John Jefferson
The word “impeachment” conjures up different associations to different generations. For Boomers, it may bring back memories of the Watergate era. For those of my vintage, impeachment recalls the tawdry tale of Clinton, Lewinsky, and the Blue Dress. Younger Americans, while only dimly aware of what is happening in the world outside their devices, may all the same have some notion that the incoming president, Mr. Donald Trump of Queens, New York, was twice impeached during his first term in office. And of course there is the very first impeachment, that of Andrew Johnson, who escaped conviction in the Senate because the act he was accused of violating, the Tenure of Office Act, was itself unconstitutional.
One will note, however, that none of these impeachment efforts concerned the constitutionality of America’s misadventures abroad, the wars (or “police actions”) waged in the absence of a Congressional declaration as laid out in Article 1, Section 8, Clause 11 of the U.S. Constitution.
Alexander Hamilton wrote that
“the Congress shall have the power to declare war”; the plain meaning of which is, that it is the peculiar and exclusive duty of Congress, when the nation is at peace, to change that state into a state of war.
And that was the way things worked—for the first half century of the nation’s history.
Yet new and vital scholarship by the constitutional scholar and attorney Bruce Fein shows that beginning in 1845, presidents began to act unilaterally on matters of war and peace, and in the intervening years have committed 169 impeachable offenses. Fein’s work helps shed new light on the origins and the perpetuation of the American national security state, underscoring the urgency of restoring the separation of powers, and the imperative of the legislative branch reasserting its constitutional prerogative in foreign affairs.
Fein, who served as associate deputy attorney general under President Ronald Reagan, is vice-chairman of the Committee for the Republic, a Washington, DC non-partisan nonprofit organization founded in 2003 in opposition to Bush and Cheney’s bulldozing of the Constitution in its rush to war with Iraq. It seeks to restore the constitutional balance in the practice and formulation of American foreign policy.
At a presentation at Washington’s Metropolitan Club in late December, Fein made the case that America’s path to global hegemony was paved by scores of unconstitutional decisions by U.S. presidents going back to James Polk. According to Fein, Polk committed two impeachable offenses relating to the Mexican–American War. The first was his decision to annex Texas by statute after the U.S. Senate had rejected the annexation treaty, thereby violating the Treaty Clause; the second was his decision to lie Congress in order to steer the county into a war with Mexico. In his widely hailed memoir, U.S. Grant, a veteran of that campaign who would go on to become one of the few subsequent presidents to have not committed an impeachable offense, wrote,
For myself, I was bitterly opposed to the measure and to this day regard the war, which resulted, as one of the most unjust ever waged by a stronger against a weaker nation. It was an instance of a republic following the bad example of European monarchies, in not considering justice in their desire to acquire additional territory.
Fein has found that beginning in 1845–46, both Democratic and Republican presidents have committed serial constitutional violations, and, as Congress repeatedly failed to use its impeachment power, the president accumulated extra-constitutional power. The Impeachment Clause was to serve as the ultimate check on the Executive; Benjamin Franklin viewed impeachment as a necessary substitute for tyrannicide. But no longer. As John Henry, the Committee’s founder and Chairman, notes “the greatest crisis in American history is this breakdown of separation of powers.”
So, who have been the offenders? The breakdown is pretty evenly split by party; Fein found that Democratic presidents have committed 83 impeachable offenses, the Republicans 87. Fein’s compilation clearly shows that the worst offenders have been our most recent presidents. Nixon, as one might expect, tops the list with 16. What one might not expect (but can hardly be surprised by) is that Joseph R. Biden joins Nixon atop the leaderboard. George W. Bush and Donald Trump each committed 15, while President Obama, according to Fein, committed 14.
Not surprisingly, the records of our most recent presidents are littered with constitutional violations having to do with our misadventures in the Greater Middle East, as well as with efforts by the Executive to stifle dissent by targeting journalists and whistleblowers with the Espionage Act.
Fein’s account of the Biden administration is particularly alarming and includes the initiation of an illegal war against Iran; our co-belligerency with Israel in a war in Gaza and the West Bank; co-belligerency with Israel in a war against Lebanon; co-belligerency with Ukraine in a war against Russia; and an illegal war against Yemen—all in the absence of a congressional declaration. Still worse, perhaps, has been the supine reaction by the Congress to this most recent series of Executive overreach.
Fein’s authoritative work on the breakdown of the separation of powers deserves wide attention, especially on Capitol Hill, whose denizens need a reminder that their neglect of these matters has helped create the imperial presidency we now have today.
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