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Does the Constitution Require the Impeachment of Bush and Cheney?

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David Swanson
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Presented at George Mason University on April 14, 2008
Dedicated to Betty Hall and the New Hampshire State Legislature.
By David Swanson

John Adams, who was later the second president of the United States, wrote some words in the Constitution of Massachusetts that have been quoted approvingly by the U.S. Supreme Court and every state supreme court in the United States.  He described a separation of powers among three branches of government and said that this would be done

"to the end it may be a government of laws and not of men."

Thomas Paine in his "Common Sense" pamphlets that helped launch the American war for independence, wrote that

"so far as we approve of monarchy, ... in America THE LAW IS KING. For as in absolute governments the King is law, so in free countries the law OUGHT to be King; and there ought to be no other."

I raise this point in order to suggest that the question of whether the US Constitution requires impeaching Bush and Cheney is not an academic one and is very closely tied to the straightforward question of whether we should impeach Bush and Cheney.  The Constitution is the highest law of this land.  If it requires that something be done, then a failure to do it amounts to moving the country in the direction of lawlessness, and possibly in the direction of the rule of men and women, not of laws.  

This is the case unless, of course, we amend the Constitution to fit our chosen behavior.  The Constitution is not infallible.  There are sections of the original text that I'm pleased have been removed through the amendment process.  There are other sections that I think should be changed, things that should be added that are not there, etc.  But there is a great danger in sidestepping the democratic process of amending the law and proceeding to simply violate it.  

There are cases in which we do that.  For example, for over 50 years the United States has fought wars without Congress ever declaring war, as required by the Constitution.  But these are policies that should, in fact, be reversed and be brought back under the rule of law.  If you believe a president should have the power to declare wars, then you should work to amend the Constitution to provide that power. Otherwise some president you disapprove of may decide to grant him or herself the power to do something else not found in the Constitution, and it may be something you don't like, but there won't be much you can say about it.  

The Constitution, of course, gives the three branches of the national government different powers, and provides each with checks on abuses of power by the others.  

The president is to execute the laws created by Congress. He, or she, serves as commander in chief of the military. He can pardon crimes (but not impeachments). If he consults with and gets the support of the Senate, the president can negotiate treaties and appoint officials, ambassadors, and judges.  That's about it. There is no constitutional presidential power to write or alter or violate laws, to act in secret, to abridge the judicial system, to violate the Bill of Rights, to violate existing treaties, to build an empire, or to launch a war.  Oh, and the Vice President under the Constitution has no particular powers at all, other than serving as the president of the Senate, where he or she only gets to vote if there's a tie.

In contrast, the legislative branch of our government, historically and even today in the version students are still taught in schools, has much greater power.  The Congress, to which the first half of the entire Constitution is devoted, has the exclusive power to enact laws. Congress also has the sole power to raise and spend money.  It has the power to declare war and to fund and oversee the military.  It has the power to regulate international and interstate trade.  Congress handles immigration, bankruptcies, the printing and valuing of money, the post offices, copyrights. Congress has the power to "constitute tribunals inferior to the supreme court," and "to define and punish piracies and felonies committed on the high seas, and offenses against the law of nations." But the first power that the Constitution grants the House of Representatives is the power of impeachment. The first power it grants the Senate is the power to try all impeachments.

In school we learn about the "Separation of Powers" and about something called "Checks and Balances." Our three branches of government are supposed to be separately elected, none of them created by any other.  The Supreme Court is constituted by both the executive and legislative branches, not one alone.  And the power to run the nation is supposed to be divided. Congress has certain powers. The courts have other powers. The president has others. Congress, as the most powerful branch, is further divided into two houses with somewhat separate powers. It's important to understand that Congress is more powerful than the other branches, which is one reason the phrases "balance of power" and "checks and balances" can be misleading. There is not supposed to be anything evenly balanced about it.

Under the U.S. system, the executive branch is understood to have the following checks on legislative power, and it still has them, plus some:

1. The veto. Bush does still have this power, but it is overshadowed by his newly created signing-statement power. No longer must he choose between signing a bill and vetoing it. Now, he can choose to sign it and rewrite it.  While signing statements are not new, this use of them is, and twice studies by the GAO have found that in a significant percentage of cases the laws Bush announces the power to violate he has proceeded to violate.

2. Commanding the military. Bush does still have this power, but he has added to it the power to declare war in violation of Article I of the Constitution and in violation of the UN Charter which under Article VI is the law of the land, plus the power to misappropriate funds for wars that were not approved for them, and the power to take state militias (also known as the National Guard) away from the states to join the US military in fighting foreign wars.

3. The vice president's vote in the Senate. He does still have this power.

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David Swanson is the author of "When the World Outlawed War," "War Is A Lie" and "Daybreak: Undoing the Imperial Presidency and Forming a More Perfect Union." He blogs at http://davidswanson.org and http://warisacrime.org and works for the online (more...)
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