Is censure a constitutional possibility?
By Charles Bierbauer/CNNDecember 18, 1998
Web posted at: 3:04 p.m. EST (2004 GMT)
WASHINGTON (December 18, 1998) -- House Democrats continue to push for a censure of President Bill Clinton rather than impeachment, but the question remains, can the House of Representatives censure a president?
Censure is a punishment which the president has virtually sought.
"I am ready to accept it," Clinton said during a personal apology to Congress and the nation a week ago.
But is censure within the scope of Congress?
Some say yes. Rep. Sheila Jackson Lee (D-Texas), a member of the House Judiciary Committee, has argued for censure saying, "There is no prohibition on censure in the Constitution."
Some say no. House Speaker-elect Bob Livingston (R-Louisiana) said, "The only way the Constitution envisions for him to face the charges is to face articles of impeachment which would be tried by the Senate."
The Constitution is clear about impeachment. Article I, Section 2 says, "The House of Representatives shall choose their Speaker and other Officers; and shall have the sole Power of Impeachment."
The word censure is nowhere to be found in the Constitution. The closest it comes is Article I, Section 5, which says, " Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behavior, and, with the Concurrence of two thirds, expel a Member."
In the past, the Constitution has not kept either House from finding the words to criticize a president.
Andrew Jackson faced a Senate censure over bank charters in 1836. John Tyler received a House rebuke for excessive use of Veto powers in 1842. James Polk faced a House chastisement for starting the war with Mexico in 1848 and James Buchanan received a House reproof over Navy contracts in 1860.
In 1864, even Abraham Lincoln was condemned by the Senate for allowing a congressman to hold an Army commission.
None of them were facing impeachment, still the answer seems to be, yes, the House or Senate may censure a president.
The better question may be to what end would the House censure the president?
There is some doubt about the impact of censure. Appearing before the Judiciary Committee in November, former Rep. Robert Drinan of Georgetown University Law Center questioned the strength of censure. "Is it an admonition, a rebuke, a reprimand? Presumably, it has no legal consequences," he said.
There have been suggestions of financial consequences. Earlier this week, Delaware Republican Rep. Michael Castle proposed a censure resolution accompanied by a $2 million fine for the president.
"I feel that any former president with book contracts, speeches, whatever, can afford $2 million over a period of five years. It is a figure I hope will catch everyone's attention," Castle said.
A fine could run into to conflict with Article I, Section 9, which says "No Bill of Attainder or ex post facto Law shall be passed." A bill of attainder is a punishment, in this case a fine, passed on one individual.
When Democrats come forward seeking the censure alternative their obstacle won't be the Constitution, it will be the House Republican leadership.
Majority Whip Tom DeLay (R-Texas) expressed the Republican House leadership's stance on censure saying, "Censure violates the rules of the House. It's unconstitutional. It's a terrible precedent."
But censure, in all likelihood, is constitutional. Especially if the president consents to the punishment. It is most likely that any such deal will only be struck between the White House and the Senate after the House votes to impeach.
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