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Commentary | PERSPECTIVE ON IMPEACHMENT

There's No Basis for Censure

The Founding Fathers provided only one way to sanction a president; the Constitution is clear.

September 16, 1998|THOMAS E. BAKER | Thomas E. Baker holds the James Madison Chair and is the director of the Constitutional Law Resource Center at Drake University Law School in Des Moines, Iowa

Wishful Democrats and wary Republicans in Congress as well as some in the media have been holding out the possibility of a congressional censure of President Clinton to avoid the awesome duty of conducting an impeachment proceeding. Various public opinion polls agree. Americans do not think the president should be impeached or resign, but a majority feels the Congress should censure him.

The only problem with a censure is that it would not be constitutional. Congress should be loath to set aside the people's election of their president for his full term, and for the same reason the president should be most reluctant to resign. But Congress should not shirk its clear constitutional duty in favor of a political finesse of doubtful validity.

Article I of the Constitution authorizes the House and the Senate to punish wrongdoing only within the legislative branch. Actual practice has followed the text, including reprimands, censures and other disciplines of members of Congress.

But ours is not a parliamentary system, which allows for a vote of no confidence in the prime minister, the equivalent of the president in the United States. In the American system, the office of president embodies an independent, coordinate branch that is across the separation of powers from both Congress and the courts.

Our republican form of government must follow the rule of law, and the law on this subject is the Constitution. The text could not be more clear. Article II, Section 4 makes the president subject to impeachment and removal. Article I, Section 2, clause 5 assigns the "sole Power of Impeachment" to the House of Representatives. Article I, Section 3, clause 6 assigns the "sole Power to try all Impeachments" to the Senate and requires a two-thirds majority to convict. Article I, Section 3, clause 7 provides that the Senate may impose only the punishments of removal and disqualification from holding any further office.

The delegates to the Constitutional Convention debated the Executive Article more than any other topic, yet there is not a word in the Constitution authorizing Congress to censure the president. Furthermore, to imply such an inherent power would be contrary to the spirit of the document, which is based on the fundamental principle that Congress has only limited and enumerated powers.

History and tradition reveal the proposed censure to be a constitutional red herring. There has been only one odd incident of presidential censure. In 1834, the Senate got crossways with President Andrew Jackson over the controversial Bank of the United States and resolved that the president had "assumed upon himself authority and power not conferred by the Constitution and laws, but in derogation of both."

This episode does not amount to much of a precedent, however, since three years later the Senate voted to expunge the resolution. President Jackson, who deemed himself the people's tribune and an equal interpreter of the Constitution, filed a lengthy "Protest" of the Senate resolution. He made the same basic point I am making, that the House power to impeach and the Senate power to try the president are exclusive powers, and the sanctions of removal and disqualification from office are the only punishments possible.

Jackson demonstrated the important constitutional differences between impeachment and censure. Impeachment and removal requires the action of both the House and the Senate, and a two-thirds vote is required to convict in the Senate. But resolutions such as censure presumably would require only a majority vote. There are other differences as well, including that senators must take a separate oath to sit in judgment of a president; the chief justice presides, and the president is afforded notice and an opportunity to respond. These are more than mere technicalities. They describe the clockwork design of checks and balances so carefully crafted by the Founders.

The Supreme Court's understanding follows this design. Speaking for the court in a 1993 decision, Chief Justice William H. Rehnquist took the text literally to proclaim that the power over impeachment was complete and exclusive. It was "a textually demonstrable constitutional commitment" to Congress and, therefore, the courts could not review the removal of an impeached federal judge. This sole power presents a solitary duty. Sen. Daniel Patrick Moynihan (D-N.Y.) explained on a recent program of ABC-TV's "This Week" that "what we have before us, and we ought to get on with it, is an impeachment procedure."

Borrowing Andrew Jackson's words, we should "disclaim and repudiate all authority or design to interfere with the responsibility due from members of the Senate to their own consciences, their constituents and their country." The kind of censure now being proposed has never been done before during any of the previous 104 Congresses, which should give Congress great pause.

Sen. Robert C. Byrd (D-W. Va) is right when he begins his account of the Jackson censure in his masterful history of the Senate with the straightforward conclusion that "the censure of a president . . . lacks a constitutional basis."

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