In case you’ve not been paying attention, an issue for House Republicans as the midterm elections draw near is what to do about a president they believe has offended the Constitution by usurping legislative power and failing to carry out his duty to faithfully execute the law.
Speaker John Boehner has said the House won’t pursue impeachment. But House Republicans feel they have to do something. So the House has voted—with only five Republicans against—to sue President Obama for not implementing the employer mandate in the Affordable Care Act in 2014, as that law provides, but delaying its enforcement until 2016.
Neither the House nor the Senate has ever sued a president, and there are serious questions about whether the courts will even hear the suit soon to be filed. Is there a more promising way to respond to Obama’s unilateral presidency?
One idea now bruited about in conservative legal and political circles is “censure”—meaning that the House would pass a resolution censuring the president for abuses of power.
Doubtless the best-known effort to censure a president occurred in the case of President Bill Clinton. Following his impeachment in the House, Senator Dianne Feinstein, the California Democrat, proposed a resolution censuring Clinton for “shameless, reckless and indefensible” conduct. The resolution failed, but not before triggering debate over whether the Constitution’s punishment-for-impeachment clause permits the Senate to impose a lesser sanction (censure) than it explicitly provides—“removal from office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States.”
The Clinton impeachment is the rare one in which a censure resolution has actually been proposed and voted on at some point in the process. As a report by the Congressional Research Service makes clear, censure has not traditionally been part of the impeachment process. It has, you could say, its own history.
Censure of presidents (or other civil officers, including judges) does not have an express constitutional basis. But neither does the Constitution prevent either house of Congress from adopting a resolution expressing its opinion of a civil officer’s conduct of office, including disapproval. With that gate left open, there have been efforts since the early 19th century to censure civil officers, among them presidents.
In 1834, the Senate passed a resolution rebuking President Andrew Jackson for conduct of office “in derogation” of the Constitution. In 1842, the House adopted a report from a select committee (not always has a simple resolution been used) that condemned President John Tyler for “gross abuse of constitutional power and bold assumption of powers never vested in him by any law” and for having “assumed the whole Legislative power to himself.” And in 1860, the House adopted a resolution censuring President James Buchanan for conduct deserving of “reproof.” Other censure efforts, including those in the cases of John Adams, James K. Polk, and Richard Nixon, in addition to Bill Clinton, did not pass.
In an interview, University of North Carolina law professor Michael Gerhardt, who has written extensively on impeachment, told me there is no distinct process in either house that would govern an effort to censure a president (or any other civil officer). Simply getting the censure written and voted on seems to be the sum of what’s involved.
And to what effect is a censure? Censure is a political act only, with no legal or constitutional consequences flowing from it (as is not true of an impeachment conviction, under which the convicted officer is removed from office, among other punishments). Also, and again unlike an impeachment, a censure may be expunged (by a successor to the body that did the censuring; Jackson’s was expunged in 1837). Of course, an expunged censure cannot erase the political effects of a censure, whatever they were at the time.
Of any proposal to censure Obama, a House Republican could fairly ask: Why bother, since the censure resolution would simply be echoing a view of the president already held by a House majority? One answer is that a carefully crafted resolution of censure could lend a certain formality to the process and help shape the debate over Obama’s abuses of power.
Among those arguing the case for censuring Obama is Charles J. Cooper, the appellate lawyer who headed
sup the Justice Department’s Office of Legal Counsel during the second Reagan term. Whereas Boehner’s lawsuit concerns one matter only, Cooper’s resolution—the one he recommends, that is—would target the entirety of the problem, as Republicans see it. Obama, said Cooper in a recent speech, “has violated his oath of office comprehensively, for he has done that which the Constitution forbids him to do, and he has not done that which the Constitution requires him to do.” (Emphasis is Cooper’s.)
In the latter category—not doing what the Constitution requires—are derelictions of duty in implementing the Affordable Care Act, says Cooper, such as the delays in the employer mandate, the subject of the House’s lawsuit against the president. But it is an example that Cooper places in the first category—doing what the Constitution forbids—that is his strongest, pitting Obama against himself.
In 2011, Obama said he couldn’t “just suspend deportations through executive order” because there are “laws on the books by Congress . . . [and] for me to simply through executive order ignore those congressional mandates would not conform with my appropriate role as president.” But when Congress didn’t pass legislation that would have achieved his policy preference—exempting from deportation up to 1.76 million illegal aliens who were children upon arrival in the United States—Obama made the law on his own, by executive order.
To judge by his caustic views of the Republican House, it’s doubtful that Obama would take seriously a House effort to censure him. More likely, just as he invited the House to “sue me” when those plans were announced, he would now say, again with attitude, “Censure me.” And, as he does often, the president would doubtless criticize Congress for failing to act on various issues and offer that as justification for his unilateral action.
Obama’s argument from congressional inaction, which for him is an argument from necessity, may have less sympathy in the media than Obama realizes. In an editorial earlier this month, the Washington Post urged Obama not to make yet more immigration law by executive order. That “Congress is a mess . . . doesn’t grant the president license to tear up the Constitution,” said the Post.
House Republicans may or may not consider a censure resolution. What is certain is that a plausible predicate for one is showing no signs of going away.
Terry Eastland is an executive editor at The Weekly Standard.