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.