Congress, the Supreme Court, and Impeachment

President Trump has remarked that if the House were to pass articles of impeachment against him that did not properly charge him with a crime (Orange Man Bad isn’t even a misdemeanor), he might go to the Supreme Court seeking to have the impeachment quashed. Various pundits and academics have tut-tut-ed and stated that the President doesn’t understand how impeachment works. Do they?

Alan Dershowitz has a piece over at The Hill suggesting that the President may not be too far off base.

Were Congress to try to impeach and remove a president without alleging and proving any such crime, and were the president to refuse to leave office on the ground that Congress had acted unconstitutionally, there would indeed be such a constitutional crisis. And Supreme Court precedent going back to Marbury v. Madison empowers the justices to resolve conflicts between the executive and legislative branches by applying the Constitution as the supreme law of the land.

Recall that when a president has been impeached by the House, the Supreme Court’s chief justice presides at his Senate trial and the senators take a special oath. This special oath requires each senator to swear or affirm that “in all things pertaining to the trial … [to] do impartial justice according to the Constitution and the law” (italics added).

If the House were to impeach for a non-crime, the president’s lawyer could make a motion to the chief justice to dismiss the case, just as a lawyer for an ordinary defendant can make a motion to dismiss an indictment that did not charge a crime. The chief justice would be asked to enforce the senatorial oath by dismissing an impeachment that violated the words of the Constitution. There is no assurance that the chief justice would rule on such a motion, but it is certainly possible.

No one should criticize President Trump for raising the possibility of Supreme Court review, especially following Bush v. Gore, the case that ended the 2000 election. Many of the same academics ridiculed the notion that the justices would enter the political thicket of vote-counting. But they did and, in the process, weakened the “political question” doctrine. The case for applying the explicit constitutional criteria governing impeachment is far more compelling than was the case for stopping the Florida recount.

So no one should express partisan certainty regarding President Trump’s suggestion that the Supreme Court might well decide that impeaching a president without evidence of high crimes and misdemeanors is unconstitutional.

Read the whole thing.

Lying Liars Gotta Lie

The Wall Street Journal reports that Michael Cohen instructed Stephen Ryan, his previous lawyer, to raise the prospect of a pardon after the FBI raided Cohen’s home last April. That statement by lawyer Lanny Davis, who now represents Cohen, directly contradicts Cohen’s testimony to the House Oversight and Reform Committee on 27 February.

Cohen: “I have never asked for, nor would I accept, a pardon from Mr. Trump.”

Davis: “During that time period, [Cohen] directed his attorney to explore possibilities of a pardon at one point with Trump lawyer Rudy Giuliani as well as other lawyers advising President Trump.”

Cohen has pleaded guilty to lying to Congress, but he has now flipped on his former client Donald Trump, so it makes sense that the Democrats on the House Oversight Committee would give him a forum for further lies.

Coming Attractions

So the Democrats say that they’ll be using their new control of House committees to do some investigating. We’ll see how that works out. Meanwhile, Conrad Black makes this observation over at the National Post

Now that the president has fired the attorney general and can confirm a replacement who is not emasculated on Russian matters, the administration can proceed to the indictment of all leading members of the Clinton campaign and the Obama justice department who appear to have incriminated themselves by lying to Congress or the FISA Court, including Hillary Clinton, Loretta Lynch, and agency heads John Brennan, James Clapper, and James Comey. This may happen anyway, but it certainly will if the Waters-Nadler-Schiff faction is unleashed. Trump has been put to extreme inconvenience by these spurious investigations and he can, if he wishes, exact a terrible vengeance. His moderation should not be presumed.

I’d better buy some more popcorn futures.

Congress v. The Courts

While considering my first cup of coffee this morning, I was scrolling through teh Twitterz and found this—
—which seems to be a neat summation of the real constitutional “crisis” being played out in this week’s SCOTUS nomination hearings: Congress has been failing to do its job writing legislation for more than a century.

One obvious problem is the deferral of too much of the regulatory process to executive branch agencies such as the FCC or the EPA. Another is the lack of Congressional pushback when the courts have engaged in legislation from the bench.

If Senator Hirono is so concerned about the Supreme Court overturning Roe v. Wade, she should introduce legislation to remove the Court’s authority to consider abortion cases. Congress has that power under Art. III, Sec. 2 of the Constitution. Of course, the fallout from the debate over such a bill might have disastrous consequences for elected officials who could lose their jobs at the next election, so it’s understandable that she might prefer to leave such questions the responsibility of government employees with better job security. Even if they might vote the wrong way. Some things aren’t worth risking your job.

Trump Obeys Constitution—Democrats Hardest Hit

The Constitution specifically forbids the spending of any money from the Treasury of the United States unless the expenditure is authorized by a law passed by Congress. Congress has never authorized any Obamacare subsides, and a federal court has ruled them unconstitutional. President Trump has ordered that no further unconstitutional payments be made. The whining by the Democrats in Congress and with media bylines is interesting to watch.

The President sure is unpredictable. Why, the next thing you know, the President might do something like start acting as if treaties have to be ratified by the Senate.

Do Something!

One of the most offensive things that I’ve heard from certain quarters on the Left is that we Conservatives who say that we pray for the victims of mass shootings should “do something” instead. As someone who believes in the efficacy of prayer, I believe that praying is doing something.

Moreover, the Left also generally implies that we Conservative don’t want legislative action taken to make mass shootings or gun violence less likely, and that’s simply not true. The rejection of flawed proposals from the Left by thoughtful Conservatives is not a call to do nothing. Rather, we propose solutions which involve moving away from failed policies and repealing ineffective (or actually harmful) laws.

For example, the elimination of gun-free zones allows people to better defend themselves. A mass shooting was nipped in the bud at a church near Nashville a few days ago by a concealed carry permit holder who resisted the shooter.

So it is time to do something. Let those of us who pray do so, and let’s all of us demand that Congress repeal and replace federal laws and regulations that cannot be shown to have improved public safety and demand that Congress exercise its authority under the Fourteenth Amendment to preempt state laws which deprive citizens of their rights under the Second Amendment.

Would You Like Some Cheese With That Whine

Politico has a post up about how some bureaucrats and former bureaucrats are upset with Congress reviewing and repealing regulations under the Congressional Review Act of 1996. Toward the end of the post it has a quote from one of the regulators that shows his upside-down view of the constitution.

“I believe there’s a good chance that, in a legal challenge, that a court will overturn Congress’ actions here as an unconstitutional usurpation of the executive branch’s powers,” he said.

Uh, no. The ability of the bureaucrats to regulate does not generally flow from the President’s powers under Article II. It’s is generally derived from Congress delegating it’s Article I powers to the Executive Branch. What Congress can delegate, it can take back.

Credit Where Credit’s Due

Marc Thiessen has a piece over at WaPo about federal government spending. (H/T, VodkaPundit) For the first time in decades, certainly the first time in my memory, the federal government’s spending will decrease. In 2010, the feds spend $3.457 trillion. Spending for this fiscal year should come in at $3.455 trillion. A couple of billion out of 3+ trillion may not seem like much, but as Senator Dirksen once said, “A billion here and a billion there, and soon you’re talking real money.” Actually, when you figure in inflation, that’s about a 5 % decrease in spending.

However, don’t be too quick to credit the President. He’s fought for ever more spending. The House GOP probably should get most of the credit because of the Budget Control Act.

You know, we could have balanced the budget this year. The actual revenue to the government would have allowed us to pay the interest on the debt and fund every agency at about 94 % of FY 2003 levels accounting for inflation. Most of us could have gotten by on 94 % of our 2003 income. Why couldn’t the government? Sure, some adjustments would have to be made, but couldn’t you gotten by with only 6 % decrease in the government you had in 2003?

Congress and Obamacare

Senator Grassley (R-IA) successfully offered an amendment to the Obamacare bill that required Congress and the Congressional staff to be offered insurance plans only from those created by Obamacare or the state exchanges.


Now that Congress is in the unusual position of not being exempt from a law, panic is setting in. You see, under the present plans, Congresscritters, Senators, and staff receive a substantial subsidy as federal employees. Under the “Affordable Care Act,” they have to pay retail. Politico reports that sticker shock is causing many staffers and some Congresscritters to consider other employment.

Hubris, meet Nemesis.

We’re From the Government, and We’re Here to Help

And more and more Americans are beginning to say, “No, thank you.” Why? Peggy Noonan suggests this answer in a post at WSJ.

A major problem for those who want an immigration bill is lack of faith in government to do all the jobs it’s set itself well. People don’t trust it to be able to execute—to do, adequately, the thing it’s set itself to do in its big new laws. We always look at the motives and politics behind a big bill, and talk about that. But simple noncrisis execution—the ability to track and deal with a Tamerlan Tsarnaeu, or to patrol and control a huge border—is a big reason why which people lack faith. Because, you know, they read the papers.

Most of us have to work pretty hard to get things right. Babe Ruth had a lifetime batting average of .342—which means he failed to make it to first base almost 2/3 of the time. Government doesn’t seem to be doing nearly as well as the Sultan of Swat, and as it has become more unsuccessful in many of its basic functions, it has tried to meddle in area outside its rightful sphere. Managing public safety is one thing. Regulating Big Gulps is another.

Jonah Goldberg’s Liberal Fascism outlines the history of what I call “nannystateism,” a form of socialism with a smiley face. The control freak forms of socialism split into two main streams a bit over a hundred years ago. In Europe, they wound up with totalitarian forms such as Italian Fascism, German National Socialism, and Russian Communism. They were police states. In America, we flirted with police state socialism during the Wilson Administration, but returned to normalcy during the ’20s. When the Progressives returned to power during the Great Depression and the Second World War, the horrors of the gulag and the holocaust kept Americans away from that kind of state brutality. Instead of control through fear, our politicians have tried to practice control through gift giving.

And so we have a kind and gentle form of control freak meddling by the government. The path we’re on doesn’t lead to Orwell’s Room 101, but it seems headed to a place very like Huxley’s Brave New World. The problem is that there isn’t enough soma to go around, and there probably never will be. Most of us will have to work to support ourselves and our families. So when folks see that a couple of immigrants who never had jobs were supported well enough that they had cell phones and nice clothes and leisure time to party and guns and explosives with which to attack us, they naturally begin to wonder about what’s going on. Some will ask, “Where’s my share of the goodies?” Others will ask, “Why are we supporting these creeps?”

I hope that the second group is larger.


It seems that Congress is punting the budget and taxes questions past the end of this year and into the next Congress’ lap. Not everyone likes that, but a continuing resolution could put a shaky bridge over the economic cliff caused by sequestration and the Obama tax hikes scheduled for 2013.

As Smitty notes, this gives Congress a chance to clean up the mess that’s been caused by politicians ignoring arithmetic. Numbers don’t obey the whims of politician, and we ignore that truth at our peril.

“You are slow learner, Winston,” said O’Brien gently.
“How can I help it?” he blubbered. “How can I help seeing what is in front of my eyes. Two and two are four.”
“Sometimes, Winston. Sometimes they are five. Sometimes they are three. Sometimes they are all of them at once. You must try harder. It is not easy to become sane.”

2+2=4! The math works out regardless of what we wish. It’s never 3. It’s never 5. And rather than let the government try to convince us that letting us keep our money is a form of government expenditure, we need to remind our Congresscritters that things have to add up in the end.

Room 101 contains the thing you fear the most. For a politician that would be losing the next election.

Is it November yet?

Barack’s Terrible, Horrible, No Good, Very Bad Day Unfolds

Strike One: The revised GDP figures for the economy stayed stuck at an annual rate of 1.9 percent for the first quarter of 2012. What that actually means is that the economy grew about 0.47 percent during that quarter, a rate too low to absorb the increased population of work force age persons and much too low to provide jobs for the already unemployed.

Expect Strike Two just after 10 am ET.

UPDATE–The Supreme Court throws one outside the strike zone! Strike 1, Ball 1

UPDATE 2–The Hose holds Eric Holder in contempt. Strike 2!

Barack’s Terrible, Horrible, No Good, Very Bad Day

First, the Supreme Court will hand down its decisions in the Obamacare cases. I’m still betting that the whole law will go down.

Next, the House will hold the Contempt of Congress vote on Eric Holder. I’m betting he will be held in contempt.

A one-two punch. It will be entertaining to watch the White House and Main Stream Media spin machine tomorrow.

Nancy Pelosi Calls for Defeat of the “Do Nothing” Congress

Forget Democrats, for the good of the country, I think it’s really important for the President to make the race he is running against the do-nothing Congress.

And as Jazz Shaw points out in this post, this isn’t something that The Onion invented.

Ah, Mrs. Pelosi, are you sure that you want the President campaigning to turn out the “do nothing” Congress? Do you remember which house has been passing bills and which house hasn’t even bothered to pass a budget for nearly three years? Do you remember which house is controlled by a majority of your party?

There’s been a thing going around for the last few years about the Republicans being the Stupid Party. When I read comments like the one above, I wonder if that brand isn’t being taken over by the other side.

IRS to Implement New 2% “Recapture Tax” in Two-Month Payroll Tax Cut Extension

And it came to pass in those days, that there went out a decree from Caesar Augustus, that all the world should be taxed.

News to fit the season! TaxProf reports that there’s a zinger buried in the recent compromise bill that passed the Congress. Those who earn $18,350 or more during January and February will get hit with a 2 % recapture tax to offset the FICA tax reduction. It will be added to their income tax bill and can’t be offset by any tax credit or deduction.

Soak the rich—with rich now defined as earning wages at the rate of $110,100 a year.

Merry Christmas from your government!

UPDATE—For the record, I don’t think that the FICA tax holiday is wise policy, but I think the recapture tax is even more stupid.