LegiStorm

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.