Understanding Our Constitution - Part 33 - Impeachment

Impeachment in the United States allows for formal charges against an official of government for crimes committed in office. The actual trial on those charges is separate from the act of impeachment itself.

Impeachment - a fundamental constitutional power - belongs to Congress. The US Constitution, besides providing the authority for impeachment, details the methods to be used.

IMPEACHABLE OFFENSES

Article II, Section 4 of the Constitution says,

The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors

"High Crimes and Misdemeanors" are (1) real criminality - breaking a law; (2) abuses of power; (3) "violation of public trust" as defined by Alexander Hamilton in the Federalist Papers.

In the past, Congress has issued Articles of Impeachment for acts in three general categories:

Exceeding the constitutional bounds of the powers of the office.

Behavior grossly incompatible with the proper function and purpose of the office.

Employing the power of the office for an improper purpose or for personal gain.

The House of Representatives has the sole power of impeachment - similar to an indictment in regular court proceedings. The United States Senate has the sole power to try all impeachments - analogous to a trial before judge and jury in regular courts

HOUSE OF REPRESENTATIVES

A member of the House of Representatives may begin impeachment proceedings either by presenting a listing of the charges under oath or by referring these charges to the appropriate committee. Non-members may also start the impeachment process.

After debating the resolution, the House either considers the resolution as a whole or votes on each article of impeachment individually. A simple majority of those present and voting is required for passage of the resolution.

If the House votes to impeach, House Managers are selected to present the case to the Senate.

SENATE

A trial is then held in the Senate. Each side has the right to call witnesses and perform cross-examinations. The House Managers present the prosecution case. The impeached official has the right to obtain his own attorneys and mount a defense.

After hearing the charges, the Senate usually deliberates in private. Conviction requires a two-thirds majority.

The Senate enters judgment on its decision, whether to convict or acquit, and a copy of the judgment is filed with the Secretary of State.

Upon conviction, the official is automatically removed from office and may also be barred from holding future office. The removed official is also liable to criminal prosecution.

Understanding Our Constitution - Part 32 - Presidential Signing Statements

A signing statement is issued by the President on the signing of a bill into law. These statements are divided into three categories:

Constitutional: The statement may declare that the legislation would be unconstitutional in certain applications. It may interpret the legislation in a manner that would “save” it from unconstitutionality. It may state flatly that the legislation is unconstitutional. These statements could include a declaration as to how - or whether - this legislation will be enforced.

Political: The statement guides and directs Executive officials in interpreting or administering a statute. The President has the constitutional authority to supervise and control the activity of subordinate officials within the Executive Branch.

Rhetorical: The statement is used to explain to the public and interested constituents what the President understands to be the likely effects of the bill and how it adheres to the Administration's view or programs.

The phrase ”signing statement” usually refers to statements that tell executive agencies to apply the law according to the president’s interpretation of the Constitution.

James Pfiffner, a political scientist wrote:

“The president is the head of the executive branch, and in general, executive branch officials are bound to follow his direction. In cases in which a subordinate is ordered to do something illegal, the person can legitimately refuse the order. But if the public administrator is ordered to refuse to execute the law...because the president has determined that the law infringes on his own interpretation of his constitutional authority, the public administrator faces an ethical dilemma.”

No Constitutional provision or federal statute explicitly permits or prohibits signing statements. Article I, Section 7 empowers the president to veto a law in its entirety or to sign it. Article II, Section 3 requires that the executive “take care that the laws be faithfully executed”.

Signing Statements do not appear to have legal force by themselves and are indicative of the way the president intends to implement a law. This may make them more significant than the text of the law itself.

Four Supreme Court Justices (Scalia, O’Connor, Kennedy,& Souter) joined in the opinion that the Constitution provides the President with the authority to decline to enforce a clearly unconstitutional law. Freytag v. C.I.R., 111 S. Ct. 2631. 2653 (1991).

During the administration of President George W. Bush, critics charged that he used signing statements extensively to modify the meanings of statutes. President Bush used signing statements in an apparent attempt to nullify legal restrictions on his actions. Some opponents have said that he was using signing statements as a line-item veto which the Supreme Court has previously ruled as unconstitutional. Clinton v. City of New York (1998).

Previous administrations have made use of signing statements to dispute the validity of a new law or its individual components. George H.W. Bush challenged 232 statutes through signing statements during four years in office and Clinton challenged 140 over eight years. George W. Bush’s signing statements contain at least 1,100 challenges.

In July of 2006, a task force of the American Bar Association stated that the use of signing statements to modify the meaning of duly enacted laws serves to “undermine the rule of law and our constitutional system of separation of powers”.

The Obama administration is continuing the practice of presidential signing statements.

Understanding Our Constitution - Part 31 - Constitutionality

The United States Constitution is a “rigid constitution” which means that it can only be modified through processes that the constitution itself specifies.

Constitutionality is the condition of acting in accordance with a constitution. Laws, procedures, and acts must adhere to what is set forth in this constitution. All laws are considered constitutional until challenged and declared otherwise.

When the proper court determines that a legislative act or law conflicts with the constitution, it finds that law unconstitutional and declares it void in whole or in part. This is called judicial review.

Some examples of unconstitutional actions can be:

A politician who abuses or acts outside of the powers of his office.

A legislature that passes a law that contradicts the constitution, without first going through the proper constitutional amendment process.

Any person acting on behalf of the government who tries to prevent an individual from exercising individual rights which the constitution protects.

In some instances, part of a statute may be unconstitutional. If the invalid part can be removed, the constitutional portion continues to stand. The portion that is declared void is said to be “struck down”. If the unconstitutional portion can not be removed, the whole statute fails. The entire statute is then struck from the statute books.

When a statute is found to be unconstitutional, all rights, contracts, or duties that depend on it are void. No one can be punished for refusing to obey the law once it is declared unconstitutional. But, while the law remains constitutional, a person disobeying it - is subject to punishment. When legislation is being judicially questioned, a stay of execution is usually given.

The legal encyclopedia American Jurisprudence says the following in regard to constitutionality:

The general rule is that an unconstitutional statute, though having the form and the name of law, is in reality no law, but is wholly void and ineffective for any purpose since unconstitutionality dates from the time of its enactment and not merely from the date of the decision so branding it; an unconstitutional law, in legal contemplation, is as inoperative as if it had never been passed...An unconstitutional law is void. (16. Jur. 2d, Sec.178)

Understanding Our Constitution - Part 30 - Lobbying

Lobbying is the practice of influencing decisions to be made by the government - in groups or individually. All attempts to influence legislators and officials are included. Their tactics may include such high pressure techniques as bribery, threats of electoral retaliation, and mass mailings.

The term originated in the 19th Century - where individuals tried to influence officials - generally in the lobby outside a legislative chamber.

It may be a direct appeal to a decision maker or it may be indirect such as influencing public opinion. It may include oral or written efforts of persuasion, campaign contributions, public-relations campaigns, research supplied to legislative committees, and formal testimony before committees.

Lobbyists are often hired by groups or organizations with a particular interest in convincing members of Congress to pass or defeat legislation. A lobbyist may be a member of a special-interest group, a professional willing to represent any group, or a private individual.

Often former members of Congress stay in Washington as lobbyists, making use of their experience. They often find though, that over time, their influence as lobbyists diminishes.

In the US, the Federal Regulation of Lobbying Act (1946) requires that lobbyists and the groups they represent register and report contributions and expenditures.

Since 1995, under the federal Lobbying Disclosure Act (2 U.S.C. § 1601-1612), most people who are paid to make direct “lobbying contracts” with officials of the federal government - are required to register and file reports twice a year. If lobbyists neglect to register, they are susceptible to criminal charges and harsh penalties.

Many loopholes remain in these regulations. But, Congress has been reluctant to place too many limitations on lobbying as this could restrict the constitutional rights of free speech and freedom to petition.

President Bush signed into law, in September 2007, the Honest Leadership and Open Government Act of 2007 - an amendment to the 1995 legislation. Shortly afterwards, many lobbyists withdrew their Lobbyist status and went to work for companies - as “strategic advisors”, “policy advisors”, or “government relations consultants”. These “stealth lobbyists” do not have to adhere to this legislation.

Rep. Jeff Flake (R-AZ6) has submitted a number of House Resolutions concerning the possible misuse of lobbying tactics - H Res 189, 212, 228, 265, 286, 295, 312, 425, and 667. As an example, I am providing a link to the last one. It’s worth reading the full text:

http://www.govtrack.us/congress/bill.xpd?bill=hr111-667

Currently, there are over 17,000 federal lobbyists based in Washington, DC.

Understanding Our Constitution - Part 29 - Defending Our Constitution

The Framers of the Constitution created the three separate but equal branches of the government so that each branch could “check” each other.

Supreme Court justices are obligated to void unconstitutional laws.

Legislators are obligated to vote against unconstitutional bills, repeal unconstitutional laws, and approve judicial nominees for the federal bench.

The president is obligated to veto unconstitutional bills, refrain from acting on unconstitutional laws signed by previous presidents, and nominate judicial candidates who are committed to the Constitution.

Until recently, most Americans were so accustomed to our Bill of Rights and other legal limitations on political power that they did not fully appreciate how fragile our constitutional system really is.

The Constitution is incapable of defending itself. There is no constitutional “police force” that stops offenders or brings them to justice. The primary “check” of the citizenry on the unconstitutional conduct of government officials is the electoral process. Unfortunately, between elections, in a short period of time, people can lose their liberty, their businesses, and their personal possessions.

As we have witnessed, there are no assurances that the minority party will not be abused by the majority party that holds the reins of power. There are no assurances that threats, bullying tactics, or bribes are not used.

The Framers of the Constitution tried to discourage the election of corrupt officials by a series of requirements and procedural hurdles. But, once in office, the officials are essentially “on their honor” with respect to their constitutional responsibilities. Again, we have seen how power corrupts.

The Constitution required the President to take the Oath of Office in public - explicitly binding himself to the Constitution. This is supposed to provide some assurance that the executive power will stay within the framework established by the Constitution.

A.V. Dicey, a 19th century British Constitutional theorist, in “Dicey Law of the Constitution”, identified the three principles which together establish the rule of law:

(1) the absolute supremacy or predominancy of regular law as opposed to the influence of arbitrary power
(2) equality before the law or the equal subjection of all classes to the ordinary law of the land administered by the ordinary courts
(3) the law of the constitution is a consequence of the rights of individuals as defined and enforced by the courts.

Dereliction of duty, although usually referring to a specific military offense, is also used to describe an elected official failing to perform his or her elected duty, not following the rule of law, or not adhering to the Constitution. It is a failure, through negligence or deliberate action, to not perform one’s legal or moral duty to a reasonable expectation.

Under military law, a person convicted of dereliction of duty might be given a dishonorable or bad behavior discharge. An elected official accused of dereliction of duty may not be re-elected or may be impeached.

Defense of the Constitution lies with each citizen - taking responsibility and electing those officials who will best serve the Constitution. In extreme cases, if deemed necessary - it may require taking action, to find an official guilty of dereliction of duty.

Understanding Our Constitution - Part 28 - A Filibuster

A fililbuster, or “speaking or talking out a bill” is a form of obstruction in a legislative body - where an attempt is made to delay or entirely prevent a vote by extending a debate on that proposal.

The term filibuster was first used in 1851, It was derived from the Spanish “filibustero” meaning pirate or freebooter - as filibustering was seen as a tactic for pirating or hijacking debate.

The tactic is usually employed by a group that does not have enough votes to defeat a bill. Filibustering is possible in the US Senate because Senate rules allow unlimited debate on a bill. The speech does not have to be related to the bill under discussion.

Three-fifths of the Senate - 60 Senators - can bring debate to a close by invoking cloture. Holding around the clock sessions - to tire the speakers - is another tactic used to defeat filibusters. A filibuster can be defeated by the majority if they leave the debated issue on the agenda indefinitely, without adding anything else.

According to the Supreme Court ruling in US v Ballin (1892), changes to Senate rules can be achieved by a simple majority:

“The constitution empowers each house to determine its rules of proceedings...The power to make rules is not one which once exercised is exhausted. It is a continuous power, always subject to be exercised by the house...”

Currently, Senate rules state that 67 votes are required for future rule changes.

Senate Rule 22 permits filibusters in which actual continuous floor speeches are not required. The Senate Majority Leader may require an actual traditional filibuster if he/she so chooses.

Budget bills are governed under special rules called “reconciliation” which do not allow filibusters. Before 1996, it only applied to bills that would reduce the budget deficit, but is now used for all matters related to budget issues.

Usually proposals for Constitutional Amendments are not filibustered. This is because a two-thirds majority is needed to pass the proposal - which is more that the three-fifths majority needed to invoke cloture. If there are not 60 votes to stop the filibuster, it would be impossible to get the required 67 votes to pass the amendment.

Another favorite device of filibustering senators is simply to absent themselves from the chamber. If the minority party does not answer quorum calls, then the majority has to stay near the chamber at all times, day or night, to establish a quorum and keep business moving.

The Senate majority leader may order the Sergeant-at-Arms to arrest absent senators. They would then go to the senators' offices and homes and accompany them to the chamber. On some occasions, they have even physically carried senators in the door.

Even if a filibuster attempt is unsuccessful, the process takes valuable floor time. In recent years, when a filibuster is threatened and attempts to achieve cloture have failed, the majority has preferred to avoid filibusters by moving to other business.

Understanding Our Constitution - Part 27 - Mandamus

A Writ of Mandamus is a command from a superior court to some person, corporation or inferior court requiring them to do some particular thing relating to their office and duty.

Mandamus may be a command to do or to not do a particular administrative action. It is supplemented by legal rights that must be both judicially enforceable and legally protected. A person is considered “aggrieved” when he is denied a legal right by someone who legally must do something and abstains from doing it.

The applicant pleading for the writ of mandamus to be enforced should be able to show that he has a legal right to compel the respondent to do or refrain from doing the specific act. It must be a public duty that is absolutely necessary and not discretionary.

The purpose of mandamus is to correct defects of justice. It lies in cases where there is a specific right but no specific legal remedy for enforcing that right. There may be an alternative remedy but the option is less convenient, beneficial, or effectual. At the discretion of the court, the grant of mandamus is, therefore, a more reasonable remedy.

Traditionally, writs of mandamus have been rare but are being issued in a growing number of situations.

There are three kinds of mandamus:

Alternative Mandamus : A mandamus issued upon the first application for relief - commanding the defendant either to perform the act demanded or to appear before the court at a specified time to show cause for not performing it.

Peremptory Mandamus : An absolute and unqualified command to the defendant to do the act in question. It is issued when the defendant defaults on, or fails to show sufficient cause in answer to, an alternative mandamus.

Continuing Mandamus : A Mandamus asking to prevent a miscarriage of justice - issued to a lower authority to perform its tasks expeditiously for an unspecified period of time.