Law and politics

• Should scope of executive’s authority be determined legally or politically?

Law versus politics

• Gunther. SC’s Nixon decision substituted legal judgment for what was really a political judgment capable of being made by House through impeachment process.

• Note that in Nixon and Youngstown, SC was not called upon to decide whether final determination of constitutional scope of executive power should be in judicial hands. In both cases, political constraints prevented president from asserting more expansive interpretations of Article II. Thus, in both cases, “politics,” rather than “law,” were ultimate determinant of president’s Article II authority.

Nixon V. Administrator of General Services

• Brennan 1977. SC sustained statute instructing Administrator of General Services to return documents/recordings to Nixon that were private in nature and to determine terms of public access for those documents that were retained. SC rejected Nixon’s assertion that statute violated separation of powers and that potential disclosure of communications would adversely affect ability of future president’s to obtain candid advice. There is no reason to believe that restrictions on public access to be articulated by regulation will not be adequate to preserve executive confidentiality.

• Did this case go beyond Youngstown and Nixon by overriding president’s determination that statute unconstitutionally invaded his Article II authority?

• Arguably, no, because only executive branch employees would have access to documents and Nixon was no longer in office when suit was brought.

Law as politics

• Do Nixon and Youngstown support idea that judicial enforcement of USC provides bulwark against dictatorial executive overreaching? or

• Did Youngstown, Nixon, and Dames & Moore decisions merely ratify judgments previously made by country through political processes?

Impeachment

• House may impeach president, and remove him from office, for “Treason, Bribery, or other high Crimes and Misdemeanors.” (USC, Art. II, §4)

• Andrew Johnson is alone among Presidents in having been impeached; he escaped conviction by a single vote.

• Key question: what is the meaning of the phrase “high Crimes and Misdemeanors”? May the president be impeached for activities that are not criminal offenses?

• Legislative Discretion – an impeachable offense is whatever a majority of House considers it to be at given moment in history. (Gerald Ford)

• Crimes – no impeachment will lie except for a true crime or breach of common or statute law, which would be subject of indictment. (Dwight)

• Words of Art – “High crimes and misdemeanors” do not have roots in ordinary criminal law. Charges drawn from impeachment cases disclose that impeachable conduct was patently not “criminal” in ordinary sense. But Framers’ intention was to preclude resort to impeachment of president for petty misconduct. (Berger)

• Should JR of decisions to impeach be available when president maintains that charged conduct did not amount to “high Crimes and Misdemeanors”? [See Nixon v. United States (1993)]

• Articles of Impeachment voted against Nixon

• Article I – obstruction of justice (crime theory)

• Article II – conduct violating constitutional rights of citizens and impairing administration of justice (crime theory)

• Article III – failure without lawful cause to produce papers and things as directed by subpoenas issued by House Committee on Judiciary. (seems that all 3 theories apply here)