Maybe it's a little late in the discussion for me to be covering this ground, but what do I mean when I say that the Bush "administration" and the neo-cons seek to impose a new "constitutional order?"

I'm drawing my terminology from an article by Georgetown University law professor Mark Tushnet, entitled "Constitutional Hardball" (PDF). Tushnet probably defines the term better in the entire book he wrote on the subject, but hey, who's got time for that?

The part you need to know, lifted from the first chapter of the book, follows.

By constitutional order (or regime), I mean a reasonably stable set of institutions through which a nation's fundamental decisions are made over a sustained period, and the principles that guide those decisions. These institutions and principles provide the structure within which ordinary political contention occurs, which is why I call them constitutional rather than merely political. 

Both institutions and principles constitute a constitutional order. On the institutional level, a constitutional order extends well beyond the Supreme Court and includes the national political parties, Congress, and the presidency. Indeed, as I argue in chapters 1 and 2, the constitutional principles articulated by the Supreme Court cannot be understood except in the context of the institutional arrangements prevailing in the national government's other branches. For me, a constitutional order is more like the small-c British constitution than it is like the document called the United States Constitution. And, just as scholars of constitutionalism have found it productive to think about the British constitution, so I think it productive to think about constitutional orders in the United States that go beyond judicial doctrine and the written Constitution to encompass relatively stable political arrangements and guiding principles. [Notes omitted.]

Get it? Good.

Now, how do constitutional orders get changed? Tushnet argues, and I find it persuasive, that such changes are made in the modern era through the practice of what he calls "constitutional hardball,"which:

consists of political claims and practices -- legislative and executive initiatives -- that are without much question within the bounds of existing constitutional doctrine and practice but that are nonetheless in some tension with existing pre-constitutional understandings.³ It is hardball because its practitioners see themselves as playing for keeps in a special kind of way; they believe the stakes of the political controversy their actions provoke are quite high, and that their defeat and their opponents' victory would be a serious, perhaps permanent setback to the political positions they hold.

The explanatory footnote (3) from the article:

By this I mean the "go without saying" assumptions that underpin working systems of constitutional government. They are hard to identify outside of times of crisis precisely because they go without saying. (An alternative term would be conventions.)

Examples? Tushnet offers up a few that I think will fill in the blanks. One was the recent judicial filibuster/nuclear option controversy:

The Democrats' actions were clearly within the bounds set by the Senate's rules, and the Constitution expressly authorizes the Senate to adopt rules to govern its operation. Republicans respondied to the filibuster by developing an argument that it was unconstitutional because it interfered with the ability of the Senate to decide, by majority vote, whether to consent to a nomination. I believe that argument to be strained ... . [but] The Republicans' arguments ... were within constitutional bounds as well.

That is to say that two not-implausible interpretations of constitutional understandings regarding judicial filibusters were in competition, and whichever prevailed would likely stand as the commonly accepted interpretation into the foreseeable future.

Another example:

The successful effort in Colorado, and the parallel one in Texas, to revisit districting decisions made after the 2000 census is similar in structure. Legislatures have an undoubted right to alter district lines as often as they want. The case for doing so in Colorado and Texas was not frivolous; in each state the first set of districts was devised not by an elected legislature but by a court acting after the state legislature had failed to act. Still, in each round of districting since the 1970s legislators have generally taken the first set of districts to be fixed until the next census or until they were ordered to draw a new set of districts by a court. The Republican actions in Colorado and Texas are constitutional hardball because they are inconsistent with what seemed to be a settled pre-constitutional understanding. The Democrats' response in Texas -- absenting themselves[Notes omitted.]

His third example: Clinton impeachment. I think we all know why. On the one hand, impeachment amounts to what the House says it does. On the other, that shouldn't really be the sole criterion.

Get it? Good.

Next important point:

Constitutional hardball has another characteristic. The stakes are quite high when politicians play it. The Democrats' filibusters are designed in the first instance to prevent the President from transforming the federal circuit courts by appointing a large number of judges whom the Democrats regard as far too conservative for the nation's good. The Republicans' districting efforts are designed to increase the number of seats that Republican candidates are likely to win, thereby enhancing the likelihood that Republicans will retain control of the House of Representatives through the next census and ensuing redistricting.

Tushnet goes on at that point to discuss this characteristic with regard to the Clinton impeachment, and arrives where most of us did at the time -- that it was pursued primarily to weaken Clinton, or in the case of a successful impeachment, Gore. He doesn't go as far as I have -- that is, concluding that Republicans may also have had in mind the weakening of the institution of impeachment itself.

More good stuff:

The high-stakes characteristic of constitutional hardball shows that hardball is an element of the more general phenomenon Jack Balkin and Sanford Levinson identified (PDF) as partisan entrenchment.

Here, Tushnet describes Balkin and Levinson's entrenchment process, which focuses on the entrenchment in the judiciary -- a process I think we all understand from the recent judicial nomination controversies. A federal judiciary stocked by Bush with ultra-conservatives with lifetime appointments will necessarily lead to a "change [in] the understandings of the Constitution that appear in positive law."

But Tushnet believes entrenchment is something that can take place across all institutions of government, not just in the judiciary. And that's the sort of change that can redefine the constitutional order. We're already seeing entrenchment in the judiciary, of course. But we're also seeing it -- via the new and aggressive "constitutional hardball" being played in the redistricting game -- in the Congress as well.

And more alarming still, we may be seeing it -- via the new and aggressive "constitutional hardball" being played in the "unitary executive" and "inherent powers" game -- in the executive branch. Granted, such powers, if ratified, would be available to any occupant of the White House, Republican or Democrat. So in that sense, it's not strictly a partisan entrenchment, although it's not difficult to envision Republican administrations using them somewhat more aggressively, shall we say, than Democratic administrations.

So, why does all this make me impatient with the "Wait til November" crowd?

The stakes are high when politicians play political hardball, that is, because the politicians believe that the winners might end up with permanent control (meaning, control for the full time-horizon of today's politiicans) of the entire government. The winner of constitutional hardball takes everything, and the loser loses everything.

Everything.

But, really, what's "everything?"

One way to distinguish periods of ordinary politics from periods of transformation is that during the former pre-constitutional understandings are taken for granted, whereas during the latter such understandings are brought into question. The idea is that the institutional arrangements characteristic of a particular constitutional order -- characteristic, that is, of a specific period of ordinary politics -- are the presuppositions accepted by all politically significant actors in that period, whereas the whole point of constitutional transformation is to alter the previously taken-for-granted institutional arrangements.

What sort of things are we talking about, then? What sort of pre-constitutional understandings are currently -- or up to just a few weeks ago, let's say, were -- taken for granted, but are now being brought into question? Well, the presidnet's alleged "inherent power" to order warrantless domestic surveillance, for one. But there's much more, too. For example, the assumption that "preclearance" by the Department of Justice's Civil Rights Division of redistricting plans like that in Texas would be awarded on a non-political (and non-arbitrary) basis.

Ordinarily, that'd be a story for another day, but circumstances don't allow us to simply set it aside, because Tushnet (and Balkin and Levinson) have opened our eyes to the possibility that such political use of preclearance is part of a wider scheme aimed at political entrenchment.

What else? How about the assumption that presidential signing statements are interesting historical documents (unlike Presidential Daily Briefings, which are decidedly not historical documents, though that too appears to be an assumption under attack), but not part of a recognized legislative history, much less dispositive in judicial interpretation of the underlying statute. That one appears to have been "brought into question," too.

And what happens if these "questions" get answered the wrong way? Or worse, aren't responded to at all, and are accepted by default while we "wait for November" to settle them? What happens under a new constitutional order?

Constitutional orders combine enduring institutional arrangements with principles of public policy that guide decision-makers as they operate within those institutions. So, for example, a president will propose new statutes that implement the constitutional order's principles, members of Congress will do so as well, and the courts will uphold statutes that are consistent with the order's principles and invalidate those that are not.

Political actors can play constitutional hardball with substantive principles. Proponents of a constitutional transformation will propose legislation that pushes the envelope of existing constitutional doctrine. The proposed statutes will not be obviously unconstitutional, because constitutional hardball consists of actions that are plausibly defensible under existing constitutional doctrine. But, they will signal that their proponents have a substantially different understanding of government's role than had seemed settled. And, importantly, the proposals, if enacted, might have the effect of enhancing the political strength of the coalition seeking to change the constitutional order. [Notes omitted, emphasis added.]

But can't the new order's components be challenged and tested, even once adopted? Sure, although under a newly cemented constitutional order, it should be noted that:

All of the government's institutions operate harmoniously, implementing the order's characteristic substantive principles and dividing labor according to the order's characteristic institutional arrangements.⁵⁷

What's in that note 57? Well, it's an important warning to those who cling to the hope that "winning in November" will fix everything, because we'll be able to... well... do stuff.

In my view, a system of more or less permanently divided government can be a harmoniously operating constitutional order, when the parties controlling the different branches agree to keep their disagreements within understood bounds, and accept that each will win only small victories.

In other words, "winning in November" doesn't by itself undo a constitutional order that's gelled. Divided government can still operate within a new constitutional order that's been established by one party. The New Deal/Great Society coalition of Democrats who established the constitutional order that has prevailed to this day successfully dominated Republicans for decades on end. Yet even as Republicans were from time to time able to regain majorities in one house or another of Congress, and often the presidency, the prevailing Democratic constitutional order prevented them from making significant challenges in that order. Similarly, winning back Congress in November is still of great interest, but it may only be effective in temporarily stopping the advance of the damage that can be done under the new order. It may very well be that it simply is not capable of reversing it, since it will no longer be a matter of repealing statutory law, but rather one of reversing new constitutional understandings and precedent.

 

It may not necessarily be the case that the Republicans behind the Clinton impeachment anticipated either the George W. Bush presidency in particular, or even the likelihood that his during that presidency, he would find himself facing the prospect of impeachment, as I once argued.

But if anything, the events of the months that have passed since I first made that argument have convinced me that certain Republicans did indeed have an eye on using the next GOP presidency to attempt to reestablish a pre-Watergate understanding of the executive's place in the constitutional order. And that would necessarily include some variants of the very activities -- or at least some of the very same justifications for other activities -- that got the first boss in hot water. That is, it wouldn't necessarily have to be illegal surveillance that would be at the center of this intentionally-provoked controversy. What would be important to the people behind this is that whatever the activity was, it would be defended as being within the prerogative of the presidency, whether the grounds be national security, executive privilege, or some new formulation of the same old thing.

But for the sake of argument, let's stick with the example of surveillance -- just as the bad actors themselves have opted to do. Why would they undertake such a thing, especially given their special history with being on the wrong side of the law on this issue? Isn't it now "settled law" (and I use that phrase intentionally, to remind everyone of the recent Supreme Court confirmation hearings) that neither national security nor executive privilege protected Nixon's warrantless surveillance and his secretiveness about it?

Well, yes and no. Yes, the courts held that Nixon was not entitled to executive privilege under the circumstances. And yes, Congress enacted all sorts of reforms that made particular activities in which Nixon had engaged plainly illegal. But also no, in the sense that under slightly different circumstances (and they're always slightly different, from case to case) a not-completely implausible constitutional argument might be made that the distinctions entitle these new activities to different or special consideration. And whether those slightly different circumstances be the technologies used to conduct the surveillance, or the "state of war" under which it was conducted matters not. Just so long as there be some not-completely implausible argument that can be put forth to justify it.

Getting back to the original question, though: Why test this again? Well, because the reality of hardball in the judicial system is that rights are all theoretical. You don't really have them until you can prove it in court. And by the same token, neither are there any prohibitions you have to obey, until the prosecution can prove you have to. And as an added bonus, if you never get caught, you never have to worry about either one.

That reality is absolutely critical to understanding what's going on here.

"But wait," you may be saying to yourself. "That's not really true. I mean, murder is murder, and if you're caught and they can prove you did it, you're cooked, right?" Well, maybe. For just a simple illustration, what if they can prove you did it, but you can prove self-defense?

"Well, then, it's not murder," you say.

Precisely so. But we decide whether or not it was a murder based on what? Your story about why you did what you did, and nothing more.

So, is warrantless surveillance illegal or not? Well, not if you believe that the president has "inherent powers as commander-in-chief." That would answer the entire question.

"But there are no unwritten 'inherent powers,' or at least none that would simply justify warrantless surveillance on the president's say-so," you may object.

"Says you," answers Alberto Gonzales.

And you think he's nuts for saying so. But the problem is that you're still working under the old (albeit commonly understood) constitutional order, whereas Gonzales is proposing a new one. One under which there are such "inherent powers."

And that's when it hits you: If five Supreme Court Justices side with Gonzales, everything you knew (or thought you knew) about the Constitution is wrong. By which I mean, it now is wrong. It wasn't wrong yesterday, but now it is.

It is emphatically the province and duty of the judicial department
to say what the law is. Those who apply the rule to particular cases, must
of necessity expound and interpret that rule. If two laws conflict with
each other, the courts must decide on the operation of each.
                                        -- Chief Justice John Marshall
                                            Marbury v. Madison

In law school (or in high school civics), we are taught that Marbury v. Madison was the case that established the doctrine of judicial review, which we are told means that the Supreme Court can declare laws unconstitutional. And that's all we need to know for the purposes of civics class, and really, all most lawyers need to know about it, too. Because the kind of case the neo-cons are making for their activities only makes sense to argue at the extreme margins of the law -- where you either have tons of money to throw at establishing a case against the statute (or constitutional understanding) itself, or there's so much at stake that no price is too high to pay to win.

The neo-cons, then, will very simply be committing the exact same "crime" quite intentionally, for the express purpose of marching into court to try their luck, one more time, at convincing the courts that last time, the SCOTUS simply got it wrong. And this time, they'll be appearing before their own judges. Judges who came of age and received their training under the Nixon and Reagan deputies who invented the modern incarnation of this doctrine in the first place. So, yeah, the simple explanation for what they're doing is asking for a do-over. A finding that stuff really isn't illegal if the president does it.

The following is an excerpt from an interview with former President Nixon conducted by David Frost. It aired on television on May 19, 1977.

FROST:    The wave of dissent, occasionally violent, which followed in the wake of the Cambodian incursion, prompted President Nixon to demand better intelligence about the people who were opposing him. To this end, the Deputy White House Counsel, Tom Huston, arranged a series of meetings with representatives of the CIA, the FBI, and other police and intelligence agencies.

FROST:    These meetings produced a plan, the Huston Plan, which advocated the systematic use of wiretappings, burglaries, or so-called black bag jobs, mail openings and infiltration against antiwar groups and others. Some of these activities, as Huston emphasized to Nixon, were clearly illegal. Nevertheless, the president approved the plan. Five days later, after opposition from J. Edgar Hoover, the plan was withdrawn, but the president's approval was later to be listed in the Articles of Impeachment as an alleged abuse of presidential power.

FROST:    So what in a sense, you're saying is that there are certain situations, and the Huston Plan or that part of it was one of them, where the president can decide that it's in the best interests of the nation or something, and do something illegal.

NIXON:    Well, when the president does it that means that it is not illegal.

FROST:    By definition.

NIXON:    Exactly. Exactly. If the president, for example, approves something because of the national security, or in this case because of a threat to internal peace and order of significant magnitude, then the president's decision in that instance is one that enables those who carry it out, to carry it out without violating a law. Otherwise they're in an impossible position.
FROST:    So, that in other words, really you were saying in that answer, really, between the burglary and murder, again, there's no subtle way to say that there was murder of a dissenter in this country because I don't know any evidence to that effect at all. But, the point is: just the dividing line, is that in fact, the dividing line is the president's judgment?

NIXON:    Yes, and the dividing line and, just so that one does not get the impression, that a president can run amok in this country and get away with it, we have to have in mind that a president has to come up before the electorate. We also have to have in mind, that a president has to get appropriations from the Congress. We have to have in mind, for example, that as far as the CIA's covert operations are concerned, as far as the FBI's covert operations are concerned, through the years, they have been disclosed on a very, very limited basis to trusted members of Congress. I don't know whether it can be done today or not.

FROST:    Pulling some of our discussions together, as it were; speaking of the Presidency and in an interrogatory filed with the Church Committee, you stated, quote, "It's quite obvious that there are certain inherently government activities, which, if undertaken by the sovereign in protection of the interests of the nation's security are lawful, but which if undertaken by private persons, are not." What, at root, did you have in mind there?

NIXON:    Well, what I, at root I had in mind I think was perhaps much better stated by Lincoln during the War between the States. Lincoln said, and I think I can remember the quote almost exactly, he said, "Actions which otherwise would be unconstitutional, could become lawful if undertaken for the purpose of preserving the Constitution and the Nation."

Now that's the kind of action I'm referring to. Of course in Lincoln's case it was the survival of the Union in wartime, it's the defense of the nation and, who knows, perhaps the survival of the nation.

FROST:    But there was no comparison was there, between the situation you faced and the situation Lincoln faced, for instance?

NIXON:    This nation was torn apart in an ideological way by the war in Vietnam, as much as the Civil War tore apart the nation when Lincoln was president. Now it's true that we didn't have the North and the South--

FROST:    But when you said, as you said when we were talking about the Huston Plan, you know, "If the president orders it, that makes it legal", as it were: Is the president in that sense--is there anything in the Constitution or the Bill of Rights that suggests the president is that far of a sovereign, that far above the law?

NIXON:    No, there isn't. There's nothing specific that the Constitution contemplates in that respect. I haven't read every word, every jot and every title, but I do know this: That it has been, however, argued that as far as a president is concerned, that in war time, a president does have certain extraordinary powers which would make acts that would otherwise be unlawful, lawful if undertaken for the purpose of preserving the nation and the Constitution, which is essential for the rights we're all talking about.

And this time, it's the province of Sam Alito -- Edwin "signing statement" Meese's protégé -- to say what the law is. And what would they like him to say it is? That it's not illegal if the president does it. Nixon never thought so. Does Rumsfeld? Does Cheney? Does Bush? Does Gonzales? Does Poindexter? Abrams? Negroponte? North?

Scalia? Thomas? Roberts? Alito?

Next:Why this portends a new constitutional order, and how broad the threat really is.

Both seem to me to be ducking the issue, but that's perhaps because I view impeachment as a constitutional necessity, as opposed to an electoral strategy. To be sure, they are both bound up inextricably, but there's no doubting that there are those who view one or the other as having primacy.

But in particular, I reject the first because it assumes that a successful impeachment effort would, for some strange reason, ignore Dick Cheney's extraordinarily active role in the administration in general, and in the activities most likely to bear impeachment charges in particular. I simply can't imagine a universe in which an investigation thorough enough to convince the Congress that Bush's removal from office is necessary doesn't also convince them that Cheney's removal is equally necessary, and perhaps moreso.

The prospect of a Hastert presidency, given that it only comes to pass if Congress is shamed into impeaching the entire Bush administration, frankly doesn't scare me much. A hobbled and chastened President Hastert, presiding over a Congress so ashamed of Republican wrongdoing that they've installed him in place of Bush and Cheney? OK, sure. I'll take two!

I reject the second objection as a matter of logistics and timing, as well as for reasons of electoral strategy. I find little to recommend the notion, for instance, that Democrats should somehow "hide the ball" with respect to impeachment, only pulling it out from their sleeve after elected to office. "Surprise! We campaigned on jobs and health care, but instead we're going to impeach the Bush administration!" That's a recipe for the very backlash everyone fears.

I also think that waiting to get the ball rolling fritters away crucial time that's needed to lay the foundation and groundwork necessary for a successful impeachment effort. While I agree that the odds of getting a better whip count may increase after the November elections, I do not agree that we have  time to wait until January of next year to even begin discussing the prospect. Impeachment can be a slow train, and the truth is that January 2007 begins the always-shorter-than-it-seems countdown to November 2008. And that brings with it the greatest danger to public support for impeachment: the notion that if we just close our eyes and hang on a little longer, it will all go away. Bush's term will end, and "for the good of the country," we ought to just let him go.

But that, I think, is what has landed us here in the first place.

We are where we are today for lack of having drawn a line at Watergate, then again at Iran-Contra. The same perpetrators -- and in many cases they really are the very same perpetrators -- are back for a third bite at the apple, and will be back for a fourth if they don't get what's coming to them. Remember, impeachment isn't just for presidents. It's for all "civil officers," as RonK, Seattle ably reminded us.:

Impeachment is not just for Presidents.
Article II, Section 4 renders "The President, Vice President and all civil officers of the United States" susceptible to impeachment.

Who are these civil officers? An early precedent excludes Members of Congress -- removable by their own respective bodies. Past practice affirmatively includes judges and cabinet officials. And there's a sturdy originalist case for stretching this envelope.

Would a subcabinet official -- like former Asst. Sec. of State Elliott Abrams -- qualify? How about a "Senior Administration Official" who does not require Senate confirmation -- like Vice Presidential Chief of Staff Scooter Libby? Is an independent agency head -- like CPB's Kenneth Tomlinson -- a qualified "civil officer"?

But that wasn't all Ron told us. We also learned that the Constitution bars both future eligibility for high office and presidential pardons in the case of impeachment. Given that many of the very same people have been at the heart of the last two rounds of Constitution-shredding, I would urge early and clear action. How many more chances do you want to give John Poindexter? Elliot Abrams?

So that's another reason I reject the "cross your fingers and wait" option. We've tried that before. We let Nixon walk away rather than finish the job. And while it's hard to blame anyone for believing at that time that nothing like this would ever happen again, we do have to take a second or third look at whether or not the consequences of declining to press the Watergate inquiries to their natural conclusion have emboldened those who would seek to undo the very reforms those inquiries engendered.

By the time Iran-Contra rolled around, while we didn't do any better in terms of impeachment, we were able to put together some high profile convictions, only to see them reversed, or the perpetrators receive pardons -- something RonK's reminder renders a glaring mistake in hindsight.

Instead of having demonstrated the awesome and shaming power of impeachment, we have twice given in to our softer side and opted to "heal the nation's wounds," only to find that they've instead festered and turned gangrenous.

In fact, I believe that this double failure left open an opportunity -- and an extraordinarily cynical one at that -- for Republicans to both undo what shame lingered, and to transfer that shame onto Democrats, with the Clinton impeachment. But more dangerous (and more cynical) still, I believe now -- more strongly than I did in May -- that the Republicans behind the Clinton impeachment may have had a longer-term plan in mind for an impeachment even they knew to be doomed. A plan which I'll elaborate on in the next entry, and which constitutes my next major argument for the necessity of impeachment.

The diary linked back to another blog, where the idea apparently originated. And to be perfectly honest with you, this read at first like just another fringe-y, kooked-out misreading of procedure. But I just happen to have an old copy of Jefferson's Manual here on the desk, and sure enough, that's just what it says. The legislature of any state or territory may transmit charges to the Congress and recommend impeachment.

Now, to be sure, there is nothing that forces the House of Representatives -- still the sole body capable of adopting actual articles of impeachment -- to act on such charges. In fact, you can be assured that they'd do everything in their power to avoid doing so.

But what a story it'd make! A little known constitutional procedure that has lain dormant for decades, never before used against a president, and pitting the duly elected and sworn legislature of a state against a federal Congress sitting on its hands and refusing to act!

What drama! What passion!

So, where to start?

Well, clearly you'll need to begin in a state with a strong Democratic majority in the legislature. That's just plain fact. And while it may be complained that it puts an unduly partisan shine on things, the bottom line is that there really are no Republicans willing to consider their duty in this matter.

With that, then, let's examine the state of the states, and partisan control of the state legislatures. The handy-dandy chart in the link shows us that the legislatures of Alabama, Arkansas, California, Colorado, Connecticut, Hawaii, Illinois, Louisiana, Maine, Maryland, Massachusetts, Mississippi, New Jersey, New Mexico, North Carolina, Rhode Island, Vermont, Washington and West Virginia all have Democratic majorities in both houses. But Hawaii, Massachusetts, Rhode Island and Vermont have got overwhelming majorities. Veto-proof majorities (though that may not be a necessary requirement).

Hawaii's 51 House seats are occupied by: 41 Democrats and 10 Republicans.
Hawaii's 25 Senate seats are occupied by: 20 Democrats and 5 Republicans.

Massachusetts' 160 House seats are occupied by: 139 Democrats, 20 Republicans and 1 independent.
Massachusetts' 40 Senate seats are occupied by: 34 Democrats and 6 Republicans.

Rhode Island's 75 House seats are occupied by: 59 Democrats and 16 Republicans.
Rhode Island's 38 Senate seats are occupied by: 33 Democrats and 5 Republicans.

Vermont's 150 House seats are occupied by: 83 Democrats, 60 Republicans, 6 Progressives and 1 independent.
Vermont's 30 Senate seats are occupied by: 21 Democrats and 9 Republicans.

That's pretty good odds, at least based solely on partisan affiliation. Lots of leeway for "conscientious objections."

One curious side note: All four of these states have Republican governors -- some for the first time in decades. How weird is that? Will it matter? Not sure. Not only are these veto-proof majorities, but if these states abide by parliamentary rules similar to those used in Congress, a concurrent resolution approved by both houses is not subject to executive signature, and therefore not subject to veto.

But what else do these states bring to the table?

Well, according to a recent SurveyUSA poll, the states with the three very worst approval ratings for Bush are: Rhode Island, Vermont and Massachusetts -- in all of which Bush draws at least 64% disapproval. Rhode Island actually puts Bush below 30% approval, splitting 29/68!

That's another notch in the columns of those three, then.

Now, any of those states would make a great place to start. Massachusetts has a famous Democratic tradition, of course. And it doesn't hurt that it's the home state of the last Democratic presidential candidate. But what captures my interest is that they were one of the states (along with Vermont, as a matter of fact) whose presidential electors voted to transmit additional messages to Congress, calling for an investigation of voting irregularities in the 2004 presidential contest.

These are people who are on board with the concept of breaking tradition, and utilizing a bit of arcana when appropriate.

Vermont, of course, has a number of things going for it in this sweepstakes. Need national players with the clout to get the story heard? Vermont provides plenty: Senate Judiciary Ranking Member Pat Leahy; the only independent in the Senate (and a former Republican at that), Jim Jeffords; the only independent in the House, Bernie Sanders; and of course, Democratic National Committee Chairman and former governor, Howard Dean.

Overly concerned about partisan taint? In addition to the independent status of Jeffords and Sanders, Vermont has a relatively robust third party presence in its legislature -- the Progressives, generally a liberal-leaning bunch, but without the complicating ties of membership in the Democratic Party.

Add to that the Vermont Legislature's resolution of May 29, 2003 disapproving of the USA PATRIOT Act and calling upon Congress to repeal specific provisions of it, and you've got a real contender.

But let me just throw in one quick plug for Rhode Island. It's got the legislature. It's got the low -- and I mean low -- Bush approval ratings. But it's also got Lincoln Chafee, one of a dying breed of "moderate" Republicans, who faces what's looking like an uphill battle for reelection this year.

Would Chafee -- who has broken from the president recently on some key votes, including judicial nominations -- have it in him to stand by Bush when the I-word is on the table, the man's approval ratings are in the toilet, and his home state's legislature has sent instructions to impeach?

I don't know, but I'd love to find out!

So, is it all just some crazy pipe dream? Well, if you're asking me whether the Republican-controlled House is likely to be persuaded to move articles of impeachment at the behest of a single state legislature, the answer is obviously no. But as I said, what a story it'd make!

What would the House do with such a charge? Well, clearly it'd have to be delivered in some formal fashion. Perhaps memorialized by a motion from a sympathetic Member. At the very least recited aloud by the Reading Clerk, live on C-SPAN. But the House would have to dispose of it somehow, most likely by immediately moving to commit the charges to a committee -- likely Judiciary -- and let it rot there, or to table any motions brought seeking to recognize the transmission of the charges.

But that's just fodder for the media. "Congress Ducks State's Impeachment Charges," the headline might read. (OK, maybe that's the pipe dream.) Still, it's a story. And what if more than one state sent such charges?

But another beauty of this is that Jefferson's Manual also instructs us:

A direct proposition to impeach is a question of high privilege in the House and at once supersedes business otherwise in order under the rules governing the order of business. It may not even be superseded by an election case, which is also a matter of high privilege. It does not lose its privilege from the fact that a similar proposition has been made at a previous time during that same session of Congress, previous action of the House not affecting it.

State legislatures take note, however:

A resolution simply proposing an investigation, even though impeachment may be a possible consequence, is not privileged. But where a resolution of investigation positively proposes impeachment or suggests that end, it has been admitted as of privilege.

The resolutions referred to above are actually those which would be proposed in the House, memorializing the receipt of a state's petition, but it could only help matters for state legislatures considering transmitting such charges to be explicit in framing their document in terms of impeachment. It'd be a much tougher sell to convince the House Parliamentarian that a resolution brought in the House seeking to memorialize a state legislature's resolution calling for impeachment did not actually constitute at least a resolution of investigation positively proposing impeachment. Not that the House GOP Leadership wouldn't consider overruling the Parliamentarian, of course.

So, who's up for it? Who likes Vermont for the job? Rhode Island? Someplace else? Hawaii's nice during winter.

This is by no means the first time this has happened, of course. And for that reason, it was unfair single Bill out on this. In fact, though, it seems to be standard operating procedure here. The big wigs debate the issues of the day above the heads of the wee folk, and we're stuck scrambling for scraps that fall off the grown-up table.

To his great credit (in my mind), Bill agrees that such a dialogue is desirable, and points out that he's engaged in just such a manner in the past.

But I believe this sort of interaction is more than just desirable. I believe it is essential. To the extent that group blogs like this one (or for that matter, the Huffington Post) are going to offer their readers an experience that exceeds merely being a "one stop shop" for corralling name brand commentary, this kind of interaction with the lead writers is going to be absolutely critical. The voices of the writers on this blog -- and perhaps to a greater extent, those at the Huffington Post -- are for the most part relatively accomplished and important ones. That is, they are voices which don't normally have great difficulty being heard in the published and online world. So the value added of a blog like this should be the opportunity for an informed readership to interact directly with the writers who interest them most.

So I very much appreciate Bill's recognition of the point, and hope others here will as well! Because it's going to be crucial to the TPMCafe's ability to transcend traditional media experience that all of you make an effort not to let Bill's recognition put him at a disadvantage -- if a disadvantage it be -- by limiting the number of times he takes the stage with his own message, while the rest of you go your merry way.