Horace Cooper

Senate Democrats should not join Russ Feingold’s efforts to censure President Bush. He is charting a path that is ahistorical and extra-constitutional. While Senator Feingold may have doubts about the legality of the once classified electronic surveillance program operated by the National Security Agency and disclosed in December by the New York Times, the Senate risks establishing a precedent it may soon regret. Why? Because once embraced, senators risk subjecting themselves to the same condemnation.

What is censure? Purportedly it is the legislative equivalent of a reprimand or rebuke. Many constitutional scholars argue that since neither the Constitution nor the rules of the House or Senate expressly provide for it, Congress does not have this authority. Historically, the first and last time this power was invoked by the legislature against the executive occurred in 1834. It was carried out by a United States Senate controlled by a Whig Majority and used against President Andrew Jackson, a Democrat.

While it may be politically convenient, the use of the "censure" is not at all necessary in order for Congress to carryout its powers. The U.S. Constitution, House, and Senate rules all provide explicit means for Congress to exercise their disagreements with the executive. They have an array of powers to rely upon: they can enact statutes, reduce or end spending on programs they oppose, override a presidential veto and use their impeachment power. 

Arguably, "censure" is modeled after the techniques used by the House and the Senate to formally condemn or rebuke members of their own body. Under rules established by the House and Senate, after a simple majority vote, the Member is publicly denounced, but still retains his position as a senator or representative. Using this formulation, Sen. Feingold’s resolution would "rebuke" President Bush but would not force him from office.

What is most troubling about Senator Feingold’s resolution is the particular application he seeks. Essentially, Senator Feingold is using a reprimand to resolve a "separation of powers" dispute between the president and Congress. Some members of Congress argue that Congress alone has the power to regulate the use of wiretaps domestically.

On the other hand, the White House says that the president’s "war powers" and his interpretation of the Iraq War resolution give him authority to surveil enemy terrorist communications, even on U.S. soil.
 
Again, this is essentially a "separation of powers" dispute. Separation of powers is the concept that explains the way the political powers of our government are divided between an executive, a legislature and a judiciary. Under this model, each branch has separate and independent powers and areas of responsibility; however, each branch also possesses powers to limit or "check" the power exerted by the other branches.
 
Because there has yet to be any final determination as to whether the president has acted unlawfully or unconstitutionally, Senator Feingold’s action is hasty at a minimum. Yet even if it were timely, members of Congress would need to be very careful about embracing this tactic. If an elected official can be subject to the "censure" solely because an action which he or she supported might be or is subsequently declared unconstitutional or unlawful, opportunistic members today may find themselves hoisted on their own petard tomorrow.
 
After all, Congress’ record on issues involving the "separation of powers" isn’t pristine. In fact, the Supreme Court has had to overturn multiple instances of congressional overreaching throughout the last 25 years.
 
Consider when the Supreme Court struck down parts of the Federal Election Campaign Act in Buckley v. Valeo. Among other things, Congress had created an election commission providing that 4 of its 6 members were to be appointed by Congress and that all 6 members were to be confirmed by the House of Representatives and the Senate. The Court reminded Congress that the Constitution explicitly provides that the president makes appointments and that the Senate confirms members to executive branch commissions.
 
Or look at INS v. Chadha, where the Court ruled that Congress could not interfere with the administration of immigration laws by having either House of Congress "veto" immigration decisions of the U.S. attorney general. The Court here explained that Congress makes the laws and the president carries them out.
 
Nor could the Congress allow either the House or the Senate to "veto" rules of the Federal Energy Regulatory Commission -- Process Gas Consumers Group v. Consumer Energy Council. In a short opinion, the Court referenced INS v. Chadha.
 
But wait, there’s more. In United States Senate v. FTC, the Court struck down a congressional statute purporting to empower either the House or the Senate to "veto" rules of the Federal Trade Commission. Once again, the Court explained the principle that the president carries out the law and Congress makes the laws.
 
Demonstrating how stubborn Congress can be in understanding this legal principle, in Metropolitan Washington Airports Auth. v. Citizens for the Abatement of Aircraft Noise, the Supreme Court was forced to rule against Congress once again. This time it was necessary to thwart Congress’ attempt to establish a review board of the regional Washington, D.C. airport authority. Congress had decided that the board would be made up exclusively of members of Congress, acting in a "private" capacity. Yet again, the Court reiterated that Congress could not carry out the law, either using individual members or collectively.

Note that the cases listed are just those instances in which Congress acted unconstitutionally while attempting to assume "executive" authority. There are legions of instances where congressional acts are found unconstitutional for other reasons.
 
Also notice that in each of these instances, no members of Congress were singled out for approbation by the president or by anyone for that matter. Check the record carefully and you’ll see that no members of the Congress have been sanctioned, forced to resign or even booted off any committees they served on. Congress itself was not officially rebuked or reprimanded; there were no sanctions which resulted from their attempts to foist unconstitutional laws on an unsuspecting public.
 
Even when the judicial record demonstrates a clear and convincing attempt to commandeer executive power or authority, no one has ever been subject to a rebuke. If the judicial caseload is any indication, Congress continues unabated in its drive to do more than simply make the laws, all the while trying not to run afoul of the "separation of powers" doctrine (at least in the eyes of the court).
 
Moreover, even if one overlooks the policy failings animating several of these acts – protecting privileges for Congress which seems wholly unjustified at least in the case of the Washington airports – none of these unconstitutional statutes can compare with the national security justifications given by the president for intercepting communications between the Al Qaeda terrorist network and persons inside the United States.
 
If Senator Feingold is successful, a new standard will be created, one that other members may find tempting to use. Imagine the difficulties of campaigning for re-election as a Senator or Representative after having been censured because of a bill you introduced or supported that critics said is unlawful or unconstitutional.
 
In the Book of Matthew, Jesus says, "Judge not, that ye not be judged. For with what judgment you judge, you will be judged, and with the same measure you use, it will be measured back to you."
 
Condemning the president for actions which are allegedly "unconstitutional" or "unlawful" is a very loose standard; even Congress cannot stand up to this. Using this "extra-constitutional" power solely for partisan reasons will likely only result in members themselves being held accountable for similar alleged breeches. Before embarking down this path, senators should reconsider.


Horace Cooper

Horace Cooper is a legal commentator and a Senior Fellow with the Institute for Liberty.