Constitution Check: Is suing the president merely a rehearsal for impeachment?

Lyle Denniston, the National Constitution Center’s constitutional literacy adviser, looks at arguments that a lawsuit from Republicans against President Obama is a political tactic or about a broader constitutional issue.

THE STATEMENTS AT ISSUE:

Obama_Boehner“One of President Barack Obama’s top advisers said on Friday that he expects House
Republicans will ultimately file articles of impeachment against the president. Dan Pfeiffer, a senior aide who has been with the administration since Obama first took office, told reporters that he anticipated that a lawsuit….over executive actions taken by the president on health care would ultimately not be enough to satisfy some of the more vocal conservatives in Congress. ‘I think that Speaker [John] Boehner, by going down this path of this lawsuit, has opened the door to Republicans possibly considering impeachment at some point in the future,’ said Pfeiffer. ‘I would not discount that possibility.’ ”

– Sam Stein, a reporter for the online news outlet, Huffington Post, in a report on July 25 about what Pfeiffer had told news reporters at a breakfast briefing.

“While impeachment and cutting appropriations are useful political options to consider, neither can force the faithful execution of the law, much less prevent future presidents from continuing the destruction of separation of powers. For a tailored and proportionate legal declaration of the proper dividing line between Congress and the president, courts—and courts alone – are the appropriate venue.”

– Excerpt from an op-ed column in The Washington Post on June 27 by Washington, D.C., attorney David B. Rifkin, Jr., and Florida law professor Elizabeth Price Foley, discussing the planned lawsuit against President Obama, in contrast to an impeachment proceeding.

WE CHECKED THE CONSTITUTION, AND…

The Constitution makes it a lot harder to challenge a president’s official actions through an impeachment proceeding than to use other methods, such as a lawsuit to test the limits of executive branch power, although a lawsuit itself would face major barriers to its potential success. But, if the current climate of political polarization is taken into account, either impeachment or a lawsuit (or, perhaps, both) might be very worthwhile – if only to score political points.

Washington these days is full of talk about the complaint of some Republicans and conservative commentators that President Obama has vastly abused the powers of his office, and needs to be reminded that there are constitutional limits that must be observed, out of respect for Congress.   But, in order to take that talk seriously as a constitutional matter, one has to put entirely aside the reality that not much is going on here except jockeying for political advantage, perhaps in this year’s congressional elections, with control of the House and Senate at stake.

Impeachment as an alternative way to bring a president to heel has always been a last-resort matter, made deliberately difficult to avoid the prospect of shutting down executive power at every point where it becomes sufficiently controversial.   The American government cannot function in repeated attempts to put a president on trial before a hostile Congress.   Once an impeachment process begins, a president and his aides can do little else beyond mounting a defense.

It takes only a simple majority in the House of Representatives to approve charges against a president – that is, articles of impeachment. But those articles must be put to a trial before the Senate, and there it takes a two-thirds majority to convict the president of any charge; conviction is necessary to actually remove the president from office.   It is a plain fact of history that no president has ever been convicted of impeachment offenses, so none has ever been removed that way.   It is, truly, a drastic constitutional remedy.

But what of the alternative of suing the president? First, someone with a definite legal grievance against the president, who can show that the president’s actions have actually caused that person (or that organization) some injury, must be available to file the lawsuit.   Second, the courts must be willing to allow themselves to be drawn into the middle of a dispute between the other two branches of the federal government, and must have the power to actually resolve that dispute in a specific constitutional way. Suing a president – that is, the mere fact of filing a lawsuit – is much easier than getting articles of impeachment approved by the House.   But succeeding in such a lawsuit is another matter.

It could be, though, that filing a lawsuit might well serve as a rehearsal for an impeachment proceeding. As the lawsuit began and unfolded (however limited its time in court might turn out to be), there would be high visibility coverage in the nation’s press, and the grievance against the president would be on virtually continuous public display, across the country, in all media.

Assuming that the lawsuit, sooner or later, actually failed, then the energy and the publicity that it very likely would have generated could provide arguments for turning to the impeachment alternative.   The challenge would no longer seem like an abstraction, but could appear to be a real constitutional grievance.   Whether the proceeding would ultimately result in conviction of the president, the mere unfolding of that process could be an ongoing threat to the president’s use of discretionary power, because that might appear to be simply deepening the constitutional crisis (it is fair to say that impeachment is always, in some ways, a constitutional crisis).

But having gone over the constitutional ground, it is necessary to return to the political game that almost certainly is being played here.   It is to the Republicans’ election campaign advantage to pummel the president, to activate the interest of its party followers to come out and vote for candidates who can be counted on to oppose this president’s policies. And it is to the Democrats’ election campaign advantage to be able to tell their own followers that the president’s opponents are simply trying to undo the people’s choice of him as the president, so the voters need to send presidential backers to Congress in the fall balloting.

In that political calculus, it is easier to understand why impeachment would be on the minds of presidential opponents, and also to understand why such talk would be entirely welcome by the president and his followers.

By the way: there is nothing in the Constitution that bars any branch of the federal government from using the system of government set up by that document to try to gain something politically. One might say that the Founders even expected that to happen, and themselves found soon enough – by 1800 – that that is exactly what would happen.

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