Misunderstood precedent: Andrew Jackson and the real case against censure.

• Author: Ho, James C.
• Position: 1834 Senate resolution against President Andrew Jackson; Clinton and Buchanan controversies

Confronted with allegations of perjury, obstruction of justice, and other misconduct committed by President Clinton,(1) members of the 105th and 106th Congresses battled mightily over the constitutionality of not only impeachment, but also an alternative method of punishment: censure.

Unlike impeachment, however, censure has no obvious constitutional home. The debate over its legality thus centers primarily on historical practice, rather than constitutional text.(2) After all, in cases of constitutional ambiguity, a well-established pattern of historical practice involving deliberate actors operating conscious of their constitutional constraints may affect our understanding of what the Constitution requires, forbids, and allows. As the Supreme Court has often noted, we may look past our own skepticism and to historical practice if over time there has developed an accumulated wisdom as to what the Framers of the Constitution must have intended.(3)

Impeachment watchers thus will recall that censure supporters and opponents alike cited the 1834 Senate resolution against President Andrew Jackson(4) to bolster their constitutional arguments. Clinton allies who supported censure as a means of stemming the impeachment tide cited the Jackson episode as historical precedent.(5) Clinton detractors, perhaps out of fear that their adversaries' plan would work, cited the very same events as a lesson in what not to do, noting both the force of Jackson's arguments and his ultimate vindication when the Senate expunged the resolution three years later.(6)

Unnoticed by both sides, however, was the fact that the Senate did not actually censure Jackson. The resolution did describe the events in controversy and conclude that Jackson's act was improper, but it did not inflict any punishment. It did not remove him from office. It did not disqualify him from seeking future office. It did not fine him. And it did not condemn him with words of censure.

Throughout history Congress has commented on all manner of subjects through resolutions. The Senate was thus filling a well-established role -- and nothing more -- when it opined that Jackson had committed certain acts in violation of the Constitution and the laws of the United States: "Resolved, That the President, in the late executive proceedings in relation to the public revenue, has assumed upon himself authority and power not conferred by the constitution and laws, but in derogation of both."(7) By approving this resolution senators simply recounted the events as they saw them and noted their disagreement with the legality of the President's actions, leaving it to others -- historians, the American people -- to determine Jackson's fate, and the state of his honor. The resolution merely described what the President had done; it did not indicate what, if anything, Congress would do in response, either in the form of words of condemnation and censure, or some other, more tangible disciplinary action.

By contrast, the resolutions contemplated by the 105th and 106th Congresses did not merely describe Clinton's actions and express congressional disapproval of them. Rather than restrict Congress to the role of commentator, the Clinton resolutions would have put members in the role of disciplinarian. Like the Jackson resolution, the Clinton resolutions recounted the various evil deeds committed by the President, such as "deliberately misle[ading] and deceiv[ing] the American people, and people in all branches of the United States government"(8) and numerous other wrongs. But the Clinton resolutions took a critical additional step by stating that "the United States Senate does hereby censure William Jefferson Clinton ... and does condemn his wrongful conduct in the strongest terms."(9) Through those resolutions, members of Congress sought to inflict punishment upon the President, albeit with only words of condemnation and censure, rather than removal or fine.

The difference between commentary and disagreement on the one hand and condemnation and censure on the other is not merely a matter of expressive content; it has an important constitutional dimension as well. Unlike the descriptive resolution opposed by Jackson, the Clinton censure resolutions enjoy no historical pedigree. Thus, by allowing their adversaries to conflate the two, censure opponents squandered their strongest constitutional arguments. With no one pointing out the critical differences between censure and everyday congressional practice, the Washington political establishment had little trouble trivializing the legal objections to censure.(10) It is a subtle difference, and one of mere words to be sure, but it is an important difference nonetheless, between mere disagreement and discourse among public servants on the one hand, and an impugning of one's honor and integrity on the other.(11)

This Article attempts to uncover the truth about the Jackson resolution and thereby recover the real constitutional case against censure. Part I analyzes the arguments from constitutional text and structure and concludes that there is no place in the Constitution for congressional censure of executive branch officials outside of an impeachment proceeding. Part II looks at the 1834 Senate resolution against President Jackson. Part III articulates the best approach to understanding what the Jackson episode does and does not stand for, and compares and contrasts it with previous and subsequent congressional practice. Finally, Part IV offers some parting thoughts, ultimately concluding that congressional censure of executive branch officials cannot be justified on the basis of constitutional text, structure, historical practice, or even policy, at least when conducted outside of an impeachment proceeding.

1. THE CONSTITUTION

   We begin with the text of the Constitution. Article I, Section 7 of the Constitution expressly contemplates congressional authority to make resolutions.(12) Although the Constitution does not expressly give content to that power, throughout history Congress has used resolutions not only instrumentally to serve other, constitutionally enumerated purposes,(13) but also to comment on various issues of the day.(14) Moreover, nothing in the Constitution expressly or implicitly forbids Congress from engaging in such commentary. This is not so with regard to censure resolutions, however.

   The Constitution expressly authorizes Congress to punish federal officials. For example, each House is authorized to punish its own members.(15) On various occasions, Congress has exercised that power and punished individual members of Congress by approving censure resolutions.(16)

   The only express authority to punish executive and judicial officers, however, is found in the impeachment clauses.(17) Therefore, if the Constitution allows congressional censure of executive branch officials at all, it is allowed only if the procedural requirements of impeachment are met. Under the traditional approach to impeachment, Article II, Section 4 of the Constitution, which requires removal from office upon "Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors," operates as a limit on the scope of the impeachment power.(18) Professor Joseph Isenbergh and others, however, would read Article II, Section 4 as merely a mandatory minimum sentencing provision for the specified offenses. Under this view, the impeachment power both permits impeachment for lesser offenses, and contemplates penalties lesser than removal, such as censure.(19)

   To give censure proponents the benefit of the doubt, this Article shall, for purposes of argument, assume the validity of the Isenbergh position.(20) But even under that view, without the consent of a majority of the House and two-thirds of the Senate, Congress may not censure the President, any more than it can fine him.(21) Just as Article I, Section 7 implicitly forbids a single House from enacting legislation by requiring the agreement of both Houses and the President to do so,(22) the impeachment clauses forbid a single House from punishing an executive official by requiring the approval of both Houses.(23) The restrictive effect of applying such vote requirements to the censure power is plain. Indeed, had those requirements been imposed upon the 1834 resolution against President Jackson, that resolution would have failed at the hands of the Democratic majority in the House.(24)

   Moreover, not only is there no textual defense for inter-branch censure (at least not outside of the impeachment process), the Constitution expressly forbids it through its prohibition against bills of attainder.(25) For, as the Supreme Court has recognized on numerous occasions, the rule against bills of attainder prohibits all forms of legislative punishment, even that which merely condemns and censures but does not inflict a more tangible form of punishment.(26) One might even argue that censure unconstitutionally interferes with the President's pardon power(27) by imposing punishment "beyond the reach of executive clemency."(28) (And contrary to conventional wisdom,(29) federal courts do have power under Article III to adjudicate claims of injury to personal reputation alone.(30))

   Of course, not all constitutional powers are explicitly mentioned in the text; some may be structurally inferred from or read into the Constitution through the Necessary and Proper Clause.(31) For example, Congress has an implied power to investigate,(32) to hold individuals in contempt of Congress for failing to comply with congressional subpoenas,(33) and to publicize the results of congressional findings.(34) These powers, though not enumerated in constitutional text, are nevertheless conferred by the Constitution because they are employed instrumentally in exercise of an expressly enumerated power -- whether that of impeachment or enacting legislation.

   But because its function is exclusively that of...