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Upon Further Review, Senate Censure Makes No Sense, Sir

"Hardball" host Chris Matthews recently asked Democratic political consultant Bob Shrum whether Democrats would impeach President Bush if they won control of Congress. Shrum said he thought the president would be censured in the midterms. Matthews paused in temporary bafflement, then said, "Oh, you're talking about lowercase censure, not about legal censure."

Apparently Sen. Russ Feingold's (D-Wis.) resolution to censure Bush for authorizing warrantless wiretaps has almost gained constitutional respectability as a "legal" sanction. An April Washington Post/ABC News poll used the phrase "censure or official reprimand" twice in the same question when asking people whether the Feingold resolution should be approved. Forty-five percent said "yes," while 53 percent said "no."

I say censure "almost" has constitutional respectability because, of course, it has nothing of the kind. The only constitutional punishment Congress can mete out to the president is impeachment and removal from office. Any other attempt to punish the president is extra-constitutional at best.

Censure traditionally has been the second most severe punishment, after expulsion, that Members can impose on a colleague (reprimand being the third). But authority to impose these penalties is officially recognized under the constitutional provision that each chamber "may punish its members for disorderly behavior, and, with the concurrence of two-thirds, expel a member." Each chamber is left to determine for itself what penalties short of expulsion are appropriate for its Members. No such discretion exists for Congress to impose punishment on a president other than removal and disqualification to hold other public office.

Presidential censure is one of those innovations of procedural politics that has no constitutional or legal basis. Nor is it recognized under any rule of the House or Senate. It has the same mythical status as a unicorn (only without the cuteness). Its origins, meaning and legitimacy are as ambiguous today as ever, thanks to a highly conflicted history.

Ironically, the Feingold censure resolution asserts that "the President's inherent constitutional authority does not give him the power to violate the explicit statutory prohibition on warrantless wiretaps." Yet the resolution itself presumes the Senate has some inherent authority to unilaterally censure a president in clear contravention and circumvention of the Constitution's explicit impeachment process.

The Supreme Court decided the issue of whether Congress has inherent constitutional authority to punish nonmembers in several 19th-century decisions involving contempt of Congress convictions. It was the practice in the early days of the Republic, based on British parliamentary practices, to try people charged with contempt at the bar of the House or Senate. If the party was found guilty by the chamber involved, the presiding officer would pronounce censure (a term used interchangeably in the precedents with "admonish" and "reprimand"). Sometimes the sentence would include imprisonment in Congress' jail. But public censure was part and parcel of the judgment — sometimes the only punishment imposed.

The Supreme Court has consistently held that Congress does not have the same inherent authority as the British Parliament to punish for contempt. It can do so only if the offense directly interferes with the ability of Congress to discharge its legislative duties. The Constitution established a separate judicial branch to otherwise try people for crimes. Congress, the court ruled, had not inherited Parliament's quasi-judicial function of sitting as a high court, let alone the power to punish those who criticize Congress.

Nevertheless, Congress has, over the years, used censure-like devices (without the baggage of trial and imprisonment) to condemn executive branch officials or their actions. In 1800, the House rejected a resolution criticizing President John Adams for interfering with a judicial deportation case. The resolution did not use the word "censure" but instead condemned the president's actions as "a dangerous interference of the Executive with Judicial decisions."

The most frequently cited presidential "censure" occurred in 1834 over Andrew Jackson's dismantlement of the national bank. However, the Senate resolution did not use the word "censure." Instead it charged Jackson with assuming "authority and power not conferred by the Constitution and laws." Jackson denounced the resolution as "unauthorized by the Constitution, contrary to its spirit and to several of its expressed provisions, [and] subversive of that distribution of powers of government." The resolution passed the Senate but was expunged from its journal three years later when Jackson's Democratic Party regained control of Congress.

In 1860, the House adopted a resolution charging President James Buchanan and his secretary of the Navy with favoring bidders from their party with government contracts at election time, setting "an example dangerous to the public safety, and deserving the reproof of this House." In 1862, the Senate tabled a resolution censuring and condemning Buchanan for failing to prevent the Civil War.

Again in 1862 the House adopted a resolution finding that the military supply contracting policy of former Secretary of War Simon Cameron was "highly injurious to the public service and deserves the censure of the House" — the first instance noted in House precedents in which the word "censure" was actually used in condemning a public official's actions. In 1875, the House "rescinded" the resolution in belated response to Abraham Lincoln's request to do so because he accepted full responsibility for the policy.

Throughout the checkered history of one-house resolutions to censure or otherwise denounce certain officials, one argument against them comes shining through consistently: Neither chamber may act unicamerally nor precipitately to condemn an official and thereby circumvent and prejudge the explicit constitutional process of bicameral action to impeach, convict and remove from office.

Alexander Hamilton, writing in Federalist 65, defended giving the Senate responsibility for trying impeachments by asking, "What other body would be likely to feel confidence enough in its own situation, to preserve, unawed and uninfluenced, the necessary impartiality between an individual accused, and the representatives for the people, his accusers?" Viewed in that light, a Senate censure makes no sense, sir.

Don Wolfensberger is director of the Congress Project at the Woodrow Wilson International Center for Scholars and former staff director of the House Rules Committee.

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