Fixing America: Replace Impeachment with Vote of No Confidence

By Benjamin M. Adams, July 3, 2017   @BenAdamsO_O

America needs to scrap the impeachment process and replace it with a simple no-confidence vote that will trigger a new election. This idea came to me by confluence of witnessing the British elections while concurrently trying to process the fact that Donald Trump is only six months into a 48 month term of office. It was an accidental mental mashup, like the old TV commercials for Reeses’ Peanut butter cups. Designing a better electoral system is somewhat more complicated than candy and will require more than mere happenstance.

By now, most of us have realized that impeachment is a purely political process. A president can only be impeached for “High Crimes and Misdemeanors.” However, the Framers of the Constitution left us no definitive guidance as to what constitutes either. Moreover, the Supreme Court is never going to define it for us due to political question doctrine and related issues of justiciability. For all practical purposes, an impeachable offense is whatever Congress says it is. In that sense, the impeachment process is faux-adjudication. It is politics masquerading as a criminal proceeding with an indictment by the House and a trial in the Senate.

Impeachment leaves America with a president who didn’t run for the office and wasn’t elected to it. If Trump were to be impeached, Pence would be POTUS for the remainder of the term. At the very least, Pence was on the ticket, which hasn’t always been the case. When Nixon resigned under the threat of impeachment, Gerald Ford completed his term, and Ford wasn’t even on the ticket with Nixon in 1972. (He had replaced Vice-President Spiro Agnew, who resigned under a cloud of corruption.) So impeachment should be disfavored because it leaves America with an unelected President. It also leaves the U.S. without a vice-president, at least temporarily. These are sub-optimal results, to say the very least.

Deeper problems exist with using the 25th Amendment to replace a president. Taking action under the 25th Amendment involves a vote by a small number of unelected and relatively obscure officials and would lack legitimacy in all but the most obvious and extreme conditions. So while America has two paths for replacing a president, neither of them is sound and neither is consistent with democratic principles. The solution to this problem is fairly simple: When America finds itself with a president who is corrupt, mentally unstable, or grossly incompetent (or perhaps all three), then a vote by the House and Senate should be sufficient to trigger a new election.

The benefits of this approach are fairly obvious. When America is best-served by replacing a sitting president, it should be, to the maximum extent possible, the product of democratic processes. Congress consists of popularly-elected representatives of the people.  A super-majority vote — 50% in the House and 67% of the Senate — is currently required to impeach a President. This is why I prefer impeachment immeasurably when compared to taking action under the 25th Amendment: It reflects the will of the people as expressed by their representatives, and it also preserves accountability since those voting for and against impeachment will eventually face the voters if they wish to continue serving.

I dislike requiring a higher threshold in the Senate than in the House. My preferred formulation would be that a vote of 60% of the House and 60% of the Senate should be sufficient to trigger a new election. Moreover, the new election should be a do-over of the last election. This means, every House seat is up for grabs and same for 1/3 of the Senate. This will prevent any given political party from gaining control of the Congress and then immediately impeaching the president. If they do so without deep public support, such improvidence will lead to the loss of its treasured majority status. In other words, Congress will have lots of skin in the game, so they are unlikely to abuse their no-confidence power. For that reason, I would be entirely satisfied with a simple majority vote triggering a new election.

A number of other benefits would accrue from this change. We dispense with the phony formalism of “High Crimes and Misdemeanors,” which has no discernible legal meaning. We replace this Constitutional pretense with an honest, “Ooops. We made a mistake at the last election.” We further dispense with the Senate “trial,” which holds no value whatsoever. Does anybody honestly think that the Senate vote on President Clinton’s impeachment would have changed if there had been no trial? The impeachment trial is America’s only “show trial.” For those unfamiliar, show trials have a very bad history across the world and are still embraced today in illiberal states. With the elimination of the trial, we also eliminate the participation of the judicial branch in a process that has always been purely political anyway.