Our Overprotected Chief Executive

2nd April 2019 Off By binary
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Gene Healy

In my last entry, I ended by agreeing with Sanford Levinson that impeachment is far from an ideal remedy for a misbehaving or incompetent chief executive. I also agree that other constitutional systems manage the job much better.

This may not be the best week to sing the praises of parliamentary democracy, but parliamentary systems have this going for them at least: they make it far easier to “throw the bum out” when all else fails. Prime ministers can be brought down at any time by losing a vote of confidence in the House of Commons, and, as Levinson points out, they can even be replaced by their own party with no great disruption.

Some years after Watergate, Senator J. William Fulbright observed that a “great weakness of our system is how hard it is to get rid of an inadequate leader.” After the Suez Crisis in 1956, “Anthony Eden was out in two weeks,” Fulbright wrote, “in a parliamentary system, Nixon would have been forced to resign early on.” In the Clinton case, we might have been spared our yearlong constitutional conniption over Bill Clinton’s mental state, the multiple connotations of the word “is,” and the precise placement of the president’s hands during various extracurricular encounters. So maybe we have something to learn from our cousins across the pond.

The “No Confidence” Amendment(s)

Levinson suggests as much with his proposal for a “no confidence” amendment to the U.S. Constitution, allowing Congress “by a two-thirds vote of the House and Senate meeting together,” to end a president’s term immediately.

In one version of Levinson’s NCA, the vice president replaces the defenestrated president, as he would in a successful impeachment. But as Levinson notes in Our Undemocratic Constitution, that “might be cold comfort” in a situation where the policies of the administration as a whole are what inspired the no confidence vote; “[n]o critic of George W. Bush would be assuaged if Dick Cheney became president.” Thus, an alternative version of the NCA would leave nomination of a successor to the outgoing president’s copartisans in Congress, “subject to ratification by an absolute majority of both houses of Congress voting as one.”

In the wake of Watergate, Rep. Henry Reuss (D-WI) offered still another version of the NCA. Reuss’s proposed constitutional amendment was debated at length in the George Washington Law Review, if not in Congress. As Reuss explained: “the motion would require a 60 percent majority in both the House and the Senate. Upon passage, the President would continue in office, with a national election for President and Vice President, and for the entire Congress, held within 90 to 110 days.”

Far be it from me, as a libertarian, to object to proposals for radical reform on the grounds of practicality. Even if such revisions are unlikely, exploring their merits can help clarify the defects of current arrangements. Still, I wonder whether an NCA in any of these forms would enable presidential removal for anything short of Nixon-level malfeasance. Reuss’s requirement that the entire legislative branch stand for election is a near-prohibitive disincentive.

Levinson’s NCA lacks that defect, but the 2/3s requirement remains a substantial hurdle. If I haven’t botched my back-of-the-envelope math, in our current partisan alignment, it would require 73 members to cross the aisle—something that’s rare enough when the stakes are far lower. Perhaps Reuss’s lower supermajority requirement, combined with Levinson’s simpler procedures for presidential succession, would strike a better balance.

The Presidential Recall Amendment

Levinson finds inspiration closer to home with his proposal for a presidential recall amendment. “If one, for good reason, does not trust Congress to take its responsibilities with adequate seriousness,” he writes, “then I would be fully open to adopting the possibility offered by the Wisconsin and California state constitutions, i.e., a ‘recall election.’”

Nineteen states allow midterm recall of their governors. Eight of those require the petitioner to identify specific grounds of malfeasance; in the others, any registered voter can start a recall drive for any reason. In all 19, a recall vote is held when its supporters collect the requisite number of signatures. A federal recall amendment proposed by Sen. Robert Hendrickson (R-NJ) in 1951 proposed a different trigger—demands by 2/3s of state legislatures.

Here again, however, it’s not clear to me that a national recall would significantly ease the path to presidential removal. Recall provisions date to the Progressive Era; Oregon, California, and Arizona embraced the mechanism more than a century ago. But in all that time, we’ve seen only three gubernatorial recall attempts make it to the voting stage, and only two successfully removed a sitting governor (North Dakota’s Lynn Frazier in 1921 and California’s Gray Davis in 2003).

Setting the Bar Too High

In fact, judging by rarity of use, no method of executive removal has proven particularly successful in the United States. All 50 states provide for impeachment of state governors, often on grounds much broader than the current understanding of “high Crimes and Misdemeanors” allows. And yet gubernatorial impeachments are at least as rare as presidential ones.

In our history, only eight state governors have been impeached and removed from office. That figure leaves out cases, like that of Missouri’s Eric Greitens in 2018, where the threat of impeachment has driven governors from office. But it’s still a pretty meager tally if we assume that the ordinary distribution of human folly and misbehavior obtains among state political leaders.

It’s unlikely that a “cult of the governor” inhibits the use of the remedy at the state level. And while the stakes are smaller at the state level, it’s not clear which way that cuts. That governors are less important than presidents might make removal less necessary, but it ought also to make removal less disruptive. My guess is that structural factors explain a lot: state constitutions probably set the bar too high for both impeachment convictions and ballot recalls.

It seems to me the Framers, too, set the bar for impeachment convictions unreasonably high in 1787, not realizing that would make the “indispensable” remedy all but unworkable. I’d likely support either of Levinson’s amendments, or a “simpler” fix that lowered the supermajority requirement for conviction to 60 votes in the Senate. Like him, I wish more fundamental changes were possible—at least in this area. But for the foreseeable future, I fear we’re stuck with what the Framers left us: an elected pseudo-monarch, all but impossible to dethrone between four-year terms.

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