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F. CONSTITUTIONAL AUTHORITY Pursuant to clause 2(1)(4) of the Rules of the House of Representatives, the Committee finds the authority for this resolution in Article I, section 2, clause 5 of the Constitution.
VI. ARGUMENTS ABOUT CENSURE The Constitution contains a single procedure for Congress to address the fitness for office of the President of the United Statesimpeachment by the House, and subsequent trial by the Senate. Article II, section 4 of the Constitution also specifies the necessary consequence of conviction in an impeachment case: "The President, the Vice-President and all civil officers shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.'
Article I, section 3 states that "Judgment in Cases of Impeachment will not extend further than removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States:" This provision, however, does not authorize Congress to impose legislative punishments short of removal. Read together, the impeachment clauses require removal upon conviction, but allow the Senate at its discretion to impose a single additional penalty-disqualification from future office.
The Framers' decision to confine legislative sanctioning of executive officials to removal upon impeachment was carefully considered. By forcing the House and Senate to act as a tribunal and trial jury, rather than merely as a legislative body, they infused the process with notions of due process. Under the Constitution, the House impeaches by a majority vote. However, the requirement of removal upon conviction after a two-thirds vote in the Senate accentuates the magnitude of the procedure, encouraging serious deliberation among members of Congress. Most importantly, by refusing to include any consequences less serious than removal as outcomes of the impeachment process, the Framers made impeachment into such an awesome power that Congress could not use it to harass executive officials or otherwise interfere with operations of coordinate branches.
But for the President or any other civil officer, this kind of shaming punishment by the legislature is precluded by the Constitution, since the impeachment provisions permit Congress only to remove an officer of another branch of government and disqualify him from office. Not only would such a punishment undermine the separation of powers by punishing the President or other civil officers of the government in a manner other than expressly provided for in the Constitution, but it would violate the Constitution's prohibition on Bills of Attainder. U.S. Const. art. I, sec. 9, cl. 3. ("No Bill of Attainder or ex post facto Law shall be passed”).
A. PROHIBITED BILL OF ATTAINDER
A Bill of Attainder was originally a mechanism by which the British Parliament could punish specific individuals for activities against the interests of the Crown. Artway v. Attorney General of New Jersey, 876 F. Supp. 666, 683 (1995), affd in part, vacated in part, 81 F.3d 1235 (3rd Cir. 1996). It was a feature of the British Common law abominable to the Framers of our Constitution. Id. A Bill of Attainder is a law that is intended to punish a specific individual (or identifiable group of individuals) rather than a regulatory or prophylactic law intended to protect the public. United States v. Brown, 381 U.S. 437 (1965). The Bill of Attainder Clause was intended, as the Supreme Court declared in Brown, id. at 442, to serve as "a general safeguard against legislative exercise of the judicial function, or more simply trial by legislature.” In 1977, the Supreme Court described a Bill of Attainder as "a law that legislatively determines guilt and inflicts punishment upon an identified individual without the provisions of the protections of a judicial trial.” Nixon v. Administrator of General Services, 433 U.S. 425, 468 (1977). The Court also said that “a major concern that prompted the bill of attainder prohibition (was) the fear that the legislature, in seeking to pander to the inflamed popular constituency, will find it expedient openly to assume the mantle of judge." Id. at 480 (emphasis added); cf. E.E.O.C. v. Sears, Roebuck and Company, 504 F. Supp. 241 (1930)(finding no bill of attainder violation because “there has been no determination of . . . guilt” nor imposition of punitive measures).
Importantly, the proposed censure resolution is a joint resolution, requiring passage by both houses and signature by the President. While a simple or concurrent resolution is more like a “collective shout” from the House or Senate Floor than a bill, a joint resolution is very clearly a “bill,” since it is a measure requiring the signature of the President. A joint resolution of censure a law formally and publicly expressing condemnation by the legislature directed at a specific individual confronts squarely the prohibition on Bills of Attainder.
Defenders of presidential “censure” argue that it does not really punish and therefore cannot be a Bill of Attainder. In determining whether a law is punitive within the context of the prohibition of Bills of Attainder, courts look to what are understood as the motivational, functional, and historical tests: (1) whether the legislature intended the law to be punitive; (2) whether the law reasonably can be said to further non-punitive legislative purposes; and (3) whether the punishment was traditionally judged to be prohibited by the Bill of Attainder clause. See In re McMullen, 989 F.2d 603, 607 (2d Cir.), cert. denied, 114 S. Ct. 301 (1993).
The motivational test is clearly implicated here. As the Congressional Research Service has noted, any argument that censure provisions were not intended to be punitive would “face the task of overcoming express statements by individual Members concerning. the appropriate punishment in this particular case.” Censure of the President by Congress, Jack Maskell, Legislative Attorney, American Law Division, CŘS Report for Congress, September 29, 1998, at 9. Indeed, the record is replete with such references. As Representative Pease stated during consideration of the joint resolution of censure:
It seems to me, after all this discussion of what exactly is a resolution of censure regarding the President, there is still no agreement. It is either an action to punish the President or it is an action that doesn't punish the President. If it is an action to punish the President, it is a bill
of attainder and unconstitutional. If it is a resolution that
have offered it, I cannot support the resolution. Markup Session, Articles of Impeachment of William Jefferson Clinton, December 12, 1998, at 286 (Statement of Rep. Pease).
In Nixon v. Administrator of General Services, the Supreme Court examined claims by President Richard Nixon that the Presidential Recordings and Materials Preservation Act constituted an unconstitutional Bill of Attainder. Nixon v. Administrator of General Services, 433 U.S. at 468. Importantly, the Court upheld the District Court's finding that there was “no evidence presented [or] to be found in the legislative record, to indicate that Congress' design was to impose a penalty upon Mr. Nixon as punishment for alleged past wrongdoings.” Id. at 478. The Court noted that “the objectives of preserving the availability of judicial evidence” was properly within Congress' legislative competence, and agreed with the District Court's conclusion that "the Act before us is regulatory and not punitive in character.” Id.
In a concurring opinion in Nixon, Justice Stevens was concerned that "[t]he statute implicitly condemns him as an unreliable custodian of his papers” and declared that "Illegislation which subjects a named individual to this humiliating treatment must raise seri. ous questions under the Bill of Attainder Clause.” Id. at 484 (J. Stevens, concurring opinion)(emphasis added). A resolution explicitly condemning a person and subjecting him to humiliating treatment confronts directly the Article I prohibition on Bills of Attainder. Moreover, Professor John C. Harrison of the University of Virginia Law School, who testified at the Committee hearing on "The Background and History of Impeachment,” has written that:
A resolution of censure, even if purely expressive, still would have a punitive purpose. Expressed moral condemnation is a form of retribution, and acceptance of it is a form of contrition just as acceptance of more concrete punishment is a form of contrition. That punitive purpose would bring a censure resolution within the ban on bills of attainder if one were to conclude that the injury inflicted on the President, although purely expressive, were punish
ment within the meaning of the Bill of Attainder Clause. Letter of John C. Harrison, Professor of Law, University of Virginia Law School, to Representative William Delahunt (December 3, 1998).
B. CENSURE OF PRESIDENT ANDREW JACKSON
The House of Representatives has never before censured a President. Moreover, no President has ever willingly accepted a censure of the Executive by the Legislative Branch. În 1834, the Senate voted to censure President Andrew Jackson on the ground that, in withdrawing federal funds from the Bank of the United States, he had "assumed upon himself authority and power not conferred by the Constitution and laws, but in derogation of both.” Telling are the words of protest from President Jackson, which the Senate refused to enter on its Journal:
By an expression of the constitution, before the President of the United States can enter on the execution of his office, he is required to take an oath or affirmation in the following words: “I do solemnly swear (or affirm) that I will faithfully execute the office of President of the United States, and will, to the best of my ability, preserve, protect, and defend the constitution of the United States."
The duty of defending, so far as in him lies, the integrity of the constitution, would indeed have resulted from the very nature of his office; but by thus expressing it in the official oath or affirmation, which, in this respect, differs from that of every other functionary, the founders of our republic have attested their sense of its importance, and have given to it a peculiar solemnity and force. Bound to the performance of this duty by the oath I have taken, by the strongest obligations of gratitude to the American people, and by the ties which unite my every earthly interest with the welfare and glory of my country, and perfectly convinced that the discussion and passage of the abovementioned resolution were not only unauthorized by the Constitution, but in many respects repugnant to its provisions and subversive of the rights secured by it to other coordinate departments, I deem it an imperative duty to maintain the supremacy of that sacred instrument, and the immunities of the department intrusted to my care, by all means consistent with my own lawful powers, with the rights of others, and with the genius of our civil institutions. To this end, I have caused this, my solemn protest against the aforesaid proceedings, to be placed on the files of the Executive department, and be transmitted to the
Senate. Gales & Seaton's Register, President's Protest, April 17, 1834, Protest of President Andrew Jackson.
President Jackson wrote that the very idea of a censure is a "subversion of that distribution of powers of government which (the Constitution] has ordained and established [and] destructive of the checks and safeguards by which those powers were intended on the one hand to be controlled and the other to be protected.” It was for this reason that President Jackson argued that censure was “wholly unauthorized by the Constitution and in derogation of its entire spirit.” One of the constitutional scholars appearing before the committee during the course of its impeachment hearings, Gary McDowell, stated this point eloquently:
Impeachment is the only power granted by the Constitution to the Congress to deal with errant executives. It is the only means whereby the necessarily high walls of separation between the two branches may be legitimately scaled. Had the Founders intended some other means of punishment to be available to your branch they would have said so, as Chief Justice John Marshall once said, "in plain and intelligible language.” That they did not do so should be your only guide in this grave and sensitive matter.
The temptation to do anything possible to avoid exercising the awful constitutional power of impeachment is obviously and understandably great. But such a temptation to take the easy way out by assuming a power not granted should be shunned. And should President Clinton, as a result of bad advice or political pressure, agree to such an unconstitutional punishment as a censure, that would be a breach of his constitutional obligations as great as anything else of which he has been accused. The great office he is privileged to hold deserves his protection against any
ill-considered censorious assault from Congress. Letter of Gary McDowell, Director of the Institute for U.S. Studies, University of London, to Representative William Delahunt (December 3, 1998).
It is important to note that the Senate expunged the censure of President Andrew Jackson only three years later. Register of Debates, 24th Congress, 2d Sess. 379–418, 427-506 (1837), see discussion in Fisher, Constitutional Conflicts Between Congress and the President, 54–55 (4th ed. 1997).
This is significant because the word expungement, the phrase 'expungement from the record', has legal as well as historical significance. It doesn't mean we just turn our back on it. It means it never happened. If somebody is convicted of a crime and they later go back to court after their conviction is over and they've served their time, if they petition the court to expunge the record, it means they lawfully can answer under oath that they have never been convicted of a crime because it never happened. And on any given date, any future Congress could by a simple majority vote take this piece of paper and erase it from the history books of America, erase its significance, erase its longevity and erase its effect. I don't see that as a signifi
cant rebuke at all. Markup Session, Articles of Impeachment of William Jefferson Clinton, Statement of Representative James E. Rogan, December 12, 1998, at 310.
Constitutional scholar John O. McGinnis testified before the Committee that:
The current interest in creating new forms of sanctions for the President reflects a cavalier attitude toward constitutional governance, and indeed illustrates the kind of lasting damage that the country risks from presidential misconduct. If a President cannot legitimately deny that he has breached the public trust there will be a widespread feeling that he must be punished. He or his supporters then may be willing to trade the prerogatives of his Office for their personal or political benefit. Thus one way a President who has committed serious misconduct poses a threat to the Republic, McGinnis argues, is the increased likelihood that he will agree to disastrous constitutional precedents to protect his own tenure.