Presidential powers, guns, war powers, qualification for office, removal from office, impeachment and lawsuits

Basic Constitutional Law 101

Part 2 of 4

The language of the Constitution does get stretched. It gets stretched by the Judiciary, by the Legislature, by presidential executive orders and by sheer historical so-called “necessity.”

Gun rights are a current controversial example. Thus the Second Amendment “necessity” to have a “well-regulated Militia” became stretched into a rather poorly regulated “necessity” or “right” of individuals “to keep and bear arms.” But where is the line to be drawn? No one has determined whether that right to bear arms includes the right to carry shoulder-borne missiles or other weapons, openly or concealed, in public places, such as schools, churches and shopping malls. How about the rights and “domestic tranquility” of the majority, that is, the non-gun-toting public? Somehow, “gun safety” for all has taken a hind seat to “gun rights” for a minority. Most constitutional rights come with responsibilities, but many gun-toting gun rights advocates seem to have forgotten that fact, and are told or wrongly assume that “government” wants to “take away your guns.”

The powers of the president, as chief executive and as commander-in-chief in wartime, became stretched to include “police actions” (such as the Korean War) and other warlike violence (e.g. the “War on Terrorism,” or the use of pilotless drones to eliminate “suspects”) whether or not the Congress has exercised its exclusive “power to declare war.” As we have seen, even without a formal declaration of war, a president can often influence Congress and maneuver the public into an invasion of a foreign country such as Iraq on some alleged imminent threat such as weapons of mass destruction — which may or may not exist in fact. Since the president has access to classified information, he has an innate advantage over the Legislature and the public.

There also exists an inherent potential constitutional tension between powers of the Executive and the Legislative branches of government, especially when they are controlled by opposed political parties. Thus today the Supreme Court is asked to decide the procedural question how long must a Senate recess be to allow the president to “fill up all vacancies that may happen during the recess of the Senate”? As in the case of Bush v. Gore (2004), the outcome probably depends more on partisan politics than intelligent jurisprudence.

As to eligibility for the office of president, a candidate must be a “natural born citizen” having “attained to the age of 35 years,” and having “been 14 years a resident within the United States.” An official State-issued birth certificate provides sufficient proof of age and place of birth to satisfy the Constitution’s requirement for qualification for office. More than that is sheer petulance.

A new president must swear (or affirm) that “I will execute the office of president of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States.” That’s the ultimate Constitutional standard that a president has to live up to. “Faithful execution” does not mean that the president has to abandon affordable health care insurance, or must “privatize” Social Security, or destroy the environment, or cease issuing executive orders that benefit the American people in the face of a grid-locked Congress. Those political and social choices are important, but they have absolutely nothing to do with the proper execution of the fundamental constitutional requirement of the office of the president.

The president can be removed from office, by means of impeachment, and the Constitution specifies how and why: “The president shall be removed from office on impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors.” The Senate, not the courts, has “the sole power to try all impeachments.” A vote in Congress to impeach initiates a process, but it does not constitute conviction. A president may be perfectly innocent if he is impeached, but not convicted. Impeachment is an unfortunate wording. In any event, differing political opinions do not constitute grounds for conviction.

Nothing in the Constitution suggests or implies that a sitting president can be sued in a court of law by an embittered congressman who simply wants to tie the hands of the president, or by anyone else who just disagrees with the president’s policies and programs, such as affordable health care for all or more equitable taxation. To entertain such lawsuits would open the floodgates for hundreds, even thousands, of frivolous lawsuits that would paralyze any president, Republican or Democratic. Anyone can try to initiate a suit against a sitting president, but the Constitution makes it highly unlikely that such an attempt would succeed.

Furthermore, a plaintiff must demonstrate “standing” to sue, showing extreme personal harm. A legislative body, such as the House of Representatives or a sub-committee cannot usually demonstrate standing, because its membership is divided between those who would claim harm and those who would claim benefit from the president’s action, such as acceleration or delay in implementation of the ACA employer mandate.

The central problem of misinterpretation and misrepresentation of the content and meaning of the U.S. Constitution boils down to the obvious and frankly shameful fact that too many interpreters, including several Supreme Court justices, put their own ideologies, political and economic self-interests ahead of the democratic principles and the plain English language contained in the written Constitution. A particularly shameful aspect of this in a democracy that should be encouraging full suffrage, is the way many courts and legislatures are turning a deaf ear and a blind eye to deliberate, politically motivated, voter suppression in many states. They also act as though “We the People” are unable to live with uncertainty, so steps must be taken to provide greater certainty, at the risk of bypassing the will of the people, and violation of constitutional democratic principle.

We saw this in Bush v. Gore (2004) when the Supreme Court decided that Florida did not have to count all the votes in the presidential election, in spite of the fact that the framers of the Constitution have always anticipated that the choice of president might not be finalized until after the normal inauguration date in January. The fact that the process for running U.S. presidential and other federal elections has been delegated to the individual states, does not mean that the federal legislature or judiciary can wash their hands of ultimate responsibility for full and fair democratic elections.

In Bush v. Gore, the Court acted more like a political body than a court of law, and one justice went so far as to announce to the press, even before he had heard oral argument in the case, that the outcome was already known, 5 to 4, because, he said, “We have the votes.” This kind of political, ideological and procedural distortion makes it difficult to read how such a biased majority Court might rule on basic issues of human rights and social programs in future. It’s as if political ideology trumps rational jurisprudence.

Part 3 next time.

Anthony Piel is a former director and general legal counsel of the World Health Organization.