Trivium Pursuit

To Impeach or not to Impeach — Could Our Constitutional Republic Recover?

To Impeach or not to Impeach — Could Our Constitutional Republic Recover?

December 13, 2019 — Harvey Bluedorn

There may be many things for which one may impeach a president, but the two articles of “obstruction of congress” and “abuse of power” are not among them.

Why?

First of all, because “obstruction of congress” is part of the president’s job description – it’s one of his duties. Each of the three branches of our federal government are assigned the duty of holding the others in check. In this case, “check” is another word for “obstruct.”

Furthermore, congress is assigned the duty of obstructing the president, and the courts are assigned the duty of obstructing congress and the president. We call this check and balance – the balance of power. It is the genius of our form of government.

When is it their duty to obstruct? It is when, to their judgment, they perceive an “abuse of power!”

And what is the constitutional remedy for abuse of power?

Congress is to legislate – it may censure, pass regulations, or otherwise check – obstruct – the power of the president. If the congress should go too far with that, abusing its own power, the president may appeal to the courts to check the power of congress.

Then when may congress impeach?

The constitution is an expressed powers document. The constitution explicitly states when congress has power to impeach. “Abuse of power” – or mismanagement – is not among them. The founders debated the matter, and excluded it for good reasons, not the least of which was in order to maintain the balance of powers. Power to impeach and remove over issues of executive mismanagement, in effect, transfers executive powers to the legislative branch.

One may find many things constitutionally impeachable, but to impeach for the causes of “obstruction of congress” and “abuse of power” amounts to a fundamental attack on the constitutional balance of power, because it attacks the constitutional powers of each branch to check – to obstruct – the abuses of power of the other two branches. This would amount to a fundamental overthrow of our republican form of government.

Therefore, if the House of Representatives proceeds to present these two articles of impeachment to the Senate, then either the appropriate committee of the Senate, or if that fails, the Supreme Court, must exercise its constitutional duty to check – to obstruct – this abuse of power by the House. Were these two articles to reach the point of being considered before the full Senate, this would cast upon these two articles a color or appearance of legitimacy, and regardless of the Senate’s verdict, the structure of the Constitution will have been fundamentally subverted. It is difficult to see just how our Constitutional Republic would recover.

In other words, though the Democrat controlled House may be the ones to deliver up the Constitution for crucifixion, it is the Republican controlled Senate which is in danger – no matter how unwittingly – of performing the deed.

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3 Responses to “To Impeach or not to Impeach — Could Our Constitutional Republic Recover?”

  1. Hank Gilbertson Says:

    I think it’s possible the constitution could be more in jeopardy if we didn’t impeach. This could really set the precedent either way.

  2. Sarah Says:

    I can see your argument being flipped the other way. Congress is using impeachment to check the executive branch, and “obstruction of congress” is therefore interfering inappropriately with the legislative branch. Also, and I ask this with sincerity, when did the founding fathers reject “abuse of power” as an impeachable offense? If they definitely did, that should be part of the public debate, but I haven’t heard this anywhere.

    ———————
    Thank you Sarah for writing.

    Impeachment is not a check. It is an indictment. 

    >Also, and I ask this with sincerity, when did the
    >founding fathers reject “abuse of power” as an impeachable offense? If
    >they definitely did, that should be part of the public debate, but I
    >haven’t heard this anywhere.

    It has indeed been part of the public debate. The founding fathers debated the matter, and deliberately excluded maladministration or abuse of power from causes for impeachment.
    The constitution is an expressed powers document. Where does the constitution express maladministration or abuse of power as cause for impeachment? It doesn’t, and the records show that it was excluded most definitely on purpose.

    Nancy Pelosi is guilty of maladministration or abuse of power when she obstructs congress by delaying to send what has been styled “articles of impeachment.” (But the constitution does not recognize them as such.)

    The remedy would be to appeal to the Supreme Court either for a writ of mandamus to deliver the articles, or for a judgment that the articles are fatally defective and therefore of no legal effect.

    The Supreme Court regularly defers to the lesser of causes, so they would most probably defer to the writ of mandamus.

    [A writ of mandamus is an “order that is issued from a court of superior jurisdiction that commands an inferior tribunal, corporation, Municipal Corporation, or individual to perform, or refrain from performing, a particular act, the performance or omission of which is required by law as an obligation.”]

    Upon receiving the articles, the Senate should find them fatally defective and dismiss them.

    If the articles actually go into trial, then the structure of our republican (small r) form of government will, in principle, have been delivered a fatal blow because it will have shattered the separation and balance of power.

    Harvey

  3. Heather Says:

    Thank you for posting this. I agree. It is nice to hear correct thinking on this. The mainstream media is doing the opposite so thank you again for your wise input.

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