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In response to
"Thanks. Totally familiar with the legal genesis of 25A. The issue is that it was ratified over the course of what 25 years by the states"
by
JackDawson
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I'm making the argument that it doesn't HAS to be anything for three reasons
Posted by
Max
Sep 25 '19, 13:16
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1) I'm focusing on possibility, not likelihood or what should be.
2) Precedents support the possible option of House/Senate/CJ to ignore that particular phrase in the Constitution
3) It's actually a good thing to allow Congress to impeach over whatever it wants, and there's a remedy.
1. a) It's entirely possible (in any theoretical year, not particularly this one) that the House passes one article of impeachment that states "The President has repeatedly brought embarrassment to the esteem of the Nation" or even "The President insulted four junior members of the House." b) It's entirely possible that the Senate tries and votes to convict on that one article, and c) it's entirely possible that the Chief Justice declines any objection raised during the trial if it's conducted according to the predetermined rules, which may even prevent significant testimony if the Senate sees fit.
2. a) Johnson was impeached and successfully tried on charges of general conduct and speech. b) Rehnquist concluded in Nixon v. U.S. that the Senate trial is beyond judicial review. c) The Senate has already ignored the constitutional phrase "advice and consent" in regard to Obama's justice nomination.
3. If the Founders wanted to prevent a backdoor removal of the President over purely political reasons, they had the opportunity to put that in the original language. They didn't. That impeachment power is the opportunity for Congress to put a stop to non-specific bad behavior by the Executive who they are supposed to check. We should want them to have that ability, even if it means allowing a purely political vote. The remedy is that the ones who do act out of pure politics are subject to the results of the next election.
People shouldn't get caught up in the Constitutional phrase because it effectively doesn't matter - and just as what Wikipedia says is irrelevant, whatever anyone outside the chambers has to say about what HAS to be is irrelevant to the process to. I would suggest that getting caught in the weeds of 'another part of the Constitution handles that' or a specific law would even give opposition greater ability to defeat the impeachment over a technicality rather than the true basis of the measure.
If there are impeachment articles, I don't expect it will be as simple as "Trump insulted AOC" or got laughed at by the UN General Assembly. But I think getting caught up in legal analysis is fruitless. Impeachment is what the politicians says it is, that's just where we are.
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