July 28, 2014 - 9:53 AM
President Barack Obama is signing what are known as "Executive Orders" to (in the minds of House Republicans) either create laws that don't exist, or ignore laws that do exist.
This is a classic fight between what, in Our Nation's Capital is known as the Article I Branch of Government vs. the Article II Branch. Those are the Legislative and Executive Branches and which Article of the U.S. Constitution describes their duties and prerogatives.
Article I, Section 1 states: "All legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives."
Article II, Section 1 states: "The executive power shall be vested in a President of the United States of America."
Just to keep the conversation going, Article III, Section 1 begins: "The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish."
Those are the starting lineups: The Legislative, the Executive, and the Judicial Branches.
As we learned in grammar school, the Congress passes laws that the President is supposed to enforce. The Supreme Court decides on whether or not those laws are Constitutional.
A couple of years ago, you may remember, the Supreme Court ruled that, in the main, Obamacare was Constitutional. Not all of it, but enough of it to have given people like me something to talk about on TV and write about in Mullings on a regular basis.
That's the way the system is supposed to work.
If the President and/or Congress does something that is extra-Constitutional, then an aggrieved party can file a lawsuit and, if it is deemed sufficiently important, it will get to the Supreme Court and it will rule.
In 1974 President Richard Nixon claimed Executive Privilege in refusing to turn over the all the audio tapes that had been made during his Presidency. Chief Justice Warren Burger wrote, for the unanimous Court, (from Streetlaw.org):
"Absent a claim of need to protect military, diplomatic, or sensitive national security secrets, we find it difficult to accept the . . . [absolute] confidentiality of presidential communications."
More recently, the Supreme Court ruled that President Obama's claim that (essentially) anytime the Senate was not in session it was, by definition in recess and therefore he could invoke his Constitutional right to make "recess appointments" in this case to the National Labor Relations Board.
The Supreme Court, again, unanimously ruled he had overstepped his bounds with Mr. Justice Breyer writing (according to the Washington Post coverage), "The Senate is in session when it says it is."
The point is, Presidents can overstep their authority without having committed an impeachable offense which is loosely defined in Article II, Section 4 as: "Treason, Bribery, or other high Crimes and Misdemeanors."
This somewhat tedious discussion is necessary because the "I" word is being thrown around in Washington again.
In 1998 the House Impeached President Bill Clinton although he was not convicted by the Senate. The House has impeachment authority (think, indictment) but the Senate must convict (think jury trial).
1998 happened to have been the year of the mid-term election in President Clinton's second term. We know about second term mid-term elections: They generally are dreadful for the party of the President.
The GOP's entire strategy was to make the 1998 elections a referendum on Clinton and Monica Lewinsky.
Republicans chose badly. As Time Magazine put it: "[T]he the election that was supposed to be another G.O.P. blowout ended with a gain of five House seats for the Democrats, no change in the Senate and the morning-after spectacle of dumbstruck Republicans."
The Democrats succeeded in making the campaign a battle between Clinton and Gingrich. They drove off-year turnout for the party of the President up dramatically which caught Republicans flat-footed.
That is why the White House let slip the dogs of impeachment last week, saying the Republicans might impeach President Obama over his plans to go it alone on immigration.
The Administration is trying to gin up the Democratic base with 100 days to go before a mid-term election that might well cost them control of the Senate.
The Republicans may - in fact, probably will - sue the President for overstepping his executive authority, but they won't institute impeachment proceedings against him.
On the Secret Decoder Ring page today: Links to the Recess Appointment case and to the election of 1998. Also, a Mullfoto of me in Dallas that is worth a peek.