Dumbo lawyers in DC are dusting off Article II, Section IV of the United States Constitution. The POTUS 44 has used a rope-a-dope strategy to confound the Dumbos/Morons at every turn. Will the Dumbo/Moron nuclear option work this time? Stay tuned. If this is (fair & balanced) arcane constitutionalism, so be it.
[x New Yorker]
The Federalist Impeachment Party
By Jeffrey Toobin
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Want to know what’s on the mind of conservative lawyers in Washington? It’s the impeachment of Barack Obama.
That was the message of the Federalist Society’s second annual Executive Branch Review Conference, last week. The purpose of the conclave was to examine whether regulatory actions by the Obama Administration “constitute a form of legal and regulatory overreach.” The answer: You bet. (Apparently, given the timing of these conferences, there was never a need to study whether the Bush Administration engaged in any “overreach.”)
To many liberals, the Federalist Society is like a shadowy cabal out of The Da Vinci Code. In truth, the Federalist Society for Law and Public Policy, which was founded in the early nineteen-eighties, is basically a platform for the discussion of conservative ideas. True, it’s been a productive network for filling jobs in Republican Administrations, but there’s nothing sinister about that. The group’s meetings are open, video recordings of them are posted on the Web, and, most important, the Federalists invariably invite progressives to participate in their panels. As a result, Federalist conferences feature high-level intellectual combat of a kind rarely seen in the sound-bite-driven capital.
Federalist meetings are a good way to take the temperature of the intellectual side of the conservative movement—last week, it was fevered. In his opening remarks, Tom Cotton, an Arkansas congressman who is running for the Senate, inveighed against the “anti-constitutional excesses” of Barack Obama, whom he characterized as “opposed to and hostile to the Constitution.”
Cotton laid out a bill of particulars against Obama that was elaborated upon in the discussions that followed. The highlights included:
• Obama’s abuse of recess appointments. (All recent Presidents have made recess appointments, and the limit of Obama’s recess power is before the Supreme Court, in the Noel Canning case.)
• Obama’s failure to defend the constitutionality of the Defense of Marriage Act in court. (Last year, in the case of United States v. Windsor, the Supreme Court declared the law unconstitutional.)
• Obama’s failure to deport immigrants “who claim to have been minors” when they were brought into the United States. (Obama took this action in response to Congress’s failure to pass the DREAM Act.)
Many other complaints about Obama related to his signature accomplishment, Obamacare. Cotton and other speakers repeatedly expressed regret that the Supreme Court had upheld the heart of the Affordable Care Act, insisted that the law was a disaster, and complained (accurately) that the Administration had repeatedly delayed implementation and deferred deadlines on the law. (The complaints about the delays recalled the old joke about a bad restaurant: “The food is terrible and the portions are so small!”) The supposed targeting of conservative groups by the Internal Revenue Service, as well as the alleged regulatory excesses of the Consumer Financial Protection Board, were also frequently invoked.
These are legitimate issues of contention between Obama and his adversaries, but what was so striking about the Federalist event was its legally accusatory nature. These were not policy differences but violations of law—or, as several speakers put it, high crimes and misdemeanors.
The most prominent speaker to make this case was Charles Cooper, a longtime stalwart of the Federalist Society who is best known today for defending Proposition 8, California’s anti-same-sex-marriage legislation. Recently, after his stepdaughter announced plans to marry her girlfriend, Cooper said that his own views on same-sex marriage were “evolving.” Clearly, though, Cooper’s views are not evolving on Obama. “Our system of checks and balances has been no match for President Obama,” Cooper said. “He has violated his oath of office comprehensively. He has done what the Constitution forbids him to do, and he has not done that which the Constitution requires him to do.” According to Cooper, the real issue to address was impeachment: “The threshold question is whether President Obama’s serial violations of separations of powers satisfies the constitutional standard for impeachment. Has he committed... ‘high crimes and misdemeanors’? I believe there is little doubt that he has.”
None of this means that there’s any reasonable chance of President Obama’s being impeached, or even that a serious effort to that end will be undertaken in Congress. (Cooper himself told me that he does not support an impeachment drive—yet.) Still, the impeachment talk presents yet another illustration of the conservative movement’s radicalization. Once, it was only Tea Party zealots (and birther lunatics) who talked about Obama’s illegitimacy. Now it’s the grownups in the Federalist Society.
The last Republican impeachment of a Democratic President, that of Bill Clinton, in 1998—currently getting a new wave of attention thanks to Hillary Clinton’s possible candidacy and Monica Lewinsky’s reëmergence—was a politically driven improbability, too. It was also a political disaster for the G.O.P. But that dismal precedent alone will not prevent Obama’s opponents from proceeding. Where the Federalists lead, Republicans follow. Ω
[Jeffrey Toobin, a staff writer at The New Yorker since 1993, writes about legal affairs. Before joining The New Yorker, Toobin served as an Assistant United States Attorney in Brooklyn, New York. He also served as an associate counsel in the Office of Independent Counsel Lawrence E. Walsh, an experience that provided the basis for his first book, Opening Arguments: A Young Lawyer’s First Case—United States v. Oliver North (1991). Toobin's most recent book is The Nine: Inside the Secret World of the Supreme Court (2007). He graduated magna cum laude with a Bachelor of Arts degree from Harvard College and earned a Truman Scholarship. Thereafter, he graduated from Harvard Law School magna cum laude with J.D., where he was an editor of the Harvard Law Review.]
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