Bush's Fault

Standards for Impeachment

The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.
Article II, Section 4

Impeachment is the constitutionally specified means by which an official of the executive or judicial branch may be removed from office for misconduct. There has been considerable controversy about what constitutes an impeachable offense. At the Constitutional Convention, the delegates early on voted for "mal-practice and neglect of duty" as grounds for impeachment, but the Committee of Detail narrowed the basis to treason, bribery, and corruption, then deleting the last point. George Mason, who wanted the grounds much broader and similar to the earlier formulation, suggested "maladministration," but James Madison pointed out that this would destroy the President's independence and make him dependent on the Senate. Mason then suggested "high Crimes and Misdemeanors," which the Convention accepted.
Because "high Crimes and Misdemeanors" was a term of art used in English impeachments, a plausible reading supported by many scholars is that the grounds for impeachment can be not only the defined crimes of treason and bribery, but also other criminal or even noncriminal behavior amounting to a serious dereliction of duty. That interpretation is disputed, but it is agreed by virtually all that the impeachment remedy was to be used in only the most extreme situations, a position confirmed by the relatively few instances in which Congress has used the device.
The word "impeachment" is popularly used to indicate both the bringing of charges in the House and the Senate vote on removal from office. In the Constitution, however, the term refers only to the former. At the Convention, the delegates experimented with differing impeachment proceedings. As finally agreed, a majority vote of the House of Representatives is required to bring impeachment charges (Article I, Section 2, Clause 5), which are then tried before the Senate (Article I, Section 3, Clause 6). Two-thirds of the Senate must vote to convict before an official can be removed. The President may not pardon a person who has been impeached (Article II, Section 2, Clause 1). If an official is impeached by the House and convicted by the requisite vote in the Senate, then Article I, Section 3, Clause 7, provides that the person convicted is further barred from any "Office of honor, Trust or Profit under the United States." The convicted official also loses any possible federal pensions. With a few exceptions, those impeached and removed have generally faded into obscurity.
In The Federalist No. 64, John Jay argued that the threat of impeachment would encourage executive officers to perform their duties with honor, and, used as a last resort, impeachment itself would be effective to remove those who betray the interests of their country. Like the limitations on the offense of treason, the Framers placed particular grounds of impeachment in the Constitution because they wished to prevent impeachment from becoming a politicized offense, as it had been in England. Nonetheless, Alexander Hamilton, in The Federalist No. 65, also warned that during impeachment proceedings, it would be difficult for Congress to act solely in the interests of the nation and resist political pressure to remove a popular official. The Framers believed that the Senate, elected by the state legislatures, would have the requisite independence needed to try impeachments. The Framers also mandated a supermajority requirement to militate against impeachments brought by the House for purely political reasons.
There have been several impeachment proceedings initiated since the adoption of the Constitution, principally against judges in the lower federal courts. The most important impeachments were those brought against United States Associate Justice Samuel Chase in 1805, against President Andrew Johnson in 1867, and against President William Jefferson Clinton in 1999. None of these three resulted in removal from office, and all three stand for the principle that impeachment should not be perceived as a device simply to remove a political opponent. In that regard, the caution of the Framers has been fulfilled.
President George Washington appointed Samuel Chase to the Supreme Court in 1796. Washington had been warned of Chase's mercurial behavior, but Chase had written the President that, if he were appointed, he would do nothing to embarrass the administration. In his early years on the Court, Chase kept his pledge and did render some fine decisions clarifying the powers of the federal government. In the election of 1800, however, when Thomas Jefferson ran against Washington's Vice President and successor John Adams, Chase earned the ire of Jefferson's emerging Republican party. For one thing, Chase actively took to the hustings to campaign for Adams (a move rare for sitting judges even then). What finally brought President Jefferson to approve of efforts by his party's representatives in Congress to remove the judge was a grand-jury charge Chase made in Baltimore in 1803. There Chase lamented the Jeffersonian restructuring of the federal judiciary in order to abolish the Circuit Court judgeships that the Adams administration had created, and the Maryland Jeffersonians' abolishing a state court and establishing universal male suffrage in Maryland. Chase argued that all of this was plunging the country into "mobocracy." Chase voiced sentiments common to a wing of the party of Washington and Adams, but Jefferson and his men believed that to have a federal judge publicly articulating such views was harmful to the government, and they moved against Chase. In addition to citing his behavior in Baltimore, the impeachment charges included several counts based on Chase's conduct during controversial trials in 1800 against Jeffersonian writers who had been prosecuted under the Alien and Sedition Act of 1798 (a temporary measure that punished libels against the government).
The proceeding against Chase was part of a broader Jeffersonian assault on the judiciary, and it was widely believed, at least among Federalists, that if it were successful, Chief Justice John Marshall might be the next target. None of the specifications brought against Chase charged him with any criminal conduct, and their thrust seemed to be that his legal rulings were simply not in accordance with Jeffersonian theory on how trials ought to be conducted or how juries should function. There was substantial legal precedent behind each of Chase's rulings, however, and although he may have been guilty of having a hair-trigger temper, it was also clear that to permit his removal would seriously, perhaps permanently, compromise the independence of the judiciary. The requisite two-thirds majority of Senators could not be cobbled together to remove Chase, and, in fact, members of Jefferson's own party even voted for acquittal. From that time to this, the Chase acquittal has been understood to bar the removal of a Supreme Court Justice on the ground of his political preferences. Subsequently, there have been several attempts to begin impeachment proceedings against particular Justices, but none has ever prevailed in the House.
Andrew Johnson, who succeeded to the presidency following Abraham Lincoln's assassination in 1865, was impeached because of his failure to follow procedures specified in federal legislation (passed over his veto) that prohibited the firing of Cabinet officials without the permission of Congress. The legislation, known as the Tenure of Office Act, was arguably unconstitutional because it compromised the independence of the executive. Nevertheless, the radical Republicans, who then controlled Congress and who recoiled at President Johnson's active hostility to their plans to protect the newly freed slaves, sought to keep the sympathetic members of Abraham Lincoln's Cabinet in office. When Johnson fired Secretary of War Edwin Stanton, the gauntlet was thrown down, and impeachment was voted by the House. Though just as political as the Chase impeachment proceedings, there was some support for the Tenure of Office Act (Alexander Hamilton, writing in the The Federalist No. 77, had suggested that the consent of the Senate would be necessary "to displace as well as to appoint" officials). As it turned out, the conviction of Johnson failed in the Senate by only one vote.
The administration of President William Jefferson Clinton was beset by assorted scandals, many of which resulted in the appointment of special federal prosecutors, and several of which resulted in the convictions of lesser officials. One of the special prosecutors, Kenneth Starr, recommended to the Congress in 1998 that it consider evidence that the President had obstructed justice, tampered with witnesses, lied to a grand jury, and sought to conceal evidence in connection with a civil proceeding brought against him involving claims of sexual harassment. President Clinton denied the charges, but the Arkansas federal judge who presided in that civil proceeding eventually cited and fined Clinton for contempt based on his untruthful testimony.
A majority of the Republican-controlled House of Representatives voted in early 1999 to impeach the President based upon Judge Starr's referral. The House managers argued that what the President had done was inconsistent with his sworn duty to take care that the laws of the nation be faithfully executed. When the matter was tried in the Senate, in February 1999, however, the President's defenders prevailed, and no more than fifty Senators (all Republicans) could be found to vote for conviction on any of the charges.
The only other time a President came close to being impeached was the case of Richard M. Nixon. He resigned from office in 1974, after a House Committee had voted to put before the full House a number of impeachment charges, the most serious of which was that he had wrongly used the FBI and the CIA in order to conceal evidence that persons connected to the White House had participated in a burglary at the Democratic Party's offices at the Watergate apartment complex. Nixon avoided impeachment, though not disgrace.
There is no authoritative pronouncement, other than the text of the Constitution itself, regarding what constitutes an impeachable offense, and what meaning to accord to the phrase "other high Crimes and Misdemeanors." When he was a Congressman, Gerald R. Ford advocated the ultimately unsuccessful impeachment of a Supreme Court Justice by defining an impeachable offense as anything on which a majority of the House of Representatives can agree. As impeachment is understood to be a political question, Ford's statement correctly centers responsibility for the definition of "high Crimes and Misdemeanors" in the House. The federal courts have thus far treated appeals from impeachment convictions to be nonjusticiable. Nixon v. United States (1993). Even if the issue of impeachment is nonjusticiable, it does not mean that there are no appropriate standards that the House should observe.
Some scholarly commentary at the time of the Nixon impeachment proceedings argued that the actual commission of a crime was necessary to serve as a basis for an impeachment proceeding. However, the historical record of impeachments in England, which furnished the Constitution's Framers with the term "high Crimes and Misdemeanors," does not support such a limitation; at that time, the word "Misdemeanors" meant simply "misdeeds," rather than "petty crimes," as it now does. The issue was revisited at the time of the Clinton impeachment, when those who sought to remove the President from office, basing their arguments principally on the English experience and The Federalist No. 64, claimed that a President could be removed for any misconduct that indicated that he did not possess the requisite honor, integrity, and character to be trusted to carry out his functions in a manner free from corruption. As James Iredell (later Associate Justice of the Supreme Court) opined in the North Carolina ratifying convention, impeachment should be used to remedy harm "arising from acts of great injury to the community."
On the other hand, some have argued that a President should not be impeached unless he has actually engaged in a major abuse of power flowing from his office as President (although judges, who serve during "good behavior," have been impeached for conduct occurring outside of their official duties). In the end, because it is unlikely that a Court would ever exercise judicial review over impeachment and removal proceedings, the definitional responsibility to carry them out with fidelity to the Constitution's text remains that of the House of Representatives and the Senate.

Stephen B. Presser

Sullivan & Cromwell Professor of Law

Northwestern University School of Law

Obama administration cutting ties with HealthCare.gov contractor

The Obama administration is cutting ties with contractor CGI Federal over its handling of the problem-plagued HealthCare.gov, months after the troubled Oct. 1 launch.
The Washington Post first reported that federal health officials plan to sign a year-long, $90 million contract with Accenture. A source later confirmed the decision to The Associated Press.
The government's contract with CGI was up at the end of February anyway, but the administration apparently is deciding not to renew it. According to the Post, officials concluded CGI was not effective in fixing the myriad problems with the federal ObamaCare website.
A statement to Fox News from the Centers for Medicare and Medicaid Services said only that it is working with contract partners "to make a mutually agreed upon transition to ensure that HealthCare.gov continues to operate smoothly for consumers."
The statement continued: "We continually evaluate our needs and remain focused on ensuring consumers have access to affordable, quality coverage, and more than 1.1 million already have enrolled in a private plan in the federal Marketplace."
Republicans are not letting up in their criticism of the law's implementation.
"A change in contractors does not change the sad state of this law," House Energy and Commerce Committee Chairman Fred Upton, R-Mich., said in a statement.
Enrollment through the federal website has picked up considerably since the Oct. 1 launch, when many were blocked from accessing the site due to technical glitches.
But outside experts had to be brought in and many lawmakers criticized CGI and other contractors who had been working for years on the project.
At first the administration said the problem was not having enough equipment to handle the high level of interest. But major software and design flaws quickly emerged. For example, unlike most e-commerce sites, HealthCare.gov had no way for prospective customers to browse health plans without first opening an account. That only created more computing work for the overwhelmed system to handle.
The administration later acknowledged HealthCare.gov was down 60 percent of the time in October.
The White House sent in a troubleshooter, management consultant Jeffrey Zients, who managed to turn things around by the end of November. Since then, more than 1 million people have signed up for coverage, and when state-run websites are counted, enrollments total more than 2 million.
CGI and other contractors have told Congress that there was not enough time to properly test the system and also meet the administration's Oct. 1 deadline for launching it.

Dem senator under fire for pressuring agency to change insurance cancellation stats

Democratic Colorado Sen. Mark Udall is under fire following reports that his staff pressured the Colorado Division of Insurance to walk back its claims that 250,000 people in the state had their health insurance canceled due to ObamaCare. 
"It's downright shameful that Sen. Udall would attempt to intimidate state employees to give him political cover," Colorado GOP Chairman Ryan Call told FOX31 in Denver.
The allegations surfaced Thursday after the news site Complete Colorado published emails between Udall's office and the Colorado insurance agency last November. At the time, controversy was heating up over the hundreds of thousands of insurance cancellation notices going out -- the cancellations undercut President Obama's campaign-trail assertions that those who like their health plans can keep them.
Udall's staff challenged the Colorado agency for saying there had been 249,000 cancellations.
"Sen. Udall says our numbers were wrong. They are not wrong," one insurance department official wrote, according to a Nov. 14 email. "Cancellation notices affected 249,199 people. They want to trash our numbers. I'm holding strong while we get more details. Many have already done early renewals. Regardless, they received cancellation notices."
The dispute apparently was over the fact that many of those receiving cancellation notices were also being offered renewals.
"We reached out to the Dept. of Insurance because 250,000 cancellations was radically different than the number we were hearing from the insurance industry," Udall spokesman Mike Saccone told FOX31 Denver. "In fact, 96 percent of Coloradans who received 'cancellation letters' were offered an opportunity to renew their current coverage. To the average Coloradan, that is not a cancellation."
Udall's office wanted that clarification to be made.
But the tone of the emails drew accusations of intimidation.
One email showed the same insurance agency official telling colleagues she got a "very hostile phone call" from Udall's deputy chief of staff.
Another email showed a Udall staffer telling the division "we need to move on this ASAP -- or we'll be forced to challenge the 249K number ourselves."
Brook Hougesen, a spokeswoman with the National Republican Senatorial Committee, said in a statement that Udall "authorized his staff to pressure and intimidate state officials to manipulate health care cancellation statistics resulting from ObamaCare."
Rep. Cory Gardner, R-Colo., also wrote a letter on Thursday to state Insurance Commissioner Marguerite Salazar pressing for details about their insurance cancellation calculations.
Salazar told the Denver Post there was no "ongoing pattern of intimidation" with Udall's office.
Udall also told the Denver Post it was "really important to correct the record."

Chris Christie

Unemployment benefits extension hits snag in Senate

WASHINGTON –  Senate Democrats’ plan to extend long-term jobless benefits has hit political turbulence after Senate Majority Leader Harry Reid pushed a reworked version but blocked Republicans from offering any changes.
The dispute threatened to stall the legislation, just days after it narrowly cleared a Senate hurdle.
“Indiana voters didn’t send me here to be told just to sit down and forget it,” said Sen. Dan Coats, R-Ind., complaining Republicans had been sidelined.
The original version of the bill was a three-month, $6 billion extension that was not paid for. Republicans objected, and Reid came back with a 10-month extension that was paid for.
But he then moved to block Republicans from offering amendments, going so far as to accuse Republicans of “continually denigrating our economy, our president and frankly, I believe, our country.”
Coats, who had earlier in the week helped advance the bill, expressed anger he hadn’t been consulted about changes in the legislation. By Thursday evening, most of the Republicans who had been on board with the plan earlier in the week signaled they’d be pulling their support.
The now-expired law provided a maximum 47 weeks of payments after an unemployed worker had used up state-funded benefits generally capped at 26 weeks.
The re-worked legislation reduces the 47 weeks to a maximum of 31 weeks, based on a sliding scale that dates to the expired program. Reducing the number of weeks would save about $8 billion, a Senate source told Fox News.
The first tier of additional benefits would be six weeks, and be generally available to all who have used up their state’s eligibility.
An additional six weeks would be available in states where unemployment is 6 percent or higher; an additional nine weeks in states with a joblessness rate of 7 percent or higher; and 10 or more weeks in states where unemployment is 9 percent or more.
The cost, which Republicans had issue with, would be offset in part by extending a previously-approved reduction in Medicare payments to providers. It would also be paid for by extending the sequester cuts to mandatory spending by another year, which would save around $17 billion.
Additional funding would come from limiting or eliminating the ability of people on Social Security disability from also receiving unemployment benefits, which the Senate source told Fox would save another $1 billion.
Senators from the two states — Democrat Jack Reed of Rhode Island and Dean Heller, a Republican from Nevada — were central to the talks, and the White House was also being kept informed.
Sen. Chuck Schumer, D-N.Y., told reporters that administration officials have indicated they would be satisfied with a deal that won the backing of Senate Democrats.
Another Senate vote is tentatively scheduled for next week.
Any legislation that clears the Senate would also have to pass the House, where Speaker John Boehner, R-Ohio, has said he is only willing to consider an extension of the expired program that is fully paid for.
Calls to Boehner’s office Thursday by FoxNews.com were not immediately returned.

San Francisco environmentalist group wants global warming warning on gas pumps

Bailey comment: " Ever notice that our idiot politicians all across America use California as their role models".
First cigarettes, now gas pumps.
A group of San Francisco environmentalists want to remind drivers that refilling their cars with gas is leading to global warming by slapping a sticker on gas pumps similar to those you find on a carton of cigarettes, The San Francisco Chronicle reported.
"The goal isn't to take transportation away from people and say, 'You're a bad person,'" Jamie Brooks, a member of the Bay Area chapter of 350.org, told the paper. "The goal is to create a signal saying, 'You need to change your behavior.'"
350.org is a group that seeks to build a global grassroots movement to "solve the climate crisis," according to its webpage, and the group made clear that the warning label fight is solely an initiative by the Bay Area branch.
The label's design is straightforward. It has white on black writing, topped off with "Warning" in bold on an orange background. The text reads, "The state of California has determined that global warming caused by greenhouse gases poses a serious threat to the economic well-being, public health, natural resources and the environment of California."
The Bay Area group is pitching the idea to local government. Gas station owners and oil companies would likely fight a ruling in favor of the warning labels.

Reid Overstates Reduction in Uninsured

Senate Majority Leader Harry Reid incorrectly claimed that 9 million Americans “have health care that didn’t have it before” because of the Affordable Care Act. That figure includes an unknown number who previously had insurance but switched to a policy sold through the exchanges, plus an unknown number of Medicaid recipients who renewed their coverage.

 

Reid made the statement on CBS’ “Face the Nation” on Jan. 5, saying:

Reid, Jan. 5: [R]ight now, as we speak, there are 9 million Americans … who have health care that didn’t have it before. We have, as you know, we have 3 million Medicare [Medicaid]. We have 3 million on their policies because they haven’t reached, they haven’t reached age 26. And we’ll have more than 2 million. They’re coming.

The 9 million figure includes three categories of Americans: 2.1 million who have selected plans on the federal or state insurance marketplaces, or exchanges; 3.9 million who were determined to be eligible for Medicaid and the Children’s Health Insurance Program (higher than the 3 million figure Reid used); and an estimated 3.1 million young adults under the age of 26 who were able to join their parents’ policies as a result of the ACA.

But it’s wrong to assume, as Reid does, that all of those people were previously uninsured.
Let’s start with those who were uninsured. Some may consider the inclusion of the 3.1 million young adults an attempt to puff up the numbers after a slow, glitch-filled and, by any standard, unsuccessful launch of the exchanges last fall. After all, this provision of the law was implemented in September 2010. But this is the one estimate that’s made up exclusively of those gaining insurance. The estimate comes from the Department of Health and Human Services, which said in a June 2012 press release that the figure was based on the National Health Interview Survey conducted by the National Center for Health Statistics, which found an increase in the percentage of young adults (age 19 to 25) with insurance between September 2010 and December 2011. (Some among this estimate may well have gained coverage in another manner — other than being added to their parents’ plans — but the number does represent an increase in the insured in an age group directly affected by the law at the time.)

It’s the other two categories that include folks who did have health coverage before, contrary to Reid’s remarks.

The 2.1 million people who selected exchange plans include some who had insurance but switched to these marketplace plans, such as those whose insurers canceled specific plans or even pulled out of the individual insurance market altogether. And, as Washington Post Fact Checker Glenn Kessler pointed out, it even includes Reid, who, like other previously insured members of Congress are required to get their coverage through the exchanges, rather than the Federal Employees Health Benefits Program, as they did before.
Then there’s the Medicaid estimate. Marilyn Tavenner, administrator of the Centers for Medicare & Medicaid Services, announced on Dec. 31 that 3.9 million “learned they’re eligible for coverage through Medicaid and the Children’s Health Insurance Program (CHIP) in October and November.” She noted: “These numbers include new eligibility determinations and some Medicaid and CHIP renewals.”

So, some portion of that 3.9 million — a figure that comes from state reports — includes Americans who already had Medicaid or CHIP and are simply renewing, and it could include those who had insurance through another source and are now eligible for Medicaid. CMS doesn’t have such a breakdown on these Medicaid-eligible folks. The figure also includes those who were previously eligible for Medicaid (before the ACA) and are now signing up. Some of those previously eligible folks may not have been influenced by the law; others may have been prompted to seek coverage because of the individual mandate, or because they’ve heard so much about the health care law.

One last note: Americans buying their own insurance don’t have to go through the exchanges; they can buy directly from an insurance carrier. It’s possible some of the previously uninsured have done so, but we know of no estimate for that.

What we do know is that it’s incorrect to say, as Reid did, that the 9 million figure represents “Americans who have health care that didn’t have it before.”

The nonpartisan Congressional Budget Office has estimated that in 2014, due to the Affordable Care Act, the number of uninsured would decline by 14 million, with 7 million joining the exchanges, 9 million gaining Medicaid and CHIP, and 2 million fewer Americans getting coverage through the individual market. It remains to be seen how closely reality will track with those estimates.

– Lori Robertson