“I don’t think you should be hesitant to say the word in this room.” The room in which Georgetown law school’s Nicholas Rosenkranz was sitting was on Capitol Hill, specifically, the room where the Judiciary Committee of the U.S. House of Representatives conducts its hearings. The word he was referring to is impeachment.
Professor Rosenkranz was mildly chastising Rep. Steve King, an exceptional Republican congressman from Iowa. Unlike most of his colleagues, Congressman King has exerted himself mightily in search of practical ways to combat the Obama administration’s lawlessness. Yet he was tongue-tied at the prospect of uttering, let alone seriously discussing, the Framers’ carefully tailored solution for incorrigible presidents.
Professor Rosenkranz must have thought he had already broken the spell. Earlier in the session, a hearing on the president’s constitutional duty to execute the laws faithfully, he had been unrestrained: “The ultimate check on presidential lawlessness is elections and, in extreme cases, impeachment,” he testified. But his clarity just seemed to spook senior Republican staffers, who winced at each invocation of the i-word.1
The GOP had better get past its angst—either that or be prepared to accept a government that is more a centralized dictatorship than a federalist republic under the rule of law. Congress has only two means of checking presidential lawlessness: the power of the purse and the power to impeach and remove. If the opposition party in Congress finds it inconceivable that these powers should be used, it is effectively abetting and institutionalizing the imperial presidency.2
Elections are also a check on presidential excess, but more so as originally conceived than as they occur today. In the first elections under the Constitution, each state would choose prominent, knowledgeable citizens to sit in the Electoral College (in direct numerical proportion to each state’s congressional delegation), and these electors would vote for the president and vice president. The rise of political parties caused this system to be frayed after only four election cycles, and the historical trend toward popular elections has rendered the Electoral College largely a formality.
The original Electoral College had been modeled on the Centurial Assembly system of the Roman Republic precisely because the Framers were suspicious of the mischief that political parties could make.3 The idea was to conduct elections without parties or national campaigns: have statesmen elect a president invested in preserving the constitutional framework, rather than indulge the spectacle of candidates promising the moon as they barnstorm the country vying for power. The rapid ascent of partisan politics—in which James Madison and several other Philadelphia convention delegates were key figures—illustrates that the Framers’ lofty goal was unrealistic. It does not discredit their suspicions.
The Framers were particularly attuned to the timeless challenge of managing factional strife.4 They feared that ideological factions, through the machinations of political parties, would be intent on acquiring power and imposing their pieties. They would not prioritize preservation of the Constitution’s delicate balance of power. It is this separation of powers—among the branches of the national government, and between that government and the sovereign states—that guards against any single governmental component’s accumulation of tyrannical power. The competition between authorities, their monitoring and checking of one another, ensures freedom by protecting the citizen from oppression.
The modern left proves how prescient the Framers were. The left’s class warfare strategies mean that election campaigns are actually conducted against the Constitution’s safeguards of freedom. Supporters of the Constitution’s federalist framework of limited central government and its protection of liberty and property rights are demagogued as enemies of social justice. Statist candidates construe electoral victories as a mandate to undo constitutional constraints that impede their authority to do “the right thing,” as Obama puts it. Winning office becomes a license for lawlessness.
The power of the purse, too, has been eviscerated as a practical check against an outlaw president. The Constitution presumes that the different branches of government will protect their institutional turf. The Framers reasoned that Congress, faced with a president who usurps legislative prerogatives, would fight back by cutting off money the president would need to carry out the usurpation.5 Even after partisan politics took over, it was assumed that politicians took their constitutional responsibilities seriously, either out of noble statesmanship or in the practical calculation that voters expected the Constitution’s protections of liberty to be honored. A congressman of the president’s party would see himself, first and foremost, as a congressman. Valuing the duties of his office over party loyalty, he would join with other legislators to rein in executive excess.
Today’s Democrats, however, are members not just of a party but, perhaps even more, of the movement left. Their objective, like Obama’s, is fundamental transformation of a society rooted in individual liberty and private property into one modeled on top-down, redistributionist statism. Since statism advances by concentrating governmental power, Democrats—regardless of what governmental branch they happen to inhabit—rally to whatever branch holds the greatest transformative potential. Right now, that is the presidency.
Congressional Democrats want the current president to use the enormous raw power vested in his office by Article II to achieve statist transformation. If he does so, they will support him. They do not insist that he comply with congressional statutes—which must be consistent with the Constitution in order to be valid, and thus may reflect the very constitutional values the left is trying to supplant. Democrats will get back to obsessing over the “rule of law” if and when Republicans win another presidential election.
While Democrats quite intentionally defy the Framers’ design, Republicans frustrate it by aggressive passivity. They incessantly tell supporters that they are impotent to rein in Obama’s excesses because the GOP controls “only one half of one third of the government.”6
This argument ignores the fact that the Constitution divides power by subject matter, not percentage of governmental control. The party that controls the House has full primacy in taxing and spending, every bit as much as the party that controls the executive branch has plenary control over prosecution decisions. Constitutional authorities are not contingent on how much (if any) control the party in question has over the rest of government.7 In theory, then, nothing in government can happen unless the House, with ultimate power over the purse, agrees to fund it. If a corrupt administration uses the IRS as a partisan weapon to audit and harass its detractors, the House can refuse to fund the IRS—or other parts of the executive branch—in order to curb executive overreach.8
Historically, congressional Democrats have used the power of the purse to stop Republican presidents from, say, prosecuting the Vietnam War or aiding the Nicaraguan Contras. Yet when today’s conservatives in the House or the Senate urge fellow Republicans to use their command over the purse to stop Obama’s excesses, the GOP leadership turns on them with a ferocity rarely evident in their dealings with the president.
The late political scientist Aaron B. Wildavsky noted that “the power of the purse is the heart of legislative authority and thus an essential check on the executive branch.” Indeed, he observed, “An executive establishment freed from dependence for funds upon the legislature (and hence the public) would be a law unto itself and ultimately a despotism.”9 Alas, with Democrats energized by Obama’s law breaking and Republicans paralyzed by fear of being blamed for government shutdowns if they use their constitutional muscle, there is no realistic prospect that Congress will starve Obama of funding.
That leaves impeachment as the sole remaining constitutional safeguard against executive imperialism. There is nothing else.
Republicans