Is callous incompetence an impeachable offense?

Elizabeth Dale edale1 at bellsouth.net
Fri Sep 2 06:28:44 PDT 2005


To the best of my knowledge, recall is a result of Progressive Era, direct
democracy theories. The first examples come at the start of the twentieth
century. See the brief history here
http://www.ncsl.org/programs/legman/elect/recallprovision.htm 


Elizabeth Dale

Associate Professor, US Legal History, Department of History, 
Affiliate Professor of Legal History, Levin College of Law

University of Florida
PO Box 17320
Gainesville, Florida 32611

edale at history.ufl.edu
http://plaza.ufl.edu/edale
352-393-0271 ex 262


-----Original Message-----
From: conlawprof-bounces at lists.ucla.edu
[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of James Maule
Sent: Friday, September 02, 2005 9:23 AM
To: conlawprof at lists.ucla.edu
Subject: Re: Is callous incompetence an impeachable offense?

Some states use the recall process to deal with situations in which criminal
or other impeachable-type behavior is absent. Recall, though, poses risks of
its own. There is no provision, is there, for recall at the federal level. I
suppose the drafters had good reason? Or was recall a concept not yet on the
political landscape?

Jim Maule
Villanova University School of Law

>>> Mark Tushnet <tushnet at law.georgetown.edu> 9/2/2005 9:10:06 AM >>>
This sounds like "maladminstration" to me, which -- depending on one's

theory of the role of drafting history in interpreting constitutional
language -- might be ruled out as a permissible ground for impeachment.
 
On the facts hypothesized, though, I wonder how potent that sort of argument
would be in the political venues where it might matter.

James G. Wilson wrote:

>
>    Imagine a President, no longer ideologically in tune with the 
> times, who enrages and alienates over eighty per cent of the American

> populace due to numerous bad decisions, polarizing acts, an 
> inappropriate affect, and extraordinarily bad luck. To a large
degree, 
> he is the victim of the tendency of humans to blame their leaders
when 
> things go wrong.   His political opponents, including many who had 
> collaborated on numerous occassions, seek to impeach this President. 

> Many staunch supporters abandon the President, now a "Symbol of 
> Failure," because they fear the next election results.  The media
goes 
> into a predictable frenzy.   Let us also assume there has been no 
> criminal behavior: no burglaries, no perjury, no bribes.   Nor have 
> there been any personal moral failings, such as using one's power to

> sexually exploit employees.  Nevertheless, Congress rushes through an

> impeachment of this beleagured President. Was there an "impeachable 
> offense?"  Did the President somehow commit a "High Misdemeanor?"
> Should such a failure of leadership ever be an "impeachable
offense?"
>
>     If you agree with my long-held belief that the substance of 
> impeachable offense, like the process, is a nonjusticiable political

> question, then there seems little doubt that any Congressional 
> impeachment of a President, whatever the causes and motives, is
final. 
> And Congress, like the Supreme Court, sometimes has the power to 
> interpret/twist the Text.  Thus, the populace could conceivably put 
> enough pressure on Congress to make bungling an impeachable offense.

>    I am far more ambivalent about whether such acts warrant 
> impeachment.   Our constitutional system has been remarkably stable
in 
> large part because we have relied so much on the electoral process to

> change political leadership.  Yet there may be that rare moment when
a 
> President totally loses the confidence of the Nation; he or she no 
> longer has the "mandate of Heaven."  Also, the threat of impeachment

> is one of the few things that prevents a President from  being a 
> virtual emperor for four years.  One of the obligations of lawyers
and 
> judges is to overcome understandable hesitation and make a decision 
> about a particular issue.  I am fairly certain I would have voted to

> impeach President Johnson after the Civil War, so I am pretty sure I

> would go after a President who does not seem to have committed any 
> High Crimes and Misdeameanors, but has led the country into numerous

> disasters.
>
>  
>
>
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