4. Recess appointments. Bush makes use of this power.
5. Calling Congress into session in emergencies and determining adjournments when the two houses cannot agree. This is less relevant now that the bums hardly ever go home.
And the President is understood to have these checks on the judicial branch, which he indeed still has:
1. Appointing judges. Bush still has this power.
2. Pardoning convicts. Bush still has this power. He has even commuted the sentence of a White House staffer convicted in a case Bush himself is involved in (an act that James Madison and George Mason deemed an impeachable offense). Bush also orders former staffers to obstruct justice, refuses subpoenas, and declines to testify under oath or without Cheney at his side.
The executive branch also has a check on itself. The vice president and cabinet can vote that the president is unable to discharge his duties. Sadly, failure to discharge duties has become the standard for membership in the cabinet.
The judicial branch has an important check on Congress and the president in that it can rule laws to be unconstitutional, but this has been eliminated by Bush and Cheney. The chief justice of the supreme court also serves as president of the Senate during a presidential impeachment. But that power depends on the House of Representatives first impeaching.
The legislative branch is supposed to have an array of checks on the president and vice president, including various minor powers of oversight. But the all-important check is impeachment. With that removed by Nancy Pelosi, subpoenas cannot be enforced. Freedom of Information Act requests cannot be enforced. Contempt citations cannot be enforced. In fact, laws of all types cannot be enforced.
Congress has the power to pick the President and Vice President if there is no majority of electoral votes. This is a major exception to the idea of separate powers, but it is unlikely ever to come up, and means less now that elections are routinely stolen.
Congress can override a presidential veto, but that power too is rendered irrelevant by new presidential powers. The Senate gets to approve appointments, but that power is clearly not sufficient to rein in the march of the Bush power grab. The Senate gets to approve treaties, a power that is also insufficient to check Bush's abuses, even without its elimination by Fast Track. Congress gets to approve the replacement of the vice president, but that power depends on getting rid of the current one.
Congress gets to declare war, but has handed that power to the president. Congress gets to allocate funds, but Bush has misappropriated funds without repercussion or even remark and has openly claimed the right to do so in signing statements. A huge percentage of government funding (of the military and secret spying) is largely unaccountable. The president is required to deliver a "State of the Union" speech, but he's clearly not required to speak the truth.
That's about it. The only major tool in the box of legislative checks on the executive branch (or the judicial branch) is impeachment. That's not the fault of impeachment advocates. That's the way the Constitution designed it.
After Bush and Cheney lost to Gore and Lieberman but were installed by the supreme court, Congress could have refused to certify the election or could have immediately impeached. Or it could have waited for the first string of impeachable offenses. With Congress failing in this for four years, it was left to the public to check the power of Bush and Cheney. The evidence from Ohio is overwhelming that we did so. Yet they remained in office. It was then up to Congress, and is still up to Congress, to impeach, and it would be even if we had credible honest elections. The point of impeachment is not to do what elections do. It is not to swap one tyrant for another every four years. The purpose of impeachment is to rein in an outlaw president or vice president immediately and to establish limits on the abuses that will be permitted future members of the executive branch. The executive branch bears little resemblance, remember, to the "unitary executive" branch.
It's true that, as Nadler claims, we do not have the same world we once did. There are indeed major problems with our system of government that have nothing to do with impeachment. We lack a credible election system. We lack democratic communications systems. We've legalized massive bribery. We've imposed grossly undemocratic primary elections. We've locked out any but two entrenched parties. We've created an eternal election season.
Some of these structural deficiencies will be easier to repair than others. But among the easiest are the most significant. We don't just have political parties. We also have astroturf activist groups that voluntarily take their instructions from the leadership of those parties. And we have raised millions of anti-citizens, human beings who live in the United States of America but self-censor themselves, declining to speak up for their own interests when those conflict with the interests of an entrenched party elite. The same phenomenon is at work within Congress, where the people's representatives have accepted, as has the New York Times, the shifting of all power to the White House. Their interest is in whether the next king will be a Democrat or a Republican. Our interest should be in making sure it is not a king at all. We can only do that by making 2008 the year of impeachment.
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