Attorney General Eric Holder has lately been cruising around the country instructing state attorneys general (or attorney generals) that they need not enforce state laws prohibiting same-sex marriage. Non-enforcement of duly enacted state laws should be “extremely rare,” says the Attorney General of the United States, but where same-sex marriage is concerned, non-enforcement of the law can be considered a “matter of conscience.” In other words, the AGUS has the authority to cancel state, as well as federal, laws. Who knew? It’s good to be king!
Actually, AG Holder isn’t the true king – only a kind of Deputy King, as his power has been conferred by Barack I. The latter (i.e., His Sublime Majesty) has made a real production – especially after his re-election – of modifying and sometimes entirely ignoring laws that don’t suit him. He has, for instance, changed provisions of the Affordable Health Care Act at least 27 times – or possibly 28 (but who’s counting?) – to damp down protests from voters angered by the realization that Mr. Obama’s promises about keeping their insurance plans and doctors were complete rubbish. Step by step, Mr. Obama has pushed the dates for implementation of the law’s least popular provisions out past the 2014 elections, in order to protect Democrat representatives and senators from the wrath of voters.
Although Republican pols (and some media commentators) have called the president’s law-tampering actions un-Constitutional, no attempts have been made either to undo these actions or sanction the president. There have been some calls for appeals to the Supreme Court, but most of these overlook the fact that the Constitution provides no such remedy. According to the Constitution (as I read it), neither the president nor the Congress is bound to obey any ruling made by the Supreme Court, except as clearly spelled out in the document. The Constitution empowers the Court to strike down laws enacted by the Congress and signed by the president, but I see no judicial remedy for the president’s overstepping of his Constitutional authority.
Did closet “monarchists” among the founders intend this loophole? I don’t know. But what the Constitution does provide is a congressional remedy for presidential misconduct. The House of Representatives may impeach (i.e. indict) the president for “high crimes and misdemeanors.” The Senate is then bound to try the president on these charges. A vote for conviction by two-thirds of the Senate on any of the charges results in the president’s removal from office.
To date, no president has been convicted by the Senate and removed from office. Indeed, the impeachment scenario is exceedingly rare. Only two presidents have been impeached. Neither was convicted, although for Andrew Johnson in 1868 it was “a damned close-run thing” (as the Duke of Wellington once said of Waterloo). Impeached on eleven charges, including the charge of failing to obey the Tenure of Office Act – which prohibited the president from removing any of President Lincoln’s cabinet secretaries without Congress’s permission – Mr. Johnson escaped eviction from office by a single vote when seven Republican senators voted against conviction, and Democrat Edmund Ross unexpectedly voted “not guilty” at the last moment.
President Bill Clinton faced two very serious charges of perjury and obstruction of justice in 1998 – both arising from his conduct during a lawsuit brought by Paula Jones over alleged sexual harassment by Mr. Clinton before the time of his presidency. Although Republicans held a 55-45 majority in the Senate, only 50 of them voted “guilty” on the Obstruction of Justice charge, and only 45 voted guilty on the Perjury charge. No Democrats voted “guilty” on either charge. As 67 votes were required to convict, Mr. Clinton escaped conviction and finished his term.
The vote on Mr. Clinton’s charges involved a mix of politics and principle. Clearly, most of the votes were cast along political lines, but some Republicans evidently believed that removing Mr. Clinton from office would be bad for the country and perhaps also damaging to the Republican Party. The evidence that Mr. Clinton was guilty of the Obstruction charge – i.e., that he tampered with the jury in the Paula Jones trial – was strong. Most ordinary citizens would have gone to jail, but that’s just the point. The president is not an ordinary citizen. Yes, he is a citizen – ostensibly subject to the same laws as other citizens – but he is also an important political symbol. If he is removed from office, that symbol is damaged, and so is the country. I’m not alone in believing that no president – no matter how unpopular he might be – can ever be removed from office (unless he steals the White House coffee supplies or runs off with the Archbishop’s daughter). This means that the remedy of Congressional impeachment and conviction is essentially meaningless. The president – any president – is invulnerable, once he is in his second term.
Most presidents are very shrewd, politically – Mr. Obama possibly among the shrewdest ever. He understands his invulnerability to impeachment better than most of us, including his political adversaries. This, I believe, is why he is so bold in stretching the “envelope” of his presidential authority. He knows that his opponents have no remedy to his extra-Constitutional actions except the impeachment route, which he undoubtedly sees as no remedy at all. He is completely safe: no curb exists on his ability to do nearly anything. This is a very dangerous place for the country, as well as for Mr. Obama, himself.
It’s not a stretch to imagine that President Obama might reach a place where he thinks he can stay in office beyond his second term. Would the Congress impeach him for this? Would the Senate convict him? And if the Senate did convict him, would he leave office? From here, it looks doubtful. Extending his term of office “for reasons of national security” would be the ultimate act of “kingship.” In the absence of a robust, truly responsible Congress, he almost certainly would succeed. This would throw the country into the Mother of all Constitutional crises.
I can easily see Mr. Obama weathering all this and remaining in power beyond his eight years. When you’re “king” you really think you can do these things. But the wild card in this deck is The People. If Mr. Obama’s tenure has shown us anything, it is that he doesn’t truly believe in (or understand) The People of the USA. Perhaps this is because he grew up in another culture and isn’t really one of us. However that might be, I don’t think he knows what we’re made of.
It has been a long time since US citizens took up arms to defend their liberties or to reclaim them. We’re a different place and culture now from what we were in 1860 or 1775. The spark of patriotism may have damped down in some places, but I believe it still glows, preternaturally, deep within the country’s heart. The American people are a longsuffering breed. We give our leadership a lot of slack, and we don’t usually rush into rash actions. But we do have our limits. Finally, a president might go too far. I don’t know where that point is, but when it is reached The People will respond with a ferocity that might surprise our leaders, both congressional and presidential.
I advise Mr. Obama to mind his Constitutional manners. If he stays on his current path, who knows what might happen. Even kings can be deposed.