Strengthening Constitutional Self-Government

No Left Turns



Political scientist Carl Scott is justly furious at the grotesque hypocrisy of our unctuous clown of a Vice President, who argued that he would "lead an effort" to impeach a President who attacked another country unless the US was attacked or there was information that the US was about to be attacked.  Go ahead and watch the tape.  Soak in all the pompousness, the oozing self-love and the inflammatory partisanship.  Biden's comments are much uglier than Newt Gingrich's recent flip-flop on Libya.  Gingrich (regardless of what the polls say), is a long shot (potential) presidential candidate.  Biden is next in line for President. 

The resources for shaming Biden are few.  The news of his hypocrisy has made it all over the right-leaning media, but I'm not sure what good that does.  Could we possibly have more contempt for him or pray more earnestly for the continued good health of the current President?  We weren't voting for him anyway.  He doesn't care what we think and he already got his. 

It would take more than a bunch of speeches by Republican politicians and conservative pundits to get this story to break through.  Many liberal-leaning, but not explicitly partisan journalists will just call it another process story and wait for the next thing Sarah Palin says so they can jump on it.  On an emotional level, I think that a formal censure by the House of Representatives will end up giving Biden's hypocrisy the spotlight it deserves.  The censure could follow Carl's language about how "Hyperbolic perfectionist discourse has consequences. It means the presidency cannot logically function. It means slogans run rough-shod over actual constitutional thinking."  and name Biden by name as an offender and single him out for the damage his radicalism, hypocrisy, and partisanship do to constitutional thinking and civil discourse.  

A little accountability in this direction might put future "serious" presidential and vice presidential contenders (very much including Republicans) on notice that their past statements will be remembered and held against them if they should become President or Vice President.  So some moderation or timely admission of error would be a good idea if they want to avoid congress-imposed humiliation.

I'm only half serious.  I'm not sure that the energies that could be used in such a fight wouldn't be better used elsewhere (like making the case for market-oriented health care reform, or Yuval Levin's reimagined welfare state.)  Then again, that elsewhere will probably end up being something like the fight to end government subsidies to NPR (which  I agree with, but at a low level of priority.)  So maybe censuring Biden is the way to go.     

Categories > Politics

Discussions - 10 Comments

Let Biden talk. Put him on The View (he would fit in well) and let him talk talk talk. The more exposure the better.

Like the saying goes: The First Amendment protects free speech - it does not, however, protect one's right to make a complete imbecile out of themselves.

Go Joe Go...

Thank you , Pete!

Eggheads like me usually underrate repetition. So here are my key points:

Biden said this, thinking of the possibility of an attack on Iran, in 2007: "I teach separation of powers and constitutional law. This is something I know. So I got together and brought a group of Constitutional scholars together and write a piece I’m going to deliver to the whole United States Senate in pointing out the president has no Constitutional authority to take this nation to war against a country of 70 million people unless we’re attacked, or unless there is proof that we are about to be attacked. If he does, I would move to impeach him. ... I don’t say it lightly, I don’t say it lightly."

Many Americans and not a few conservatives think the constitutional reasoning here is correct. I don't.

But regardless of what any of us think on that issue, we can agree that Joe Biden must either a) admit he was wrong to say that, or b) demand Obama's impeachment.

There is no third possibility.

Ah, but note that Biden said "take this nation to war against a country of 70 million people unless we're attacked." Libya has a population of fewer than 6.5 million.

In fairness, Libya does not have 70 million people so maybe Crazy Joe can say that makes the difference constitutionally.


Fantasy Congressional Hearing Questioner: Vice President, in 2007 you said that if George W. Bush attacked Iran without prior Congressional approval, and this without Iran first attacking us or preparing an imminent attack, that that would merit impeachment.

Vice President Biden: Yes.

FCHQ: And you when you reaffirmed this statement, you did so by emphasizing your teaching expertise about how the Constitution arranges the separation of powers. May we assume that you did so because you judged that Bush would have violated the Constitution had he attacked Iran in the manner you sketched?

Biden: Yes.

FCHQ: And this violation of the Constitution, of a rule that can be derived from the plain intent of the Constitution’s provisions on war powers, is precisely the reason why Bush, had he done this, should have been impeached?

Biden: Yes.

FCHQ: But had Bush done this, he would not have committed “treason, bribery, or high crimes and misdemeanors,” and that’s what the Constitution says impeachment requires.

Biden: Well, the president takes an oath to “preserve, protect, and defend” the Constitution, and the Founders spoke of impeachment as a final check wielded by Congress to make sure a president did not violate the Constitution . This applies particularly in cases, like this hypothetical one, where no process through the courts nor through the legislative branch could check an unconstitutional action of the president.

FCHQ: So a violation of the Constitution by a president, particularly regarding the initiation of war, should be impeached by Congress?

Biden: Yes.

FCHQ: So it is clear that you did not mean that only in that particular situation, where a nation as populous as Iran might be the object of attack and where the president was already engaged in a controversial war as Bush was, would it be necessary for Congress to impeach a president who violated the rule that Congress must approve ahead of time any military attack, excepting of course cases requiring immediate self-defense against an attack, or immediate action to prevent an imminent attack?

Biden: Well…my words of 2007 must be understood in the context of 2007, when there were many factors that had to be considered, particulars related to the past conduct of the Bush administration…

FCHQ: Would the Bush have violated the Constitution if he had attacked Iran in such a scenario without prior congressional approval, or would he not have?

Biden: He would have, he…

FCHQ: He would have violated a rule, a rule that governs constitutional conduct, right? So your answer is yes.

Biden: Yes.

FCHQ: A rule is not a rule if does not apply to similar actors in similar situations, correct?

Biden: Correct. But if I may…

FCHQ: And President Obama has violated this rule, since he has attacked a nation without congressional approval, and without the excuse of the self-defense rationale?

Bad Faith. I am not missing OSU v. Kentuky to rebut bad faith. Go Bucks!

Carl and John, I think that an email I just got from the VP clears things up.

"I would like to thank Dr. Moser for explaining an important constitutional principle and that reminds me that I used to teach the Constitution and separation of powers. Dr. Scott does not understand the nuance through which the separation of powers and the Constitution must be applied. A bombing campaign against Iran, without congressional authorization, when the US had not been attacked and where there was no imminent threat of being attacked would be an impeachable offense. As Dr. Moser (can I call you John? thanks, God love you) points out, Libya might be a sovereign country but it has a population of less than seven million. That means that congressional authorization for bombing is not constitutionally required. Take it from me, I was on the Senate Judiciary Committee and I got a group of scholars to say that President Bush should be impeached if he bombed Iran. The rule is pretty simple. Does the President need congressional permission to bomb Iran. Yes! And if he bombs Iran without permission he should be impeached. Does the President need congressional permission to bomb Libya, Slovakia, Latvia, El Salvador, or Ireland or all of them at once? No. I'm not saying it would be wise, I'm just saying it isn't an impeachable offense.

"I also think that this discussion is missing a sense of reality that our Founders had and I learned from studying them with my old Judiciary Committee friend Strom Thurmond. We have to interpret the Constitution in light of events and circumstances. When I first made my comments about Iran, we had a President whose last name started with B. Now we have a President whose last name starts with... oh God love you, you know what I'm trying to say."


Biden: Again, impeachment is a general weapon that Congress is given to check against the abuse of presidential power. So that check is used at Congress’s discretion and judgment regarding the overall context, the overall behavior of a particular president.

FCHQ: So the population of the nation would not matter in terms of whether the constitutional rule is violated or not?

Biden: What? No. That would not matter. But it’s not just a rule that’s being applied. It’s an overall judgment.

FCHQ: You said that Bush would have violated a rule if he had done what Obama has now actually done. And you said that the violation of that rule would be the reason to impeach. But now you say that BOTH an overall judgment of the president’s relation with Congress is AND a violation of the Constitution is needed before a president should be impeached. So I ask you, how many violations of the Constitution by a president are required to impeach him if his relations with Congress are good?

Biden: It can’t be a matter of number, it…

FCHQ: But evidently one violation is okay, since you do not call for the impeachment of President Obama. So are two violations okay, if in the Congress’ judgment, the president is not, in the overall context of events, threatening the separation of powers? Yes or no?

Biden: What sorts of violations?

FCHQ: Precisely the sort of violation you indicated--a president attacks a nation without prior congressional approval, unless the self-defense exception applies. And what I’m asking is how many times, given good relations with Congress, a president might commit this violation without having to be impeached? Twice?
Once? No times at all?

Biden: This is all ridiculously hypothetical, but it would be the judgment of the particular Congress.

FCHQ: So the judgment would be about how many violations are to be tolerated, and you can’t say without the particulars of the historical context. In some cases the judgment would be none, in others one, in others two, and so on. But the judgment is not deciding whether such an attack as you’ve described would be a violation of the Constitution? That is a distinct and settled issue, right? You agree that both the hypothetical Bush attack and the actual Obama attack violated the Constitution?

Biden: No.

FCHQ: Oh. So Bush would NOT have violated the Constitution had he attacked Iran without congressional approval? And you admit that you were wrong to say this?

Biden: No, no, no, he would have violated it--the point is given his other actions of questionable conduct, this would have been a violation. The idea that without congressional approval, a president could engulf is in a war with one of the Middle East’s key nations, a war with no conceivable end, was and remains intolerable, and I...

FCHQ: But you admitted that population is irrelevant as to the constitutional question. Obama’s strike against Libya is not constitutional because it’s a smaller, less-important country. Correct? There is some OTHER REASON why it is constitutional and Bush’s hypothetical attack wouldn’t have been.

Biden: …I don’t see…

FCHQ: What is that reason?

Biden: …I don’t see why I have to listen to this nonsense…

Fantasy Chairman: Vice-President, this is a Fantasy Congressional Hearing, and different rules apply. You are obliged to not duck out of questions. (Stay tuned for part III!)

FCHQ: So what is the reason, Vice-President? [silence] …and please don’t tell us that it is determined by the overall context, because you earlier agreed that the contextual judgment about a number of presidential actions, with not any one of them by itself rising to the level of a clear violation of the Constitution, is something distinct from the constitutional violation in question here, regarding attacking a nation without congressional approval. You deny that Obama has committed this violation. So we need to hear the reason, the non-contextual and purely constitutional reason, why Bush’s hypothetical action, identical in its basic elements to Obama’s actual one, could have been a violation of the Constitution if Obama’s is not.

Biden: [inaudible]

FCHQ: You don’t have that reason? [silence] …Vice-President, are you now ready to admit that you spoke incorrectly in 2007? Or, are you now ready to admit that you must call for the impeachment of the President? You do see now that there is no third possibility, correct?

Biden: No, I do not accept your framing of things...

FCHQ: So you don't...

Biden: ...but I want to stress that I spoke in a general way, probably not carefully enough, and I do understand now how some persons, given the heat of our partisan media environment, could misunderstand my meaning.

FCHQ: Okay. Let’s re-read your statement then, line by line, and you indicate precisely which clauses, phrases, or words of what you said were unclear and open to various interpretations. Okay?

Summary Conclusion: The hearing goes on from here, with a long and tedious cross-examination about how Biden’s 2007 statement could possibly be taken to imply that an overall “contextual” or “political” judgment leading to calls for impeachment was what he meant to convey. Biden eventually admits this was “almost entirely” missing from his statement, and that the statement was “to that extent incorrect,” but that “no intention to deceive the American people” was involved. After even more tedious back-and-forth, in which much is made by Biden of his having a “personal opinion” on the matter that others in Congress and the President might not agree with, Biden admits that he will need to re-examine his opinion that an (non-imminent danger) attack without congressional approval is always unconstitutional, and that if he does not change his mind about this opinion, “propriety would require” that he resign from his post.

The End.

P.S. My thanks to our Fantasy Vice-President for his patriotic willingness to publicly answer questions about his own "not lightly said" words.

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