Impeachment Is Politics

Responding to the Democrats efforts to impeach President Donald J. Trump, Missouri’s senior US Senator Roy Blunt has been dismissive. “There has never been a likelihood in a partisan impeachment that you would remove the president so you have to look at what else it might be about. And it is all about politics”

That is an interesting observation considering that it is coming from the chair of the Senate Republican Policy Committee, which is viewed as a legislative think tank charged with guiding his party’s discussion of major bills and issues. As chair, Blunt is the fourth-ranking Republican in the Senate.

What exactly does Blunt think “politics” is?

By common definition, politics is the manner in which people in groups make decisions regarding how authority and power will be distributed in the group. In a democracy politics encompasses not only the process by which leaders are elected, but it also refers to how governments make rules and laws and how leaders are allowed to exercise their authority.

In our American system we do not allow elected government leaders to dictate who will own land, who will be educated, who will have decent health care, or who will have wealth, but our elected government leaders do have much to say about all of these questions. As our economy has become more and more complex, their decisions have taken on greater importance.

The Framers of the US Constitution have been accused of not anticipating the rise of political parties. But as proof of their appreciation for how government should work, they were quite specific in allocating the powers of the government they created among the three branches.

To the legislative branch they gave the power to make laws affecting a wide range of governmental responsibilities. In order to insure careful consideration of all proposed legislation, the Framers created a bicameral Congress, requiring both to approve legislation.

Executive power was given to the President with a fixed term of office. He was also assigned the responsibility of Commander in Chief of the Army and Navy as well as the militia of the several states when called into service of the United States.  In the exercise of his powers, however, the US Constitution calls for the President to seek the advice and consent of the Senate when making key appointments or making treaties with foreign countries. He was not given independent sources of revenue.

A judiciary was established in the US Constitution with a significant degree of independence from the other branches so it could serve as an impartial arbiter regarding any legal conflicts that might arise. Interestingly, it does not assign to the judiciary a major role in the impeachment process.  

The Framers were quite deliberate in creating a process for the removal of a president rooted in the Congress.  To the House was given the “sole Power of Impeachment.” No super majority is required. To the Senate was given “the sole Power to try all Impeachments.” A two-thirds vote of the Senators present is required for conviction

Managing the processes set up by the US Constitution is what “politics” in America is all about. In the beginning of the nation, the Constitution laid out what was expected of each branch and the various states. Changes have been adopted over the years, primarily relating to expanding the right to participate to groups left out in the initial document. The essential expectations for government leaders have not changed.

Senator Blunt is not the only member of the US Senate to denigrate the concept of “politics.” Several of his colleagues have been equally disdainful and there is a tendency in the general public as well to reject the legitimate role of “politics” in normal course of public discussion.

In the current matter of the impeachment of Trump, politics is definitely involved. Impeachment is a political process laid out in the US Constitution and placed in the hands of the Congress.

Frequent references have been made to elections, 2016 and 2020. But the question of whether or not Trump should be impeached involves more than just the winning and losing of an election. A president also must be held accountable for the manner in which he exercises the power of his office, for that power is formidable.

Regardless of how you might feel about this specific impeachment, you should wish to see those responsible consider the issues seriously and weigh fully the consequence of their vote.

Politics is the process of determining how government should function in the public interest. Only by the exchange of views in a respectful and equitable manner can public policies be developed with broad popular support.

Perhaps if we can come to recognize that politics is not only to be expected, but is necessary to rational and fair government, it might reduce some of the hyperpartisanship that has stifled effective government in the United States for almost four decades now.  

Getting the ERA Approved

The Virginia State Legislature last week approved the Equal Rights Amendment (ERA), becoming the 38th state to ratify its inclusion in the US Constitution. Democrats, who took control of both houses of the Virginia assembly in November (55-45 in the House and 21-19 in the Senate) have received most of the credit for the victory. ERA advocates may be heartened by the fact the vote for the amendment was bipartisan, 59-41 in the House and 28-12 in the Senate.

In December 2018, we wrote about Rep. Gilda Cobb-Hunter’s effort to have South Carolina’s General Assembly take that crucial step. Minority leader in the Republican-dominated SC House, Cobb’s proposal appeared to attract some early bipartisan interest, but that soon dissipated.

We noted in our original post that given South Carolina’s wretched record for domestic violence, twenty years in the top ten worst states, it would be refreshing for the state to be the one to push the ERA over the top. Alas, that was not to be, but there is still the chance politicians in South Carolina, and North Carolina, can play a role in confirming ERA ratification, since Virginia’s action is not likely sufficient to clinch the deal.

According to law, the ratification process for a constitutional amendment starts and ends with the Archivist of the United States. Once the Congress has proposed an amendment, the Archivist officially notifies the governor of each state that an amendment has been proposed. When and if a state ratifies a proposed amendment, it sends a formal notice to the Archivist. Upon receiving the required 38 state ratifications, the Archivist issues a certificate of ratification and then publishes both the amendment and the certificate in the Federal Register and United States Statutes at Large. 

For the current Archivist, David S. Ferriero, who was once the Vice Provost for Library Affairs at Duke University, the process is going to be a bit more complicated.

He is already the defendant in a lawsuit filed in December in the Northern US District Court of Alabama. Attorneys general from Alabama, Louisiana and South Dakota claim their states will suffer “serious injury” if the ERA is added to the US Constitution, given the expired deadline and the rescinding of previous ratification by five states.

In addition, Ferriero received in early January a 38-page advisory opinion from the Trump Department of Justice asserting Congress cannot extend the deadline for approval of a proposed amendment after it has expired. Although he heads an independent agency, Ferriero is subject to removal by the current president, and so he has indicated he will abide by the DOJ opinion unless ordered to do otherwise by a court order.

This is where complications set in. Congress is under no obligation to accept the advisory opinion of DOJ. The Supreme Court in Coleman v. Miller (1939) interpreted Article V of the US Constitution as limiting the amending process to Congress and the state legislatures “with the ultimate authority in the Congress.” That decision, related to the Child Labor Amendment which was never passed, ruled the issue of timeliness of ratification is a political question, meaning the court is unlikely to overturn congressional action related to the matter.

Under this interpretation of Article V, Congress by a simple majority in both houses extended the original 1979 ratification deadline for the ERA to 1982. There appears to be no barrier to Congress now removing the 1982 cutoff date, the DOJ opinion to the contrary notwithstanding.

Another apparent precedent for definitive action by Congress is the acceptance in 1992 of the Twenty-Seventh Amendment. That amendment, which forbids congressional pay increases taking effect until a new congress has been elected, was proposed in 1788 without a ratification deadline.  It lay virtually dormant until the 1980s. But when Michigan became the 38^th state to ratify the amendment in May 1992, the then Archivist Don Wilson certified the amendment even though there had been 203 years since its proposal.

Congress asserted its authority over the amendment process in that case by voiding the Archivist’s original certification, saying it lacked congressional approval. Almost immediately, Congress approved the amendment and ordered the Archivist to certify it in a joint resolution with almost unanimous support in both houses.

The attempt by five states to claim they have the right to rescind their earlier approval should also fail based on precedents. In the post-Civil War era, before the office of archivist existed, Congress certified both the 14^th Amendment and the 15^th Amendment even though some states tried to rescind their ratification.

Swift action by Congress to override the 1982 deadline and to instruct the Archivist to certify ratification of the ERA would be the best assurance of final passage. The court has indicated in the past an unwillingness to override congressional action with regards to the ratification process.

Based on the DOJ opinion, it can be assumed that the Trump administration will seek to derail ratification. That would also be consistent with Trump’s penchant for using the cultural wars for political gain. While there is already some bipartisan support in Congress for the necessary legislation to confirm the ERA, it is not likely to be easily accomplished.

Ensuring the rights of women are firmly embedded in the US Constitution has been too long in coming to fruition. US Representatives and Senators from the Carolinas should be urged to join in the effort to make that a reality.