A Tea Party group in San Diego, California is holding a rally on August 28, to demand the impeachment of President Obama. On its blog site, the group gives as a reason for impeachment, “loss of public confidence”. It seems our friends in California have confused our form of government with a parliamentary system where heads of government are routinely removed from office by a vote of “no confidence”. Under a parliamentary system, a coalition of the political parties making up the membership of Parliament elects the Prime Minister. When the coalition loses confidence in the PM to lead the nation effectively, they remove him from office and replace him with another.
In America, the people elect the President through the Electoral College in a round-about and complicated process. No President has ever been successfully impeached and convicted in our 221-year history. It is not likely that an impeachment of Obama would be any more successful than those of Andrew Johnson or Bill Clinton. That does not mean the San Diego rally will not be a good venue of protest, and will send a message to politicians that Californians are not happy with their performance. There are plenty of reasons for impeaching Obama; a lack of confidence is not one of them. Evidently, he still has the confidence of the majority in Congress making impeachment by the House highly unlikely and conviction by the Senate all but impossible.
Impeachment for the right purpose and carried out in a proper manner can have a beneficial effect on the nation. I was not around for the Impeachment of Johnson, but I do remember the impeachment of Bill Clinton. That one quickly deteriorated into a political squabble that divided the country and accomplished little. An impeachment of Obama would be even more divisive and would not lead to removing him from office as the San Diego Tea Party wishes. Any attempt by Republicans to bring Articles of Impeachment against Obama would immediately lead to accusations of racism and political pettiness.
The one thing most needed in America today is an increased knowledge of the Constitution by those inside and outside the government. An impeachment trial could be one of the best methods for increasing our understanding if it was properly focused. An impeachment hearing by the House of Representative is, in many ways, like a Grand Jury hearing, and as has been rightly noted, a Grand Jury “can indict a ham sandwich”. As Gerald Ford observed, an impeachable offense is whatever the House of Representatives says it is at any given time. The Constitution gives as an impeachable offense the commission of “high crimes and misdemeanors”.
The term “high crimes” is a holdover from English common law and has nothing to do with criminal activities in violation of statutory law. The word “high” has to do with the position of the official being impeached rather than the type of “crime”, the higher the position, the more serious the crime. “Crime” has to do with malfeasance in office, including such things as failure to carry out the duties of the office, favoritism, abuse of power, etc. It also might involve criminal activity such as, bribe taking, perjury, treason or other criminal acts. The penalty for an impeachment conviction is removal from office, after which criminal charges can also be filed by the Justice Department if crime is involved. Otherwise, the penalty is only removal from office and the inability to hold public office afterward.
By its very nature, conviction in an impeachment case is a highly subjective matter unless it involves an overt criminal act. In order to be effective as a teachable event regarding the Constitution, impeachment would need to be focused on a specific unconstitutional act(s) by a government official. Furthermore, the offense would have to be easily ascertainable by the general public without any legal knowledge. A perfect example was given to us last moth by Judge Susan Bolton and the Arizona Federal District Court.
The overt violation of Constitution Law is found in Article III, Section 2, Paragraph 2:
“In all cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the Supreme Court shall have original jurisdiction. In all other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to Law and Fact, with such exceptions, and under such regulations as the Congress shall make”.
In order to understand the Framers’ meaning and intent, it is not necessary to refer to previous Supreme Court cases, or the Federal Code. Neither is it necessary to have any training in law. In fact, legal training seems to be a hindrance to understanding the clear meaning of the sentences used, as is often the case with Constitution questions. Understanding the motivation of the Framers is also not necessary, although the status of the four parties mentioned would seem to indicate that their motivation was to preserve the sovereign dignity of the parties to the cases singled out by the clause for special treatment.
The meaning of this paragraph stands on its own, independent of any consideration of other parts of the Constitution or other writings of the Founders. The first sentence clearly says that, in all cases in which a state shall be party, the Supreme Court has original jurisdiction. The three most common reasons given by those who either support or accept the usurpation of power by the Arizona District Court are tradition, Congresses’ power to regulate Court jurisdiction, and the Supreme Court’s acceptance of Congressional exceptions.
Neither of the three is constitutionally acceptable. The arguments of tradition and acceptance are reminiscent of the theological question debated by seminarians since time immemorial. “How long does a heresy need to continue before it becomes truth?” If District Courts have routinely ignored this Constitution paragraph since the founding of the Republic, it does not change the meaning or arrangement of the words used. Neither Congress nor the Court has the constitutional power to change the language of the Constitution without an Amendment. In this case, Congress is given the power to make exceptions to cases over which the Supreme Court has appellate jurisdiction. It is not given the power to make exceptions in cases over which the Supreme Court has original jurisdiction. The second use of the word “shall” in the first sentence precludes the Supreme Court itself from having the power to make exceptions.
This paragraph is clear enough in meaning and sufficiently vague in the understanding of the political class and ordinary citizens that it makes the ideal teaching tool for acquainting citizens with the Constitution and its interpretation. It involves one of the most clearly written and easy to understand passages in the Constitution, a clear usurpation of power by the District Court, and an overt attack on the constitutional doctrine of state sovereignty. The nation clearly needs a debate on the nature, purpose and meaning of the Constitution. We would be hard put to find a better case to start the debate than the one presented by “United States vs. Arizona”.