Forty years ago this coming week, Richard Nixon resigned the presidency. Not long before his resignation, the House Judiciary Committee’ had approved articles of impeachment against him. The consensus is that Nixon had committed wrongs that amounted to the “high crimes and misdemeanors” specified in the Constitution for removal from office. There is general agreement among current White House critics that President Obama has not done so, with 2012 vice-presidential nominee Paul Ryan being the latest GOP leader to express that view.
However, President Obama may soon change people’s minds if this fall he unilaterally suspends deportations of illegal aliens or extends work permits to them, using the excuse that Congress hasn’t passed the kind of immigration reform he would like. After all, no less a constitutional expert than Barack Obama told a Univision town hall in 2011: “With respect to the notion that I can just suspend deportations through executive order, that’s just not the case.”
President Bill Clinton remains the only modern president to have been impeached by the House, although the Senate acquitted him. At the time, I was a bitter Clinton critic. But in my role as a TV pundit, I didn’t support his removal as president. I’ve always felt that we need a middle path between routine political pummeling and ejection from office when we are dealing with a rogue executive. The House’s lawsuit against the White House for altering Obamacare dozens of times without consulting Congress is fine as far as it goes, but we need to make more use of the power of censure by Congress. In addition, a lawsuit could take years to wend its way through the courts and might not even be resolved until Obama leaves office.
Impeachment is akin to detonating a nuclear weapon on the field of politics. The American people shy away from impeachment. In a new CNN poll, fully 79 percent believe it should be reserved only for “serious crimes.” “Not only is its explicit purpose to legislatively overturn the sovereign judgment of the people at the ballot box, its impact on the work of the government, and on our domestic tranquility, is deeply corrosive,” notes Charles Cooper, who was head of the Office of Legal Counsel in Ronald Reagan’s Justice Department. The OLC is tasked with acting as counsel for the president and attorney general on the constitutionality of laws and executive actions.
Cooper does believe President Obama has crossed a line that merits a serious impeachment inquiry. He notes that President Clinton’s lawyers, relying on a seminal House Judiciary Committee report on the Nixon impeachment, argued in 1998 that impeachment is to be “predicated only upon conduct seriously incompatible with . . . the proper performance of constitutional duties of the president office.” Among those are “conduct undermining the integrity of office, disregard of constitutional duties and oath of office, arrogation of power, [and] abuse of the governmental process.” In Cooper’s view, such actions have become just part of another day at the office for President Obama. In the new CNN poll, only 33 percent of Americans favor impeaching Obama, but a full 45 percent believe he has abused his powers as president.
There is another option, short of impeachment, for sanctioning the President’s unconstitutional conduct in office. The House of Representatives can and should in coming months prepare and debate a unicameral resolution identifying and condemning President Obama’s usurpations of legislative power and his repeated refusal to faithfully execute the laws.
The Congressional Research Service has identified a number of historical precedents in which the Senate or the House has adopted a resolution of censure or disapproval of a president or other executive or judicial officers. Indeed, in 1998, Democratic senator Dianne Feinstein and 37 co-sponsors introduced a joint resolution in the Senate that enumerated President Clinton’s various misdeeds, and “condemn[ed] his wrongful conduct in the strongest terms.” Likewise, Minority Leader Nancy Pelosi and other Democratic members of the House proposed similar resolutions, declaring that President Clinton’s actions “fully deserve the censure and condemnation of the American people and the Congress.”
It is important for our overall political health that we focus our criticism on President Obama’s unconstitutional acts and omissions rather than on the president himself. Lawmakers can word a censure resolution carefully to do this. Impeachment, on the other hand, would inevitably be viewed by many as a personal attack on President Obama.
But while impeachment isn’t appropriate, Congress must not simply acquiesce to President Obama’s numerous violations of the first Article of the Constitution, which is: “All legislative Powers herein granted shall be vested in a Congress of the United States.” In the 1830s, Senator Henry Clay of Kentucky offered a Senate resolution denouncing as unconstitutional President Andrew Jackson’s actions against the Bank of the United States. He warned his fellow Senators: “The premonitory symptoms of despotism are upon us; and if Congress does not apply an instantaneous and effective remedy, the fatal collapse will soon come on.”
A resolution of censure would serve as a warning, a sort of constitutional yellow card, that Congress and the American people will not tolerate abuses of power indefinitely and that presidents who so overreach risk having a permanent blot on their record. President Obama should not be removed from office, but we will need more than mere criticism or even a lawsuit to remind him that his first duty is to uphold the laws, and that he is falling short.
— John Fund is national-affairs correspondent for NRO.