I’m not saying it’ll happen: impeachment is more a political act than a legal one.
I drew on Faithless Execution in last weekend’s column and in a follow-up Corner post, positing that, short of credibly threatening impeachment, Congress and the courts can neither compel a president to enforce the laws nor stop him from using his plenary pardon authority to grant a sweeping amnesty. That gets Obama two-thirds of the prize he is pursuing — namely, several million aliens whose illegal status has been purged, put on the path to inevitable voting rights that will give Democrats an invincible electoral majority.
By calling on Congress to pass a bill to his liking, Obama has admitted he doesn’t have the authority to do this on his own. He has said exactly that several times over the years, as captured in a video we posted yesterday. By issuing this fiat, therefore, he will exceed his authority—by his own admission and reasoning. Either the proposed amnesty will have no validity; or, if he attempts to enforce it, he will be violating the Constitution. Again, he says so.
That may seem like a political impossibility—I am far from prepared to issue one of my Thirstradamus predictions—but it may become more possible over time:
Congress could, in theory, block the president from granting illegal immigrants legal status and other positive benefits (such as work permits) without impeaching him. To do this in reality, though, Congress would have to use its power of the purse. Translation: It would take the credible threat of a government shutdown to check the president’s lawless conferral of benefits.
Alas, that constitutional parry has already been disavowed by GOP congressional leadership.
Against this backdrop, I am gratified that Fox News’s Megyn Kelly and Charles Krauthammer have just given the topic of impeachment in the immigration context more of the serious consideration it deserves. Appearing on The Kelly File Thursday, Dr. Krauthammer asserted that the president’s anticipated amnesty decree for millions of illegal aliens “is an impeachable offense.”
He is plainly correct. As Faithless Execution elaborates, “high crimes and misdemeanors,” the Constitution’s trigger for impeachment, is a term of art for abuses of power that violate the president’s fiduciary obligations to the American people he serves, the constitutional system he takes an oath to preserve, and the laws whose faithful execution is his core duty. High crimes and misdemeanors are not — or at least, not necessarily — the same as “crimes” and “misdemeanors” prosecutable in the courts. Impeachment is a political remedy (i.e., the removal of political authority), not a legal one (i.e., the removal of liberty after criminal indictment and conviction).
A sweeping amnesty for millions of unrepentant lawbreakers that punishes American workers, imposes crushing burdens on the states, and betrays law-abiding aliens who comply with our immigration rules is not an indictable offense. Yet it is obviously an impeachable one. So is the failure to enforce the immigration laws. And the effort to award by executive decree benefits that only Congress has the power to grant is patently lawless and thus just as clearly impeachable.
Exactly. And, not to be tiresome, but Obama, the ex-Senior Lecturer in Constitutional Law, has said so himself, repeatedly.
The argument goes on, but let me peel off here to discuss the politics. Impeachment requires a majority vote in the House, one I believe would pass easily. The case then is handed over to the Senate for “trial”. To convict, two-thirds (67) of the Senators need to vote in favor. When the new Congress is seated, there will be 54 Republicans, all of whom (let’s say) will vote for impeachment. Can they convince 13 Democrats to go against the party (and the country) to join them? Almost certainly not.
Obama’s proposed decree is politically unpopular, as is he, and a few Dems will vote to impeach. But not enough. As McCarthy says, impeachment is a political act more than a legal one. And there are more than enough political hacks among the Democrats in the Senate to spare The Nation’s First African American President™ from the humiliation of impeachment.
So, is it worth it to proceed? Democrat pollster Pat Caddell described Obama as a “raging narcissist”. Such people do not slink away with their tails between their legs. He’s not bluffing. He doesn’t have to: he can do the math as well as I can (both of us having gone to the same university). I’m not sure I see the point in pursuing a strategy that has almost no chance of success at the end, will leave the offending act unchanged, and may be political overkill.
And I’d vote to impeach him faster than you can say “undocumented citizens”.
But I wonder if wielding the power of the purse might not be a better option, even if it does lead to a shutdown. The GOP feels it took the brunt of criticism for the last “shutdown” (slowdown, barely), yet it just won an historic election. Unlike impeachment, cutting off funds is, as this administration likes to say, a “time-limited, scope-limited” action. A specific remedy to an unpopular act.
I’d also take my chances in the Supreme Court, however this issue might come before them. Even there, the issue would be as much political as it would be legal. But I think a majority of Roberts, Alito, Scalia, Thomas, and Kennedy would rule that the Constitution is not the president’s napkin at a barbecue joint, to be soiled, wadded up, and thrown away whenever it suited him. On that, I would give my Thirstradamus guarantee.