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Prorogation And Impeachment

Boris Johnson and Donald Trump seated before U.K. and U.S. flags.
British Prime Minister Boris Johnson and U.S. President Donald Trump at the United Nations Headquarters on Sept. 24, 2019. Photo by Shealah Craighead, courtesy The White House.

A few hours and an ocean apart, the world’s two oldest English-speaking democracies entered constitutional crises yesterday – in ways that underscore the value of having a Constitution consisting of words on paper.

In Washington, House Speaker Nancy Pelosi unilaterally declared that the separate work of six House committees now constitutes a formal inquiry into the potential impeachment of President Donald Trump. Her announcement was a departure from past practice, in which the House formally voted to launch impeachment inquiries regarding Presidents Richard Nixon and Bill Clinton.

It is not clear that a resolution to launch such an inquiry would pass the House right now, despite widespread and increasing Democratic support for impeaching Trump following revelations that he delayed military aid to Ukraine and then urged that country’s president to launch a corruption investigation of Trump’s potential re-election challenger, former Vice President Joe Biden. Only about two-thirds of Pelosi’s caucus has come out in favor of impeachment as of this writing. Others may prefer either to leave Trump’s fate to next year’s voters or to sidestep the question to protect themselves in districts that favor the president. Without Republican support for impeachment, such a measure would likely fail today.

But under the Constitution, each house of Congress can make its own rules for conducting its business. Pelosi can call her chamber’s work pretty much anything she likes, as long as her Democratic majority goes along. Regardless, Trump will complete his current term just like the two previously impeached presidents – Andrew Johnson in the 19th century and Clinton in the 20th – unless a majority of the House approves articles of impeachment and the Senate, after a trial in that chamber, votes by a two-thirds majority to remove Trump from office.

Another feature of our Constitution is the clear separation of powers between executive, legislative and judicial branches of government. Don’t try to run a superpower without it. Our constitutional machinery is so well-oiled that even when our country is immersed in conflict within or between branches (or, at the moment, both), it still functions with a high degree of effectiveness.

An example: War broke out in the Middle East in October 1973 just as congressional investigations of President Nixon were gathering steam. At one point, the conflict now known as the Yom Kippur War threatened to either draw in the United States and the Soviet Union, or to induce Israel to deploy the nuclear weapons it has never officially acknowledged that it owns. The embattled Nixon administration still managed to quickly assemble an airlift to resupply the Israelis and turn the tide in their favor. Later, after Israel rallied to threaten Egypt’s Third Army with annihilation – which the Soviets were prepared to try to prevent – Nixon and Henry Kissinger persuaded Tel Aviv to accept a cease fire.

Even if Trump were to be impeached and removed, our government would continue to function throughout the process. His replacement, Vice President Mike Pence, is on call to step into the Oval Office. We always have one chief executive, and only one at a time.

Across the pond in London, there is no such clarity. Members of Parliament are reconvening today after the United Kingdom’s Supreme Court yesterday declared the “prorogation,” or suspension of Parliament, to be unlawful, null and void. The prorogation was previously set to run from Sept. 9 to Oct. 14.

There is no specific part of the country’s constitution that was violated, because the U.K. has no written constitution. Over there, constitutional law consists mainly of custom, practice and legislation that has accumulated since the Magna Carta was forced upon King John in 1215. In the centuries that followed, the power of the British sovereign gradually was transferred to Parliament, mainly to the popularly elected House of Commons.

Britons do not directly vote for a prime minister. They vote for a local MP (member of Parliament) knowing that the leader of the front-running party is likely to be the next occupant of 10 Downing Street. Elections must be held at least every five years, but they can be called sooner if the government loses a no-confidence motion or if a two-thirds majority of Parliament agrees.

Queen Elizabeth II reigns, but does not rule. Her role in politics is limited to following the advice she receives from Parliament via the prime minister. While the prorogation was officially called by the queen – suspending Parliament is a vestigial power of the sovereign – she did it on the advice of Prime Minister Boris Johnson, as custom requires.

Prorogation of Parliament is ordinarily legal, and even routine. It is usually done for several weeks leading up to the government’s presentation of its legislative program in a ceremony known as the Queen’s Speech, which is exactly what it sounds like. Johnson said this year’s longer-than-usual prorogation would have served the same purpose. However, it was widely seen as a political maneuver designed to prevent Parliament from further undermining Johnson’s goal of taking Britain out of the European Union on Oct. 31, the currently scheduled date.

An American president’s political motivations would typically be irrelevant in deciding a court case. Our system, for the most part, looks at whether a president has the power to do something, not the reasons why he did it. But the U.K. high court took a different approach. “The decision to advise Her Majesty to prorogue Parliament was unlawful because it had the effect of frustrating or preventing the ability of Parliament to carry out its constitutional functions without reasonable justification,” the court’s president, Brenda Hale (known over there as Lady Hale or Baroness Hale of Richmond), said in delivering the ruling.

What’s next for Britain? Nobody really knows. By custom, a prime minister in Johnson’s position would resign, but nothing in writing says he must. Impeachment is technically within British law, but it is so disused that a parliamentary commission has declared it obsolete and not even worth formally repealing.

Parliament has already passed legislation to force Johnson either to get a Brexit deal approved by lawmakers or to seek a further three-month extension. But there is no obvious mechanism to stop him from making such a request while winking and holding up crossed fingers. It would take only a single EU member nation picking up on that hint to block such an extension. At that point, the U.K. might very well leave the bloc without a deal on Oct. 31, regardless of what the reconvened Parliament does.

Britain’s government is presently in a state of gridlock far worse than ours. From an American perspective, this is largely due to the merging of executive and legislative functions in Parliament, with neither a clear separation of powers nor a set of clearly defined boundaries over the prerogatives of each governmental function. Our written Constitution gives us both. We owe a great debt to the foresighted people who created it.

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