Bradley Byrne: Impeachment lessons from the distant past
The first true test of the Legislative branch’s impeachment powers occurred over two centuries ago in 1805. Its parallels with the current impeachment process, and the important precedent it set for determining impeachable conduct, make it worth examining today. That long-ago impeachment battle was waged against Samuel Chase of Maryland, a justice of the United States Supreme Court. The episode is a stern warning against the use of the power of impeachment for political purposes. In 1804, President Thomas Jefferson resoundingly won reelection, and his Democratic-Republican party won large majorities in both the House and the Senate. With his control over the Executive and Legislative branches secure, Jefferson looked to the third branch – the Judiciary. The Supreme Court, comprised at that time of only seven justices, consisted primarily of appointees of George Washington and John Adams, both members of the opposing Federalist party. Jefferson had been angered by several Supreme Court rulings and considered the court an obstacle to his political agenda. He resolved to remove that obstacle. Jefferson saw Chase, an unabashed Federalist appointed by Washington, as the justice most vulnerable to being removed by a partisan impeachment. Jefferson and his allies blamed Chase’s partisanship for several of his rulings against Jefferson. They claimed this conduct was worthy of impeachment. However, what some of Chase’s opponents considered “judicial excesses” weren’t the real issue. Chase’s partisan leanings were merely a convenient excuse to eliminate an obstacle to the Democratic-Republicans’ unchecked political power. Our Founders warned against falling into the trap of impeachment over partisan squabbles. In the Federalist Papers, Alexander Hamilton warned of the “danger that the decision will be regulated more by the comparative strength of parties, than by the real demonstrations of innocence or guilt.” Therefore, the Constitution makes clear that the only impeachable offenses are “Treason, Bribery, or other high Crimes and Misdemeanors.” Did this disagreement on policy grounds rise to an impeachable offense? Nevertheless, with Jefferson’s directive, the House impeached Justice Chase on a party-line vote in a partisan show eerily reminiscent of today’s episode. It would be in the Senate, where Chase’s trial was to take place, where the Democratic-Republicans’ political motivations would come to a head with the Founders’ intentions. Some partisans would ignore the intent of our Founders. Senator William Giles of Virginia said impeachment is “nothing more than inquiry, by the two Houses of Congress, whether the office of any public official might not be better filled by another.” Of course, that contradicts what the Constitution clearly says about impeachment. Yet Chase’s opponents would leave no stone unturned in seeking a charge to stick as an impeachable offense. One of his defenders said Chase’s “footsteps are hunted from place to place, to find indiscretions, which may be exaggerated into crimes.” Does this sound familiar? Those Senators were keenly aware of the important precedent at stake. Most realized that whatever short-term political gains they might achieve would pale in comparison to the lasting detriment to our young nation if the Constitution and its separation of powers were to be undermined. Ultimately, after great deliberation, the Senate acquitted Chase, even with the Senate’s 24 Democratic-Republicans outnumbering its nine Federalists. Despite lacking evidence of an impeachable offense, Democrats have gone too far towards impeaching President Donald Trump to turn back. Never mind that only months ago, Speaker Pelosi said “impeachment is so divisive to the country that unless there’s something so compelling and overwhelming and bipartisan, I don’t think we should go down that path because it divides the country.” Just like in 1805, one party seeks impeachment to gain political power. This time, a president is targeted. This poses a great threat to our Republic, and I’ll continue fighting hard to stop this scheme and protect our Constitution.
Rumors surround Justice Anthony Kennedy exit, but he’s not talking
As one justice settles into his new job at the Supreme Court, is another about to leave? Eighty-year-old Justice Anthony Kennedy is so far refusing to comment on speculation that he may soon retire after 29 years on the court. But that hasn’t stopped President Donald Trump and, obliquely, the Republican senator in charge of high court confirmation hearings from weighing in on the prospect that Kennedy could step down as soon as this spring or summer. If not this year, several former law clerks said they would not be surprised to see the justice retire in 2018. “I’ve heard the same rumors that a lot of people have heard. And I have a lot of respect for that gentleman, a lot,” Trump told The Washington Times in an interview published Sunday. Sen. Chuck Grassley of Iowa, chairman of the Senate Judiciary Committee, told reporters last month, “I would expect a resignation this summer.” He did not name any names but cited a “rumored” retirement. Kennedy’s departure would give Trump a second Supreme Court vacancy and the chance to cement conservative control of the court for a decade or more. Justice Neil Gorsuch, Trump’s first nominee, joined the court last month. Trump said he would choose from the same list of candidates he unveiled during the campaign from which he plucked Gorsuch. Kennedy has been the crucial swing vote on the high court for more than a decade. He has sided with the liberal justices on gay rights and abortion rights, as well as some cases involving race, the death penalty and the rights of people detained without charges at the Guantanamo Bay naval base. He has written all the court’s major gay-rights decisions, including the 2015 ruling that declared same-sex marriage is a constitutional right nationwide. He also has been a key vote when conservatives have won major rulings on the outcome of the 2000 presidential election in favor of George W. Bush, gun rights, limiting regulation of campaign money and gutting a key provision of the landmark federal Voting Rights Act. There are few outward signs that Kennedy is getting ready to retire. He has hired his allotment of four law clerks for the term that begins in October and he is planning to spend part of the summer as he typically does, teaching a law school class in Salzburg, Austria. But Kennedy scheduled his reunion of law clerks a year earlier than usual, on the last weekend in June. That change, first reported by the Above the Law legal blog, first fueled speculation that Kennedy is considering retirement. Kennedy sent his former clerks an invitation in September, two months before the election. Supreme Court spokeswoman Kathy Arberg explained the earlier reunion as a chance to mark Kennedy’s 80th birthday before the justice turns 81 in July. Some of the roughly 100 clerks who have worked for Kennedy at the Supreme Court thought there might be more to the change. One former clerk, speaking on condition of anonymity in adherence to long-held court tradition on clerk-justice relationships, said he thought the reunion was scheduled in that manner because of the thought that Kennedy would be retiring. The same clerk said he also would not be surprised if Kennedy remains on the bench for another year. Other clerks, who also would not agree to be named, said Kennedy naturally is considering retirement because he is past his 80th birthday and thinks that some of his colleagues remained in their jobs too long. A nominee of President Ronald Reagan, Kennedy also would prefer to be replaced by a Republican, those clerks said. It is unclear how Trump’s election may have shaped Kennedy’s thinking. But he appears to have a warmer relationship with Trump and his family than was known or necessarily expected. Kennedy invited Ivanka Trump to a February argument at the court, where she and her daughter sat in a section reserved for justices’ guests. Kennedy’s younger son, Gregory, spent time on the Trump team that worked at NASA beginning with Trump’s inauguration. Trump and Kennedy themselves had a brief but warm exchange on the floor of the House of Representatives following Trump’s first address to Congress in February. Few obstacles seem to stand in the way of confirming a new justice this year or next. Republicans control the Senate, and after changing the rules, have wiped out the filibuster for Supreme Court nominees and the need for 60 votes to defeat it. Among the reasons Kennedy could remain on the bench are the chance to continue to serve with Gorsuch, his onetime clerk; put some space between vacancies that can upset the settled ways of the court, and control the decisive vote on a court that is split between liberals and conservatives on a range of high-profile issues. The other two older justices, Ruth Bader Ginsburg, 84, and Stephen Breyer, 78, are Democratic appointees who would not appear to be going anywhere during a Trump administration if they can help it. “I love my job,” Ginsburg told a Georgetown University audience last week. Republished with permission of The Associated Press.
Alabama among 28 states calling on US Supreme Court to stay EPA’s clean power plan
Alabama Attorney General Luther Strange said Tuesday that the state has joined 27 other states to demand the U.S. Supreme Court to stay the Environmental Protection Agency‘s (EPA) Clean Power Plan, according to a news release. The states involved in the petition are a bipartisan conglomerate asking for a halt to the “unlawful and job-killing” plan, which sets a national limit on carbon pollution created by power plants. “Once again, President Obama has attempted to radically expand the power of the federal government by adopting policies through executive action that Congress has refused to enact,” Strange said. “But the scope of President Obama’s job-killing Clean Power Plan is unprecedented. If this new EPA rule is allowed to go into effect, it will shutter coal-fired power plants around the country, resulting in higher electricity costs and fewer jobs. The United States Supreme Court should act to immediately stay this rule until the lower courts can address the serious concerns the states have raised about its legality.” The states involved in the coalition, which challenged the new EPA rule on the day it was published last year, include Alabama, Arizona, Arkansas, Colorado, Florida, Georgia, Indiana, Kansas, Kentucky, Louisiana, Michigan, Mississippi, Missouri, Montana, Nebraska, New Jersey, Ohio, Oklahoma, South Carolina, South Dakota, Texas, Utah, West Virginia, Wisconsin and Wyoming, along with the Mississippi Department of Environmental Quality, Mississippi Public Service Commission, North Carolina Department of Environmental Quality and Oklahoma Department of Environmental Quality. The petition, addressed to SCOTUS Chief Justice John Roberts, claims that “the power plan’s central premise that states may be required to meet emission reductions based on the shifting of electricity generation away from coal-fired and fossil fuel-fired plants is unprecedented and unlawful.” The petition further states that the “EPA’s invasion of the states’ historic powers is unsupported by the required clear statement of congressional intent” and “the power plan unconstitutionally commandeers and coerces states and their officials into carrying out federal energy policy,” among other assertions.
