The Bush monarchists think they have the Democrats in Congress snookered. They have denied that Congressional subpoena power applies to them, and managed (with the supine help of Chuck Schumer) to install an Attorney General who is prepared to defy the law on that and other points. They have denied that they are limited by the Congressional power of the purse: claiming the authority to spend appropriated funds for purposes the Congress has forbidden. The Democrats don’t want to force a government shutdown. And they don’t have the votes for conviction on impeachment in the Senate, even if they had the votes to impeach in the House.
So until January 20, 2009, the power of the President is limited entirely by what he thinks he can get away with. Of course no Constitutional order is binding if major institutional players (the White House, in this instance) refuse to abide by it and other players in what should be countervailing positions (the Republicans in Congress) block what should be countervailing action.
But there remains the resolution of censure. The House or the Senate independently, or both of them by concurrent resolution, could express the sense of the House, the Senate, or the Congress that one or more of the President’s claims are unconstitutional and that acting on them constitutes an impeachable offense, and censuring the President, by name, for violating his oath of office.
It seems to me that none of the objections to impeachment applies here. And it also seems to me that for every Democrat afraid to vote for such a resolution for fear of the voters’ wrath there will be at least on Republican who will have to vote for it, either for the same reason or out of respect for his or her own oath of office.
If hearings were held, I think it might be hard to come up with many law professors to defend some of the Bush claims, especially the lastest one about ignoring “no-funds” riders.
Now I could be wrong about this. Perhaps the leadership on each side of the Capitol has counted noses and decided it doesn’t have the votes. But if that isn’t true, or if some public pressure could produce the requisite votes, I think the resolution of censure would serve as a useful rebuke, an assertion of Constitutional principle, and a rallying cry for Democrats in November.