A hypothetical question

Suppose Bush is impeached for the alleged violation of FISA (the wiretapping issue). There are rumblings about rumblings that this would occur (although I doubt it, unless there is a seriou shift in the balance of power in Congress.) ...but let's say it happens.

There is little question that the administration's actions do not comply with FISA. I haven't seen anyone make the argument that they do comply, and I actually heard Karl Rove (in a spech to the Republican party) state pretty clearly that they did not. However, there is a legitimate Constitutional question with regard to whether Bush is subject to FISA. The treatment of prisoners during wartime is an exclusively executive function. Congress can't eliminate executive functions (although, according to the Youngstown decision cited in a previous post, Congress can place limitations on them.)

Were this hypothetical impeachment an ordinary criminal proceeding, the Constitutional issue would be raised in court. However, impeachments are handled in Congress, not a court.

If Bush were impeached and convicted, would he have the opportunity to appeal the Constitutional issue? Does the Supreme Court (or any court) have the ability to overturn an impeachment on Constitutional grounds (i.e., that there was no "high crime or misdemeanor," because the law that was violated was not a Constitutional restriction on executive power)?

My favorite quote from day 1 of the Alito hearings

I think the Constitution is a living thing in the sense that matters, and that is that it is -- it sets up a framework of government and a protection of fundamental rights that we have lived under very successfully for 200 years. And the genius of it is that it is not terribly specific on certain things.

It sets out -- some things are very specific, but it sets out some general principles and then leaves it for each generation to apply those to the particular factual situations that come up. ...

The liberty component of the Fifth Amendment and the 14th Amendment ... embody the deeply rooted traditions of a country.

And it's up to each -- those traditions and those rights apply to new factual situations that come up. As times change, new factual situations come up, and the principles have to be applied to those situations.

The principles don't change. The Constitution itself doesn't change. But the factual situations change. And, as new situations come up, the principles and the rights have to be applied to them.

Alito Hearings

When Sam Alito was first nominated, I thought he would be a slam-dunk. He's eminently qualified as a judge, particularly when compared to Miers...who, although an extremely talented and intelligent lawyer, had a background entirely in behind-the-scenes advocacy, not interpretation.

I suppose the same argument could apply to Roberts...but that's a subject for another post.

I thought the biggest issue would be the Planned Parenthood v. Casey decision, in which Alito wanted to uphold certain restrictions on the right to an abortion. However, since his dissent in that case was consistent with the law at the time (although not the law as it stands now), I thought he would come through that dispute to be appointed.

Now, however, I'm not so sure. The major issue many people (and, not coincidentally, many Senators) have with Bush is the incremental increases in the power of the Executive branch he has instituted. It seems fairly clear (at least to me) that ensuring that these increases remained after his Presidency has ended was his primary motivation in his Supreme Court appointments. Certainly, traditional "conservative" values (read: abortion) played a role, but I think that was more ensuring support from the traditional conservative base than any real priority of Bush's.

Several reviews of Alito's decisions have shown that he has a history of upholding government (particularly executive) action. Given the recent controversy over wiretapping, I expect this history to be a huge issue in the confirmation hearings. There are already rumblings about a filibuster (which could be interesting).

The ideal result from a spectator's perspective? Senate filibusters. President says "I don't care. 'Advice and consent' in the Constitution doesn't mean you get to have a vote. Alito is on the Supreme Court." Senate sues. We have a new Marbury v. Madison.