Republicans opposed to President Obama’s immigration order are floating the idea of Congress voting to “censure” the president. Liberals are suggesting censure is unconstitutional because the Constitution nowhere authorizes Congress to censure anybody.

People who think a censure bill clearly is unconstitutional take censure too seriously and the Constitution not seriously enough.

Congress is free to pass anything it likes, so long as it does not affect anyone outside the legislative branch. The Court made this clear in INS v. Chadha (1984), which struck down the legislative veto — only when Congress acts in a way that affects the legal rights and duties of people outside the legislative branch does the separation of powers, federalism, and the Bill of Rights come into play. Congress can pass a resolution saying the moon is made out of green cheese, that the Philadelphia Eagles have the best offense in the NFL, or that MSNBC should close up shop because no one watches it.

If Congress wants to censure the president, it can. As far as I know, a censure motion has no real-world effect. It is just an expression of disapproval — just a resolution with the title censure at the top. It would be odd indeed if legislators, who enjoy complete immunity for their official statements under the Constitution’s speech-and-debate clause, could not collectively speak their minds. Of course, this means that censure is only an expression and nothing more, and so does not do anything to push back on President Obama’s order, as would funding cuts, holding up executive nominations, oversight hearings, and legislation.

Critics don’t know their history and don’t fully understand the only time that the Senate censured the president. In 1834, Henry Clay led the Senate to censure President Andrew Jackson by a vote of 26–20. Jackson had fired the Treasury secretary, William Duane, for refusing to obey his order to withdraw all federal funds from the Second Bank of the United States. Jackson replaced him with Roger Taney — yes, that Taney — who promptly carried out the order, which effectively crippled the Bank. After the censure passed, Jackson responded with his own “protest,” one of the most forceful declarations of presidential power in American history.

I think that Clay’s censure and Jackson’s protest were both constitutional. But unlike Obama’s immigration order, Jackson was clearly in the right — he was defending the president’s authority to remove subordinate executive-branch officials who would not carry out his orders. For anyone interested in more, you can consult my article on Jackson and presidential power, which appeared in the Boston University Law Review.