Welcome to third-world democracy and impeachment

Are Chinese leaders correct in thinking that the U.S. is in irreversible decline, despite our current economic vitality? The impeachment process in the House of Representatives certainly reinforces the view of certain foreign, authoritarian leaders that the U.S. is descending into a political chaos that characterizes third-world “democracies” and which often leads to one-person rule.

The impeachment of President Trump resembles attempts to impeach presidents in the Philippines. That former U.S. territory has a constitution that in some ways is, and in important ways is not, like that of the U.S. The Philippine impeachment process is divided between two houses, as in the U.S. Attempts to impeach presidents in the Philippines, however, have become routine in recent years, even an annual event from 2004 to 2008. The current president of the Philippines has been fighting off attempts to impeach him since his election in 2016

Until the ongoing efforts to oust President Trump, however, the Philippines and the U.S. differed in terms of acceptance of the election results. In the Philippines, as is well recognized, political corruption has been endemic. Given credible evidence of a corrupted election, as often happens, the only way to remove a president is through impeachment and conviction. 

Removing a corrupt president of the Philippines in the next election is not possible because a president can serve only one six-year term. 

The U.S. House voted to impeach only after all efforts to show corruption of the 2016 presidential election failed. Moreover, unlike the Philippines, there’s no reason to believe that the next presidential election will be corrupted.

The impeachment of President Trump is really all about the struggle over institutional power as between Congress and the president.

Since Woodrow Wilson, progressives have opposed the Constitution’s structure of separation of powers. They don’t like a president independent of Congress. Instead, they would prefer a parliamentary system with a prime minister who is the creature of the legislature.  

Our Framers empowered the president, when necessary, to “obstruct” the Congress. As James Madison wrote in Federalist 48, “The legislative department is everywhere extending the sphere of its authority, and drawing all power into its impetuous vortex.” Therefore, said Madison, “It is against the enterprising ambition of this department that the people ought to indulge all their jealousy and exhaust all their precautions.”   

As Madison explains in Federalist 51, the Constitution has been designed to weaken the Congress through bicameralism and to strengthen the president and the judiciary, the two weaker branches, so that they can defend themselves against legislative abuse of power. 

We have had relatively few impeachments over 230 years, even though our Constitution makes “all civil Officers of the United States” subject to impeachment. Almost all impeachments in the U.S. have been of federal judges. Understandably so, because federal judges do not stand for election and, therefore, can be involuntarily removed only by impeachment. 

Still, why has there been only one cabinet officer —  Secretary of War William Belknap — ever impeached? Until recently, political relations between the president and Congress, regardless of party alignment, were such that when a cabinet officer became a liability for the president in his relations with Congress, a president “regretfully” would accept the cabinet officer’s resignation.

That relations between the political branches have drastically deteriorated is reflected by the fact that no cabinet officer ever had been held in contempt of Congress until 2012. First, the Republican-controlled House held Attorney General Eric Holder in contempt in 2012 for failure to turn over documents related to Operation Fast and Furious. In July of this year, the Democrat-controlled House voted to hold Attorney General William Barr and Commerce Secretary Wilbur Ross in contempt for failure to turn over documents related to attempts to place a citizenship question on the 2020 census. 

Under our system of separation of powers, of course, the president — acting through the attorney general — decides whether to prosecute the contempt. Contempt has become a toothless substitute for impeachment when the House is controlled by one party and the Senate and executive are controlled by the other party.

The Democratic majority, fearful that President Trump will be reelected, feels compelled to remove him. If he gets reelected, it is a virtual certainty that by the end of a second term he would nominate a replacement for Justice Ruth Ginsburg. That prospect terrifies the left for so many reasons.

As relates to Congress, the issue is the potential dismantling of the administrative state. The Trump administration has done much to deregulate the economy. More importantly, President Trump’s two Supreme Court appointments are opponents of the “delegation doctrine.” In last term’s Gundy case, Justice Neil Gorsuch wrote for three justices in dissent that Congress’s overly-broad practice of delegating to federal agencies is unconstitutional. Even without another appointment, Justice Samuel Alito has indicated in a separate concurring opinion that, in a future case, he might join the four dissenters. Justice Brett Kavanaugh, who did not participate in the decision, is expected in a future case to join the three dissenters, possibly providing a majority of five. As Justice Elena Kagan wrote for the four-justice plurality, if the view of the dissent prevails, “most of the government is unconstitutional.” 

The only way the left can preserve the administrative state built by Franklin D. Roosevelt is to remove President Trump and intimidate the justices by threatening to pack the court.  Fortunately, the constitutional system created by Madison and the other Framers has, thus far, prevented the U.S. from descending into a third-world “democracy.”  

John S. Baker Jr. is professor emeritus, Paul M. Hebert Law Center, Louisiana State University and chairman of Our Citizenship Counts, a group of legal scholars and community partners. He has been a consultant to USAID, USIA (now part of the State Department), the Justice Department, the U.S. Senate Judiciary Subcommittee on Separation of Powers, and the White House Office of Planning. Follow him on Twitter @JohnSBakerPHD.