Human progress is undeniable, but equally undeniable is that progress makes us arrogant. We overlook the losses than accompany our gains, and we needlessly sacrifice hard-won knowledge and experience. Here are three random examples.

Fruits and vegetables aren’t nearly as nutritious as they used to be.

You multi-taskers out there are succeeding only in doing multiple things badly and wrecking your brain while you’re at it.

And finally (crude language warning), people have forgotten how to sleep, breathe, brush teeth, sit down, give birth, bathe, and poop the right way.

On an even more random note, though, people are still pretty cool.

Nothing to see here—nothing significant that wasn’t on the COLB that was released long ago. But it is the nature of such things that many people who staked so much on things not turning out this way will not change their world views overnight. When people declare that the world is coming to an end on May 4, 2010, and then it doesn’t, they typically do not say “wow, I guess I was wrong.” Instead, they are prone to revise. “Oops,” they say. “I forgot to carry the two. The world is actually ending on May 4, 2012.”

So expect to see the issue die down a fair amount, but for the truly hard-core birthers (and there are plenty of them) to continue on. [...]]]> Here it is.

Nothing to see here—nothing significant that wasn’t on the COLB that was released long ago. But it is the nature of such things that many people who staked so much on things not turning out this way will not change their world views overnight. When people declare that the world is coming to an end on May 4, 2010, and then it doesn’t, they typically do not say “wow, I guess I was wrong.” Instead, they are prone to revise. “Oops,” they say. “I forgot to carry the two. The world is actually ending on May 4, 2012.”

So expect to see the issue die down a fair amount, but for the truly hard-core birthers (and there are plenty of them) to continue on. They will claim that this document is fraudulent, photoshopped, etc. They will move on to other aspects of their story (say, that President Obama lost his citizenship when he lived in Indonesia). To understand all of this—why intelligent people buy in to such theories, you should check out my friend Jonathan Kay’s new book, Among the Truthers: A Journey Through America’s Growing Conspiracist Underground. It examines all of this, with regard to Truthers, Birthers, and such.

Congress is talking about the Constitution more these days, and that should be good news for Democrats and Republicans alike.

The House’s new Republican majority now requires that proposed legislation include a statement of constitutional authority, identifying which of Congress’s constitutional powers the legislation is based on. This forces both sides to think about, and publicly debate, the proper scope of federal legislation, which is supposed to be directed only at the items (like interstate commerce, defense, etc.) listed [...]]]> An idea I have been kicking around for about twelve years now, and should finally be writing down this summer: Congress and the Ninth Amendment. I have a lot of dimensions of this question to hunt down, but I am very open to thoughts and suggestions from anyone.

Congress is talking about the Constitution more these days, and that should be good news for Democrats and Republicans alike.

The House’s new Republican majority now requires that proposed legislation include a statement of constitutional authority, identifying which of Congress’s constitutional powers the legislation is based on. This forces both sides to think about, and publicly debate, the proper scope of federal legislation, which is supposed to be directed only at the items (like interstate commerce, defense, etc.) listed in Article I, Section 8 of the Constitution.

Some critics deny that interpreting the Constitution is any of Congress’s business. “It’s the courts’ job,” they say. But the Founders expected Congress and the president to consider the Constitution before passing laws. It worked for a while; many of the greatest constitutional-law arguments in the nation’s first century played out in Senate debates and presidential veto messages, and not in the Supreme Court. Gradually, however, Congresses and presidents relinquished their share of the responsibility. Often now, courts not only get the last word on the Constitution, they get the only word. But the original vision is surely more protective of the Constitution, just as it is healthier to brush and floss your teeth than it is to delegate things entirely to your dentist.

Liberals are understandably unenthusiastic about debating the constitutional bounds of federal power—a debate they thought they won decisively back when Franklin Roosevelt was president. But they (along with conservatives, libertarians, and everyone else) should be excited about a parallel opportunity: to debate the constitutional bounds of rights. In particular, Congress can finally give meaning to the Ninth Amendment.

The Ninth Amendment declares, “The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.” In other words, listing some rights in the Bill of Rights doesn’t weaken the unlisted ones. The Supreme Court has never done much with the Ninth Amendment. Unenumerated rights are by definition difficult to identify—there are many theories, but no consensus, on what these Ninth Amendment rights are. Even when the Court concludes that a new right exists, it resists calling it unenumerated, instead contorting the law to find it somewhere in the Constitution’s text and its penumbras.

The Ninth Amendment has much better potential in Congress. Its message is important there, even if it has been forgotten: do not read the Bill of Rights as an exclusive list, with any sort of government action permitted as long as it is not specifically forbidden. This is particularly powerful when combined with Congress’s renewed determination not to leave constitutional interpretation solely up to the courts. Instead of Congress asking only, “Would the Court strike down this law on First Amendment grounds? Second Amendment? etc.?”, it can also ask “Do we think that this violates free speech? Gun rights? Any rights not specified in the Constitution?” The Court will still get its chance to weigh in on a law’s constitutionality, but only if Congress and the president first conclude that the law is constitutional and pass it.

Take privacy as an example. Instead of just dissecting (or ignoring) the Court’s complicated privacy jurisprudence, Congress should make up its own mind on what privacy is all about, and on which government actions cross the line. The debate on one potentially intrusive law could pick up where the last one left off. The public would benefit from hearing what its representatives and senators truly think about privacy, and could keep it in mind when the next election comes along.

There is something here for everyone: the right to abortion and the right to life; the right to health insurance and the right not to have health insurance; the right to class equality and the right to purely individual treatment. Making these things a matter of congressional debate—of shifting political majorities and public opinion—admittedly means that any such rights are weak, and potentially reversed by shifting political whim. But lately, that’s how rights often get treated in court too. This sort of flexibility is unsettling there, but at Congress it is right at home. Besides, since by definition these are rights the Court is not protecting right now, proponents of the right would have nothing to lose.

The Ninth Amendment helps us remember that there is more to rights than what courts write about them, or even than what the Constitution says about them. The more that Congress elevates its discussion about the proper bounds of government power and individual liberty—and the less that those things are left to the sole discretion of our courts—the better off we are.

Unfortunately, one part of the Twenty-Fifth Amendment is easy to misread, and could lead to a serious problem. No, I’m not talking about the typo in the amendment (ten points to the first commenter who spots it). I worry about something more harrowing. Consider this scenario that opens Chapter 3 of my upcoming book, Constitutional Cliffhangers: A Legal Guide for Presidents and Their Enemies:

Frances Philips is halfway through her second term as president. Her management style, which was always “hands off,” has become downright lax. She [...]]]> As a general matter, constitutions are left vague and flexible. But presidential disability and succession rules are no places for that. They should be certain and swift—there should never be doubt about who the president is at any given moment.

Unfortunately, one part of the Twenty-Fifth Amendment is easy to misread, and could lead to a serious problem. No, I’m not talking about the typo in the amendment (ten points to the first commenter who spots it). I worry about something more harrowing. Consider this scenario that opens Chapter 3 of my upcoming book, Constitutional Cliffhangers: A Legal Guide for Presidents and Their Enemies:

Frances Philips is halfway through her second term as president. Her management style, which was always “hands off,” has become downright lax. She skips meetings, neglects decisions that need to be made, and shows little interest in being president. Some members of her cabinet and staff worry that she is clinically depressed, but—swayed by the increased power that comes with having a figurehead for a boss—none of them does anything about it.

Then President Philips starts alternating her periods of utter inertness with bursts of aggressive and arbitrary micromanagement. At a cabinet meeting, she rants for ten minutes about the use of blue pens instead of black ones. Next, without explanation, she announces that she is killing a carefully developed policy initiative in which she had previously taken no interest.

Several cabinet secretaries become convinced that the president is unable to perform her job. They start to discuss Section 4 of the Twenty-Fifth Amendment, which allows the vice president and a majority of the cabinet to declare the president “unable to discharge the powers and duties of [her] office,” and transfer power to the vice president. Crucially, though, Vice President Merrick opposes the effort. Although he worries that President Philips’s mental condition is deteriorating, he is reluctant to lead what could be perceived as a coup.

Things come to a head when war unexpectedly breaks out in the Middle East. After hearing the initial reports, President Philips paces in the Oval Office, muttering to herself but issuing no orders and taking no action. After several excruciating hours pass like this, Vice President Merrick has had enough, and he gathers the cabinet to file a Section 4 declaration. He is joined by a solid majority: eleven out of fifteen cabinet members.

President Philips is blindsided, but her chief of staff Tom Cooper (who Merrick erroneously thought would support the Section 4 declaration) is not. When Philips asks what her options are, Cooper reads to her from Section 4: if the president sends a counter-declaration to Congress that “no inability exists,” she can “resume the powers and duties of [her] office.” Cooper notes, however, that Section 4 allows the vice president and cabinet to reassert the president’s unfitness within four days, sending the matter to Congress for a final decision, and giving power to the vice president in the meantime.

With renewed focus, Philips executes Cooper’s plan. First, she signs a letter declaring herself fit and transmits it to Congress. Next, she summons the cabinet and addresses the eleven mutinous members: “If you don’t think I can discharge the powers and duties of my office, watch this. You’re fired.” Finally, she replaces them, naming eleven of her most trusted subordinates as acting cabinet secretaries.

In response, Vice President Merrick rallies the old cabinet, and he and the original eleven challengers sign a second declaration of Philips’s disability. Merrick claims that Philips has misread Section 4: Philips never retook power, her firings are invalid, the second disability declaration is valid, Merrick is the acting president, and Congress must now step in. Unfortunately, as advised by Chief of Staff Cooper, Philips refuses to back down. She says that she is in control, with the unanimous support of the “legitimate” cabinet, and that Congress has no basis to act.

The nation is in crisis. There are two presidents and two cabinets. The situation in the Middle East is spinning out of control, and nobody knows for sure who the rightful commander in chief, secretary of state, and secretary of defense are. Congress assembles while dueling sheaves of legal pleadings and memoranda flood the federal courts.

There is no question that the president’s interpretation is wrong in this scenario. The legislative history is as clear as legislative history can be. But my chapter gives some reasons to worry about misunderstandings here:

[I]n any Section 4 dispute, tensions would be high and time would be of the essence. In quieter times, the administration probably would have prepared Twenty-Fifth Amendment contingency plans, but in an internal struggle like this any such plans could go out the window. The plan would likely focus on direct issues (like assessing medical evidence) anyway and provide little guidance on the arcane constitutional wrinkles at the heart of this chapter. For the unschooled players at the heart of the controversy, the text of Section 4 would be the easy and obvious place to look for answers. The legislative history would not be.

As an example of how limited knowledge can be, and how hard it can be for law to be followed in a crisis, consider the immediate aftermath of the shooting of President Reagan in 1981. The administration was unprepared to discuss transferring power, and “the men gathered in the Situation Room [did not] know what action they were authorized to take or expected to take.” Away from the White House (and to no effect), lawyers in the Justice Department studied the legislative history of the Twenty-Fifth Amendment as President Reagan was in surgery. Reagan’s White House counsel subsequently prepared a formal disability plan—something all administrations since then have done as well—but nothing is guaranteed. In our case, even though lawyers somewhere in the administration might study Section 4’s legislative history, the president’s inner circle might not rely on (or even trust) those lawyers any more than they did in 1981.

In the chapter, I provide multiple examples of people in reputable positions who misinterpreted Section 4 the way my hypothetical president did.

Aside from the specifics of this “constitutional cliffhanger,” I think that it is very interesting that even with all of the incentives to draft the amendment carefully, and all of the care that the drafters actually took, this still slipped through. Earlier versions of the amendment were phrased much better on this point, leaving no doubt about who was in charge. Then it got changed to the current version. Part of the reason: this was during the 1960s, perhaps the high-water mark for confidence that a statement of legislative intent would be consulted by courts as though it were part of the final text.

There are some easy solutions here. While presidents cannot bind their successors, they and their legal staffs could do more to ensure that the proper interpretation of Section 4 is well known to anyone in a position to invoke it. My book won’t be out for a little while, but it is nearly finalized. In other words, there is plenty of time for the key players here to do the right thing, and mess up my book in ways that would be expensive to fix. It’d be worth it, though.

The main complaint is that the Constitution’s Succession Clause empowers Congress only to place “officers” in the line of succession, and the Speaker of the House and the President Pro Tem of the Senate (whom the statute places second and third in line, respectively) are not “officers” as the Constitution uses the term.

There are other practical complaints too. Nowadays, the Speaker is usually not a member of the president’s party, and the President Pro Tem is usually very, very old. Both are members of the legislative branch, and not as well positioned as the secretary of state (next in line after them, but able to act as president [...]]]> Legal scholars have complained for many years that the current presidential succession statute, passed in 1947, is unconstitutional.

The main complaint is that the Constitution’s Succession Clause empowers Congress only to place “officers” in the line of succession, and the Speaker of the House and the President Pro Tem of the Senate (whom the statute places second and third in line, respectively) are not “officers” as the Constitution uses the term.

There are other practical complaints too. Nowadays, the Speaker is usually not a member of the president’s party, and the President Pro Tem is usually very, very old. Both are members of the legislative branch, and not as well positioned as the secretary of state (next in line after them, but able to act as president only until there is a Speaker or President Pro Tem willing to bump the secretary of state) to step into the presidency.

The original succession law, passed in 1791, also had these problems (though the President Pro Tem was second in line, and the Speaker third). It also drew complaints about its constitutionality. The second succession law, passed in the 1880s, left congressional leaders out, specifically because of the constitutional issue. When the third law passed in 1947, the constitutional argument was not debated seriously.

The constitutional and policy arguments are sketched out pretty well by others, ranging from James Madison to Clinton Rossiter to Akhil Reed Amar. I can get into them in more detail in a future post if people want to debate them. The thing that interests me most is how this argument might actually become relevant.

Consider the hypothetical scenario that opens Chapter 4 of my upcoming book, Constitutional Cliffhangers: A Legal Guide for Presidents and Their Enemies (and please note that this potentially problematic situation does not relate to the current [Democratic] president and [Republican] Speaker any more than it did to the previous [Republican] president and [Democratic] Speaker, who were in office when I first drafted the chapter):

The United States is deeply divided over the war. Everyone agreed that we needed to fight back when Ruritania attacked our bases, but after two years of intensive combat, things are not going well. Addressing the nation, President Joanna Lewis announces her intention to seek a negotiated settlement. The half of the country that agrees with her breathes a sigh of relief.

The other half boils with rage. Responding to the president, Speaker of the House Peg Wilton says, “We are losing this war—not because our cause is hopeless, but because we have a cowardly commander in chief. We should never surrender to fascist aggression.” “Coward” is a mild epithet compared to what other hawks call President Lewis.

Complicating matters is that a few weeks ago, the vice president suffered a fatal heart attack. President Lewis nominated a candidate to fill the vacancy, but the hawks in Congress have stalled the vote. They are motivated by their distaste for the nominee’s unsurprisingly dovish position on the war, but everyone notices that while the vice presidency is vacant, Speaker Wilton is next in line for the presidency (followed by the president pro tempore of the Senate, and then members of the cabinet, starting with the secretary of state).

As President Lewis arrives at a public event one morning, an assassin detonates a huge bomb, killing the president and dozens of others. In a homemade video produced before the assassination, the bomber decries “the coward Lewis” and announces his intention to kill Lewis so that the stalwart Wilton will become president and continue the war. Within two hours of the assassination, the video has saturated television and the Internet.

The assassin seemingly gets his wish. Wilton condemns the assassination in the most strident terms, obviously, but she takes an oath of office that morning as acting president. Her political position is tenuous. Supporters of the martyred President Lewis blame Speaker Wilton for fueling the rhetoric that led to Lewis’s assassination, and for her role in stalling to keep the vice presidency vacant. In other words, they feel as though the country has just suffered a coup d’état. They latch onto a legal argument that, just hours earlier, had been an academic one: that it is unconstitutional for the succession law to include members of Congress. Wilton’s opponents argue—with the support of several prominent legal experts—that the dovish secretary of state Allen is the legitimate president.

Secretary Allen decides to contest Wilton’s claim to the presidency. He too takes an oath of office as acting president and, without using force, Allen assumes physical control of the White House. “The struggle over our war policy has been ugly, but it’s a political struggle,” he says in a national address from the Oval Office. “In America, we don’t settle political questions by mass murder.”

It has only been twelve hours since the assassination—a shocking and surreal day. No violence has broken out yet, but it feels like only a matter of time before it does. No one is in the mood to compromise, and control of the government and the military hangs in the balance as Allen and Wilton vie for control.

In the rest of the chapter, I concede that if the succession law kicked in and the Speaker took over under peaceful, uncontroversial circumstances, the unconstitutionality of the law would probably never be challenged. The general public would accept the result. Those that did not would either lack standing to challenge the succession law, or (like the secretary of state, who would have standing) would lack the political and personal will to do so.

But in a situation like the one in my opening scenario—involving not just conflicts of interest but conflicting claims to the presidency—the country could be in real trouble. The benefits of Speaker succession, such as they are, do not warrant taking this needless risk. And I say “such as they are,” because the benefits proffered (that the Speaker is a top elected official, representing the whole country, while cabinet members are mere appointees) don’t amount to much in my view. Again, this is not about the current occupants of these offices—party control switches often enough, and indeed has done so just while I have been writing my book.

Whoever is in charge in the White House and the Capitol, Congress should swallow its pride and take its leaders out of the presidential line of succession.

I am one of those who is irked by the Timothy Geithner and now the Tom Daschle tax controversies. Geithner avoided paying tens of thousands of dollars in self-employment taxes. Then he paid back the part that he was forced to. Then, when his nomination as Treasury Secretary loomed, he paid the rest of it. And he wasn’t straightforward about his reasoning for the timing of all of this. Wags took the opportunity to argue that we need to reform the tax code, to make it simple enough that even the Treasury Secretary can follow it. Geithner was confirmed, apparently because [...]]]> I have enjoyed my visit at Concurring Opinions, but alas, my time is up and this will probably be my last (and maybe least) post.

I am one of those who is irked by the Timothy Geithner and now the Tom Daschle tax controversies. Geithner avoided paying tens of thousands of dollars in self-employment taxes. Then he paid back the part that he was forced to. Then, when his nomination as Treasury Secretary loomed, he paid the rest of it. And he wasn’t straightforward about his reasoning for the timing of all of this. Wags took the opportunity to argue that we need to reform the tax code, to make it simple enough that even the Treasury Secretary can follow it. Geithner was confirmed, apparently because none of the candidates who paid their taxes correctly were good enough for the job.

Now, Tom Daschle is facing similar issues. Nominated for Secretary of Health and Human Services, he amended his last three years’ worth of tax returns. Upon further reflection, he realized that he had failed to report hundreds of thousands of dollars in income, and that he shouldn’t have claimed some of the deductions that he took. He wrote a check for $140,000 and is now hoping for the best. It apparently wasn’t very challenging to get it right the second time around; why couldn’t he have had his “people” be equally careful in the first place? The most obvious reason is that nobody was watching then.

I agree with the idea that you can gauge how ethical someone is by how they behave when they think nobody is watching. Given the difference between how Geithner and Daschle behaved before and after people were watching, I think that they both fail the test.

I’m in a self-righteous mood about this right now, because I am doing my taxes this week and I found some old mistakes.

I use TurboTax, just like Geithner did. He blamed the program for failing to prompt him to enter his information correctly, which it probably didn’t. But there is good reason to argue that he should have known without the program telling him.

I recently found out that I had been double-counting a certain deduction. TurboTax asks about it twice, on the Schedule C and the Schedule A. If you have already entered it on the former, it warns you not to enter it on the latter. Unfortunately, I do the Schedule A first and I didn’t get prompted.

Still, I should have known better. When I realized the problem this week, I sheepishly went back through all of my old returns. I found that I had made the error in 2007, 2006, and 2004. I dutifully filled out 1040X amended returns for those years, wrote out some checks, and will file them next week. It’ll total $125 plus interest, which is not going to break me—but I can think of a lot of things I’d rather spend the money on.

The IRS would never come after me for any of this. They have bigger fish to fry. Even if they did come after me, the 2004 return is probably past their time limit to pursue me. So why am I doing it? And why have I done it in the past, over other innocent, small, but inexcusable errors? Not because I think I am ever going to be nominated to be Secretary of Health and Human Services, let alone imminently. Not even so that I can affect a holier-than-thou air if I ever meet Geithner or Daschle (though I reserve that right).

The reason is simple. I pay my taxes because I am supposed to pay them. If I make a mistake, I try to correct it. I’m not perfect, but I try not to make excuses. To say anything else—to say that I get to decide which taxes I have to pay, and which mistakes I have to correct—is to put myself above the law. That is not acceptable. It would set a horrible example for my sons.

Let me put it more strongly. Our leaders send the message that you only need to do the right thing if somebody is watching. Living that way borders on the sociopathic. But it doesn’t keep you out of the Cabinet. There are apparently more important qualifications for office than these.

Since when is adherence to the Constitution a technicality, and not a principle? I agree that D.C. residents deserve representation, and I would support a constitutional amendment to give them some (or perhaps to let them go back to being part of Maryland). But I [...]]]> Professor Rick Hasen has a piece up at Slate on the D.C. Voting Rights bill. He says that the bill—which would give D.C. residents a voting member of the House of Representatives—is “probably unconstitutional,” but that “Congress should pass it” anyway. That’s what the Washington Post editorial board thinks too, saying that Congress should leave constitutional-law debates to the courts and do what is right. They agree with Rep. Steny Hoyer that “the case should be made on principle, not technicalities.”

Since when is adherence to the Constitution a technicality, and not a principle? I agree that D.C. residents deserve representation, and I would support a constitutional amendment to give them some (or perhaps to let them go back to being part of Maryland). But I think that an amendment is necessary, because the Constitution limits the House to members from “the several states,” and D.C. is not a state.

To me, Hoyer’s dismissal of the Constitution—as a technicality to be brushed aside—is the opposite of principled. This country is not better off when it encourages members of Congress to abdicate their responsibility and their oath to support the Constitution. Our belt-and-suspenders system is supposed to give us multiple lines of defense against unconstitutional laws: the House, the Senate, the president, and the courts are all supposed to agree that a law is constitutional before it can be used. Leaving it to just the courts is like taking off the belt and one of the suspenders, and having the remaining suspender be very loose. I would very much prefer to keep America’s pants on.

Hasen is subtler, and his points are more defensible. He says that there is a non-frivolous argument that the bill is constitutional. I agree. Ken Starr and Viet Dinh—not the most likely advocates for a D.C. House seat—have argued that Congress can give D.C. a House seat under its plenary power to govern D.C. They provide some analogies. The Supreme Court has let Congress treat D.C. as a state for purposes of diversity jurisdiction in federal courts, for instance. If Congress can expand the powers of the federal courts set in Article III, why not let it get fancy with the “several States” clause that governs the House? Structurally, allowing it to do so is more consistent with the broad constitutional theme of voting rights and representation.

Hasen is not convinced, but he says that the argument is good enough that members of Congress can vote for the bill with a clear conscience. I don’t agree.

Starr and Dinh are right, of course, that Congress has plenary power to govern D.C. With that power, they can treat D.C. like a state for things like regulating interstate commerce, setting up diversity jurisdiction, and many other things. But doing those things is part and parcel of governing D.C.

By contrast, giving D.C. a seat in the House is governing the U.S., not D.C. It’s no more about governing D.C. than giving Microsoft a seat in the House would be regulating interstate commerce. I don’t read the Constitution as giving Congress the power to constitute itself like that, even under cover of a plenary power.

And what about the Senate? If D.C. is enough of a “state” that it can be part of the House, how is it not also enough of a “state” to get two seats in the Senate? If the answer is that Congress can “govern D.C.” any way that it wants, then presumably Congress would have the power to give D.C. zero senators. But it could then also give D.C. two senators. Or maybe even three. “But wait,” you say. “The Constitution says that each state only gets two senators.” True enough. But D.C. isn’t a state, remember? It doesn’t have to have any senators. If it can have zero, why not three?

Consider also that Article IV of the Constitution gives Congress a sort of plenary power over federal territories. Let’s go back to the diversity-jurisdiction statute on which Starr and Dinh put so much weight. Not only does that law treat D.C. as a state, it treats Puerto Rico as one too. If the current Democratic majority in Congress can legislate a new (Democratic) House seat for D.C., then they could also add six Democratic ones from Puerto Rico too, and maybe a few senators while they’re at it. To me, it takes a strained reading of the Constitution to convert the federal government’s ability to govern D.C. and the territories, and translate that into a power of the current congressional majority to open up Congress to non-states and deal itself a bunch of new votes.

Remember that Hasen doesn’t agree with Starr and Dinh either. He just thinks their argument is good enough to let members of Congress vote for the bill honestly (assuming that they are saying that they agree with Starr and Dinh, not just that they acknowledge their existence), and leave it to the courts to sort it all out. Further, Hasen thinks that it would be good for the bill to pass, because if the Supreme Court strikes it down, it will move the issue to the front burner and make it easier to get a constitutional amendment through.

Again, I could support a D.C. representation amendment. But I’m skeptical about Hasen’s chain of events. When the 23rd Amendment passed Congress, the Democrats (who then and now could count on winning any election in D.C.) were just two seats shy of a two-thirds majority in the House, and only eight seats short in the Senate. They therefore needed very little Republican support. Also, at the time D.C. had a larger population than eleven states, and it had no federal representation at all. The injustice was greater.

Today, by contrast, the Democrats are much farther away from a two-thirds majority, making it much easier for Republicans to derail a constitutional amendment. And D.C. has a weaker case, as it now only outweighs one state by population, and already votes for president. Democrats could bludgeon the Republicans with some pretty good arguments about taxation without representation, not to mention the obvious racial angle. But they could do that now. The problem, as Hasen points out, is that the country has much bigger problems to worry about right now. It’s hard to imagine, though, that the path to an amendment would be made that much smoother by passing an unconstitutional law and having the Supreme Court strike it down.

The smoothest path would be for Congress to have an honest constitutional-law debate and vote on the bill in good faith; and for the Court to uphold the law. I wouldn’t complain about that happening. I just don’t think that any part of it ever would.

But say that I move overseas, with no intention of ever returning to the U.S. I sell my house in East Lansing. I burn my Michigan driver’s license. I forswear ever drinking Vernors again. I have no contact with anyone back home, and I don’t pay any taxes there. I cannot vote in state elections, because I’m not a Michigander anymore. But under the federal Uniformed and Overseas Citizens Absentee Voting [...]]]> I live in East Lansing, Michigan, and I vote in federal and state elections accordingly. If I were traveling, working, or even living overseas temporarily, I would still vote in East Lansing, Michigan, as an absentee. Being away for a bit, without giving up my permanent Michigan residence, would not deprive me of my vote.

But say that I move overseas, with no intention of ever returning to the U.S. I sell my house in East Lansing. I burn my Michigan driver’s license. I forswear ever drinking Vernors again. I have no contact with anyone back home, and I don’t pay any taxes there. I cannot vote in state elections, because I’m not a Michigander anymore. But under the federal Uniformed and Overseas Citizens Absentee Voting Act (UOCAVA), I can still vote in federal elections, for the rest of my life. Despite my utter lack of ties to my old home, UOCAVA requires Michigan to let me vote as though I still lived in the Eighth District of Michigan. I can vote for U.S. representative, U.S. senator, and for president as though I were a Michigan resident.

Not only is that weird, it’s unconstitutional.

Article I, § 2, cl. 1, one of the very first provisions in the Constitution, provides that the people who elect a state’s representatives in Congress “shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature.” In other words, you aren’t allowed to vote for the U.S. House unless you are allowed to vote for the state House. The Seventeenth Amendment does the same for senators: you aren’t allowed to vote for the U.S. Senate unless you are allowed to vote for the state House.

So right away, there’s a problem. Even assuming that Congress can force states to let permanent expatriates vote in their old homes, it seems unconstitutional that Congress does so for federal elections and not state legislative elections. The two electorates are supposed to be congruent, and Congress has violated that requirement.

Presidential elections are more complicated, but the case for UOCAVA is no stronger. In contrast to the electorate for House and Senate, the electorate for president is not defined in the Constitution. This does not give Congress authority to expand the franchise, though. Quite the opposite, it gives the states more leeway to define voter qualifications, or indeed to not have popular voting for president at all. Of course, every state currently uses popular voting, but they can choose different rules at the margins for things like letting felons vote, or (not to assume my conclusion) defining residency.

That said, several constitutional amendments give Congress some control over who votes. For instance, Congress has the explicit power to enforce the amendments that guarantee voting rights—state and federal—based on race, sex, and age. More complicated, but more relevant to UOCAVA, is the Fourteenth Amendment. The Fourteenth Amendment precludes states from violating broad rights like “due process,” which contains multitudes. Section Five of the amendment empowers Congress to enforce these rights. The Supreme Court must agree, however, that what Congress is addressing is really a Fourteenth Amendment violation. Moreover, the Court must agree that the remedy Congress provides is “congruent and proportional” to the violation.

Defenders of UOCAVA typically claim that UOCAVA is a congruent and proportional response to a violation of the right to travel. I disagree.

The right to travel and reside abroad is fundamental and is well-established in the case law. It came up in Oregon v. Mitchell. The federal law in that case allowed states to impose reasonable pre-election registration deadlines—up to thirty days, but no more than that. The Supreme Court agreed that if a state’s electoral system disenfranchised people who arrived more than thirty days before the election, the state’s law violated the Constitution. Conversely, they said, the federal law barring such state laws was justifiable as a protection of the right to travel. Congress further decreed that when voters moved within thirty days of the election and could not register in their new homes, their old states had to let them vote as though they were still residents. The Court agreed that this was appropriate too.

The distinctions with our case are illuminating. The law in Mitchell lets former residents vote in their old states for thirty days after they leave; UOCAVA lets them vote there forever. The people protected in Mitchell are residents of their new states and would be able to vote there if not for the tight timing. They are voters who get to avoid a temporary hiccup. The people protected in UOCAVA are not residents of any state and would be unable to vote if not for UOCAVA. They are nonvoters who are made into voters. As one court put it, the federal statute in Mitchell “was not intended to abrogate the power of the states to enact bona fide residency requirements.” Clearly, the same cannot be said for UOCAVA, which by its design obliterates bona fide residency requirements.

More directly, the right to travel plays out differently in the two cases. The right to travel or move within the United States—the issue in Mitchell—is much stronger than the right to travel or move abroad, which the Court has allowed to be restricted in many more ways. There is a limited constitutional right to go abroad, in other words, and the Constitution lets the government impose costs on the exercise of that right. Benefits that aren’t tied to residence in a certain place (social security, for instance) are one thing, but things tied to residence are different. And voting is tied to residence in a state, by tradition, by law, and by the Constitution. Representatives and senators, for whom UOCAVA lets expatriates vote, are supposed to represent particular places, or at least people in particular places. So too are the members of the electoral college who, state by state, elect the president. Permanent expatriates who vote in their old states are not counted as residents of the state for any other purpose, including state taxes, jury duty, or voting in state elections. They are not counted in the determination of how many representatives and electoral votes the state gets.

Even if it would violate permanent expatriates’ right to travel and live abroad for their states to bar them from voting, UOCAVA is probably not a “congruent and proportional” response to that violation. Temporary expatriates with a permanent address back home might have a claim that their constitutional right to travel is violated if they are disenfranchised. It is hard to argue that this justifies giving permanent expatriates the vote as well.

A further congruence problem is that UOCAVA gives permanent expatriates the wrong kind of vote. Even to the extent that these people have a continuing interest in being represented in the federal government, it is hard to see how that interest translates into voting for a representative and senators from a place where they no longer live. As already noted, members of Congress represent places as they represent people. The vote that UOCAVA provides permanent expatriates is mismatched if the point is to have their interest as expatriates represented. (If that isn’t the point—if we are assuming instead that expatriates should be represented if they have a continuing interest in the places they used to live—then the point would be moot, because it would be fair to use some sort of residency requirement to gauge somebody’s continuing interest in the community.)

UOCAVA’s defenders could note that presidents, at least, represent the whole country rather than individual constituencies. Moreover, the interests of expatriates are protected most directly by the watchful eyes of the president’s diplomatic corps and embassies, not by anything Congress does. But we do not have a simple popular vote of all citizens to elect the president. Presidential elections are carried out on a state-by-state basis, and votes for president are cast by voters as citizens of various states, and then by electoral-college members who represent each state. Until and unless the electoral college is abolished, presidential votes under UOCAVA are just as problematically un-geographical as congressional votes under UOCAVA are.

One final absurdity in UOCAVA’s design provides the most damning evidence that there are no constitutional rights being protected here. There are plenty of U.S. citizens who don’t get to vote. Residents of Washington, D.C. participate in presidential elections, but only because of a constitutional amendment. Resident citizens of Puerto Rico, Guam, and other possessions cannot vote for president or Congress at all, despite being U.S. citizens.

This sets up a truly odd incongruity. If an American citizen moves to North Korea with no intention of ever coming back, UOCAVA gives him the right to keep voting in federal elections. If he instead moves to Puerto Rico, he cannot vote at all. So much for the right to travel.

The courts have upheld UOCAVA’s lack of coverage for people who move to Puerto Rico, which deflates the argument that UOCAVA is needed to redress a constitutional violation. If you can lose your “right” to vote for president or Congress by moving from Michigan to Puerto Rico, then your right to travel and your right to vote must not amount to much. If Michigan can take away your vote in that situation without violating the Constitution, surely it can take away your vote if you move to North Korea without running afoul of the Constitution. If there is no constitutional violation, then Congress has no power to barge in and overrule Michigan in the name of defending your purported Fourteenth Amendment rights. The right to travel does not justify UOCAVA.

Think that this stuff doesn’t matter? Consider the 2000 presidential election in Florida. While pregnant chad dominated the news coverage, the less prominent issue of overseas ballots decided the election. Twice. After the initial, uncontroversial recounts, George W. Bush had a slim lead of three hundred votes. He owed his lead to overseas voting; tens of thousands of overseas ballots had arrived early enough to be counted on Election Day, and Bush’s advantage among them was more than three hundred votes. Florida law allowed ten more days for overseas ballots to arrive, so there were still thousands of votes to count. Bush added a relatively whopping 739 net votes to his lead from these late-arriving overseas votes. After all of this (and all of the other recount convolutions), Bush’s victory was declared by a margin of 537 votes. The overseas votes had saved Bush again.

The Constitution specifies only one member of the line of succession: the vice president. It empowers Congress to use ordinary legislation to provide a longer line of succession (“the Congress may by Law provide for the Case of Removal, Death, Resignation or Inability, both of the President and Vice President, declaring what Officer shall then act as President”). Currently, the line of succession runs to the Speaker of the House, the President Pro Tem [...]]]> I saw this story this story about Defense Secretary Robert Gates being kept away from the Inauguration to preserve the line of succession in case of a “Mars Attacks” scenario. After seeing a couple of confused comments elsewhere on the internet, I thought I’d blog some basics about the line of succession.

The Constitution specifies only one member of the line of succession: the vice president. It empowers Congress to use ordinary legislation to provide a longer line of succession (“the Congress may by Law provide for the Case of Removal, Death, Resignation or Inability, both of the President and Vice President, declaring what Officer shall then act as President”). Currently, the line of succession runs to the Speaker of the House, the President Pro Tem of the Senate, and then the Cabinet, in rough order of the establishment of their departments. Acting secretaries and people who aren’t eligible to be president are skipped over.

The inclusion of the Speaker and President Pro Tem is very likely unconstitutional. Because the line of succession is supposed to consist of “officers,” a designation that most people agree does not include members of Congress (who in fact are barred from being officers while in Congress), the line of succession should not include them. The statute in place between 1886 and 1947 included only the cabinet, and so avoided this issue.

Because the line of succession includes officials who are sometimes inclined to all be in the same place–at inaugurations, or at the State of the Union address, for instance–one person in the line is traditionally kept away from such gatherings. That is why Secretary Gates won’t be at the inauguration.

I saw some confused conspiracy theories online expressing suspicion about having the only Republican* in Obama’s cabinet in this role (one example: “I’m not ‘onboard’ with picking the only Republican, especially not given what this Republican junta has done.”). But Gates is a perfect choice. The conspiracy theory rests on the notion that the alternatives to Gates are Obama cabinet members like Hillary Clinton and Timothy Geithner. But until they are confirmed–and they won’t even be nominated until after President-Elect Obama takes over at noon–they are not in the line of succession. The Bush cabinet is. Condi Rice, Michael Mukasey, and all the rest will still hold their offices until their replacements come in (assuming that they don’t resign and let their deputies run things for a few days). As a result, Gates–who Obama is keeping on–is the perfect candidate. He might not be the conspiracy theorist’s favorite member of Obama’s cabinet, but he is the only one who has been confirmed already.

* It has been reported that Gates is not a registered Republican. And Ray LaHood, Obama’s nominee for Transportation, is a Republican.

Obama will be the first president in U.S. history whose last name ends in a vowel other than E or Y. He is, not surprisingly, the first Barack to appear on a presidential ticket. Joe Biden is the fourth Joe/Joseph, but the first successful one.

While Barack Obama is tall at 6 ft. 1 in., that is only enough to tie him for ninth place in presidential history. His wife Michelle, however, will be tied for first place as the tallest first lady—like Eleanor Roosevelt, she stands 5 ft. 11 in. tall.

President John F. Kennedy was the first Catholic elected to national office in the U.S. There have been [...]]]> On Inauguration Day, I thought I’d cross-post some trivia tidbits that I blogged after Election Day at FullComment.com:

Obama will be the first president in U.S. history whose last name ends in a vowel other than E or Y. He is, not surprisingly, the first Barack to appear on a presidential ticket. Joe Biden is the fourth Joe/Joseph, but the first successful one.

While Barack Obama is tall at 6 ft. 1 in., that is only enough to tie him for ninth place in presidential history. His wife Michelle, however, will be tied for first place as the tallest first lady—like Eleanor Roosevelt, she stands 5 ft. 11 in. tall.

President John F. Kennedy was the first Catholic elected to national office in the U.S. There have been other Catholics on national tickets—Al Smith (1928) and John Kerry (2004) for president; Bill Miller (1964), Ed Muskie (1968), Sargent Shriver (1972), and Geraldine Ferraro (1984) for vice president—but they all lost. Vice President-Elect Joe Biden is Catholic, though, so the string of Catholic losses is now over, and John F. Kennedy is no longer the exception that proves the rule.

Barack Obama’s father was Kenyan, and of Luo ethnicity. Luo Kenyans, disgruntled over fraud in the recent presidential election that they say deprived their candidate, Raila Odinga, of a victory, have noted how ironic it is that the U.S. will have a Luo president before Kenya does.

Obama will represent a third consecutive term of Harvard-degreed presidents (Bush has a Harvard M.B.A.). He will end the record five-term streak that Yale had been running (both Bushes went to Yale as undergraduates; Bill Clinton went there for law school), and which Hillary Clinton would have extended. Obama is the second Harvard-trained lawyer to become president; the first was Rutherford Hayes. This ties Yale Law School (Presidents Clinton and Ford).

Barack Obama is the first Democrat to win a majority of the popular vote since 1976. He is only the fourth Democrat in the party’s entire 180-year history to be elected with more than 51% of the vote.

When a president does not run for reelection, it is difficult for his party to keep control even in the best of times. Since World War II, only Ronald Reagan has managed the feat. Presidents Truman, Eisenhower, Johnson, Clinton, and now Bush have all been succeeded by members of the opposing party.

I have found a curiosity in 5 U.S.C. § 3345, the federal statute for appointing acting officers, such as heads of agencies. The statute provides as a default that the first assistant to the old officer automatically takes over in an acting capacity. However, the president can choose certain other people to fill in instead.

The weird part is that the statute specifies that “the President (and only the President)” may do this. For the life of me, I cannot figure out what adding “and only the president” adds, [...]]]> I recognize that this post might put me dangerously close to the “pointless incessant barking” category, but I have been puzzling over it for a long time and can think of no better place to solicit some thoughts.

I have found a curiosity in 5 U.S.C. § 3345, the federal statute for appointing acting officers, such as heads of agencies. The statute provides as a default that the first assistant to the old officer automatically takes over in an acting capacity. However, the president can choose certain other people to fill in instead.

The weird part is that the statute specifies that “the President (and only the President)” may do this. For the life of me, I cannot figure out what adding “and only the president” adds, as a legal matter. I have come up with two possible explanations, but both of them seem stupid.

The first possibility is that the drafters of the statute meant to distinguish presidents from acting presidents, and allow only the former to handpick acting officers when vacancies arise. But an acting president is supposed to have all of the powers and duties of an “actual” president (with the possible exception of appointing a vice president under the Twenty-Fifth Amendment). Besides that, if Congress meant to enact such a distinction in this statute, this is far from the most obvious way to phrase it.

The second possibility is that the drafters meant to make this presidential power undelegable. So, for instance, if there was a vacancy in the office of the Deputy Attorney General, the president could handpick an acting DAG, but he could not just let the Attorney General do it himself. But it is hard to see how adding “(and only the President)” accomplishes any of that. Without the parenthetical phrase, the president still could not delegate the power to handpick acting officers–or more precisely, if he let a delegee choose the acting officer, the president would still have to formalize the pick by signing off on it himself. Adding the parenthetical doesn’t change the president’s ability to delegate (de facto) or his need to sign off himself (de jure).

I have not found any other possible explanations, nor have I found any hint in the structure of the statute itself, nor have I found any legislative history that casts light on this. Concurring Opinions readers are pretty smart. Any ideas, folks?

UPDATE: Well, someone was being stupid here, but it wasn’t Congress (hint: it was someone with the initials BK). As you can read in the comments, Congress has given the president a general ability to delegate his statutory authority, and this statute is just hemming that in. Other statutes do this too, and just use different language. Thanks to Jon Weinberg for clearing this up.

Burris wasn’t seated by the Senate on Tuesday because his credentials were not signed by Illinois Secretary of State Jesse White. Burris sought a writ of mandamus from the Illinois Supreme Court, arguing that White had no discretion to refuse to sign the appointment document. Today, however, the Illinois Supreme Court denied Burris’s request. You can read the opinion here.

I was wrong—I had confidently predicted that Burris would win his case. But while he lost on his mandamus request, the Illinois [...]]]> Things are moving quickly today in the case of Roland Burris’s appointment to the Senate. Illinois Governor Rod Blagojevich was impeached by the Illinois House today, but he still hasn’t been convicted and in any case his appointment of Burris had long since been issued.

Burris wasn’t seated by the Senate on Tuesday because his credentials were not signed by Illinois Secretary of State Jesse White. Burris sought a writ of mandamus from the Illinois Supreme Court, arguing that White had no discretion to refuse to sign the appointment document. Today, however, the Illinois Supreme Court denied Burris’s request. You can read the opinion here.

I was wrong—I had confidently predicted that Burris would win his case. But while he lost on his mandamus request, the Illinois Supreme Court made a strong statement that he should be seated by the U.S. Senate. Hopefully the Senate will take the court’s rebuke to heart.

Burris’s mandamus request was denied because, as the court explained, he didn’t need it. As the court put it:

No further action is required by the Secretary of State or any other official to make the Governor’s appointment of Roland Burris to the United States Senate valid under Illinois law. Moreover, to the extent that additional proof of the validity of the appointment is necessary, Illinois law provides a mechanism for obtaining it without the need for judicial intervention.

In other words, the court ruled that the Secretary of State didn’t need to sign the document because Burris’s appointment is already valid and legal without the signature. White had already registered the appointment. The court noted that Burris can get certification of that, suggested that he do so, and chastised the Senate for keeping Burris out.

This turned my attention back to the Senate Rule under which Burris was kept out in the first place. I was not sufficiently skeptical about Senator Reid’s and Senator Durbin’s statements about the signature requirement, which surprises me, since as a rule I don’t trust senators, let alone Senator Reid. Even more surprising is that the AP was sufficiently skeptical, in this article.

It turns out that Senate Rule 2, the one at issue here, does not make the signature mandatory. All it does is provide a “recommended” form; the state “may use such forms if they see fit.” But since, as the Illinois decision today made clear, Burris can come to the Senate with other evidence that (1) the governor has appointed him, and (2) the secretary of state has validated that appointment, the Senate has no basis to exclude Burris on grounds that his appointment was not legally, formally sufficient. I’ll close with the court’s language that essentially tells the Senate that it should seat Burris:

At this point, however, there is no question at all that the Governor did, in fact, make the appointment. If there was ever any question about that on the part of the United States Senate, it should have been removed when the Governor’s envoy appeared at the Senate with a copy of the certificate of appointment in hand.

In their pleadings, Petitioners suggest that the United States Senate has taken the view that the Governor’s signed, hand-delivered certificate of appointment is insufficient to meet the requirements of the Senate’s own internal rules. We note, however, that nothing in the published rules of the Senate, including Rule II, appears to require that Senate appointments made by state executives pursuant to the seventeenth amendment must be signed and sealed by the state’s secretary of state. Moreover, no explanation has been given as to how any rule of the Senate, whether it be formal or merely a matter of tradition, could supercede the authority to fill vacancies conferred on the states by the federal constitution. Under these circumstances, the Senate’s actions cannot serve as the predicate for a mandamus action against the Secretary of State.

I think that the court’s language went a bit too far here—the Constitution does make the Senate the judge of the “return” here; the problem is just that the Senate pretended its rule said something it didn’t. But the court’s larger point is right. Given that the Senate leadership had given strong indications that it was ready to let Burris be seated, I hope that they take the hint from the Illinois Supreme Court and seat Burris.

In this post, I will concentrate on the legal argument for late impeachability. I will devote rather less space to the argument against it. Both arguments have much to commend them, and they are fleshed out (in excruciating detail) in an article that I published a few years ago, as well as a chapter in the book I am writing. As before, I am not suggesting that [...]]]> A while back, I discussed the potential to impeach a president after he has left office. In my prior post, I concentrated on the practical questions—what factors would have to be in place before Congress would reach the unlikely stage of wanting to impeach an ex-president? The bottom line was that late impeachment is pretty unlikely, but not unimaginable.

In this post, I will concentrate on the legal argument for late impeachability. I will devote rather less space to the argument against it. Both arguments have much to commend them, and they are fleshed out (in excruciating detail) in an article that I published a few years ago, as well as a chapter in the book I am writing. As before, I am not suggesting that President Bush, Clinton, Bush, or Carter be impeached and tried—just that if Congress wanted to do so, they could.

In Article II, Section 4, the Constitution specifies that any civil officer of the United States must be removed from office upon impeachment and conviction for high crimes and misdemeanors. Critics of late impeachability take this to mean that a person must be removable to be impeachable. It’s a fair reading of the text, but a cleaner reading is that this clause only means to specify the penalty for sitting officers who are convicted. Under this reading, the clause does not limit Congress’s impeachment powers (which anyway are specified elsewhere, in Article I) to cases involving sitting officers.

Opponents of late impeachability often respond to this by saying that if Article II isn’t a limit on impeachment, it must mean that anybody can be impeached for anything. While it might be tempting to lobby Congress to impeach Bernie Madoff, though, this is not what impeachment is all about. The history of impeachment in England and America suggest that impeachment is concerned with public offenses by public officials; offenses “which may with peculiar propriety be denominated political,” as Alexander Hamilton put it in the Federalist Papers.

In other words, it is the nature of the offense, not the timing of the trial, that distinguishes impeachment. Only officers can commit impeachable offenses. If they commit such offenses, but leave office before Congress can finish the case, that doesn’t change the public nature of the offenses, or the appropriateness of having Congress as a forum to pursue them.

Thus, the true interpretive conflict is not between those who would impeach only sitting officers and those who would impeach everyone in the world. Rather, it is between those who see impeachment as protecting the office from the bad guy (which makes removal the key and makes late impeachment pointless) and those who see impeachment as the process for dealing with official misconduct qua official misconduct (which makes removal obviously important, but not the only basis for proceeding).

The Constitution provides for mandatory removal of sitting officers, but it also allows for another punishment: disqualification from holding future federal office. The presence of this other possibility not only makes late impeachment more likely to be worthwhile, it also provides some structural evidence in favor of late impeachability. If someone could avoid disqualification simply by resigning from office—perhaps five minutes before he knows the Senate will vote to convict him—then it would be pointless for the Constitution to have provided the penalty.

Allowing resignations to destroy Congress’s jurisdiction would also make a mockery of impeachment’s intended role as a form of congressional oversight. Consider that the president cannot preempt the impeachment of his subordinates by pardoning them; the Constitution makes that limit clear. This limit stems from a British case in which the king pardoned one of his ministers (Danby) to prevent Parliament from impeaching—and thereby investigating—the king himself. But if a president is restricted from pardoning away an impeachment, it would certainly be odd if he could preempt an impeachment simply by firing the official in question (and potentially rehiring him immediately onto the White House staff, or some other position that does not require Senate confirmation). Presidents are prickly about submitting to congressional jurisdiction for ordinary investigations, but there is no question that impeachment strips such protections away in a unique manner. Structurally, it makes little sense to say that a president facing impeachment could thumb his nose at congressional oversight simply by resigning, or by committing offenses near enough to the end of his term.

There is also historical evidence to support late impeachability. British precedent loomed large at the Constitutional Convention. At the same time that the Constitution was being drafted and debated, the British were impeaching and trying Warren Hastings, a former governor-general of India. It was a high-profile case, and the Americans drafting the impeachment clauses were aware of it. Impeachment was rare in Britain, and the only other case that century had, like Hastings’s, been a late impeachment. American state impeachment practice differed in important ways from the British tradition (significantly, some states not only allowed but actually required late impeachment), but the British influence was clear. The Constitution places several specific limits on impeachment in a conscious attempt to depart from British practice. However, late impeachment—an obvious, significant part of British practice—was left untouched in the text.

In the decades that followed, late impeachment was in the air. John C. Calhoun and ex-President John Quincy Adams both proclaimed themselves susceptible to it. President Grant’s corrupt secretary of war, William Belknap, was impeached despite having resigned just prior to the House vote. The House went ahead anyway, and the Senate debated late impeachability for weeks. The debate covered dozens of arguments from the text, history, and structure of the Constitution that I discuss in my article. Eventually, the Senate decided by a majority vote that it had jurisdiction over former officers and the trial went on. Fortunately for Belknap, there were enough opponents of late impeachability that his pursuers failed to attain the two-thirds vote needed to convict him. The vote was close, though, and the result is a precedent for the notion that people can be impeached and tried after leaving office, even if it is hard to convict them.

Since Belknap’s case, Congress has dropped case after case—for practical reasons—after the offender resigned. Even as it has done so, however, it has been careful to expressly reserve its power of late impeachment. In these matters, Congress is saying only that these men should not be impeached, not that they could not be.

Would the Supreme Court rule on a challenge to a late impeachment, or would they declare it a non-justiciable “political question”? It depends. That question could fill a whole other post. Suffice it to say that while the Court would defer to Congress here (and while I would vote that way were I on the Court for some reason), there is plenty of room for the Court to declare that Congress had overstepped its bounds, and that a late impeachment is not an “impeachment” within the meaning of the Constitution.

It is unlikely that an ex-president’s opponents in Congress would have large enough majorities to convict a president. If the new president doesn’t want to prosecute the old one, odds are pretty good that the old president has the support of either a majority in the House or one-third of the Senate too. (Interestingly, the only time in American history in which the party opposing the president had a House majority and a two-thirds Senate majority was during the presidency of Andrew Johnson; it is no coincidence that he was impeached and nearly convicted.)

It is hard enough to get two-thirds of the Senate to support conviction. Once you subtract the votes of the people who think that late impeachment is unconstitutional, it could become impossible. As I discussed in a previous post, several factors would have to line up just right for a late impeachment to go forward. Still, there is a strong case to be made that in the right circumstances, Congress can impeach and try an ex-president.

After listening to Professor Phillipe Sands on NPR’s Fresh Air this afternoon, though, I am starting to think that the President might need to think more seriously about the pardons. Sands made a case for investigations, both by the Obama Administration and international authorities. I am not qualified to weigh in here with my opinion on the relative merits of Sands’s argument, but [...]]]> I have been dismissive of the idea that President Bush will pardon administration officials (and maybe himself, contrary to my post here) involved in the policy surrounding the mistreatment of detainees in the current conflict. I had filed this concern in the same place as the preposterous notion that President Bush would cancel the election in November, or the inauguration on January 20.

After listening to Professor Phillipe Sands on NPR’s Fresh Air this afternoon, though, I am starting to think that the President might need to think more seriously about the pardons. Sands made a case for investigations, both by the Obama Administration and international authorities. I am not qualified to weigh in here with my opinion on the relative merits of Sands’s argument, but listening to him, it did strike me that prosecutions–especially international ones–are more of a possibility than I had previously thought.

Somewhat counterintuitively, though, I think that the increased possibility of prosecution should make it less likely that President Bush will pardon Dick Cheney, David Addington, John Yoo, or himself. It seems to me that international human-rights activists will be in a much more punitive mood than the Obama administration will be. However, it would be much easier for Bush officials to stiff-arm international efforts if the possibility of some sort of domestic process–which could have more legitimacy and would avoid sovereignty concerns–remained open. But pardons would close that possibility. The international activists would be able to say that there is no alternative left for them but to proceed in international tribunals.

If President Bush does not expect any prosecutions at all, or expects them only domestically, then there is no issue. But if his pursuers will be both foreign and domestic, it would make sense for him to try to keep his home court advantage, so to speak.

Another permutation–impeachment of Bush Administration officials after they have left office–looms as well. If President Bush pardons people, or if the Obama Administration is disinclined to take up the case, I have argued (here) that Congress can still step in and take some action. Such action would, admittedly, be limited, but it would be much more than nothing, and it too could slow down international proceedings somewhat. (I’ll post more on “late impeachment” in the next few days.)

Again, I’m not saying that President Bush should pardon anyone, or that anyone is guilty. I just think that pardons could weaken his position, in a way that I didn’t realize a few hours ago.

The core of their argument is that the Senate can judge the elections and returns of its members, and so “[i]f the Senate may refuse to seat a person picked in a corrupt election, it likewise may refuse to seat a person picked in a corrupt appointment process.” They continue that:

To be sure, there is no evidence Burris bribed the governor to get this seat. [...]]]> Over at Slate, Josh Chafetz and my mentor Akhil Reed Amar have penned what I think is the best argument one can make that the Senate can and should refuse to seat Roland Burris, Illinois Governor Rod Blagojevich’s pick to fill that state’s vacant Senate seat. The best, but still not enough in my opinion, following up on my earlier post.

The core of their argument is that the Senate can judge the elections and returns of its members, and so “[i]f the Senate may refuse to seat a person picked in a corrupt election, it likewise may refuse to seat a person picked in a corrupt appointment process.” They continue that:

To be sure, there is no evidence Burris bribed the governor to get this seat. But imagine if Burris had won election only because other candidates were wrongly and corruptly kept off the ballot. Surely the Senate could properly deem this an invalid election. Similarly, it now seems apparent that there were candidates that Blagojevich refused to consider for improper reasons—because one refused to “pay to play” early on, or because another is at the center of the impending criminal case against the governor. With the appointments process so inherently and irremediably tainted, the Senate may properly decide that nothing good can come from a Blagojevich appointment.

Here’s why I think that’s wrong.

Their analogy would work if, say, Jesse Jackson, Jr. got appointed over the corruptly excluded Valerie Jarrett. But that’s not what is happening here. Go back to the election analogy. Let’s say that an election was corrupt. The Senate rightly refuses to seat the winner of the election. Now there is a vacancy. Thus, the governor gets to appoint someone to fill it, and if he does so without any shenanigans that time, it should be OK.

The alternative would be to say that once one bad thing happens, the Senate can force the vacancy to persist until there can be a new and clean election. As my colleague Mae Kuykendall points out, though, the new election wouldn’t remove the “irremediable taint” of the corrupt vacancy anymore than a new and clean appointment would. What removes the stain of corruption is a non-corrupt appointment pursuant to state law. As warm-feeling a policy as boycotting Blagojevich might be, I don’t read Art. I, § 5 and the 17th Amendment as giving the Senate that authority here. It seems to me that those provisions leave it to state law to determine how vacancies are filled.

The alternative is a situation in which the seat remains vacant until the IL legislature either removes Blagojevich or passes a law stripping him of the appointment power and mandating an election. But surely that puts the cart before the horse. The legislature has had the opportunity to do both of those things already, and has declined to do so.

Put another way, the law is that the governor fills this vacancy. That law was followed here. No one is claiming that Blagojevich broke the law in selecting Burris. In the absence of any such evidence—let alone in the absence of an attempt to even look for such evidence—the Senate cannot legitimately question the “returns” here.

At least Amar and Chafetz have made a plausible legal argument, as opposed to Senator Reid’s legally vacant pronouncements. I find it ironic that Reid, a Mormon, is hearkening back to the pre-Powell notion of excluding people from Congress through guilt by association. Back in the day, that illegal approach was used to keep Mormons out of Congress for being Mormons. Senator Reed Smoot was challenged on these grounds, and it took four years of hearings and debate before he was seated. Notwithstanding their hard-to-overstate distaste for the people who sent Smoot to the Senate, the senators eventually let him take his seat.

More relevant for current purposes is that they seated him provisionally in the meantime, and had a real debate about it, instead of reaching their conclusion before he had even arrived.

I’m not sure where the Senate Democratic leadership thinks it gets the authority to not seat Burris. Under Powell v. McCormack, the ability of the Senate to exclude someone would seem to be limited to judging that he hadn’t won the election (not applicable here) or that he is not qualified (30 years old, a resident of Illinois, and a U.S. citizen for nine years). Their discomfort with Burris’s appointer doesn’t enter into it.

Presumably, they could seat Burris and then expel him, but that would require a 2/3 vote, which would [...]]]> Politico and MSNBC are reporting that the Senate Democratic leadership is indicating its refusal to seat Roland Burris, who Illinois Governor Rod Blagojevich today indicated he will appoint to fill President-Elect Obama’s vacant Senate seat.

I’m not sure where the Senate Democratic leadership thinks it gets the authority to not seat Burris. Under Powell v. McCormack, the ability of the Senate to exclude someone would seem to be limited to judging that he hadn’t won the election (not applicable here) or that he is not qualified (30 years old, a resident of Illinois, and a U.S. citizen for nine years). Their discomfort with Burris’s appointer doesn’t enter into it.

Presumably, they could seat Burris and then expel him, but that would require a 2/3 vote, which would be hard to muster given that, by all accounts today, Burris is personally unobjectionable.

My best guess is that the Senate Democratic leadership would argue that the Senate’s authority to judge the elections of its members extends by analogy to judging the appointments of its members; and that a corrupt election would be cause to not seat someone, so a corrupt appointment should be too. But surely this sort of determination would require some sort of investigation rather than a conclusion that Burris is unfit for office (even if the Senate could get away with this constitutionally, it shouldn’t try to). Burris has not been connected to the corruption case as far as I know. What are the odds that Blagojevich would appoint him corruptly in the middle of this investigation?

If I were a leader in the Senate, I would confer with Sen. Durbin and Illinois state officials, and see what they think. I might hold some hearings to find out more about the circumstances of Burris’s selection. But I would not say that the Senate can just refuse to seat Burris.

1) The President signed a formal pardon warrant, containing Toussie’s name, which expressly states that he was “hereby granted a full and unconditional pardon.”

2) That document was sealed and transmitted to Department of Justice (DOJ) with directions to notify the grantees.

3) The Office of the Pardon Attorney (OPA) called each grantee (or his counsel) via telephone and told him that he’d been pardoned by the President.

4) Then, the DOJ issued a press release that informed the world (including Toussie) that [...]]]> At his invaluable Pardon Power blog, Prof. Ruckman has done some very helpful reporting that, to my mind, strengthens Isaac Toussie’s case immensely. The professor and I have tangled over pardon revocability in the text and comments here and here. His latest post reveals the following:

1) The President signed a formal pardon warrant, containing Toussie’s name, which expressly states that he was “hereby granted a full and unconditional pardon.”

2) That document was sealed and transmitted to Department of Justice (DOJ) with directions to notify the grantees.

3) The Office of the Pardon Attorney (OPA) called each grantee (or his counsel) via telephone and told him that he’d been pardoned by the President.

4) Then, the DOJ issued a press release that informed the world (including Toussie) that the grants had been made.

5) There is no issue about whether Toussie accepted the pardon – he had asked for it and it was granted without conditions.

It is well worth noting that, when the OPA makes these phone calls, the OPA has never informed grantees that they “will be” pardoned “as soon as they get the individual warrant” (which may take weeks to arrive). The OPA always tell them they “have been” pardoned. No contingencies.

So far, the president’s argument has been that the pardons were still in some state of preparation–not yet a pardon, in essence–and thus could legally be halted. (Ruckman has labeled this argument foolish, and contended that pardons are revocable even when completed.)

Given that the facts Ruckman reports show that (1) the president signed a document saying he hereby gave a full and unconditional pardon to Toussie; (2) that that document was sealed; and (3) that the Office of the Pardon Attorney notified Toussie (or his counsel) that Toussie had been pardoned (not that he would be), I think it is fair to say that for all intents and purposes, this pardon had been signed, sealed, and delivered.

One might argue that Toussie hadn’t accepted the pardon, but I reject that conclusion given that he had gotten exactly what he applied for with no conditions attached (the offer was his, and acceptance was the president’s), and also given case law undermining the notion that pardons must be accepted. I also would be surprised if when Toussie or his counsel got the phone call, they didn’t accept it.

I do not agree with Ruckman that a pardon, once granted, can legally be revoked. But I do agree with him that the president’s argument in this case–that the Toussie pardon had not yet been granted–is foolish. I expect that there are a lot of people following this story whose thoughts paralleled mine. First, upon hearing that Toussie pardon had been revoked, I thought “what? you can’t revoke a pardon.” Then, upon hearing the claim that the pardon hadn’t been processed yet, I thought “well, maybe this wasn’t a pardon.” Now, upon hearing that it had been signed, sealed, delivered, and presumably accepted, I’m back to “what? you can’t revoke a pardon.” I hope that Toussie litigates this and that the court settles this once and for all.

Of course, there is still the matter of Ruckman’s argument that completed pardons can be revoked. His argument is backed up by examples that, while unlitigated and mostly old, are nevertheless numerous and undeniably there. (And, to Ruckman’s credit, they shoot down the callow media reports that Bush’s move was unprecedented.) If Toussie loses this case, that history will be why. But personally, for reasons I have posted already, I expect other arguments to prevail, and that the history to be relied upon by the dissenters, if any.

The White House seems to be arguing that a pardon needs to be signed, sealed, and delivered before it is effective. I have already explained why I think that is wrong: signed, yes; sealed, probably, whatever that means; delivered, no. But regardless of all that, as Ellen Podgor points out, Toussie has a good argument that the pardon actually was signed, sealed and delivered. The DOJ press release on the 23rd said: “On Dec. 23, 2008, President George W. Bush granted pardons to 19 individuals and commutation of [...]]]> Following up on my earlier post, I have some more thoughts on the Toussie pardon. I originally cited some thoughts by Michael Froomkin. Froomkin has a follow-up post in which he, in my opinion, gives up too easily.

The White House seems to be arguing that a pardon needs to be signed, sealed, and delivered before it is effective. I have already explained why I think that is wrong: signed, yes; sealed, probably, whatever that means; delivered, no. But regardless of all that, as Ellen Podgor points out, Toussie has a good argument that the pardon actually was signed, sealed and delivered. The DOJ press release on the 23rd said: “On Dec. 23, 2008, President George W. Bush granted pardons to 19 individuals and commutation of sentence to one individual.” It didn’t say that Bush started the process of pardoning them. It said he pardoned them, because that’s what everyone understood was happening. Without knowing exactly how these things work, I can’t assume that Toussie got a phone call, formally communicated his acceptance, or what, but maybe he did. In any case, there was a whole day there in which he and the rest of the word knew that he had been pardoned.

The anonymous fourth commenter on my original post makes some points that are helpful for untangling all of this. Because pardons are typically issued in big clumps, current practice is for the president to sign a master warrant with all of the names on it, then send it to the OPA, which prepares and delivers individual warrants for the people on the list. But (as the DOJ press release reflected) the master warrant doesn’t purport to be an order to the OPA to execute and issue pardons. It purports to be a legal act by the president. As the excellent Pardon Power blog reports, from the NYT, the master warrant begins: “After considering the applications for executive clemency of the following named persons, I hereby grant full and unconditional pardons to the following named persons.” That sounds like an official act to me. My commenter reports that a former pardon attorney testified that, indeed, the master warrant is the legally significant act here. Perhaps that is what underlies the understated comment from former Pardon Attorney Margaret Love (the person who, I think, knows more about presidential pardons than anyone now alive) here, that “it’s not clear to me that [revocation is] as easy to do as all that.”

Indeed, all of the commentary has referred to this as a pardon that was issued and then revoked. But pardons can’t be revoked. So the White House needs another theory. Enter the statement of the press secretary, introducing the notion that the pardon had not been executed. But the statement doesn’t hold up. First of all, it describes the president as accepting the recommendation to pardon Toussie. Then, it concludes by describing how the president is going to now have the Office of the Pardon Attorney review Toussie’s case, because he “believes that the Pardon Attorney should have an opportunity to review this case before a decision on clemency is made.” But the president already had that opportunity, and chose not to take it. If President Bush believed that the OPA should have had a chance to review, say, the Marc Rich case, then he could have set up his OPA process that way. But surely, if he thought he could reach back and hold up the Rich pardon the way he did the Toussie pardon, he would have done so.

In any case, if I were Toussie (the only person with standing to challege the president’s action here), I would fight this. I think that it is pretty unlikely that Bush is going to re-do the pardon. Nevertheless, there is no point litigating the issue until after January 20; as long as the OPA is sitting on the question, there is a ripeness issue that would not be worth adding to an already complicated situation.

But once President Obama takes office, one can assume the application will be rejected, if it hadn’t been already. Then Obama’s administration will have to defend the revocability of the pardon. One might expect a spirited defense, under the old “let’s not cede any authority we may have” doctrine. Then again, Obama could argue in favor of the president’s power to issue pardons that take effect immediately, rather than ceding that power (and, ironically, watering down the unitary executive theory) as Bush has purported to do here. Further, the Obama Administration could make the more political argument that do-overs raise political convenience over the care and diligence that the Constitution expects of the president here.

To be sure, there is a Gilded Age history of revoking pardons that the initial press reports missed. But the more modern precedents on the nature of the pardon power, not to mention modern communications, suggest to me that Toussie has a good case here.

It seems to me that this is not constitutional. Once issued, a pardon is a pardon. That’s that. The president has the power to lift criminal consequences from someone, but not to unilaterally impose them, which a pardon revocation does.

I can’t find all of the details here. Perhaps President Bush announced that he would be issuing the pardons, but did not actually issue them in the requisite official form. But it sure seems like he signed off on them. One other possibility is that the pardon was made conditional on some sort of follow-up by Toussie, which he had [...]]]> As this MSNBC story and this CNN story detail, President Bush pardoned real estate scammer Isaac Robert Toussie, and then revoked the pardon a day later (today).

It seems to me that this is not constitutional. Once issued, a pardon is a pardon. That’s that. The president has the power to lift criminal consequences from someone, but not to unilaterally impose them, which a pardon revocation does.

I can’t find all of the details here. Perhaps President Bush announced that he would be issuing the pardons, but did not actually issue them in the requisite official form. But it sure seems like he signed off on them. One other possibility is that the pardon was made conditional on some sort of follow-up by Toussie, which he had not performed. But I see no reporting on that either. It just looks like the president issued a pardon and then un-issued it.

President Bush actually referred the matter to the Office of the Pardon Attorney for further consideration, so it is possible that Toussie will get his pardon back. One can imagine that Toussie and his lawyers might not want to challenge the president’s revocation if they still hope to get something from him. Since Toussie is probably the only one with standing to argue the constitutional point, though, the only way to answer the revocability question is for Toussie to challenge the president’s action in court. From the CNN story, though, it doesn’t sound like that is going to happen.

Strange days indeed.

UPDATE: According to the official White House statement, President Bush did not actually pardon Toussie, but only delivered a Master Warrant of Clemency to the Office of the Pardon Attorney. This just instructs the pardon attorney to execute and deliver the pardons. So it wasn’t final.

Marbury v. Madison famously held that a presidential appointment need not be delivered before it is effective, but as this helpful blogger notes, pardons are different from appointments in the Supreme Court’s eyes:

There is, however, some weighty precedent for the proposition that at least a garden-variety pardon is not complete until delivered. This line of argument originates in this statement of Chief Justice Marshall’s in U.S. v. Wilson, 32 U.S. 150, 161 (1833). Marshall, famously, had earlier decided in Marbury v. Madison that an official’s commission was valid without delivery, and hence must be delivered even if the President did not want the appointment to go through. But pardons, he argued, were different:

A pardon is a deed, to the validity of which, delivery is essential, and delivery is not complete, without acceptance. It may then be rejected by the person to whom it is tendered; and if it be rejected, we have discovered no power in a court to force it on him. It may be supposed, that no being condemned to death would reject a pardon; but the rule must be the same in capital cases and in misdemeanors. A pardon may be conditional; and the condition may be more objectionable than the punishment inflicted by the judgment. The pardon may possibly apply to a different person, or a different crime. It may be absolute or conditional. It may be controverted by the prosecutor, and must be expounded by the court. These circumstances combine to show, that this, like any other deed, ought to be brought ‘judicially before the court, by plea, motion or otherwise.’

Similarly, the District Court decision in In re De Puy, 7 F. Cas. 506, 510-11 (S.D.N.Y. 1869) (No. 3814), described in Harold J. Krent, Conditioning the President’s Conditional Pardon Power, 89 Cal. L. Rev. 1665, 1704 (2001) as involving:

President Andrew Johnson’s offer of a pardon to Jacob DePuy, who had been convicted and incarcerated for violating the revenue laws. President Johnson predicated the pardon on DePuy’s agreement to pay a fine. When President Grant assumed the reins of power, he revoked the pardon, and the Court upheld the revocation because the paperwork had yet to reach DePuy even though the warden had the papers in his possession at the time President Grant revoked the offer. . . . Indeed, President George W. Bush’s administration reportedly studied the feasibility of revoking the Marc Rich pardon, and it was not clear whether the Clinton administration had completed all of the paperwork at the time Bush took office.

This takes a good deal of the wind out of the sails of the arguments that Toussie might make. But not all of the wind. Wilson dealt with someone who didn’t want to accept the partial pardon the president had given him; the Court let him refuse it (a conclusion that I have questioned elsewhere in light of subsequent precedent, but let’s accept it arguendo). DePuy dealt with someone who had a conditional pardon, which condition he had not yet fulfilled when the pardon was revoked.

In Toussie’s case, he wanted the pardon. He had applied for it and (I think) gotten everything he had asked for. Wilson is thus inapt. There do not appear to have been any conditions placed on Toussie’s pardon; DePuy therefore does not control. Toussie’s pardon thus seems to be final in a way that Wilson’s and DePuy’s pardons were not.

However, Marbury adds another wrinkle. A commission, Chief Justice Marshall wrote, does not to be delivered to be valid, but it does have to be sealed (in that case by the secretary of state). Here, if the president sent a sealed document to the pardon attorney, ordering him to deliver it to Toussie; or if the president sent an unsealed document to the pardon attorney, who then sealed it but didn’t deliver it, Toussie still has a good argument that the pardon is final. If the document was not yet sealed when it was revoked, his case is much weaker.

I’ll do the same here, albeit in much, much less detail. In this post, I’ll talk about practical considerations (i.e., the “Why bother?” question). In a few days, I’ll post about the legal arguments supporting late impeachability (i.e., the “Whatchoo talking about, Willis?” question).

As with my post on presidential self-pardons, my writing on this question has been consistent over two presidencies; I have no partisan axe to grind. In any case, I don’t support any efforts to [...]]]> Can presidents be impeached after they have left office? In a 50,000-word article a few years ago, and in Chapter 6 of the book I am writing, I argued in favor of what I call “late impeachability,” and identified the (admittedly rare) contexts in which it might make sense.

I’ll do the same here, albeit in much, much less detail. In this post, I’ll talk about practical considerations (i.e., the “Why bother?” question). In a few days, I’ll post about the legal arguments supporting late impeachability (i.e., the “Whatchoo talking about, Willis?” question).

As with my post on presidential self-pardons, my writing on this question has been consistent over two presidencies; I have no partisan axe to grind. In any case, I don’t support any efforts to impeach President Clinton or President Bush. This post’s title is thus a bit dodgy (though presumably it succeeded in getting your attention).

My draft chapter starts out with this hypo, which touches on many of the practical considerations, and previews some of the legal arguments:

A year into his term, President Jack Martin is embroiled in the most scurrilous scandal in presidential history. Rumors swirled for several months before Martin finally gave into public pressure and appointed an independent counsel. It soon becomes obvious why he had been so reluctant: the independent counsel quickly uncovers mountains of evidence of President Martin’s lucrative and corrupt relationship with Ted McGee.

McGee—a lobbyist and longtime friend of the president—collected tens of millions of dollars in “lobbying fees” from people, companies, and governments, and turned over half of the money to President Martin. Without fail, McGee’s clients benefited from presidential attention to their needs almost immediately after paying their bribes. As desired by McGee’s clients, Martin promoted or vetoed legislation, appointed or fired officials, and more. In the worst instance, Martin ordered the military to share certain top-secret missile technology with a less-than-steadfast ally.

It is a national disgrace. The independent counsel indicts McGee and fifteen of his clients, and she prepares a comprehensive indictment against Martin to move forward as soon as he is out of office. The House Judiciary Committee begins considering articles of impeachment, and there seems to be little doubt that Martin will be impeached and convicted swiftly.

Seeing the handwriting on the wall, President Martin resigns. He is indicted and prepares to defend himself in court. His successor, President Barker, clearly had no involvement in the scandal, and at age seventy-three he promises not to run for a full term. One of Barker’s first acts as president is to pardon President Martin, on condition that Martin surrender all of the money mentioned in his indictment (which totals more than fifteen million dollars), plus an additional 20 percent, to the government. Addressing the nation, President Barker says that Martin has suffered enough and that the United States needs to move on: “A presidential prosecution would take a long time and be difficult to conduct evenhandedly. It would produce more spectacle than justice, and it would distract us at a time when we need to refocus our attention on the real problems facing Americans.” Martin accepts the deal.

There is an uproar. Some people—mostly members of Martin and Barker’s political party—agree that the country needs to move on, and they are satisfied that Martin has suffered enough. Most Americans disagree and think that Martin should go to prison. But with the pardon, and with little prospect of a state prosecution, there is no way for this to happen.

Luckily for the disgruntled majority, the opposition party controls both chambers of Congress, and they are not keen to let go of the Martin scandal. For one thing, there are still a lot of unanswered questions about Martin’s conduct. For another, Martin’s crimes are a political goldmine, not least because the midterm congressional elections are only a few months away. Multiple congressional committees hold hearings on Martin’s bribes.

Subpoenaed by three separate committees, ex-President Martin refuses to testify. He submits a written statement arguing that the separation of powers precludes Congress from forcing him to testify under oath about his actions as president. He concedes that he can be subpoenaed by the independent counsel pursuant to her criminal investigation (or what’s left of it, anyway), but he rules out providing any documents or live testimony to Congress.

It was bad enough that Martin shamed his country and his office and avoided prison. Now that he is adding insult to injury by thumbing his nose at Congress, the House’s leaders decide to revive Martin’s impeachment (which is beyond the reach of a presidential pardon). It is the only way for them to vindicate their authority, and the only hope for holding Martin accountable.

But Martin has left office, and the strong majority that would like to punish him is divided. Many say that impeachment is only for removing people from office, and that it is legally impossible to impeach the ex-president. Moreover, whether or not it is legally possible, many members of Congress ask what the point is. The most common answer—that it will keep Martin in the news during the congressional election campaign—seems cynical and turns off a lot of people who would prefer that Congress do something more productive.

Still, there are enough people who harbor enough anger at Martin that it looks like the impeachment will go forward. The leaders of the effort argue that it is perfectly constitutional to impeach someone who has left office. The constitutional text allows it and there is ample historical precedent, they say. In addition to being removed from office, convicted impeachees can also be disqualified from holding office in the future, and while it is unlikely that Martin will ever work in government again anyway, his foes would still like to brand him with this mark of shame.

If Martin were clinging to office, his impeachment in the House and conviction in the Senate would be a sure thing. But late impeachment is controversial, and it is obvious that the issue has to be settled before the case can go anywhere. The hottest political issue in the country is now a constitutional-law issue, and the nation’s top politicians—and maybe its top judges—stand ready to adjudicate it.

Admittedly, the conditions under which Congress would ever bother to pursue an ex-president are rare. Then again, the conditions under which it would pursue a sitting president are rare too. The core importance of impeachment, late or otherwise, is not the cases that arise, it is the cases that don’t. No president has ever been removed from office through impeachment, but every president has been constrained by the possibility of it. Imagine a United States in which the president knew that no matter what he did, he would be able to remain in office for four years. It seems obvious that the temptation to abuse power would occur more often in that system than it has in our real one.

Without late impeachment, this deterrent effect would fade fast near the end of a president’s term. If impeachment cannot touch a president once he has left office, then it provides him with an incentive to behave only early in his term, or to conceal his wrongdoing long enough to run out the clock. By contrast, if the president is subject to impeachment for the rest of his days, he will have an added incentive to conduct himself appropriately to the very end of his term. If he fails to do so, he could at least face scrutiny.

So like regular impeachment, late impeachment is worth discussing even though it is highly improbable. For those who are unconvinced, here are some factors that I think could lead to a late impeachment actually happening.

First, the criminal penalties facing the president might be insufficient. There might be constitutional barriers to criminally investigating the president; the offense might not be a crime; or the ex-president could have been pardoned, cut a deal, or just left alone. (Significantly, no prosecution was ever brought against the obviously corrupt Secretary of War William Belknap—who was late-impeached but acquitted by five votes.) Congress might feel the urge to punish the ex-president as only it can, such as disqualifying him from future office. If it tweaks the presidential pension laws a bit, it could also use late impeachment to strip an ex-president of retirement benefits, as Senator Specter suggested be done to President Clinton in 2001 (had there been harder evidence against Clinton in the Marc Rich case, Specter’s comments might be more than the less-than-a-footnote they are today).

Second, the impeachment would need to represent some sort of perceived political advantage for Congress. This is not inconsistent with the first point—going after bad guys can be popular—but unless the partisan zeitgeist in Congress is just so, pursuing an ex-president might seem like a waste of time. On the flip side, though, pursuing a sitting president can be unpopular too. Late impeachers might actually be emboldened once they can no longer be accused of trying to force a duly elected president from office; once that consequence is off the table, the case can just be about going after the bad guy. The bottom line is that Congress does what it thinks makes sense politically, so a late impeachment would have to make sense politically. Gerald Ford, pursuing Justice Douglas, famously said that an impeachable offense is whatever a majority of the House says it is. He might better have noted that an impeachable offense is only what a majority of the House can agree is worth pursuing, which is no small barrier to overcome—as the case of the unimpeached Justice Douglas shows us.

Third, Congress might act to protect its prerogatives. If the president left office to avoid impeachment, or if the ex-president was stonewalling a lower level congressional investigation, Congress might feel as though late impeachment was the only way to vindicate its authority. To take a current example, I can easily imagine (1) President Obama deciding not to pursue criminal charges against President Bush and his administration over the torture and surveillance controversies; (2) a netroots-led partisan groundswell that spurs the House to pick up the matter, as the only authority with the power to investigate and make public the former administration’s actions; and (3) impeachment emerging as the only way to break through the ex-president’s assertions of privilege and hold him accountable. Not my cup of tea, but I can still picture it.

Of course, the president would likely challenge congressional authority to impeach and try him. The courts might take the case, or they might leave it to Congress to sort out. Heaps of arguments about the Constitution’s text, structure, history, and precedents would fly back and forth in the courts, Congress, and public square. But all that will have to wait for my next post.