by Sanford Levinson

In today's Washington Post, David Rivkin and Lee Casey make the rather astonishing statement "that efforts by some congressional Democrats to chastise the president through a resolution of 'no confidence' in his Iraq policy have no place in our constitutional culture." As readers of my book Our Undemocratic Constitution know, I think it is a severe defect in our constitutional system that there is no way of removing an incompetent (even if he/she is not a "criminal") president through a no-confidence vote, and Rivkin and Casey would be saying something non-controversial if they said, accurately but, from my point of view, regrettably, that we are stuck with an incompetent in a way that we are not stuck, at least as a formal matter, with a criminal. But their statement goes far beyond this truism about our system. They seem to be saying that Congress cannot even speak as a collective body and declare its loss of confidence in the leadership being shown by the chief executive/commander-in-chief. Given that Congress can pass resolution just about anything, from honoring notables to lamenting Chinese oppression in Tibet--while in China, I once had to explain to Chinese scholars the legal status of a congressional resolution denouncing Chinese oppression in Tibet even as the official spokesman for the State Department explained that "the United States" viewed it as an internal matter of the People's Republic of China: I suggested that it is simply a category mistake to view the US as having a unitary "government" in the way that Her Majesty has such a government--I see no serious argument against the propriety of Congress passing a resolution manifesting its loss of confidence in George W. Bush. To say that it has "no place in our constitutional culture" is just another power play by those who believe in an overweening executive, and one might well believe that it is just such executive supremacists who are trying to transform our constitutional culture moreso than members of Congress who are suggesting the relatively mild step of a resolution of no confidence.