Can Congress Fire Rumsfeld?

By MICHAEL C. DORF

Wednesday, Sep. 13, 2006

With the midterm election season upon us, and public opinion turning against the conduct of the Iraq war, Democratic candidates and, to a surprising degree, many Republicans too, are using Secretary of Defense Donald Rumsfeld as a campaign issue. The charges include going to war with insufficient troops, bungling the occupation, and failing to articulate a realistic exit strategy.

Attacking Rumsfeld permits those incumbents who voted to authorize the use of force in Iraq to stand by that initial decision, while simultaneously taking advantage of the shift in public opinion. For Democrats, Rumsfeld makes an attractive target because of his repeated insensitivity--from dismissing soldiers' complaints of inadequate armor to, most recently, comparing his critics to appeasers of Nazism. Republicans, meanwhile, can criticize Rumsfeld without directly criticizing President Bush.

But what, other than winning their elections, do Rumsfeld's critics actually want? Mostly, they have called for his resignation. However, so long as the Defense Secretary enjoys the support of President Bush, he will not likely resign. And given the President's stubborn streak (or, more charitably, his loyalty), criticism of Rumsfeld may only stiffen Bush's resolve to stand by Rumsfeld. Thus, the calls for Rumsfeld's resignation could amount to little more than political posturing.

But suppose Rumsfeld's congressional critics really do want him replaced. Under our Constitution, can they fire him without the President's acquiescence? The answer is yes, but only by taking one or the other of two highly controversial steps: They can impeach and convict him for war crimes (or some other offense), or they can abolish the office of Secretary of Defense entirely.

The Senate Confirms Cabinet Members, so Why Can't it "Unconfirm" Them?

The Constitution specifies the procedure for hiring high-ranking executive branch officials, which it calls "principal Officers." The President chooses such officials with the "Advice and Consent" of the Senate. From the early days of George Washington's Administration, this language has been understood to mean that the President nominates candidates for high office, who then take their positions if confirmed by a majority vote of the Senate.

Curiously, however, the Constitution makes only one express provision for the removal of executive branch officials: "Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors." Nowhere does the Constitution specify how, or even if, an official can be removed for incompetence, policy differences with the Administration, or other considerations that impair the official's ability to do his or her job.

Nonetheless, in order for the government to function smoothly, there must be some way to remove appointed officials, should they frustrate the aims of government in ways that don't qualify as impeachable offenses. A key question then arises: Who--the President, Congress, or some combination of the two--decides when to remove an executive official by means other than impeachment?

If we look only to the text of the Constitution, we might think that either the President or a majority of the Senate should be able to remove a principal Officer. After all, if it takes both the President and the Senate to hire a Principal Officer; why not allow either the President or the Senate to fire an Officer who loses either's confidence? On this view, a Principal Officer could be ousted either by the President acting alone, or by a simple majority vote in the Senate.

Presidents do have the power to fire executive officials (subject to some limits not relevant here), but the Senate does not. The core issue is one of separation of powers.

Executive branch officials carry out policies under the supervision of the President. While Senate confirmation at the beginning of their terms plays an important role in screening out those ill-suited for their important duties, the constant threat of removal by the Senate (or the House and Senate acting together) would make executive officials answerable to Congress (as well as the President).

There's nothing inherently wrong with legislative supervision of executive officials. That's how parliamentary systems generally work. But as evidenced by the Constitution's articulation of separate powers for the legislative, executive and judicial branches, the Framers quite clearly rejected the parliamentary model in favor of separation of powers.

Accordingly, the Supreme Court held in the 1986 case of Bowsher v. Synar that Congress may not delegate executive power to an official whom it retains the right to fire. Thus, neither the Senate nor Congress as a whole can dismiss Rumsfeld by simply "unconfirming" him.

Impeachment Is Possible - But What Would the Charge Be?

The most straightforward way for Congress to remove Secretary Rumsfeld would be via impeachment by the House and conviction by the Senate. To do that, however, would first require a charge. At least two possibilities come to mind.

First, Rumsfeld could be impeached for committing war crimes. As Justice Kennedy pointedly observed in his concurrence in this year's decision in Hamdan v. Rumsfeld (note the identity of the defendant!), federal law makes it a crime to commit a "grave breach" of common Article 3 of the Geneva Conventions, mandating humane treatment of captives. Abuses at Guantanamo Bay, Abu Ghraib, and in secret detention centers elsewhere (the existence of which the President admitted last week) may well constitute violations of this law; indeed, under the relevant federal statute, those cases that resulted in captives' deaths could result in the imposition of the death penalty on the persons responsible. If Congress determined that Secretary Rumsfeld knowingly authorized these abuses, that would certainly qualify as a "high Crime" and thus as a constitutionally-permitted basis for impeachment.

Second, and more controversially, Secretary Rumsfeld might be impeached and convicted for his role in hyping the case for war with Iraq. Since the impeachment (but not conviction) of President Andrew Johnson, scholars and even politicians have come to accept that mere policy disagreements with an executive official do not constitute a valid ground for impeachment. Granted, the courts would probably not overturn a judgment by Congress that some charge did qualify as an impeachable offense, but Congress itself would be constitutionally obliged to determine whether the charged offense so qualified.

Nonetheless, the consensus that policy disagreement alone provides no basis for impeachment, does not extend to deliberate malfeasance of the sort that many of Rumsfeld's critics charge. Such wrongdoing, to the contrary, may well be grounds for impeachment.

Suppose, for example, Congress concluded that Rumsfeld deliberately suppressed evidence that Saddam Hussein lacked weapons of mass destruction or ties to al Qaeda, while inflating or inventing evidence that he had such weapons or ties. Lying to Congress, whether or not under oath, is a crime, but even if Rumsfeld merely deliberately misled Congress and the American people, that in itself may be impeachable.

To subvert the constitutional process for decisions about such a vitally important matter as whether to go to war, is surely a sufficiently grave misdeed as to qualify as a "High crime," whether or not literally prohibited by the criminal code.

Consider our most recent congressional precedent: Lying to a grand jury about an extramarital sexual liaison may or may not qualify as an impeachable offense, but surely if it does, as nearly all Republican members of Congress concluded during the Clinton impeachment, then deceiving Congress and the American people into a bloody and costly war should certainly be impeachable.

Eliminate the Office and the Officer Goes Too

Congress may have one other, highly controversial, method for removing Secretary Rumsfeld. It could simply abolish the office of Secretary of Defense.

The Constitution mandates only two executive branch officials: The President and Vice President, and the latter's only constitutionally assigned duties are to break ties in the Senate, and to assume the Presidency in the event of the President's death or incapacitation. To be sure, the Constitution mentions "Heads of Departments," but it does not specify what departments there will be. Congress creates departments and their heads, and Congress can also destroy them.

For example, until 1979, there was a Department of Health, Education and Welfare. Then Congress abolished the department and, effective in 1980, split its former responsibilities among the Department of Health and Human Services and the Department of Education, each headed by a Cabinet-level Officer. The Department of Homeland Security, and its Cabinet-level Director, is another recent creation. And most directly relevant here, the position of Secretary of Defense itself did not exist until 1947, when it was created to stand above the Secretaries of the Army (formerly War), the Navy and the Air Force.

Suppose Congress were to abolish the office of Secretary of Defense. With no office to fill, Rumsfeld would no longer be an officer.

It can't possibly be that easy, can it? The short answer is no. If Congress really were interested in reorganizing the nation's defenses, then yes, it could eliminate an officer as an incidental effect of eliminating his office. But given the folly of abolishing the position of Defense Secretary during two active wars, Congress would almost certainly replace the office with something quite similar, perhaps simply by renaming the position. And surely Congress cannot so easily circumvent the core separation-of-powers principle that prohibits it from firing executive branch officials.

Thomas Jefferson's Playbook

Still, there is a precedent for just this sort of end run. Following the defeat of John Adams and the Federalist Party by Thomas Jefferson and the Republicans in the election of 1800, Adams and the lame-duck Federalist Congress created new federal judgeships, and packed the courts with Federalists before the change in power. After they took office, the Jeffersonians simply abolished the new federal judgeships. With no judgeships to fill, the Federalists ceased to be judges.

Was that a circumvention of the Constitution's provision in Article III that federal judges have life tenure? You bet. But Congress got away with it because the same statute that abolished the judgeships also canceled the Supreme Court's summer term, and by the time the issue came before the Justices, they were properly intimidated into upholding the Jeffersonian initiative in the 1803 case of Stuart v. Laird.

Whether and to what extent Stuart remains good law today is unclear, but it is entirely possible that if faced with a congressional effort to fire Rumsfeld by redrawing the organizational chart, the Supreme Court would view the matter as a fight between Congress and the President, and deem it a nonjusticiable political question.

There's an irony for you. With the nation's security at stake, and with Congressional Democrats and Republicans increasingly united in their displeasure with Rumsfeld's conduct of the war, whether he stays or goes should be anything but a political question.


Michael C. Dorf is the Michael I. Sovern Professor of Law at Columbia University. He is the author of No Litmus Test: Law and Politics in the Twenty-First Century.

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