Our problems remain epistemological.

Wednesday, August 11, 2021

Buchanan, Cuomo, the Failure to Enforce the Law, and Impeachment (Updated)



            President Buchanan is usually rated the worst or among the very worst of our presidents. That view is not an entirely modern one. He was not well loved by the largest part of northern Unionist sentiment during the American Civil War. Yet, there was no serious move to impeach him while he was president or after Lincoln succeeded to the presidency. (Albeit, one reason for the latter is that the issue of late impeachment always would complicate the analysis.) With the departure of all southern Democrats from the House and all southern Democrats (Senator Andrew Johnson excepted) from the Senate, impeachment by the House should have been a snap, even if securing a Senate conviction would not have been entirely certain. One wonders: Why was Buchanan not impeached?

            What did President Buchanan do wrong? One thing: during secession, he did next to nothing. Buchanan was unwilling to use force—particularly the U.S. Army and Navy—to enforce U.S. law in states which had seceded, to protect federal judges and other U.S. officers in carrying out their lawful duties in states which had seceded, to protect federal enclaves and property in states which had seceded, and to stop the formation of the confederate government in violation of U.S. law.

So why was President Buchanan not impeached for failing to enforce the law, and for failing to defend the country, etc, etc?

·     Because at each step, there was the hope that there would be a change of political opinion in the confederate states (albeit, a forlorn hope) …

·     Because at each step, there was the fear that moves by the U.S. military to compel obedience to the law would be perceived as an invasion, and consequently push the border states towards secession (which is what happened) …

·      Because at each step, there was the view that a civil war would be costly in treasure and lives (resulting in over 750,000 dead and wounded) …

·       Because at each step, many believed that victory was not assured (and, is there any doubt of that point?) … and,

·     Because at each step, it was believed that if disunion came, if it came amicably, then in the future reunification remained a real possibility (and, who can say if this position was an unreasonable one to take?).

I do not suggest that Buchanan was right and that Lincoln was wrong. But one reason we think Lincoln was right is because by 1865, he and the armed might of the United States prevailed. But in 1861, after Fort Sumter and until Gettysburg, Sherman’s taking Atlanta, and the election of 1864, it was hardly clear that the Union would prevail.

Buchanan’s efforts, such as they were, were grounded in a moral vision and policy choice. It may be a policy choice that you and I disagree with. But that sort of choice is part of normal politics—albeit, normal politics (including wartime politics) where the issue on the table is the continued existence of the nation itself.* That is what elections are meant to decide. Buchanan’s inaction violated no statute. Buchanan did not take a bribe or act for self-interested ends. Here the President had lawful discretion if and when to use force. He acted in a disinterested manner; he was fully informed. His actions were transparent—albeit, objectionable to many (including me and, maybe, to you too). If a retrospective inquest can convert inactivity into a constitutional “high crime and misdemeanor,” then the latter language is emptied of all substantive content.

Indeed, all law enforcement officers face Buchanan’s choice. In every law enforcement action, there is always a question of if, and when, and how much lawful force should be used, and how long (if at all) enforcement can and should be delayed. It is precisely because that question is always a judgment call (where not guided by statute or other positive law) that we have no history of impeaching officers based upon a retrospective investigation and trial—conducted by subsequently elected officials seeking to vindicate different values and goals—which reaches a different conclusion than that which had been reached by the original officeholder as to what precisely was best policy ab initio.

This is the fundamental danger of all the recent loose discussion about “abuse of office.” It is a vague standard which, when misapplied, converts normal democratic disagreement, where elected officials must make decisions in real-time based upon imperfect information, into trials and then seeks to disqualify political opponents.

Let’s apply this standard to Cuomo.

If Cuomo broke positive law by retaliating against women who had lodged complaints about his behavior, then those retaliation-related allegations (if true) could supply a good basis for impeachment. The COVID19 allegations are entirely different. If Cuomo chose poorly (as we now understand it) in sending elderly patients with COVID19 into nursing homes, but did so acting on the information before him and for disinterested ends (i.e., in the narrow sense of not taking any bribes), then that is a reason for voters (if they so choose) to boot him out of office, but not for the legislature to impeach. Otherwise, you are converting impeachment into an ongoing legislative vote of no confidence. This might be an arguable possibility under the New York Constitutions impeachment provision because it lacks any express “high crimes and misdemeanors”-language limiting legislative discretion in the impeachment context. And, it is precisely for that reason that any such vote of no confidence (masking as an impeachment vote) would make no sense under the federal constitution ... because under the federal constitution impeachment is limited to “high crimes and misdemeanors.”

Seth Barrett Tillman, Buchanan, Cuomo, the Failure to Enforce the Law, and Impeachment (Updated), New Reform Club (Aug. 11, 2021, 12:42 PM), <https://reformclub.blogspot.com/2021/08/buchanan-cuomo-failure-to-enforce-law.html>; 

*Consider the U.K.s 2016 Brexit referendum and Scotlands 2014 independence referendum—both normal democratic politics.


MEC2 said...

This is a very important issue and is finally summed up in the "vote of no-confidence" - which is not something we want introduced into the American system of government. The system already favors the legislative branch and the Democrat impeachments of Trump are already a noxious step toward no-confidence usurpation of an elected executive. The bar for impeachment is high and should remain so, steps toward empowering the legislature to remove the elected executive on policy grounds should be resisted and rejected outright.

Mark said...

Excellent article although I would add two points.

First, with respect to the nursing home issue there were significant grounds for impeachment in that there is evidence that the governor's staff covered up the debacle and manipulated the statistics/information to cover up the mistake. Since impeachment is a political "crime" process, what is often the grounds for impeachment is not the policy decision itself, but the activities surrounding the policy once that becomes a poor political choice.

Second, since impeachment is a political process, not a legal one, there needs to be certain levels of egregious mistakes that if the political officer does not chose to resign, then impeachment is an option to remove. Such conduct would require more than a bare majority such that "impeached" Trump, and that is why actual removal requires 2/3 vote. The conduct must be uniformally agreed across the braod political body.

edutcher said...

Here's another Because; because nothing in the Constitution forbids secession.

In fact, the Federalist Papers mention secession as the court of last resort against a tyrannical government.

Heartless Aztec said...

There is a reason why ZERO Confederates - From President Davis to the lowliest Confederate State office holder - were not brought to trial for the charge of treasonous secession. The Black Republicans (Thaddeus Stevens, etc al.) were aware that the Supreme Court under Chief Justice Taney might well rule against them - that secession was not treasonous. Best leave the dead and wounded on the battlefield and move on.

Heartless Aztec said...


DWPittelli said...

Edutcher, is this not correct?

"The only reference to secession rights that I found in “The Federalist Papers” occurs in Hamilton’s Number 58, where he weighs against a requirement of super-majorities for passing legislation: “… it would facilitate and foster the baneful practice of secessions; a practice which has shown itself even in States where a majority only is required; a practice subversive of all the principles of order and regular government; a practice which leads more directly to public convulsions, and the ruin of popular governments, than any other which has yet been displayed among us.”


jimb82 said...

I agree with Mark. The coverup is the crime, not the lethally bad policy decision.