A Rebuke Rarely Exercised

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By Zachary A. Goldfarb
Special to The Washington Post
Friday, March 31, 2006

When the nation was still young and the Constitution only 11 years old, Congress tried for the first time to censure a president.

The British Royal Navy was alleging that a seaman in custody in South Carolina was a fugitive. Without an investigation, President John Adams instructed a judge to turn the man, who said he was an American, over to the British.

This infuriated some in the House. Adams's opponents there sought in the spring of 1800 to adopt a resolution declaring his action "a dangerous interference of the Executive with Judicial Decisions."

But Adams had powerful defenders, including Rep. John Marshall, who later set many of the nation's founding constitutional principles as chief justice of the United States. Rep. William Craik argued that the House had neither "the power to censure or to approbate the conduct of the Executive," according to the Annals of Congress, but only to impeach him. The debate lasted two weeks, and in the end a vote to censure failed by nearly 2 to 1.

The question of censure is once again before Congress. This morning, the Senate Judiciary Committee meets to discuss a resolution introduced by Sen. Russell Feingold (D-Wis.) that would rebuke President Bush for his secret surveillance program. Old newspaper clippings and historical writings show that censure has a mixed record as an effective means for Congress to express disapproval of presidents.

Thirty-four years after the Adams episode, in March of the second year of the second term of President Andrew Jackson, the Senate rebuked the president in what remains the most famous case of censure.

In the campaign of 1832, Jackson and his opponent, Whig Party leader Sen. Henry Clay, had debated vigorously the merits of the Second Bank of the United States -- whose recharter Jackson had vetoed. After the president was reelected, the Whigs, who held a Senate majority over Jackson's Democrats, demanded a document he had read to his Cabinet regarding the bank.

When the president refused, according to Senate historians, the Senate voted 26 to 20 to declare the president "in derogation" of the Constitution. Jackson responded with a lengthy protest.

That was not the end of the story.

Three years later, Democrats regained the Senate majority and sought to repeal the censure. They called for the 1834 Senate journal to be brought forward, and the "secretary took up his pen, drew black lines around the censure text, and wrote 'Expunged,' " Senate historians have noted. "The chamber erupted in Democratic jubilation. . . . Dressed in the deep black of a mourner, Henry Clay lamented: 'The Senate is no longer a place for any decent man.' "

One reason censure has not had much legitimacy as a tool for rebuke is that it is expressed by a congressional resolution without the force of law, and "you can express a resolution that apple pie and motherhood are good for American life," says professor William W. Van Alstyne of the College of William & Mary law school. Yet it has kept on coming up.

In the 1860s, the House adopted a resolution censuring President James Buchanan for letting politics influence government contracts. The Senate, after Buchanan left office, debated whether to censure him for not stopping the Southern states from seceding from the Union, according to a report by the Congressional Research Service.

In the spring of 1951, Republicans were enraged that President Harry S. Truman had fired Gen. Douglas MacArthur as commander of the United Nations forces in Korea. A senator with White House ambitions, Richard M. Nixon (R-Calif.), suggested censuring the president. The call failed to gain support.

Censure has been proposed in more recent history by the president's supporters as an alternative to impeachment. During the Watergate scandal, House Minority Leader John J. Rhodes (R-Ariz.) signed on to a petition to consider censuring President Nixon, and a resolution was introduced, but the debate moved to impeachment.

During the Monica S. Lewinsky scandal eight years ago, censure as an alternative to impeachment was floated seriously in Congress. President Bill Clinton's supporters hoped that a compromise would avert removal from office and pay off politically because polls showed most Americans preferred censure.

A phrase coined during the debate, "censure-plus," would have involved a rebuke and a financial penalty. But ultimately House Republicans approved two articles of impeachment.

In the Senate in late 1998 and early 1999, censure seemed to have more support from Republicans, but Democrats were beginning to sense that the Senate would not vote to impeach. "We are now navigating in previously uncharted waters," Sen. Robert C. Byrd (D-W.Va.) said at the time. Ultimately, the Senate voted not to convict Clinton -- and that was it.

For George Washington University constitutional law professor Jonathan Turley, the Clinton episode, as well as the pending Feingold proposal, are characteristic of what censure is -- and is not.

"The Constitution places an obligation upon Congress to impeach a president who has committed a high crime or misdemeanor," he said. "We're often left with these ambiguous actions. Even if a censure vote passed, the president would simply blame it on politics."


© 2006 The Washington Post Company

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