Liberty, Prudence, Imperfection, and Law

Kevin Gutzman’s “Sue the Executive Branch, Congressman? The Constitutional Check is Impeachment”

Impeachment trial in the Senate

Impeachment trial in the Senate

This essay was authored by Kevin Gutzman for Nomocracy in Politics.

Rep. Trey Gowdy, R-SC, won plaudits from several corners for a recent House speech decrying President Barack Obama’s behavior as president. Obama, Gowdy said, has behaved increasingly lawlessly, and something must be done.

Gowdy noted that several have advocated Obama’s impeachment. This was inappropriate, he said. Referring to the president’s constitutional oath to take care that the laws are faithfully executed, Gowdy thundered, “And if a president does not faithfully execute the law, Mr. Speaker, what are our remedies? Do we just sit and wait on another election? Do we use the power of the purse, the power of impeachment? Those are punishments, those are not remedies.”

His proposal, the somewhat absurdly named “Enforce the Law Act,” would expedite lawsuits by either house of Congress in cases in which the Executive Branch failed to enforce federal law.  I cannot but approve the idea of such lawsuits.  In fact, I wonder why he does not propose to empower individual citizens to bring suit for injunctive relief in such cases; better yet, why not empower them to bring suit for injunctive relief when Congress undertakes to exercise powers not enumerated in the Constitution, chiefly Article I, Section 8? Surely either house of Congress will be less likely to seek such relief than would individual citizens.

Besides that, Gowdy’s legislation assumes a common notion in Republican criticism of Obama:  that he is somehow unique in not enforcing particular federal laws.  In reality, all presidents’ administrations make substantial decisions about their enforcement agendas, including decisions concerning which laws to emphasize enforcing and which to let lie fallow.  It is good that they do, because the statutes on the books are the material for a repressive environment.  Harvey Silvergate entitled his jeremiad “Three Folonies a Day” for a reason, and one need only think of President George W. Bush’s lax enforcement of America’s southern border, say, or of President Ronald Reagan’s administration’s attitude concerning antitrust law to realize that this is a bipartisan phenomenon.  As to Obama, I don’t want Angel Raich jailed for purchasing marijuana for medicinal use, so I rejoice that Attorney General Holder has announced his intention not to pursue any such prosecutions.

Most important in Gowdy’s speech, however, was his severe mischaracterization of the impeachment power.  It is not, pace Gowdy, a means of punishment.  Rather, it is a mechanism Congress can use to police the bounds of executive and judicial behavior.  Not the individual official, but the constitutional regime, is at stake in an impeachment case.

Far the best study of the origins of the US Constitution’s impeachment provisions is the late Harvard legal historian Raoul Berger’s Impeachment:  The Constitutional Problems.  Like Berger’s more famous books on the Fourteenth Amendment and his entirely persuasive tome on executive privilege, Impeachment: The Constitutional Problems combines encyclopedic knowledge and a gift for prose writing in explaining where the provisions in question came from, what they rightly may be said to mean, how they have been misunderstood, and what difference the misunderstanding makes.

Article II, Section 4 of the US 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.” Berger demonstrates that in England, a long line of precedents by the time of the 1787-90 ratification campaign established that “high crimes and misdemeanors” referred not to crimes for which one might be indicted at common law (and thus, as Rep. Gowdy claims, punished), but to constitutional violations and abuses.

In cases such as that of James Clapper, then, impeachment is appropriate.  Mr. Clapper lied unequivocally under oath in response to a senator’s direct question.  Behavior of this type has become commonplace in Executive Branch officials’ congressional testimony. This kind of behavior obviously has as its goal the undermining of Congress’s constitutional role in the Federal Government.  Where someone in so high a position as Clapper’s intentionally misleads Congress concerning Executive Branch activities, he deprives Congress of information concerning the use to which money it has appropriated is being put and/or the way that policies it has legislated are being implemented; the decision-making function of Congress is to that extent transferred from the legislature, where it belongs, to Executive Branch officials.  Clapper must have lied in part because he believed that an honest answer—say, “I would prefer to discuss such matters in executive session, Senator”—might lead Congress to restructure or even eliminate a program he wanted to see continue.

Other high officials of the Executive Branch behave similarly, as a matter of routine. For example, do we expect to hear high-ranking military officials in testimony before a congressional committee frankly explain the grounds of internal disagreement about military policy?  That all of the generals and admirals publicly endorse their political superiors’ positions is a matter of course.  Such dishonesty deprives Congress, and through Congress the people, of opportunity to participate in discussion of these matters, as republican governmental forms contemplate. It is precisely the kind of constitution-undermining behavior that the impeachment power enables Congress to correct.

There are of course other types of behavior in the Executive Branch that merit impeachment and removal from office.  If Attorney General Eric Holder truly was party to or helped to cover up criminal acts in relation to the Fast and Furious program, for example, and if Internal Revenue Service officials actually targeted groups of citizens for unfavorable treatment on the basis of their political views, impeachment is (to borrow a phrase) the rightful remedy—not as a matter of punishment, but “pour encourager les autres.” By not using the impeachment power, Congress allows impeachable behavior to stand as precedent for future Executive Branch activity.

Kevin R. C. Gutzman is the New York Times best-selling author of four books. These include his latest title, James Madison and the Making of America. Professor of History at Western Connecticut State University, Gutzman holds a bachelor’s degree, a master of public affairs degree, and a law degree from the University of Texas at Austin, as well as an MA and a PhD in American history from the University of Virginia.

2 Responses to “Kevin Gutzman’s “Sue the Executive Branch, Congressman? The Constitutional Check is Impeachment””

  1. Phillip

    To what extent is enforcement up to the presidents discretion? Can he choose not to enforce a law at all? If not, then must he enforce a law he believes unconstitutional? And more broadly, what discretion does he have in how strictly a law (one that he accepts is constitutional but that he may not like) is enforced?

  2. gabe

    I think Prof. Gutzman is being far too kind to the Attorney General. One can readily list several more instances of willful dereliction of duty for political purposes on the part of Mr Holder, from gay marriage, to abusive and discretionary “enforcement /selective non- enforcement of civil rights statutes, voting rights acts, etc.
    I suspect that the real issue has more to do with the unwillingness to be labeld racist by attacking the Obama administration and its minions in the Justice Department.
    Clearly, impeachment is a “political crime” and was so intended. The founders knew this and also knew that for it to be an effective brake on power, political will must be present. There is a certain rationality to this and in contradistinction to the Parliamentary method in England, it does serve to provide a bit more stability in governance. However, there is a point beyond which the value of stability is superseded by the damage from wanton disregard for the law(s). It is a balancing act and one that requires “will” – something that is apparently lacking in our present crop of Legislators (such as they are).


    You hit the nail on the head. These are the crucial questions. wish I could answer them. In fact, I have not yet seen any writer do so successfully.
    A thought does occur to me:
    You ask, ” If not, then must he enforce a law he believes unconstitutional? ”
    If he does, is he violating his conscience? Do we agree with his assessment?
    If we do not allow him to “nullify” this law, then we are stuck with “judicial review” – and we all know how that has worked out, don’t we?
    I sometimes wonder if some of the Framers did not have it right with their suggestion for a “Council of Advisors” that would review all of such laws prior to enactment.

    take care


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