Panel calls for new war powers legislation

Watermark said:
The congress may decide for itself what is a crime that is impeachable. The supreme court would recuse itself from the case because it's a political question.
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That would be ex post facto. Won't wash. It has to be defined as a crime before the action takes place.
 
Andrew Johnson was impeached for attempting to replace the Secretary of War without Senate approval. Certainly in the area of overstepping your authority.

Again the President has the authority to order the troops, but the Congress has sole authority to declare war. They could easily impeach for violations if the President went and started a war without their approval.

The SCOTUS refused to rule on this, therefor according to the WPA after 60 days if it remains unapproved the President must bow to Congress and end the conflict.
 
Damocles said:
It doesn't. Misdemeanor can mean more than just "crime".

You must face that checks and balances are clear. Only the Congress can declare war. The CIC may be able to order the military, but if the Congress does not wish it, it is most certainly at least a "Misdemeanor" and without doubt an impeachable offense.

Again, reality consistently rules. If Congress does not believe that the conviction will follow, the vast majority of the time they would not Impeach. But if they think they can gain the Conviction the President can be removed from office for abusing his powers in such a way.
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I suggest you study the subject. The Supreme Court decision was quite explicit in the power of the president as CinC. Basically the finding was (and has since remained despite many attempts to change it) is the deployment of military force is, by definition, a military action. The declaration of war is a political action. They are two separate actions, the authority of which was designated to two different branches of government.

The decision was challenged both during the Korean War, and during the Viet Nam war. Every time the military authority of the president was challenged, SCOTUS upheld the original decision that separates declaration of war from use of military force. Congress can disagree all they want with the reasons a president sends our military into combat. But they do NOT have the authority to interfere - and impeaching a president for sending troops into a war congress disagrees with is interfering.

They plain cannot do it. It is not a matter of not trying because they don't have the votes to convict. It is a matter that congress cannot use impeachment against a president for exercising his authority as CinC. It would be no different than if the president used his authority over federal law enforcement to arrest selected congress critters for overriding a veto.
 
"Misdemeanor" didn't mean exactly the same thing in 1786 that it does today. I don't think any of the founders literally meant they would only accept the removal of a president if he littered somewhere. But as I said before, the supreme court would probably recuse itself on the issue and let the impeachment stand simply because it's a highly political question.
 
Good Luck said:
I suggest you study the subject. The Supreme Court decision was quite explicit in the power of the president as CinC. Basically the finding was (and has since remained despite many attempts to change it) is the deployment of military force is, by definition, a military action. The declaration of war is a political action. They are two separate actions, the authority of which was designated to two different branches of government.
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Again, deployment and approval are two separate things. While the President may deploy troops he is subject to their checks. First in funding, secondly in approval.

The decision was challenged both during the Korean War, and during the Viet Nam war. Every time the military authority of the president was challenged, SCOTUS upheld the original decision that separates declaration of war from use of military force. Congress can disagree all they want with the reasons a president sends our military into combat. But they do NOT have the authority to interfere - and impeaching a president for sending troops into a war congress disagrees with is interfering.
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Again, a misinterpretation of their meaning. They can't stop him from ordering them abroad, but they certainly can remove him from office for not complying with a refusal to adopt agreement. They never ruled on whether such a thing could be Ipeachable. They refuse to comment because Impeachment is a political power and a check that Congress has over the President and the Court itself.

They plain cannot do it. It is not a matter of not trying because they don't have the votes to convict. It is a matter that congress cannot use impeachment against a president for exercising his authority as CinC. It would be no different than if the president used his authority over federal law enforcement to arrest selected congress critters for overriding a veto.
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This is total rubbish. They can. They can impeach for things just like Andrew Johnson's impeachment, attempting to replace a Cabinet member without approval, they could definitely impeach for things like abuse of power.
 
Anyway, the phrase "High Crimes and Misdemeanors" covers pretty much anything that Congress wants it to mean.

High crimes and misdemeanors is a phrase from the United States Constitution, Article II, Section 4: "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."

"High" in the legal parlance of the 18th century means "against the State". A high crime is one which seeks the overthrow of the country, which gives aid or comfort to its enemies, or which injures the country to the profit of an individual or group. In democracies and similar societies it also includes crimes which attempt to alter the outcome of elections.

The first impeachment conviction by the U.S. Senate was in 1804 of District Judge John Pickering for the high crime and misdemeanor of chronic intoxication. Federal judges have been impeached and removed from office for tax evasion, conspiracy to solicit a bribe, and making false statements to a grand jury.

In the impeachment of Bill Clinton in the late 1990s for perjury, the exact meaning of the term high crimes and misdemeanors became the subject of debate. A particular subject of debate is exactly what rises to the level of high crimes and misdemeanors. Some felt that the act of perjury, a federal crime, rose to that level. Others felt that this particular act of perjury, while illegal, did not reach that level because the lie was specifically in regard to a matter of personal infidelity and that the questioning that led to it was allegedly politically-motivated. Those in favor of impeachment often counter that the conditions that led to the crime are irrelevant and that one of the President's duties is to set a good moral example, while supporters of President Clinton often contend that impeachments resulting from politically-motivated inquiries could lead to a slippery slope affecting the balance of power between the Executive and Legislative branches.

It is evident that in the absence of a clear legal definition, determining what rises to "high crimes and misdemeanors" is an inherently political process, which means that it is up to Congress and what it thinks constitutes an impeachable offense.

http://en.wikipedia.org/wiki/High_crimes_and_misdemeanours
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Shoot, the first impeachment ever was because some dude was drunk often. That was a Judge.
 
Here is a good article on WPA and its meaning, its limitations, and court actions.

http://www.fas.org/man/crs/RL32267.html#_1_12

You'll see that congress has yet to force compliance if a president does not want to comply. Each time the courts come out on the side of the president having military authority that is separate from the authority to declare war.
 
A better source

http://www.constitution.org/cmt/high_crimes.htm
Tells us this about the meaning of "High Crimes and Misdemeanors".

It refers to those punishable offenses that only apply to high persons, that is, to public officials, those who, because of their official status, are under special obligations that ordinary persons are not under, and which could not be meaningfully applied or justly punished if committed by ordinary persons.
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I'd like to note, that this source also uses "abuse of power" as a reason that could be used to Impeach. They call it "abuse of authority".

It should be noted, however, that when an offense against a statute is also a "high crime or misdemeanor", it may be, and usually is, referred to by a different name, when considered as such. Thus, an offense like "obstruction of justice" or "subornation of perjury" may become "abuse of authority" when done by an official bound by oath. As such it would be grounds for impeachment and removal from office, but would be punishable by its statutory name once the official is out of office.
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Again another source uses it.

http://www.infoplease.com/ipa/A0764613.html

The reality is, the Congress could without doubt, if they felt a conviction could be reality, impeach simply for abuse of authority. Even if the nation was at war because the person started it in some unimaginable circumstance in such a way as to warrant such, they could still impeach.
 
Good Luck said:
Here is a good article on WPA and its meaning, its limitations, and court actions.

http://www.fas.org/man/crs/RL32267.html#_1_12

You'll see that congress has yet to force compliance if a president does not want to comply. Each time the courts come out on the side of the president having military authority that is separate from the authority to declare war.
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The attempt is to "force compliance". Impeachment is an entirely different power and one which could be applied.

You keep missing the point.

"High Crimes and Misdemeanors" covers pretty much what the Congress wants it to cover.
 
Damocles said:
Andrew Johnson was impeached for attempting to replace the Secretary of War without Senate approval. Certainly in the area of overstepping your authority.

Again the President has the authority to order the troops, but the Congress has sole authority to declare war. They could easily impeach for violations if the President went and started a war without their approval.

The SCOTUS refused to rule on this, therefor according to the WPA after 60 days if it remains unapproved the President must bow to Congress and end the conflict.
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SCOTUS made no such ruling. They refused to hear the case, effectively upholding the 1863 ruling that favored the actions of Lincoln. Three times during the Viet Nam war, SCOTUS had an opportunity to visit and more finely define the war powers of the president. Three times they declined, with reference to the 1863 decision as reason for declining. Twice during Korea the question was brought, and twice SCOTUS refused to hear the challenge, again effectively upholding the 1863 finding.
 
Good Luck said:
SCOTUS made no such ruling. They refused to hear the case, effectively upholding the 1863 ruling that favored the actions of Lincoln. Three times during the Viet Nam war, SCOTUS had an opportunity to visit and more finely define the war powers of the president. Three times they declined, with reference to the 1863 decision as reason for declining. Twice during Korea the question was brought, and twice SCOTUS refused to hear the challenge, again effectively upholding the 1863 finding.
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What part of "The SCOTUS refused to rule on this" meant that they made a ruling?

Now you are arguing strawmen that are so obvious that it boggles the mind.

You are again presenting that they upheld the President's authority to command the military, but refused to rule on the Impeachment capacities of the Congress.

Congress can impeach for this, whether you like it or not. And if they could get a conviction for "abuse of authority" they could remove the President from office.

The reality is they could impeach for nearly any reason they think of. Including, as in Andrew Jackson's case, something passed after his "High Crime".
 
Here is a good link that describe the six basic arguments from legal scholars as to what "High Crimes and Misdemeanors" means.

http://www.slate.com/id/1002016/

The Gerald Ford Argument:

Ford is famous for saying that impeachable offenses are whatever Congress says they are. In fairness to Ford, his statement may be more than just a cynical observation about the irrelevance of constitutional scholarship to D.C. Realpolitik. There is evidence that the Founding Fathers were intentionally vague. Initially, the framers considered defining impeachable offenses as just "treason or bribery" (rather than the ultimate definition of "treason, bribery, or other high crimes and misdemeanors"). They tacked on the additional phrase because George Mason worried that "treason or bribery" was insufficient for removing a president who began to display dictatorial tendencies. The sophisticated version of the Ford argument--not attributable to Ford, of course--is basically that the framers offered a squishy definition in faith that Congress would know an impeachable offense when it saw one. (It is also clear however that Madison, at least, was worried about making the definition too vague, because excessive vagueness means that the president serves "during the pleasure of the Senate.")

Under this theory, senators are urged to look into their hearts--rather than at constitutional scholarship--to decide whether perjury and obstruction of justice warrant removal.

Political Crimes:

Other scholars claim that "high crimes and misdemeanors" has a well-defined meaning--it refers to so-called "political crimes" (an old legal term). A crime is "political" when it involves the misuse of a politician's official powers. If, for instance, the president accepts a bribe, it's a political crime; if he shoots his wife, it is not. Support for this theory comes from contemporary speeches and the Federalist Papers. For instance, Federalist No. 65 (Alexander Hamilton) says that impeachable offenses "proceed from the misconduct of public men ... from the abuse or violation of some public trust." Under this theory, the obstruction of justice charge would count as impeachable, while the perjury charge would probably not.

"High" crimes:

A third group of scholars believes that "high crimes and misdemeanors" refers to "crimes against the state." A crime is against the state when it attacks the very core of the state's apparatus--treason is against the state, jaywalking is not. What's the evidence for this interpretation? The word "high" is generally understood (in English law) to refer to crimes against the state--badmouthing the king is "high treason"; badmouthing your brother is "petit treason." Moreover, the original phrasing, at the Constitutional Convention, was "other crimes and misdemeanors against the United States." "Against the United States" was stricken by the Committee of Style, a branch of the convention charged with making the document's language more elegant but prohibited from changing its meaning. The implication is that any competent lawyer in 1789 understood "high crimes and misdemeanors" to refer to crimes against the state. Finally, English commentaries like Blackstone suggest that perjury and obstruction of justice were considered crimes that attacked the core of the justice system. In other words, both crimes are impeachable offenses.

General odiousness:

Under this argument, a public official has committed "high crimes and misdemeanors" when he offends public sensibilities. The evidence? Impeachment on such grounds was not unheard of in England. For instance, someone named Chief Justice William Scroggs was impeached in 1688 for, among other things, browbeating witnesses and public drunkenness. Explainer leaves it to readers to decide whether obstruction of justice and perjury (and finger-wagging on national TV) are more or less odious than Chief Justice Rehnquist staggering down Independence Avenue on a vodka bender.

The importance of "other":

There is a linguistic argument that "treason, bribery, and other high crimes and misdemeanors" implies that high crimes and misdemeanors must be equal in seriousness to treason and bribery. For instance, a competent author wouldn't write: "murder, child molestation, and other jaywalking-like offenses are impeachable." Instead, he'd write that "murder, child-molestation, and jaywalking-like offenses are impeachable." So the inclusion of "other" suggests that the second half of the phrase ("high crimes and misdemeanors") is comparable in seriousness to the first half (treason and bribery). Furthermore, debates at the Constitutional Convention can be interpreted to show that delegates included the "high crimes and misdemeanors" phrase to allow Congress to remove the president only if he attempted to undo the constitutional plan. (They can also be interpreted to say the opposite.) In sum, the phrase applies only to very serious attempts to subvert the constitutional order, which means that perjury and obstruction of justice are not impeachable offenses.

Maybe they're barking up the wrong tree:

One professor has even suggested that "high crimes and misdemeanors" are not the standard for impeachment, and that a president can be impeached for considerably less. The Constitution says the President "shall be removed from office on impeachment for and conviction of treason, bribery, or other high crimes and misdemeanors." This is analogous to saying that "murderers will be indicted and jailed," which does not imply that kidnappers won't be indicted and/or jailed too. According to this argument, the framers believed that Congress could impeach the president for offenses smaller than "treason, bribery, and other high crimes and misdemeanors." This returns us to the Ford position that the House can impeach whenever it wants, though the argument does not say that Senate can remove the president whenever it wants.
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Damocles said:
The attempt is to "force compliance". Impeachment is an entirely different power and one which could be applied.

You keep missing the point.

"High Crimes and Misdemeanors" covers pretty much what the Congress wants it to cover.
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Thankfully Congress knows the limits. They cannot just make up a reason and call it a high crime or misdemeanor. Like any other form of enforcement, a misdemeanor must be a violation of a legal statute somewhere. They cannot make it up as they go. They cannot say "we think this is a high crime, so we'll prosecute it". The crime, be it high (felony) or misdemeanor must be defined IN ADVANCE. Otherwise it is ex post facto.

Impeaching Jackson for trying to bypass congressional approval of cabinet members was not ex post facto. The limits of the constitution are clear on that matter, and Jackson clearly violated them.

Contrary to the Jackson decision where he violated his authority, the powers of the president as CinC have been upheld repeatedly. The most congress can do is state they disagree with Bush's reasons for invading Iraq. But since Bush has the authority, congress cannot call it any kind of crime just because they do not agree.
 
Good Luck said:
Thankfully Congress knows the limits. They cannot just make up a reason and call it a high crime or misdemeanor. Like any other form of enforcement, a misdemeanor must be a violation of a legal statute somewhere. They cannot make it up as they go. They cannot say "we think this is a high crime, so we'll prosecute it". The crime, be it high (felony) or misdemeanor must be defined IN ADVANCE. Otherwise it is ex post facto.

Impeaching Jackson for trying to bypass congressional approval of cabinet members was not ex post facto. The limits of the constitution are clear on that matter, and Jackson clearly violated them.

Contrary to the Jackson decision where he violated his authority, the powers of the president as CinC have been upheld repeatedly. The most congress can do is state they disagree with Bush's reasons for invading Iraq. But since Bush has the authority, congress cannot call it any kind of crime just because they do not agree.
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No, that's not true. They don't need to define it in advance. They can impeach a president at any time and for any reason. Like I said, "misdemeanor" didn't have that meaning back then. And besides, saying a president could only be impeached if he had littered is absolutely silly.
 
Good Luck said:
Thankfully Congress knows the limits. They cannot just make up a reason and call it a high crime or misdemeanor. Like any other form of enforcement, a misdemeanor must be a violation of a legal statute somewhere. They cannot make it up as they go. They cannot say "we think this is a high crime, so we'll prosecute it". The crime, be it high (felony) or misdemeanor must be defined IN ADVANCE. Otherwise it is ex post facto.

Impeaching Jackson for trying to bypass congressional approval of cabinet members was not ex post facto. The limits of the constitution are clear on that matter, and Jackson clearly violated them.

Contrary to the Jackson decision where he violated his authority, the powers of the president as CinC have been upheld repeatedly. The most congress can do is state they disagree with Bush's reasons for invading Iraq. But since Bush has the authority, congress cannot call it any kind of crime just because they do not agree.
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You are wrong. Legal scholars with far more education than you or I fall on either side of this issue. Some say they can simply impeach for whatever they want, others say it must be as serious as Treason. Abuse of Authority has never been argued to be unimpeachable.

Abuse of authority is, however, unarguably an impeachable offense.

Say a President goes nuts and orders a nuclear strike. It would be beneficial to us that Congress can remove them from office for abusing their powers.

Presidents also realize their own limits. Both Bush's asked for and received approval before going into Iraq. This avoided some political battling that would distract from the war.
 
Let's put it this way: there is the theoretical, and then there is the practical.

Some constitutional lawyers argue that congress can impeach for pretty much any cause they can find to lump under "other high crimes and misdemeanors". Other argue that the offense must be the equivalent in severity to treason or bribery. That is the debate within the realm of theory, and we could both find legal briefs and opinions to back our own opinions.

Then there is the practical application of constitutional authority: congress is not going to make up a reason to impeach a president. To impeach from a practical standpoint, they must be able to bring about a charge of some type.

There is also the theoretical stance, which so far SCOTUS has upheld, that the president, as CinC, has full authority to use the military as he sees fit in all instances of national security. The fact that SCOTUS refused to revisit the question during Viet Nam (when the question of "What the hell does this have to do with national security?" was quite legitimate) shows that the court is willing to give a quite broad latitude when recognizing presidential authority to use the military as he sees fit.

Then there is the practical, that like anything else, no power (or right) is absolute. I think it obvious if a president ordered an unprovoked nuclear attack (which would not go through because it takes a confirmation order from another) that such would, indeed, be an abuse of authority and congress could stop him from trying it again. If a president sent the Marine into another country, completely unprovoked, then it is again an abuse of power, in which case congress could remove them.

But that does NOT mean a president must get congressional approval for military action, even if the military action is questionable. The abuse of authority must be much more apparent than simply not asking for congressional approval. President Bush could very well have invaded both Afghanistan and Iraq WITHOUT congressional approval under WPA, and congress would not have been able to do anything about it. WPA is, in the first place, a congressional resolution, therefore has zero real authority behind it, and second, if they were to try to enforce it as law, would be declared unconstitutional. As such, impeachment for the abuse of using military force would have to be VERY apparent.
 
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