What Legislative Powers Are Left for Impeachment to Defend?

January 14 | Posted by mrossol | Democrat Party, Ruling Class, The Left, US Constitution

Donald Trump’s presidency has visited unique miseries on U.S. governance, some of his making and many the doings of his opponents. But his parting infliction of chaos is the most illuminating.

The key is to understand the nature of President Trump’s offense, and precisely why the Senate may yet find it difficult to convict him for it despite Wednesday’s impeachment in the House. The offense for which he is almost certainly impeachable was the speech he gave the day of the Capitol Hill riot that incited a mob to obstruct Congress’s deliberations.

This must be the closest a president has ever come to the sort of infraction the Founders had in mind when they wrote the impeachment clause. Much of their political thought was stimulated by the English Civil War of the 1640s, sparked by Parliament’s attempts to defend its privileges against King Charles I (whose head parliamentarians ultimately claimed). That conflict between crown and Parliament has preoccupied English-language political philosophy ever since. Less time separated America’s founding generation from those events than now stands between us and the founding.

But what will Congress do about it? The Founders provided for political impeachment and conviction as the remedies for a dangerous executive. But to work, the mechanism requires a legislative branch deeply invested in and jealous of its powers and prepared to go to the political mat to defend them.

No wonder the current impeachment drive may falter, since today’s Congress is anything but protective of its unique institutional role. The House speaker who pushed forward impeachment this week is the same Nancy Pelosi who famously admitted in 2010 that Congress would have to pass the Affordable Care Act “so you can find out what’s in it.” Whatever figurative point she thought she was making, the statement was literally true: Most of what Congress did was hand executive agencies vague instructions to write new regulations, the full content of which would be as much of a surprise to legislators as anyone else.

This congressional abdication of lawmaking authority to executive agencies has become routine over the past few generations and under both parties. But if the speaker took no issue with handing the executive branch control over one-sixth of the economy, what congressional privileges does she think are left for her to protect from it now?

At other times Mrs. Pelosi has shunted legislative authority over to the mob. She said in July that “people will do what they do” when asked whether the City Council should have been consulted before rioters tore down a statue of Christopher Columbus in her childhood hometown of Baltimore. Apparently she thinks so little of legislative institutions that she believes they shouldn’t even decide which statues occupy public land.

Once the article of impeachment wends its way to the Senate, it will be in the hands of Democratic Leader Chuck Schumer, whose respect for the division of powers is similarly suspect. He’s the one who warned Supreme Court justices they would “pay a price” if they ruled in a way he didn’t like on an abortion case. Not only was this an attempt to bully the judicial branch, but an abdication of the legislature’s privilege to write statutes. Mr. Schumer pressed the Supreme Court to use its ruling to craft de facto laws that Democrats can’t pass in Congress.

All of this matters now because greater institutional confidence would have helped the House to draft articles with a better chance of securing stronger bipartisan support—and a Senate conviction. The heart of the matter, and the House’s articles of impeachment, is the assault on the Capitol on Jan. 6.

Yet Democrats couldn’t resist the temptation also to include, both in the article and in their floor speeches Wednesday, complaints about what a sore loser Mr. Trump has been these past two months, and extraneous matters such as a phone call to Georgia’s secretary of state that didn’t impede Congress’s prerogatives.

Those items take up space amounting to roughly one page out of the four in the article of impeachment the House passed. They also make it hard for Republicans to support because they are political complaints. The president’s offense is institutional, but a House that every day loses a bit more of its self-awareness now can view Mr. Trump only through the lens of partisan distaste. If one thing could give Senate Republicans a rosier view of the president, it was this sort of chicanery.

The perverse irony is that this means Mr. Trump was right all along. His promise to “drain the swamp,” targeted at Washington’s unelected and crony technocrats and political operatives, was nothing if not a pledge to restore power to elected officials (by which he meant primarily himself).

Now if he escapes conviction in his final days in office, it will be because the elected lawmakers who should have benefited most from this bog clearance have so thoroughly forgotten their constitutional role that they can’t defend it from the president.

Appeared in the January 15, 2021, print edition.

Source: What Legislative Powers Are Left for Impeachment to Defend? – WSJ

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