In reacting to President Obama’s extraordinary abuse of his power on immigration, Republican officeholders are wisely steering clear of talk of impeachment. “I don’t want to do the ‘I-word,’ nobody wants to throw the nation into that kind of turmoil,” Representative Steve King, an anti-illegal-immigration firebrand, told CNN.
But King and others are pointing out that there is another way for Congress to move against a president who has put himself above the law. And it’s one that Democrats once favored as a means of dealing with Bill Clinton’s perjury under oath and subsequent cover-up of the Monica Lewinsky scandal. None other than Nancy Pelosi proposed that the House censure Bill Clinton, rather than impeach him. She and other House Democrats backed a resolution declaring that President Clinton “fully deserves the censure and condemnation of the American people and the Congress.”
Certainly some action beyond Congress suing the president and trying to withhold money from his efforts to implement his executive orders is needed. A failure to resist President Obama’s repeated, serious offenses against his oath of office not only endangers the Constitution today, but provides a blueprint for future generations to suffer similar assaults from another president.
But what can Congress and the American people do?
The impeachment of a president is a very grave step, a sort of “nuclear option” to be avoided unless absolutely required. Not only is its explicit purpose to legislatively overturn the sovereign judgment of the people at the ballot box, its impact on the work of the government and national life is deeply corrosive.
There is, however, another option, short of impeachment, for sanctioning the president’s unconstitutional conduct in office. As outlined by Charles Cooper, a former head of the Justice Department’s Office of Legal Counsel during the Reagan administration, the House of Representatives can and should prepare, debate, and adopt a unicameral resolution identifying and condemning President Obama’s usurpations of legislative power and his refusals to faithfully execute the laws.
The Congressional Research Service has identified many historical precedents in which the Senate or the House has adopted a resolution of censure or disapproval of a president or other executive or judicial officers. Indeed, in 1998 Democratic senator Dianne Feinstein of California and 37 co-sponsors introduced a joint resolution in the Senate that recounted President Clinton’s various misdeeds, and not only “condemn[ed] his wrongful conduct in the strongest terms,” but also “censure[d]” the president personally.
Of course, President Clinton was instead impeached by the House and tried in the Senate (he was acquitted). Some advocates for Clinton’s impeachment argued that the Constitution left Congress no other choice — that the Constitution denies the Congress, and either House, the ability to censure an executive or judicial officer. I disagree, so long as the House directs its words of condemnation at President Obama’s unconstitutional acts and omissions rather than at the president himself.
It is critical that the historical record offer no support to the argument that the constitutional validity of President Obama’s constitutional excesses be judged by claims that they were met with Congress’s silence, and thus its acquiescence. The great Senator Henry Clay of Kentucky, offering a Senate resolution denouncing as unconstitutional President Andrew Jackson’s acts relating to the Bank of the United States, warned his fellow senators: “The premonitory symptoms of despotism are upon us; and if Congress does not apply an instantaneous and effective remedy, the fatal collapse will soon come on, and we shall die — ignobly die — base, mean, and abject slaves; with the scorn and contempt of mankind; unpitied, unwept, and unmourned!” Where are our Henry Clays?
A resolution of censure would also force moderate and swing-state Democrats to go on record with their opinion of President Obama’s actions. As Jay Cost points out in The Weekly Standard, “They could either defy their president or risk their constituents’ wrath by letting him get away with his unpopular maneuvers.” A resolution of censure would also serve as a warning, a sort of constitutional yellow card, that Congress and the American people will not tolerate abuses of power indefinitely and that presidents who so abuse their power risk having a blot on their record and creating a climate in which further steps — from defunding executive-branch programs all the way up to impeachment — are contemplated.
— John Fund is national-affairs correspondent for NRO.