This is unmitigated balderdash. Nancy Pelosi is "disregarding her oath of office" because she disagrees with John Nichols on impeachment? Nonsense.
And does John Nicols think Nancy Pelosi is not disregarding her oath of office by not using the Spending Power to check the excesses of President Bush? A power that she can use without dreaming of Republican cooperation? Nichols does not say. He has impeachment fever and any steps that are not about impeachment do not interest him.
How many impeachment proponents agree with that? Oh by the way, why do we care if Bush and Cheney mouth those words? Does anyone really think that is what the Founders had in mind as a system of checks and balances? Of course not. Fein got it right the first time -- the ultimate tool for checking the authority of the Executive is the Spending Power.
Why not instead of wasting time on an impeachment that will never happen, we instead apply ourselves to pressuring the Congress to use the power the Founders intended as the principal check on the Executive? Why not concentrate on reviving that check? Oh by the way, with the added benefit of actually STOPPING Bush's abuses and follies?
The fact is that what Nichols and those like him propose would be the worst type of precedent - a precedent that the only way to check a President is to impeach him. I have been fearful of just this type of thinking for a while. In December, I wrote:
The Separation of Powers, Not Impeachment, The Principal Bulwark Against Presidential Abuse
by Big Tent Democrat
Sun Dec 10, 2006 at 09:00:44 PM PDT
In Unitary Moonbat's Impeachment History diary and thread, both too little and too much is said. The too little is about the POLITICS of the impeachment process. The too much is the selling of impeachment as the bulwark against Presidential abuse of power:
Henry's objections were numerous, but one of them was that Madison had created a president who could too easily become an absolute monarch or a tyrant. . . . Madison's reply was essentially what was quoted above. He believed it was impossible for a president to behave as Henry feared one might, because Congress held the power to impeach the executive and remove him from office if necessary . . .
But this is simply not a correct reading of the Federalist Papers or the Constitution. I'll explain why . . .
Let us start with Madison in Federalist 51:
In order to lay a due foundation for that separate and distinct exercise of the different powers of government, which to a certain extent, is admitted on all hands to be essential to the preservation of liberty, it is evident that each department should have a will of its own; and consequently should be so constituted, that the members of each should have as little agency as possible in the appointment of the members of the others.
. . . It is equally evident that the members of each department should be as little dependent as possible on those of the others, for the emoluments annexed to their offices. Were the executive magistrate, or the judges, not independent of the legislature in this particular, their independence in every other would be merely nominal.
But the great security against a gradual concentration of the several powers in the same department, consists in giving to those who administer each department, the necessary constitutional means, and personal motives, to resist encroachments of the others. The provision for defence must in this, as in all other cases, be made commensurate to the danger of attack. Ambition must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place. It may be a reflection on human nature, that such devices should be necessary to controul the abuses of government. But what is government itself but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controuls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: You must first enable the government to controul the governed; and in the next place, oblige it to controul itself. A dependence on the people is no doubt the primary controul on the government; but experience has taught mankind the necessity of auxiliary precautions.
. . . [I]t is not possible to give to each department an equal power of self defence. In republican government the legislative authority, necessarily, predominates. The remedy for this inconveniency is, to divide the legislature into different branches; and to render them by different modes of election, and different principles of action, as little connected with each other, as the nature of their common functions, and their common dependence on the society, will admit. It may even be necessary to guard against dangerous encroachments by still further precautions. As the weight of the legislative authority requires that it should be thus divided, the weakness of the executive may require, on the other hand, that it should be fortified.
. . . There are moreover two considerations particularly applicable to the federal system of America, which place that system in a very interesting point of view.
First. In a single republic, all the power surrendered by the people, is submitted to the administration of a single government; and usurpations are guarded against by a division of the government into distinct and separate departments. In the compound republic of America, the power surrendered by the people, is first divided between two distinct governments, and then the portion allotted to each, subdivided among distinct and separate departments. Hence a double security arises to the rights of the people. The different governments will controul each other; at the same time that each will be controuled by itself.
Second. It is of great importance in a republic, not only to guard the society against the oppression of its rulers; but to guard one part of the society against the injustice of the other part. . . .
Nowhere in Federalist 51 does Madision speak of impeachment as the bulwark against the abuse of Executive power.
Indeed, let us consider the area where Presidential power has traditionally been treated as at its zenith, the Commander in Chief power during wartime. During the FISA debate, I wrote a series of posts detailing the argument and court decisions that eviscerated the ridiculous arguments of the Bush Administration regarding the idea of a "unitary executive." In particular I relied on Hamilton and the Steel Seizure Cases. Here is an example:
A Little Bit of Monarchy
by Armando
Wed Dec 21, 2005 at 01:07:10 AM EST
[The Government's position] cannot be mandated by any reasonable view of the separation of powers, as this view only serves to condense power into a single branch of government. We have long since made clear that a state of war is not a blank check for the President when it comes to the rights of the Nation's citizens. Youngstown Steel and Tube, 343 U.S. at 587. Whatever power the United States Constitution envisions for the Executive in times of conflict with other Nations or enemy organizations, it most assuredly envisions a role for all three branches when individual liberties are at stake.
Hamdi v. Rumsfeld.
In Federalist 26 Alexander Hamilton wrote:
In England, for a long time after the Norman Conquest, the authority of the monarch was almost unlimited. Inroads were gradually made upon the prerogative, in favor of liberty, first by the barons, and afterwards by the people, till the greatest part of its most formidable pretensions became extinct. But it was not till the revolution in 1688, which elevated the Prince of Orange to the throne of Great Britain, that English liberty was completely triumphant. As incident to the undefined power of making war, an acknowledged prerogative of the crown, Charles II had, by his own authority, kept on foot in time of peace a body of 5,000 regular troops. And this number James II increased to 30,000; who were paid out of his civil list. At the revolution, to abolish the exercise of so dangerous an authority, it became an article of the Bill of Rights then framed, that ``the raising or keeping a standing army within the kingdom in time of peace, UNLESS WITH THE CONSENT OF PARLIAMENT, was against law.''
In that kingdom, when the pulse of liberty was at its highest pitch, no security against the danger of standing armies was thought requisite, beyond a prohibition of their being raised or kept up by the mere authority of the executive magistrate. The patriots, who effected that memorable revolution, were too temperate, too wellinformed, to think of any restraint on the legislative discretion. They were aware that a certain number of troops for guards and garrisons were indispensable; that no precise bounds could be set to the national exigencies; that a power equal to every possible contingency must exist somewhere in the government: and that when they referred the exercise of that power to the judgment of the legislature, they had arrived at the ultimate point of precaution which was reconcilable with the safety of the community.
Article 1, Section 8 of the the United States Constitution states, in part, that the Congress will have the power:
To define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations;
To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;
To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;
To provide and maintain a Navy;
To make Rules for the Government and Regulation of the land and naval Forces;
To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;
To provide for organizing, arming, and disciplining the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress . . .
Despite the clear and unmistakable words of Hamilton; despite the clear and unmistakable grant of authority to the Congress regarding the raising of military forces, the promulgation of Rules for the governing and regulation of the military, and for the declaration of war, and despite the ringing statements of the Supreme Court in Hamdi, some Conservatives and Republicans insist that the President, when acting in his capacity as Commander in Chief, has plenary power, unchecked and unfettered. . .
To now argue that it is impeachment that is the bulwark against the abuse of Executive Power is to hand the Right a gift, for that is the argument they make. They argue that Congress and the Courts can only resort to the most dramatic of remedies against Presidential wartime power - the power of the purse, the power of impeachment. It is wrong to argue this line in order to foward the preferred course on impeachment.
Liberals and Democrats must resist this impulse for two reasons -- (1) it is simply incorrect, and (2) it is extremely dangerous. In arguing in this fashion, the Liberal strips the Congress and the Supreme Court of the powers granted it to separate the immense powers of the federal government and allows for the abdication of the responsible role of an overseeing Legislature and a reviewing Court.
So by all means, argue your views on impeachment but let us not throw over the separation of powers in the bargain. It is inaccurate and dangerous to do so.
I think John Nichols proved my point in his discussion with Bill Moyers.
