Tag Archives: government

Impeaching Joe Biden

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I’ll leave aside, for this post, concerns about the degree of wisdom of impeaching President Joe Biden (D) when there is no hope of the Senate seriously considering the matter during the ensuing trial, much less getting a serious vote regarding conviction or acquittal.

The question here is whether the House can impeach Biden (or any House impeach any President) for wrongs committed before he was in office as President.

House Republicans have floated launching an impeachment inquiry against President Biden amid newly surfaced allegations that suggest his involvement in the business dealings his son, Hunter. But can congressional lawmakers initiate the use of that constitutional tool for alleged treason, bribery or high crimes and misdemeanors that transpired before holding the office of the presidency?

Alan Dershowitz says,

The answer is clear. No one knows.

I beg to differ. Here’s what Article II, Section 4, of our Constitution says:

The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.

Nowhere in that Article, nor anywhere else, does our Constitution define high Crimes and Misdemeanors. Those are whatever the House wants them to be, and more concretely, they’re whatever the Senate agrees with the House on and votes to convict.

Additionally, that lack of specificity regarding high Crimes and Misdemeanors necessarily includes lack of specificity surrounding when the behaviors occurred. Nor are there any timing constraints in Article I, Section 2 (regarding the House’s power of impeachment), or in Article I, Section 3 (regarding the Senate’s power to try impeachment cases), regarding those behaviors.

And, in any event there is no recourse for an impeachment and conviction: that outcome is unappealable.

I claim, then, that the answer is, indeed, clear. The House can impeach a President for any reason it wishes. But in the present case, such a move would be, in the words of a Senator of some years, a dumb idea.

We the People, now knowing better, shouldn’t reelect Biden. The House should move to impeach only on the basis of Biden’s current, in-office misbehaviors, and even then it should move only when there’s a serious chance that the Senate would conduct a serious trial. Impeaching absent that Senate seriousness would, at best, be a waste of time.

Conducting the impeachment inquiry that Speaker Kevin McCarthy (R, CA) is considering would be a very good idea. That would get the information regarding Biden’s current misbehaviors in front of We the People in time for us to consider it as we cast our votes in 16 months, even if it would be unlikely to convince Biden’s Progressive-Democratic Party Senate syndicate to take the matter seriously.

This Will Be Instructive

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Of course, Israel’s newly enacted judicial reform bill, limited in reform as it is, will go before Israel’s Supreme Court; an initial hearing is set for September.

Israel’s Supreme Court said Wednesday that it would hear a petition challenging the constitutionality of a judicial overhaul law enacted earlier this week, setting up a possible showdown between the court and the government.
The court, however, didn’t issue an immediate injunction, as petitioners had requested.

It will be instructive to see the Court’s ruling and how anxious those Justices are to hang onto their power—political, especially, as well as judicial.

Talk About Violating Separation of Powers

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In an effort to impose costs incurred by progressive States in their efforts to build out their “green” energy infrastructure onto conservatively governed States, Senate Majority Leader Chuck Schumer (D) is demonstrating his allyship.

Schumer is directing the Federal Energy Regulatory Commission (FERC) to stick red states with the bill.
Mr Schumer last week sent a letter demanding that FERC expedite a “strong transmission planning and cost allocation rule” to deliver more “clean power to Americans.”

In particular,

Mr Schumer writes that FERC should order states that “act as free riders” to pay for transmission upgrades. He also wants FERC to clarify its “backstop authority” to issue permits when states won’t. In other words, if West Virginians don’t want to pay for connecting New Jersey offshore wind farms to the grid, FERC should mandate that they pay anyway.

Quite apart from whether Schumer’s move is a good or bad idea for our energy industry or economically—it isn’t; it’s a terrible idea—this is a cynical, and I say deliberate, disregard for our Constitution’s separated powers structure for our Federal government.

In our system of governance, legislators, whether as a group or as individual Senators (or Representatives), don’t get to dictate to Executive Branch agencies what they must or must not do. If they want to influence such an agency, or the Executive Branch as a whole, the Congress as a whole must pass a bill that does so and get the President, the head of the Executive Branch, to sign off on it. Alternatively, the Congress as a whole must believe strongly enough in its move to muster a supermajority of legislators in each House to override the President’s veto.

That Schumer chooses to ignore that aspect of our Constitution is all too typical of the Progressive-Democratic Party’s contempt of and disregard for our Constitution.

Us ordinary Americans need to remember this in 16 months.

Israel’s Judicial Reform

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Israel has taken a step toward limiting the governing power and authority of its Supreme Court. Prior to last Monday’s vote, Israel’s highest court could blithely strike down Knesset-enacted statutes based on nothing more concrete or measurable than the personal opinions of what constituted the statute’s “reasonableness” in the minds of the judges constituting the Court’s majority in any particular case. If those judges didn’t like the statute, they could cry “unreasonable,” and strike it.

This reform law will restrict

the power of the country’s top court and hand more control to lawmakers. It aims to restrict the Supreme Court’s ability to strike down government or executive decisions on the basis of reasonability…. Supporters say the reasonableness standard is too nebulous and allows the courts to overrule the will of elected officials for political purposes.

In fine, the new law requires the Supreme Court to have a far more specific and publicly measurable rationale for striking a law. Otherwise, the matter is returned to the representatives of the Israeli people, the Knesset, and to the people themselves. In particular, if the people disagree with the law, they can fire their Knesset representative(s) at the next election and replace those persons with representatives who will make the adjustments or recissions the people demand. The people have no such possibility with the Supreme Court; those worthies, once selected, are in office until age 70. The people making the ultimate decisions, rather than unaccountable office holders doing so, is the stuff of democracy, whether popular or republican.

Critics of the new law claim that it’s an attack on democracy. One citizen:

We refuse to accept this. It is clear to us all that there is no alternative. We either escalate or we leave the country.

And Yair Lapid, an opposition leader:

This is the destruction of Israeli democracy[.]

That’s democratic opposition? No, that’s opposition to democracy. It’s disappointing that the “opposition” in Israel is so opposed to the idea of the people’s representatives—and the people themselves through their democratically selected representatives—having the primary say in Israel’s laws. It’s also illustrative of the opposition’s ideology that they’re so opposed to that degree of democracy.

The kerfuffle also is illustrative of the problems stemming from not having an actual, written-down constitution to which anyone—government official (judge, member of the Knesset, Prime Minister) or private citizen—can point and say, “This is what our constitution requires,” and engage in open and transparent (to coin a phrase) debate concerning what a law or a proposed law says, rather than depending on cloistered judges’ obscure and too often limited explanations that are stripped of the reasonings and closed-chambered debates conducted as the Court arrives at its rulings.

An Opportunity to Reverse Kelo

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Kelo v City of New London was a 2005 case involving our Constitution’s 5th Amendment Takings Clause: a homeowner who didn’t want to sell her home in New London, CT, to a property developer who said he needed the property to finish out the development of shopping mall. New London agreed on the developer’s representation that his mall would produce more tax revenue for the city than the homeowner’s property tax remittances. In the resulting suit, the Supreme Court decided that government has the authority to commit such a Taking and redistribution for the public purpose of increasing government’s tax revenue.  The Court said that one man’s private purpose is superior to another’s so that other must surrender his property to the one.

What the Takings Clause actually says is

…nor shall private property be taken for public use, without just compensation.

For public use, not for public purpose, and certainly not for a private enterprise’s claimed public purpose.

Now a case is developing that should end in the Supreme Court and present the Court with an opportunity to reverse that shameful ruling.

A public school district in Texas is pursuing an eminent domain process to remove a 78-year-old man from the home that his family has owned for more than a century in order to build a high school football stadium parking lot.

The 78-yr-old homeowner’s daughter, Tara Upchurch:

I want you to understand what the significance of this place is for my father. It is where he played as a child with his grandparents, where he woke up 4 a.m. to milk cows, it’s where he spent 39 years happily married to my mom, and it’s where he raised a family, and it’s a place we never thought he would leave[.]

On the other hand,

Aldine ISD is planning to build a $50 million football field and parking lot on his property and is using eminent domain options after the Upchurch family rejected an initial offer to purchase the property last year, KPRC reported. Eminent domain allows the government to acquire private property for public use.

Aldine ISD wants it, and its desire is more important than a property owner’s…ownership. Well, then. That settles it. That’s what Kelo has wrought.

Private property ownership isn’t actually ownership: if another private entity wants it, all that one needs to do is to persuade a government or quasi-government that its desire is greater than the original owner’s ownership, and the owner must give it up.

This is the mess that Kelo caused, and this is the mess that the Supreme Court should get an opportunity to clean up, and it should clean it up.