Power-Of-The-Purse Snatcher

by hilzoy

One of many stories I should have written about earlier but didn't: this week, George W. Bush decided that the parts of the Constitution that say that the Congress has the power to raise and appropriate funds, and that "No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law", and that the President "shall take Care that the Laws be faithfully executed" just don't apply to him:

"President Bush this week declared that he has the power to bypass four laws, including a prohibition against using federal funds to establish permanent US military bases in Iraq, that Congress passed as part of a new defense bill.

Bush made the assertion in a signing statement that he issued late Monday after signing the National Defense Authorization Act for 2008. In the signing statement, Bush asserted that four sections of the bill unconstitutionally infringe on his powers, and so the executive branch is not bound to obey them.

"Provisions of the act . . . purport to impose requirements that could inhibit the president's ability to carry out his constitutional obligations to take care that the laws be faithfully executed, to protect national security, to supervise the executive branch, and to execute his authority as commander in chief," Bush said. "The executive branch shall construe such provisions in a manner consistent with the constitutional authority of the President."

One section Bush targeted created a statute that forbids spending taxpayer money "to establish any military installation or base for the purpose of providing for the permanent stationing of United States Armed Forces in Iraq" or "to exercise United States control of the oil resources of Iraq.""

Let's leave aside for the moment the bizarre claim that the President has a Constitutional obligation "to protect national security", which I, for one, cannot find anywhere in Article II, and the, um, humor in taking the requirement that he faithfully execute the laws to require breaking them. In this signing statement, Bush is claiming that he has the right to take money that Congress has appropriated subject to an explicit prohibition on using it for a particular purpose, and spend it on the very purpose that Congress has forbidden him to spend it on.

I cannot imagine on what basis Bush could possibly assert that he has the authority to do this. Apparently, I'm not alone. From the Globe article:

"Some legal specialists disagreed with the administration's legal theory.

"Congress clearly has the authority to enact this limitation of the expenditure of funds for permanent bases in Iraq," said Dawn Johnsen, an Indiana University law professor who was the head of the Justice Department's Office of Legal Counsel during the Clinton administration."

The power of the purse is a big deal. If Bush thinks he has the right to spend money on permanent bases in defiance of Congress' explicit prohibition, I cannot see why he wouldn't also think that he has the right to defy Congress were it to defund the war, or for that matter to shift the entire federal budget into DoD accounts if he thought that his mysterious Constitutional obligation "to protect national security" required it. In this signing statement, Bush has taken aim at yet another of the fundamental pillars of our system of government. We should not let him get away with it.

Comments

[Marty Lederman]

hilzoy: I don't think the Appropriations Clause is an automatic trump that permits Congress to prohibit *any* particular type of spending. Congress could not, for instance, pass a law prohibiting the use of any appropriations to pardon a particular criminal, to appoint a particular officer, or to veto a particular bill. (The hard case is: What about "No appropriations may be used to negotiate a treaty with Nation X"?)

*If* Bush had a preclusive authority under the Commander in Chief Clause to permanently station troops in Iraq -- i.e., if Congress could *not* pass a law saying flat-out "Thou shalt not permanently station troops in Iraq" -- then it's not at all obvious that the legislature could accomplish the same objective by use of an appropriations limitation. See pages 739-740 of this article I've just published with David Barron: http://www.harvardlawreview.org/issues/121/jan08/barron_lederman.pdf.

However, as David and I try to demonstrate in the remainder of that and a companion article (to be published in a couple of weeks), the better argument is that Congress *does* have the power to directly prohibit permanent stationing of troops in Iraq. And if it has the direct power, surely it also has the power to impose a spending limitation.

[Jesurgislac]

Hilzoy: We should not let him get away with it.

I note in passing that Avedon Carol, rather than saying inexplicitly that the criminals in the White House shouldn't be continued to be allowed to get away with it, keeps repeating "impeach" and linking to various campaigns for impeachment hearings. (Congressman Wexler, for example, is running a campaign to start impeachment hearings for Cheney.)

You have a President and a Vice President who are breaking the law while in office and using the powers of their office to do so and, when needed, to cover up their crimes. The remedy is impeachment.

[Johnny Pez]

We should not let him get away with it.

But we will.

[Johnny Pez]

To quote John Thullen from a few threads back, "We have a rogue Presidency and no one gives a crap."

[CharleyCarp]

IIRC Marty, in the early 1870s, the House announced that it would no longer fund treaties with Indian tribes. This stuck.

[CharleyCarp]

25 U.S.C. § 71 (originally enacted as Act of March 3, 1871, ch. 120, 16 Stat. 544, 566).

[Incontinentia Buttocks]

You have a President and a Vice President who are breaking the law while in office and using the powers of their office to do so and, when needed, to cover up their crimes. The remedy is impeachment.

Agreed. But it is equally clear that the Democratic leadership of the House of Representatives refuses, and will continue to refuse, to do its Constitutional duty.

Given that fact, the question then falls to us as citizens and voters: what is the proper political remedy for dealing with a party that refuses to defend our very system of government?

My answer: such a party is utterly undeserving our support or membership, beyond under certain circumstances voting for it in a general election as the lesser of two evils.

[CharleyCarp]

IB, given that those circumstances exist now, and have existed every day, since the commencement of Nixon's Southern Strategy at least, and will continue into the forseeable future, and given that no one is asking anything of you other than the resources to prevent the greater evil from taking power, isn't your answer incorrect? Isn't the choice you have between (a) grudgingly support the Dems enough to beat the Reps, hoping somehow something better comes along (but knowing it won't) or (b) become active in Dem politics, and adding to (a) whatever you can do to move the Dem party in a better direction?

[Incontinentia Buttocks]

CC,

I don't think that the sorts of Constitutional violations perpetrated by this adminstration have been present every day since the commencement of Nixon's Southern Strategy. And of course back in the Nixon years the Democrats (as well as a fair number of Republican) were willing to impeach a president who broke the law.

Since not a single "serious" Democratic presidential candidate supports (or supported) impeachment, I think at the very least reregistering as an Independent makes eminent sense.

Either one believes that our system of government and the rule of law are being fundamentally threatened, or one believes that they aren't.

If one believes that they are, I think it's imperative to minimize one's support for parties that have allowed this to happen. But if one believes that they aren't, one should stop speaking as if they are. Crying wolf is politically very dangerous.

I'm firmly in the first camp, for what it's worth.

[Anonymous]

Marty, I generally appreciate your arguments, but this seems like pretty weak enabling-by-taking-serious-and-calling-reasonable.

Hilzoy is right, what Bush is doing is unreasonable. You are right that Congress couldn't use appropriations to limit a veto, but a veto is effectively a 0 cost act. A treaty may (or may not) be different, but that is, I think, a reasonable argument about whether treaties have "special" authority in the Constitutional system.

This is *not* anything like those two examples. It is a difference not of scale, but of scope. If anything, this is closer to them saying that he can't use the money to arrest women who have performed abortions, or that he can't give the money to Haliburton. Heck, I'd even say this is closer to "but you can't deposit the money in your personal account and use it to buy yourself a retirement home in Argentina."

Hilzoy is right, that if Congress can't put these kinds of explicit limitations on the President, there's no reason to make appropriations complicated at all - just give George Bush a total sum and he can do what he want with it. He's the decider.

The consequences of George Bush even claiming this action is substantial and damaging to national security, btw. There are reform projects out there, trying to give the executive more flexibility in how to organize and spend national security dollars. But one of the principle difficulties in dealing with such reforms is the proper role of oversight - especcially in light of INS v. Chadha. After this, it will be near impossible to convince a Democratic Congress to give the President *any* reorganization or flexible finance authority, because the claim appears that once you give ANY authority to the president, Congress can attach no limit to that authority.

This is actually more important than the signing statement itself - which has no legal force of law - and Bush hardly has the time left in his administration to build permanent bases in Iraq.

[Anonymous]

IB,

CC has a reasonable belief that working within the Democratic party is a more likely way to undo the harm of the Bush administration than taking his ball and going home. Heck, I'd say that it would be reasonable to believe that working within the Republican party is a more likely way to undo the harm than EITHER of your action (though I'm not a Republican by any means). I'm not saying that starting a 3rd party movement has no chance of a success (although I believe it would do far more harm than good, being an enabler for the Republican party to continue its malfeasence), but certainly you are not being fair in thinking those are CC's only options.

[Incontinentia Buttocks]

I'm actually not suggesting that there's some sort of moral imperative to join a third party movement (though, in the interest of full disclosure, I'm a Green).

I was much more modestly saying that one had a civic duty not to affiliate with parties that threaten our very system of government. In fact, the fastest growing group of voters in the U.S. are registered Independents. These voters are not necessarily interested in starting a third party. They are, however, opting out of our two major parties.

As for the idea of reforming the Democrats....we've been hearing that kind of talk for decades. But with each passing election, it seems like the power of progressives within the Democratic party wanes, not grows.

I just don't see any possibility of the Democratic Party reforming itself so as to take its constitutional duties seriously. The choice between Obama and Clinton offers no choice on these issues. And a vote for Kucinich (when he was in the race) though a vote for impeachment was pretty meaningless. So the idea that one can work for reform with in the Democratic Party at this moment seems pretty empty to me. I would, however, certainly agree that staying within the Republican Party to reform it makes about as much sense.

[Marty Lederman]

Anonymous: Please don't get me wrong. If you read the article(s), you'll see that I think Bush's position here is quite radical and, basically, wrong. But it's wrong not because of the Appropriations power, but for a more basic reason: namely, that the President does not have a preclusive Article II power to ignore duly enacted statutes regarding troop deployments. That would be true even if section 1222 were a direct prohibition, rather than a spending limitation.

[CharleyCarp]

IB, the Dem party isn't really an entity independent of the people who take part in it. People with particular views stop taking part, and their influence wanes. The people who remain are going to pursue their views, not those of people who have left, under terms that make it reasonable to expect them back.

That's ok, though: people are fully within their rights to pursue whatever vanity projects strike their fancy, it whatever fields of endeavor interest them. God knows I can't criticize anyone for such a thing. One just shouldn't be confused about the efficacy of vanity projects.

[CharleyCarp]

reasonable not to expect them back

[hilzoy]

Marty: Obviously, I'm not a lawyer, so I don't really know, but: I agree with you that if there were some actual, honest to God Constitutional power that the President had, and that Congress was trying to thwart, then there would at least be a serious Constitutional issue here.

That said, I would have thought -- though again I defer to your expertise -- that while the President would be out of bounds to decide not to obey a law he didn't like absent some Constitutional reason not to, he's doubly out of bounds when he decides not just to violate some law or other, but to violate an explicit prohibition on spending money for X, where X is something the Constitution does not give him the right to do X in ways that seem to presuppose the availability of (some) funds.

But tangling with you and Charley on the law is above my pay grade, so I'm basically hoping that one or both of you will tell me why I'm wrong. Blogging: like law school, only cheaper ... :)

[john miller]

IIRC, Bush has already stepped over this boundary in a reverse fashion. Congress authorized money with the caveat that it was to be used solely to fund the activities in Afghanistan. This was before that fateful October 2002 vote.

Any other use required the express approval of Congress. Bush diverted some of those funds to start setting up for the attack on Iraq. Congress was not consulted.

Unfortunately, no legal judgment was made on that action.

[sean nyc/aa]

I think the trouble arises with the question: how do you determine if a base is "permanent"?

The Administration could easily argue that whatever bases they're building, it's for the next 10, 20, or even 100 years, but it's not for a "permanent" occupation.

The term "permanent" is too subjective to be meaningfully applied here.

[Scott Baxter]

"We should not let him get away with it."

What can I do? I'm so frustrated by all the stuff Bush has done from his second day in office (gag rule, NCLB) to now. And I'm nearly equally frustrated about reading calls for someone to do something.

[hairshirthedonist]

I was much more modestly saying that one had a civic duty not to affiliate with parties that threaten our very system of government.

The counter argument, that has been expressed, thought not in the same terms I will use, is that one has a civic duty to do the most he or she can to prevent parties from threatening our very system of government. If affiliating with those parties enables one to do just that, then...

[trilobite]

The signing statement is a statement of intent, not an effective act. That Bush said those words does not put one red cent towards the establishment of a permanent base in Iraq. So the signing statement, by itself, is not additional grounds for impeachment. However, if The Decider then goes ahead and spends funds appropriated in this bill for that purpose, the signing statement is perfect evidence of intent.

Mr. Lederman, fascinating article, thanks for pointing me to it! (I skimmed it, don't have time to read it carefully right now). I was a little surprised, though, to see so little discussion of the limits of Congressional power as to day-to-day operations of other executive agencies. Of course, that area is much more governed by the organic statutes, but the Court's treatment of similar issues in those lower-stakes areas might provide valuable insight.

[Ara]

Any military people around? Where are these "permanent" bases likely to be? How will they be supplied? How will we ensure that they do not become permanent targets? And what happens to them if the gov't goes hostile?

I've never understood the logistics.

Lederman: the argument against Hilzoy is a strawman. I don't know why you'd read into what she wrote the assumption that the Appropriations Clause is a trump against all presidential authority to spend. That would be the simplest imaginable justification for the view, sure, but no reason to think anyone holds it.

[Gary Farber]

"Lederman: the argument against Hilzoy is a strawman."

I don't see much of an "argument against Hilzoy," but more of a clarification.

"That would be the simplest imaginable justification for the view, sure, but no reason to think anyone holds it."

This seems true of Professor Lederman, as well, thus making your comment a touch recursive. After all, the conclusion, that Congress does have such powers, remains the same.

[Incontinentia Buttocks]

IB, the Dem party isn't really an entity independent of the people who take part in it.

Nonsense. The incumbent officials of the Democratic Party, the members of the DNC, and perhaps most importantly of all, the corporate funding base all exert influences quite out of portion to their raw numbers and dwarf the power of the hundreds of millions of Americans who, in one way or another, merely take part in the Democratic Party.

That's ok, though: people are fully within their rights to pursue whatever vanity projects strike their fancy, it whatever fields of endeavor interest them. God knows I can't criticize anyone for such a thing. One just shouldn't be confused about the efficacy of vanity projects.

Well, you seem plenty capable of criticizing vanity projects! But for the purposes of this discussion my vanity project (or anybody else's) is really irrelevant, unless you consider the mere act of registering as an Independent to be a "vanity project."

To an extraordinary extent Democrats have become reliant on simply asserting that There Is No Alternative to their party.

The counter argument, that has been expressed, thought not in the same terms I will use, is that one has a civic duty to do the most he or she can to prevent parties from threatening our very system of government. If affiliating with those parties enables one to do just that, then...

I completely agree with that final sentence.

Now would someone please explain how affiliating with the Democratic Party today does this? What are you--what is anyone--doing from within the Democratic Party to remove from power the House Democratic leadership, which is standing in the way of impeachment?

I admit that it's theoretically possible to reform the Democratic Party from within, but I think it would be very difficult and, more importantly for the sake of this discussion, I see absolutely nobody seriously attempting to do this right now. Though if any of you are doing this, I'd love to hear about it. Otherwise, all this talk of reform is just "and a pony" politics.

(As I say above, if you don't actually believe that Bush has violated his oath of office and is endangering our system of government, then it's entirely understandable that you're not upset that Democrats have taken impeachment off the table. But if that's the case, kindly don't cry wolf.)

[Hob]

Everyone's been focusing on the cutoff of funds for permanent bases in Iraq, but Bush's dismissal of those other three sections of the bill are at least as big an outrage.

Establishing a commission to root out contractor fraud "could inhibit the President's ability to carry out his constitutional obligations to take care that the laws be faithfully executed, to protect national security, to supervise the executive branch, and to execute his authority as Commander in Chief."

Protecting whistleblowers who disclose contractor fraud "could inhibit the President's ability to carry out his constitutional obligations to take care that the laws be faithfully executed, to protect national security, to supervise the executive branch, and to execute his authority as Commander in Chief."

Requiring the administration to honor information requests from the House and Senate Armed Services Committees (when they're about "matters within the jurisdiction of such Committee") "could inhibit the President's ability to carry out his constitutional obligations to take care that the laws be faithfully executed, to protect national security, to supervise the executive branch, and to execute his authority as Commander in Chief."

The last one is no big deal for a Republican to dismiss; it just goes back to the argument that all of our military and intelligence strategies are so super-duper-secret that Congress can't be trusted to know they exist. It's only a problem if you think the Armed Services Committees should have any purpose other than cheerleading.

But those first two? Congress can't support investigations into fraud by private government contractors? That's as straight-up a defense of corruption as an institutional privilege as I've ever seen.

[gwangung]

I admit that it's theoretically possible to reform the Democratic Party from within, but I think it would be very difficult and, more importantly for the sake of this discussion, I see absolutely nobody seriously attempting to do this right now. Though if any of you are doing this, I'd love to hear about it. Otherwise, all this talk of reform is just "and a pony" politics.

My view is that reforming the Democratic Party and forming a third alternative party will require equivalent effort (or, at least, within an order of magnitude). In one case, you're remolding institutions, economic patters and large organizations--in the other, you're creating them out of whole cloth. I think the degree of effort involved in the latter is not to be underestimated, as it will take time as well as money.

[hilzoy]

I think that reforming the Democratic Party from within will take a lot of effort, but that it's certainly worth a try. In the meantime, I will continue my feeble efforts to support candidates who seem to me to get this stuff (and whether or not they support impeachment is not my criterion; I think that at this stage, impeachment would just be a huge political diversion with very little actual payoff in terms of getting these people out of office, given how long it would be likely to take), and also to help us all get more informed.

[Gary Farber]

"As I say above, if you don't actually believe that Bush has violated his oath of office and is endangering our system of government, then it's entirely understandable that you're not upset that Democrats have taken impeachment off the table."

It's entirely possible to believe that Bush has violated his oath of office and is endangering our system of government, but that the political downside of tomorrow beginning the formal committee inquiry, leading to a swift enough successful impeachment of both Bush and Cheney, and thus the installation of President Nancy Pelosi, to be accomplished significantly before next January, but still with enough time for the impeachment, and then the trial, to be accomplished fairly, might be a question opening up some doubt as to the wisdom of proceeding thusly, while not arguing over the justice of it.

Then there's the question of whether you'd get enough votes for both impeachment and conviction, and the downsides of failing to get sufficient votes. Again, not a settled question, but a seemingly valid one.

Something can be just and right and still not necessarily be the best policy at a given moment, frustrating as that is.

Which isn't to say that I have much argument with anyone who wants to argue for impeachment. I just have a bit of an argument with anyone who thinks it's an absolutely open-and-shut, inarguable, issue.

[rugger9]

Even if W has the inherent powers claimed from Article 2 (and he does not), it is superseded by Amendments 9 and 10 from the Bill of Rights, and are still in force. As a reminder:

Amendment IX

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

Amendment X

The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.

[Anarch]

A question back at hilzoy and Gary, then: if impeachment proceedings are not initiated while Bush et al. are in office, is there any (meaningful) possibility that they will be punished for their sins afterwards?

[Gary Farber]

"A question back at hilzoy and Gary, then: if impeachment proceedings are not initiated while Bush et al. are in office, is there any (meaningful) possibility that they will be punished for their sins afterwards?"

I don't know, but I won't hold my breath.

As I said, I'm not particularly inclined to argue against impeachment; it seems entirely possible to me that attempting it might result in a better outcome than not.

[CharleyCarp]

I can't imagine a new administration actually initiating criminal proceedings against Bush or Cheney.

There is no evidence that would lead to enough Republican votes to remove Bush or Cheney. Photographs of them roasting babies on spits -- and I seriously doubt that this can be found -- likely wouldn't be enough.

The past can't be changed or fixed. We can, however, productively think about how we got here. There were a number of things that happened, but one that was a very big deal was that a non-trivial number of people -- nearly 100,000 in Florida alone -- decided in 2000 that the differences between the parties weren't significant enough to warrant voting for the VP. We might want to avoid this kind of error next time. Maybe every time.

(And no, I don't think very much if any of the blame for this particular error can be placed on the VP.)

[Thomas Nephew]

CC: are you saying that with a bit of luck we might have had VP Lieberman and P Bush? Not all that much better, I think. Cheney would have just set himself up as chief of staff and done pretty much the same thing -- with Lieberman serving as official bipartisan beard for the whole thing.

Gary: you keep saying you're not inclined to argue against impeachment. Great! But I think it would be better if you actually decided to argue for it -- even now, at this late date. Why? Because you'll have finally said to yourself, no more "not now." Why would that be good? Because time is running out, and you're about to find yourself on the side of people who enabled Bush and Cheney to walk away without a mark on them.

hilzoy: to write "we should not let him get away with it" and then say "impeachment would be a "huge political diversion with very little actual payoff in terms of getting these people out of office" is not persuasive to me.

Impeachment is the principal remedy the people have against the kind of highhanded and lawless behavior you've identified here (and in many other posts). It is far more important and politically virtuous (for lack of a better word) to avail ourselves of it than to just say "we'll elect someone better" or "they're out by 1.20.09 anyway." People like Addington, Yoo, Rove, or their future imitators are not going to be chastened or repudiated by Bush and Cheney just having to leave after 2 terms. They'll be back -- just ask Elliot Abrams! -- and because we couldn't get it together to actually kick those 2 impeachworthy war criminals out, they'll say there was a tacit consensus that it was all OK, national security dontcha know.

Even if conviction were to fail, even if impeachment were to fail, an official effort to undertake it would contradict that. Not doing this will be far more harmful to our country going forward than trying and not completely succeeding. A party line vote -- even with defections on the Dem side -- would demonstrate which political actors and parties stand for law and which do not. That would be a significant payoff.

[Gary Farber]

"Even if conviction were to fail, even if impeachment were to fail, an official effort to undertake it would contradict that."

This is a part that seems fairly opague to me.

"A party line vote -- even with defections on the Dem side -- would demonstrate which political actors and parties stand for law and which do not. That would be a significant payoff."

Perhaps. But I'm not clear how to measure how large or small it might be, or how to conclude that it would definitely be large enough, compared to the downside.

At the moment, I want to see Barack Obama win the Democratic nomination, and that's my priority. If impeachment is compatible with getting him elected to office, great.

Meanwhile, there are always a too many important and essential efforts for any one person to focus strongly on more than a few, so I'm happy for you to work hard for impeachment, among your efforts, Thomas, and hope you'll allow me the worth of my own priorities, as well.

[CharleyCarp]

I don't think a failed impeachment sends any negative signal at all to the criminals, their accomplices, or their supporters. They'll celebrate getting away with it. At the same time, the opportunity cost is huge -- and may well include the election in 2008, which is not trivial.

I'm as frustrated by this as you, Tom, but don't think the result, even if things go right (and they never do), is worth the candle.

In 2000, I voted for the VP. Along with a majority of my countrymen and -women, and, I believe, a majority of the people in Florida. Some people thought he wasn't good enough, and instead voted for a guy who (a) wasn't remotely qualified and (b) had no chance of winning, at all. They knew doing so would increase the possibility that the Gov of Texas would win, and didn't care -- pretending that there was no significant difference. I think the differences would have been apparent to anyone with intelligence greater than a Labrador retriever (to whom the candidates would truly be equal), and certainly in retrospect, but no, I hear people once again talking about how they'd like to feel better about themselves by not supporting the lesser evil. Such people apparently don't like being told they have no choice. They're right: they can choose to mess up the entire world, and preserve their precious integrity. Or they can support the party that is a whole lot less bad (but is far from perfect), and might just win.

[Bruce Baugh]

Thomas, I'm a strong supporter of impeachment for Bush and Cheney, and have been for some time now. (I'm in the archives arguing for it back around 2004, I believe.) There is nonetheless something to what Gary says, that starting it now would probably be the worst of several worlds, justified only insofar as it might stop Bush from issuing pardons to anyone else. The last really good time to start was probably right after the 2006 elections, with the timing getting worse and worse as we go. Sometimes really good ideas genuinely aren't terribly pracical.

[Jesurgislac]

Bruce: justified only insofar as it might stop Bush from issuing pardons to anyone else.

Well, given that I think Bush is very likely to finish up his career as President by pardoning as many people who might otherwise incriminate him as he possibly can, that may be useful in itself.

[Jesurgislac]

CharleyCarp: There were a number of things that happened, but one that was a very big deal was that a non-trivial number of people -- nearly 100,000 in Florida alone -- decided in 2000 that the differences between the parties weren't significant enough to warrant voting for the VP. We might want to avoid this kind of error next time. Maybe every time.

One that was a much bigger deal was that a non-trivial number of ballots were not counted even though the voter's preference was clear. When the ballots were counted, by hand, to establish voter intention - as when a voter both punches the ballot for Gore and writes in Gore's name, or when the ballot is marked as "spoiled" because Gore's name was both punched and circled - the results change massively, and Gore is elected President.

I find it ironic that so many Americans seem to think the problem with their elections can be fixed by getting voters not to pick a third party, rather than by ensuring that, when an election takes place, either candidate can get a full by-hand recount if the first automatic count shows such a narrow margin. When the "winner" is supposed to have won by a few hundred, and hundreds of thousands of ballots are uncounted, you have a problem much more significant, and much more fruitful to resolve, than the "problem" of some voters deciding they'd rather not vote for the right-wing or the uber-right-wing party.

[CharleyCarp]

Jes, I agree with you that the mechanics need to be addressed, and seriously. Doing so requires control. When you don't have control, and the other guys do, you can't do much at all on these things. I'm reasonably optimistic about Ohio this time around for just this reason.

Whether people on "our" side can be talked out of pursuing a vanity project doesn't depend at all on control of the machinery of government. Any one of us can take a hand at it at any moment, with the potential for moving actual votes all by ourselves.

You're right that there are a non-trivial number of people for whom Al Gore is too right wing. And within that group, there were a non-trivial group who thought it was OK to take action that forseeably would, and in fact did, put GWB in the White House. You'll understand, I think, when I don't find much sympathy when those same people condemn elected officials for not doing enough to mitigate the consequences of putting GWB in office. And talk about doing the same thing again.

[CharleyCarp]

Anticipating the response -- yes I know I'm not going to win votes from vanity players by calling them morons. I ask the same of Green 2000 voters that I ask of Iraq invasion supporters: recalibrate your meters, because you've made a major miscalculation. Don't do it for me, do it for the planet.

[Jesurgislac]

Charley: And within that group, there were a non-trivial group who thought it was OK to take action that forseeably would, and in fact did, put GWB in the White House. You'll understand, I think, when I don't find much sympathy when those same people condemn elected officials for not doing enough to mitigate the consequences of putting GWB in office. And talk about doing the same thing again.

No, in fact, I don't understand it. When you know how George W. Bush got put in office - five Supreme Court justices and a determined brother and other Republican Party high-level members - it doesn't make sense at all to me to blame voters for preferring someone other than Gore or Bush.

[CharleyCarp]

It was clear before the election that a vote for Nader was tantamount to a vote for Bush. To which the response was, who cares, there's no difference between Gore and Bush.

With Nader out of the race, it wouldn't have been close enough for Jeb Bush and the Supreme Court to steal.

[KCinDC]

justified only insofar as it might stop Bush from issuing pardons to anyone else.

Bruce, I don't understand what you're referring to here. Clearly there is zero chance that enough Republican senators will vote to remove Bush from office, so how would a failed impeachment stop him from issuing pardons?

Unfortunately I can't see anything that's going to stop Bush from issuing blanket pardons in January 2009. The pardon power seems to be a very large loophole in the Constitution.

[liberal japonicus]

This is a bit tongue in cheek, but only a bit. I object to the stolen election notion because it argues that the American people actually wanted the right person and their choice was vacated. I believe that the American people need to take responsibility for the fact that we allowed W to get into office and we re-elected him. Americans are great on historical amnesia. Perhaps it boils down to the fact that Jes may have more confidence in the judgement of the American people than I do...

[hilzoy]

"hilzoy: to write "we should not let him get away with it" and then say "impeachment would be a "huge political diversion with very little actual payoff in terms of getting these people out of office" is not persuasive to me."

I might have phrased what I said wrong. My main concern is not letting this doctrine -- the one that says that the President can decide to defy Congressional limits on appropriations -- stand. I want to undo the damage. I am a lot less concerned with punishing the individuals in question. (I might be more concerned with that if I thought there was a decent chance of succeeding in punishing them.)

And I'm with Charley: we can argue forever about what was "the" cause of the 2000 election process (including the vote, the cases, etc.) turning out the way it did. Personally, I don't think there was "a" cause. If Bush et al hadn't decided to fight the results the way they did, things might have turned out differently. But also: if enough voters had decided not to buy the idea that there was no real difference between the two candidates, or that they had to punish the Democrats for their sins against purity, then the election would not have been close enough to steal.

Imho, we need to do our best not to repeat any of these mistakes.

[Jesurgislac]

lj: Perhaps it boils down to the fact that Jes may have more confidence in the judgement of the American people than I do...

It probably helps not to be American. *tongue in cheek*

More seriously, I suppose that if Bush ever had been democratically elected to be President, the rest of the world would have a different kind of problem with the US than we do when Bush was undemocratically appointed, apparently against the will of the American people, and yet this seems to be consistently under-reported in the country it most concerns.

[Thomas Nephew]

CC: I completely and stupidly misunderstood you, thinking to myself "VP? VP? Cheney vs. Lieberman?" For reasons passing understanding, it didn't occur to me you meant Gore.

Gary: of course we all have our own priorities, I just figured you could maybe even have a second one. Good luck with Obama. I was also referring, though, to our own prior discussions on impeachment going back to March '06, when St. Obama was probably not on your mind yet. But even then just thinking about impeachment was too shuddery scary for the likes of Harold Meyerson et al, it would "drain energy" and prevent the hallowed Dem majority which would save us all and get us out of Iraq and IIRC get us all a pony too; you wrote in to basically agree with Meyerson. In '07 it was still too scary (Meyerson, not you to my knowledge) because it would keep Pelosi from getting us to that progressive place where she might pass SCHIP. And now I'm informed it's too late. So perhaps you'll understand if I'm a little bit bitter.

hilzoy: I just don't see how to keep these doctrines from standing short of impeaching their principal proponents. At best they go into cold storage until the next Cheney and the next Bush comes along. At worst they're +/- immediately recycled, though perhaps in some attenuated form and for some more 'benign' use, by the next Dem or GOP president.

[Thomas Nephew]

I'm sorry about the "St." part. You're all good people, he's OK too.

[Gary Farber]

"So perhaps you'll understand if I'm a little bit bitter."

Sure. If you blame me for not doing my part to agitate for impeachment, that's up to you.

If you're simply unhappy that there wasn't an impeachment, well, that would have heartily been my preference, as well, all other things being the same.

"hilzoy: I just don't see how to keep these doctrines from standing short of impeaching their principal proponents."

You haven't expanded on how a failed impeachment would do that, incidentally. Or how we'd actually accomplish an impeachment.

These don't actually strike me as small points. If they did, I'd be screaming for impeachment at the top of my lungs.

I like to think I'm open to reason on these points, if you can explain a) how a failed impeachment or conviction would repudiate Bush-Cheney's doctrines and actions; and b) how we'd get a majority of votes for both impeachment and conviction.

"At best they go into cold storage until the next Cheney and the next Bush comes along."

I don't see that even a successful impeachment would prevent them coming back with a future Republican majority. I agree that it might -- might -- lower the odds, but definitively prevent it?

Nixon's resignation didn't prevent his installation as a Wise Foreign Policy Statesman Who Should Be Given Credit For Opening China.

Iran-Contra didn't prevent the return to government of any of the primary figures. There was no impeachment effort, but there was little lack of official investigation and reporting by both Congress and Lawrence Walsh. Pretty much no longterm political effect.

And, from the flip side, did the successful impeachment of President Bill Clinton discredit him and his policies and underlings in the eyes of most of the country? Will it prevent the return to government of former Clinton aides?

(There's an obvious argument that a Bush-Cheney impeachment and conviction would be over vastly more substantive issues, which is inarguable, but I don't think it goes to the heart of the point; Iran-Contra was equally substantive, and so what?)

So count me as skeptical that an impeachment would have the sort of overwhelming preventative effect you put forward as your primary reason.

Let alone how skeptical I am that a successful defense in an impeachment trial, or impeachment, would have an overwhelmingly positive effect on our future governments and politics, rather than being sold as a repudiation of an unjust prosecution.

None of which is to say that impeachment isn't right, or that justice doesn't cry out for it.

But that's not at issue.

What's at issue are: a) how would we actually win?; and b) how positive or negative would the actual effects be?

That it would make us feel very very good if we won, and that it makes us feel very bad if we can't get that justice, obviously can't be part of the evaluation.

[Thomas Nephew]

Gary, I assert that...
(1) attempting impeachment leads to
--(a) a nonzero chance of associating severe political pain with these transgressions.
--(b) the certainty of identifying who will vote on the merits of impeachment and who will not.

(2) not attempting impeachment leads to
--(a) the certainty of not associating severe political pain with these transgressions, and of
--(b) not knowing who will vote correctly on the merits of impeachment and who will not.
--(c) a de facto addition of a "except when it's inconvenient, which is always" clause to "high crimes and misdemeanors."

I further assert that impeachment is the way the way the Constitution expressly provides for fighting back against the gamut of said high crimes and misdemeanors so often chronicled at ObWi.

In general, like the founders, I assert a simple behavioral relation between political pain and avoiding behavior leading to political pain. Instead, the pain has been mine -- I'm the crazy guy wanting impeachment for high crimes and misdemeanors, and I have to guarantee maximum success and justify wanting it nine ways from Christmas for serious fellows like yourself, year after year, in a kind of Constitutional "Groundhog Day." I desire a Constitutionalist wing of the Democratic Party, and I desire a militant Congress that asserts its powers. Sadly, the Democratic Party wishes to avoid that label; sadly, Congress (particularly the leadership) views itself more as a farm system for the executive branch than as a check upon that branch. And sadly, the net effect (in my opinion) of your arguments is that you agree.

I'm done here, by all means have the last word.

[russell]

A question on two points of fact:

1. Can the President be prosecuted for illegal acts committed while in office, after he has left office?

2. Can the President issue a pardon for someone who has not been convicted of a crime? In other words, "If Mr. X should ever be convicted of Y, I pardon him..."

Thanks -

[Gary Farber]

IANAL, but I believe the short answer to 1 is "It depends."

Stuff he did acting as his own person, yes, is my understanding. Murder, for instance.

Stuff done acting in capacity as President is where sovereign immunity comes up, and complications ensue.

The answer to 2 is definitively "yes," as I understand it. That is, a blanket pardon for all future crimes isn't possible, but a blanket pardon for all past crimes that might be possibly charged in future is. Mighty is the power of the presidential pardon.

Then there's also international law, as opposed to U.S. law.

Obviously, I withdraw all my responses in favor of those by the actual lawyers here. I'm just trying to kill time until it's time to go to the caucuses, around 5:30 p.m. or so, my time.