Censure of the President by the Congress (CRS Report for Congress)
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| Release Date |
Revised Dec. 8, 1998 |
| Report Number |
98-843 |
| Report Type |
Report |
| Authors |
Jack Maskell, American Law Division |
| Source Agency |
Congressional Research Service |
| Older Revisions |
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Summary:
There is no express constitutional provision which authorizes Congress to "censure" the
President
or any other executive branch official. A censure of the President does not appear to be, and has not
traditionally been, part of the impeachment process, which involves an impeachment in the House
and a trial and conviction in the Senate. A censure of the President is clearly not part of Congress'
express authority to "punish" its own Members (Article I, Section 5, clause 2), nor would it be in
most cases within the inherent contempt powers of legislatures to protect the dignity, privileges and
proceedings of the institution and its Members. Rather, a "censure" has been and would most likely
be in the nature of "sense of the Congress," or sense of the Senate or House, resolutions which have
developed in congressional practice as vehicles to state opinions or facts in non-binding,
nonlegislative instruments. The House and Senate have, on infrequent occasions, and mostly in the
19th Century, expressed their disapproval, reproof or censure of executive officials, including the
President, or certain of their actions in simple resolutions. Precedents indicate that one action of the
Senate (Andrew Jackson in 1834, although expunged in 1837) and two actions of the House (Tyler
in 1842 and Buchanan in 1860) may be categorized in a broad definition of a congressional "censure"
of a President.
Similar to a censure of the President, there is no express constitutional authority to "fine" the
President or any other individual outside of Congress, or to require anyone outside of Congress to
make a monetary restitution. However, unlike a censure or other "sense of" the House or Senate
resolution used to express an opinion, a mandatory fine legislated by
Congress against a particular
individual may run afoul of the "Bill of Attainder" Clause of the Constitution, as well as, if directed
at the President, raise issues concerning the constitutional prohibition on diminishing the salary of
the President. Also, unlike censure or other statement of disapproval formally expressed by
Congress, there have been found no precedents for the Congress to legislate or formally adopt a
resolution expressly directing a specified individual, who is not a Member of Congress, to pay a fine
or a restitution to the Government.
It may at least be theoretically possible for an agreement to be reached between the President
and the Congress for the President to voluntarily "accept" a congressional statement, suggestion
and/or direction concerning particular restitution or other act of contrition, and not to challenge the
authority or constitutionality of any such legislative statement or act. In such a case, as a practical
matter, it may be difficult for anyone other than the individual actually aggrieved or harmed (that is,
the President), to possess the requisite legal standing to challenge in court such an arrangement on
the basis of an alleged absence of legislative authority or violation of constitutional precepts. Such
legal questions of authority, power and standing aside, however, there may be implications for policy
and precedent which the Congress may wish to consider and weigh in adopting a congressional
response to alleged wrongdoing by an executive official, particularly the President, when such
response is other than through impeachment, and is not provided for in the Constitution.
