIDN'T ALWAYS USED TO BE THAT WAY. THE PEOPLE HAVE CHANGED. DEVOLVED. AND THUS THE HAM SANDWICH CLICHÉ. SO TOO WITH THE CHECKS AND BALANCES OUR FOUNDERS PUT INTO OUR CONSTITUTION. THEY ONLY WORK WHEN "WE THE PEOPLE" GIVE A DAMN AND WHEN THE AVERAGE ELECTED OFFICIAL IS A BRIGHT, KNOWLEDGABLE PERSON OF INTEGRITY. (DOES THAT SOUND LIKE TODAY'S AVERAGE POLITICIAN?)

But here’s [another] problem: Obama has no more elections to worry about; and, other than impeachment, the rest of the arsenal designed by the Framers is impotent when it comes to most of his immigration scheme.

That scheme implicates three closely related but importantly distinct considerations: the lawless status of the aliens in question; non-enforcement of the immigration laws against them; and the conferral of legal status on them. On the first two, the president’s power to forgive law-breaking and refrain from law-enforcement is plenary. The abuse of these powers is essentially irresistible . . . except by impeachment. As for the third consideration, even though the president has no direct power to confer legal status or benefits (e.g., work permits) on aliens, that technical deficiency could be overcome by the abusive exploitation of the aforementioned powers he undeniably has.

* FOLKS... THIS ARTICLE HAS QUITE A FEW "TEXTBOOK" QUALITIES. DON'T LET THAT THROW YOU. JUST READ AND RE-READ AS NECESSARY. ASK QUESTIONS IF YOU HAVE THEM! (I'LL DO MY BEST TO ANSWER THEM.)

I acknowledge in Faithless Execution...

* SOUNDS LIKE A BOOK WE SHOULD ALL READ... EITHER BUY OR BORROW FROM THE LIBRARY!

...that to refrain from invoking impeachment as the credible threat the Framers intended it to be is a rational political choice. My point is that it is a choice fraught with consequences. We have to face those consequences. We don’t get to avoid them by being reasonable, moderate people who recoil from the I-word. Nor, in the matter of illegal immigration, is there any funding cut or loopy congressional lawsuit that can dissuade this president. There is either a credible threat of impeachment or a transformational mass-amnesty. That’s it.

* THERE IS EITHER A CREDIBLE THREAT OF IMPEACHMENT OR A TRANSFORMATIONAL MASS-AMNESTY. THAT'S IT.

The public debate over Obama’s anticipated amnesty proclamation has wrongly focused on executive orders. ... It is a red herring.

There is nothing wrong in principle with an executive order — no more than there is with a statute. Congressional laws are problematic only when they exceed Congress’s powers in violation of the Constitution. Same with executive orders: The president’s powers are broad, the executive branch through which he exercises them is extensive, and there is consequently nothing improper in his issuance of executive orders to manage the conduct of legitimate executive functions — just as there is nothing invalid in Congress’s enactment of statutes consistent with its capacious constitutional authorities or a court’s issuing rulings within its proper jurisdiction.

* EXACTLY!

Executive orders are offensive only when the president employs them to usurp the powers of the other branches — in particular, the legislative authority of Congress. If the president issued an executive order directing the IRS to collect taxes on a rate-schedule he unilaterally prescribed, that would be a serious violation of law.

With that backdrop, let’s go back to our three considerations in the immigration context.

* DOES ANYONE HAVE ANY QUESTIONS REGARDING THE DIFFERENCE BETWEEN A LEGITIMATE AND ILLEGITIMATE EXECUTIVE ORDER? (IF SO... ASK... AND I'LL DO MY BEST TO EXPLAIN.)

The Constitution vests the president with “Power to grant Reprieves and Pardons for Offenses against the United States.” It is an awesome power — wholly unreviewable and nearly limitless — although one explicit limit is crucial, and we’ll get to it in due course.

Any offense against federal law is subject to pardon, and the Supreme Court has held since the Civil War that pardons remove “any of the penalties and disabilities” that would flow from a conviction.

* NOTE: I'D NEED TO KNOW MORE ABOUT THE CASE(S) AND CIRCUMSTANCES BEFORE COMING DOWN FIRMLY WITH A "YEA" OR "NAY" CONCERNING WHETHER I ACKNOWLEDGE THIS POST-CIVIL WAR ADDENDUM.

In fact, nothing in the Constitution prevents a president from pardoning his own law-breaking.

* FOLKS... BELIEVE IT OR NOT... THIS IS MAINSTREAM JUDICIAL PRINCIPAL! AGAIN... I REALLY NEED TO LOOK INTO THE LOGIC, HISTORY, AND CASE LAW BEHIND THE BELIEF THAT JUST BECAUSE NO WORDS PREVENT THE PRESIDENT FROM PARDONING HIMSELF THAT HE'S ALLOWED TO... (I MEAN... IT JUST DOESN'T MAKE INTUITIVE SENSE - DOES IT?). IN ANY CASE.. CONTINUING...

The pardon power does not apply prospectively - the president may not license future law-breaking - but once the law has been broken, the president can pardon the offense; there is no need for an investigation to have occurred, much less a prosecution or conviction.

Pardons, moreover, need neither be individualized nor actually sought by the person to be pardoned. As George Mason law professor James Pfiffner recounts in the Heritage Foundation’s excellent Guide to The Constitution, President Washington granted a blanket amnesty to collaborators in the Whiskey Rebellion; Presidents Lincoln and Johnson pardoned pro-Confederacy seditionists. On his first day in office in 1977, President Carter fulfilled a campaign promise by pardoning hundreds of thousands of Vietnam draft evaders.

* I DON'T LIKE IT, FOLKS... BUT IT IS WHAT IT IS. (AND IT STARTED WITH WASHINGTON!)

It is occasionally claimed that illegal immigration is beyond the pardon power because it is “civil” wrong not a criminal offense. This contention is largely incorrect...

* I'M HOPING HE'S WRONG ON THIS. (I FEAR HE'S NOT, HOWEVER.) READ ON...

It is certainly true that an alien’s being unlawfully present in the United States — for example, overstaying a visa or remaining here after illegally entering — is a civil violation, not a criminal one, but...

* BUT...

Illegal entry into the United States is a criminal offense, albeit a misdemeanor. Reentry after deportation is a felony. And illegal aliens often commit various crimes to sustain their unlawful presence in our country.

* IN OTHER WORDS, IT'S BOTH A CIVIL AND CRIMINAL OFFENSE.

The Constitution, in any event, enables a president to pardon federal “Offenses” — it does not say criminal offenses. While it is a reasonable deduction that the Framers’ use of the word “offense” was meant to imply crimes, not civil wrongs, why should we assume that federal courts now stacked with Obama-appointed judges would see it that way? Why should the word offense be any less “organic” than, say, the term equal protection of the laws? Besides, the point of a blanket pardon would not be to confer lawful status on the aliens, something the president has no power to do. The point, as we shall see, would be to pave the way for the courts to finish the job.

* YEAH... I'M CONFUSED TOO! (JUST IN CASE YOU WERE WONDERING!) MCCARTHY JUST NOTED THAT THE POINT OF A BLANKET PARDON WOULD NOT BE TO CONFER LAWFUL STATUS ON THE ALIENS, SOMETHING THE PRESIDENT HAS NO POWER TO DO. WELL IF THAT'S THE CASE WHY ARE WE TALKING ABOUT PARDONS... WHAT WOULD A PARDON ACCOMPLISH THAT THE NEXT PRESIDENT OR CONGRESS COULDN'T DO VIA LEGISLATION REQUIRING "DETAINMENT" (NOT ARREST!) AND DEPORTATION (NOT PUNISHMENT!) OF ALL THOSE PREVIOUSLY "PARDONED?"

* LET'S KEEP ON READING TO FIND OUT. (NOTE: MCCARTHY DID ADD: "THE POINT, AS WE SHALL SEE, WOULD BE TO PAVE THE WAY FOR THE COURTS TO FINISH THE JOB.")

Thus, fully within his constitutional authority, President Obama could, right this minute and without any congressional approval, pardon every illegal alien in the United States — indeed, every illegal alien anywhere who has been deported after violating federal law. He could do it by executive order and, while outrageous and condemnable, it would indisputably be within his Article II power.

* BUT AGAIN... SO WHAT? A PARDON WOULD TAKE PENALTIES - PENALTIES OF A CONVICTION - OFF THE TABLE, BUT IT WOULDN'T MAKE THESE PEOPLE CITIZENS AND THUS... WOULDN'T THIS PUT US RIGHT BACK ON SQUARE ONE...???

(*SCRATCHING MY HEAD*)

As I explain in Faithless Execution, while the Constitution grants much raw power to the president, it also constrains its exercise by placing limits on the legitimate uses of executive authority. A textbook example of illegitimate exercise of a legitimate power is Obama’s abuse of prosecutorial discretion.

Prosecution is an awesome executive power. The Framers realized that, throughout history, the joinder in a single official or governing body of the powers to make law and to prosecute was the road to tyranny.

So they took pains to separate legislative and prosecutorial authority.

The executive branch was given plenary authority over federal law-enforcement: It is entirely up to the president and his Justice Department subordinates to decide what offenses and offenders will be investigated and prosecuted.

* ON AN INDIVIDUAL BASIS...

* UTILIZING A PLAUSIBLE METRIC JUSTIFYING WITHIN THE CONTEXT OF THE WHOLE THE DECISIONS CONCERNING THE PARTS.

* FOLKS... THIS IS QUITE A DIFFERENT MATTER FROM SIMPLY SAYING "WE DON'T LIKE THESE LAWS SO WE REFUSE TO ENFORCE THEM."

Congress can try to pressure and prod, but it has no ability to coerce the Justice Department to enforce laws.

* SURE IT CAN! IT CAN IMPEACH! (AND THEN CONVICT AND REMOVE FROM OFFICE!) IT CAN ALSO "NUDGE" USING THE POWER OF THE PURSE.

Pre-Obama, prosecutorial discretion was understood as an unremarkable resource-allocation doctrine specific to the criminal law. Enforcement resources are finite. It is neither possible nor desirable to prosecute every single violation of law. Therefore, policymakers, prosecutors, and police must exercise judgment about which violations merit attention and which ones can be overlooked.

(*NOD*)

Mind you, the overlooking does not excuse the law-breaking; it is simply a concession to reality — there are more pressing threats to society than pot-smoking, petty fraud, etc.

* AND EVEN WITH THIS EXAMPLE, WHILE IT'S CERTAIN PERMISSIBLE FOR THE POLICE (OR DISTRICT ATTORNEYS OFFICE) TO PRIORITIZE... IT WOULD BE (SHOULD BE, AT LEAST) IMPERMISSIBLE TO SIMPLY ANNOUNCE THAT CERTAIN LAWS NEVER TO BE ENFORCED - AND IN FACT WERE TO SPECIFICALLY BE IGNORE BY THE AUTHORITIES.

Obama, however, has contorted prosecutorial discretion into a license to ignore, “waive,” rewrite, and otherwise violate congressional statutes — including laws such as the Affordable Care Act that are far afield from criminal-law enforcement.

* EXACTLY!

In sum, “prosecutorial discretion” has become the camouflage for Obama’s usurpation of the powers to write and conclusively interpret the law — powers the Constitution vests in Congress and the courts.

* EXACTLY...

Faithless Execution outlines a litany of Obama-administration directives that the immigration laws go unenforced. In combination, they already amount to a large-scale amnesty. This, like abuse of the pardon power, can rightly be described as outrageous and condemnable. But, once again, such executive orders are indisputably within the president’s Article II power in the sense that neither Congress nor the courts can compel him to enforce the law.

* I'M NOT SO SURE ABOUT THAT. FOR EXAMPLE... SAY BOTH HOUSES OF CONGRESS WERE TO PASS LEGISLATION (PASS WITH MARGINS PRECLUDING A PRESIDENTIAL VETO AND WITHIN A TIME-FRAME PRECLUDING A PRESIDENTIAL POCKET-VETO) DIRECTLY ORDERING ALL ARMS OF THE FEDERAL GOVERNMENT TO ENFORCE FEDERAL IMMIGRATION LAW AS WRITTEN AND TO DISREGARD PRESIDENTIAL EXECUTIVE ORDERS WHICH VIOLATED THE TERMS AND SPIRIT OF SAID "RE-LEGISLATION"... WELL... WHAT WOULD THEN HAPPEN IS ANYONE'S GUESS. ULTIMATELY THE MILITARY WOULD DECIDE - PERHAPS AFTER HANDING CONGRESSIONAL LEADERS AN ULTIMATUM THAT EITHER THEY IMPEACH, CONVICT, AND REMOVED THE PRESIDENT FROM POWER WITHIN 30 DAYS OR ELSE THE MILITARY WOULD ASSUME PRESIDENTIAL AUTHORITY TO "RULE" BY EXECUTIVE ORDER IS THE WILL OF CONGRESS.

Under the Constitution, the power to determine the qualifications for American citizenship is legislative.

* YEP!

Obviously, Congress’s prescriptions must be signed by the president to become law (unless lawmakers have the numbers to override a veto).

* TRUE...

The president, however, has absolutely no authority to confer legal status or positive benefits (e.g., work permits) on aliens who are in the United States illegally.

* ALSO TRUE!

If the president attempts to do this by executive order — and, as Faithless Execution recounts, Obama has already done it, albeit on smaller scales than what is now being contemplated — that would patently exceed his authority, in violation of both the Constitution and statutory law.

* OBVIOUSLY...

* BUT THE QUESTION IS... HOW MANY DEMOCRATS (OR REPUBLICANS FOR THAT MATTER) GIVE A DAMN ABOUT WHAT THE CONSTITUTION ALLOWS OR DOESN'T ALLOW? NOT MANY. NOT MANY AT ALL.

Let’s say Obama pardoned some millions of illegal aliens. The effect of a pardon is to expunge a violation of the law and its attendant effects. In the eyes of the law, it is as if the offense never happened.

* TRUE. BUT... ONE MILLISECOND AFTER THE ILLEGAL ALIEN HAS BEEN PARDONED FOR HIS PAST VIOLATIONS OF CIVIL AND CRIMINAL LAW... ASSUMING THE ALIEN IS STILL ON U.S. SOIL... A NEW VIOLATION OF CIVIL AND CRIMINAL LAW IS BEING COMMITTED.

(*SHRUG*)

* THINK OF THE PARDON AS CONFESSION AND ABSOLUTION IN THE CATHOLIC CHURCH. IF THE MOMENT THE "ABSOLVED" LEAVES THE CONFESSIONAL HE OR SHE BEGINS SINNING AGAIN... WELL... THESE WOULD BE NEW SINS!

Well, the legal and moral case against conferring legal status on illegal aliens is that doing so would excuse their law-breaking, encourage more law-breaking, and give the lawbreakers an unfair preference over aliens who have tried to immigrate lawfully. But a pardon would thrust us into a legal fiction in which we’d have to pretend that the aliens had never broken our immigration laws in the first place. What, then, would remain of the rationale for complaining about the preference given law-breakers over law-abiding aliens? Or for continuing to saddle the aliens with illegal status? Anyone want to bet me on how the nearly 400 judges Obama will have put on the federal bench by 2017 would come out on those questions?

* MCCARTHY LOSES ME HERE. MY ASIDES MAKE MORE SENSE TO ME THAN HIS DO.

(*GUFFAW*)

If the president refuses to enforce the immigration laws and grants something close to a blanket amnesty, we will be on an inexorable course toward citizenship — and, crucially, voting rights — for millions of illegal aliens, also known as Democrats waiting to happen. It is the Left’s dream of a permanent, unassimilated, post-American governing majority.

* GRANTED... THAT IS THE DEMOCRATIC DREAM; BUT AS FOR THIS "INEXORABLE COURSE"... NOT NECESSARILY... FOR THE REASONS I'VE PREVIOUSLY NOTED!

Impeachment is a political remedy, not a legal one. It is about the removal of political power because of breaches of the public trust, not legal prosecution and punishment. Indeed, the Framers considered narrowing the pardon power to prevent the president from granting amnesty for his own lawlessness; they opted against it precisely because they believed the specter of impeachment would be sufficient disincentive.

* NO... YOU'RE NOT IMAGINING WHAT YOU JUST READ. YES... IT'S MAINSTREAM LEGAL DOCTRINE THAT PRESIDENTIAL PARDON POWER EXTENDS TO SELF-PARDON. I FIND THIS A RIDICULOUS CONCEPT. THAT SAID... I'D LOVE TO HEAR THE ARGUMENTS SUPPORTING THE CLAIM, PARTICULARLY HISTORICAL SUPPORTING EVIDENCE.

As we’ve seen, the president’s pardon and prosecutorial powers are formidable. They do not, however, exist in a vacuum. They exist in a constitutional framework wherein the president’s core duties are to execute the laws faithfully and preserve our system of government. The fact that an act is within a president’s vast lawful power does not make it a faithful, constitutionally legitimate use of that power. As Faithless Execution elaborates, an act need not be criminal or indictable in order to be impeachable. There is far more to fiduciary responsibility than acting within the margins of technical legality.

* IMPEACHMENT CAN - AND SHOULD FAR MORE OFTEN - BE USED TO PUNISH "BAD BEHAVIOR" AND (IN MY OPINION) EVEN SIMPLE INCOMPETENCE. (AND NOT JUST "PUNISH" - BUT "RESCUE" - AS IN RESCUE THE AMERICAN PEOPLE FROM BAD PEOPLE AND IDIOTS WHO SOMEHOW HAVE REACHED THE HIGHEST LEVELS OF GOVERNMENT POWER!

To offer an analogy ...  a president who uses the pardon power and prosecutorial discretion as pretexts for usurping Congress’s power to make immigration law, for encouraging law-breaking, and for remaking the country in a manner that imperils the economic and security interests of American citizens, commits grievous impeachable offenses.

To be blunt, there is no real power-of-the-purse check on the president’s pardon power.

* OTHER THAN...

The only real check on the pardon power is impeachment.

At this point, would a credible threat of impeachment be much of a check on this president’s designs? I’m not sure. Obama’s stated goal is fundamental transformation of the nation, and a blanket amnesty would accomplish that.

* AGREED.

From his standpoint, it might be worth the risk.

* AGREED

Plus, even if the amnesty suddenly ignited public sentiment for the president’s removal from office (a dubious supposition), nothing in Washington happens quickly. Obama would still have many months if not most of the rest of his term to abuse his awesome powers (including by issuing additional pardons) in transformational ways.

(*SIGH*)

But I do know this: Absent a credible threat of impeachment, President Obama cannot and will not be stopped from granting amnesty to millions of illegal aliens, who will in short order be awarded citizenship and voting rights.

* AGAIN... I CAN COME UP WITH SCENARIOS WHERE THIS ISN'T THE LIKELY OUTCOME... BUT... SINCE THIS IS THE REAL WORLD AND NOT... er... BILL'S WORLD... EVEN I COME DOWN ON THE SIDE OF SAYING MCCARTHY'S WORST FEARS ARE INDEED MERITED. (AS ARE MINE...)

You can call that a plea for impeachment if you’d like. I call it a statement of fact.

* FOLKS... READ THE CONSTITUTION! I'M BEGGING YOU! DECIDE YOU'LL DEFEND IT!

* BY THE WAY... FOR MORE FROM ANDREW C. MCCARTHY ON THIS TOPIC... CHECK OUT THE FAITHLESS EXECUTION WEBSITE!

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