'Congress - More Passing Pretense as a Parliament?'
By Marion Edwyn Harrison, Esq. (06/01/07)
Once again, some United States Senators are proposing a resolution of censure or no confidence. Once again, they are ignoring the Constitutional scheme of our tripartite Federal Government which so clearly provides for the separation of powers between the Executive, Judicial and Legislative Departments. The Senate confirms those Presidential nominees which by statute require Senatorial advice and consent - that is, confirmation - permanently to take office. Congress, with both Senate and House of Representatives in agreement, to a point can limit the activity of confirmed officeholders - e.g., Cabinet Members - by appropriations, riders upon appropriations and legislation. One House or both can cause such a public official considerable grief by investigations, protracted hearings and the like. Individual Members of Congress can express their criticisms - as, of course, can any citizen (although not at taxpayers’ expense). However, there is no Constitutional authority for censure or no-confidence votes - not because the proponents may be grandstanding but because the Constitution provides a separation of powers.
Notwithstanding the nonparliamentary Congressional role, some Senators are advocating censuring Attorney General Alberto R. Gonzales. More and more Senators, of both political parties, attorneys, (doubtless, also judges, who, of course, usually ethically are restrained), academics and others, including this writer, find it difficult to impossible to defend the gentleman’s performance, if perhaps not his good intent. However, that is not a ground for an action typical of a parliamentary system of government and unacceptable in our tripartite system.
A touch of history follows.
Marion Edwyn Harrison, Esq. is President of, and Counsel to, the Free Congress Foundation
Congress - A Passing Pretense as a Parliament?
By Marion Edwyn Harrison, Esq.
April 27, 2006
The United States of America is not a parliamentary government. It is a government of separation of powers. THE FEDERALIST PAPERS, Constitutional Congress debate, the first three Articles of the Constitution, more than two centuries of Federal jurisprudence and (with half a dozen erratic and unsuccessful aberrations) more than two centuries of sessions of Congress all make that clear.
How, then, before the recess from which this week Congress returns, did a handful on Capitol Hill divert to, and much of the media report as serious, a proposal to censure the President of the United States?
More puzzling, how did the leading censure proponent, Senator Russell D. Feingold (D-WI), think it advisable - maybe as a launchpad for a Presidential or (hello, Hilary) Vice Presidential slot, to promote censure and grab boundless publicity for having done so? It is puzzling why any Senator would manifest such ignorance of, or disrespect for, law and history. The more puzzling it is that Senator Feingold did so. He is one of the brighter, more scholarly Senators - Phi Beta Kappa at Wisconsin; Rhodes Scholar at Magdalen College, Oxford; Harvard Law. Maybe it was only a testing of public-receptivity waters: Gain considerable publicity, correctly anticipate that the Senate would not buy the product and that after the media blitz and Congressional recess great masses of liberal voters would remember the name “Feingold” as a leader in something-or-another to blast President George W. Bush while forgetting the inappropriate (and, in a governmental organizational sense, un-American) subject matter.
One usually can find a handful of scholars to support any proposition. However, few or none, and no judicial precedent, supports the notion - much less the authority - that the Legislative Branch in effect can transmogrify itself into a parliament and vote the functional equivalent of “No confidence” in the Constitutionally coordinate and equal Executive Branch. Many parliaments, of course, cast such votes. Thus, for example, in many of them, if the Parliament votes what the British colloquially term “No confidence” in the “Government” (meaning the Prime Minister or Premier and his Cabinet) the “Government” falls; new elections ensue. In many such governmental structures the Prime Minister or Premier and the Cabinet each is a member of the Parliament; there is no serious pretense, much less strong function, of separation of powers. The entire American governmental organization is built upon a separation of powers - Article I, Legislative; Article II, Executive; Article III, Judicial.
As a matter of history Congress, in fact, did goof around a few times attempting to censure or otherwise formally castigate the President.
Some Members of the Sixth Congress took umbrage at President John Adams and, ignoring the Constitutional separation of powers, unsuccessfully sought to censure him.
In 1832 President Andrew Jackson, who like the first Adams never got along well with Congress, was the “addressee” (shall we say) of a Senatorial resolution, approved 26 - 20, accusing him of “derogation” (whatever that meant) of the Constitution; two years later repealed and “Expunged” by a more Constitutionally adept (and, naturally, politically favorable, Senate).
President James Buchanan, best known for his inadequacy as the Civil War was brewing, had a run-in with the House of Representatives, which purported to censure him, but the Senate did not follow through.
Senator Richard M. Nixon, very bright like Senator Feingold, once suggested censuring President Harry S. Truman over the dismissal of General of the Army Douglas MacArthur, but that unconstitutional suggestion went nowhere.
There were various censuring noises during the Watergate fiasco and again preceding the impeachment of President William J. Clinton. Impeachment, of course, clearly is Constitutionally authorized. “The House of Representatives . . . shall have the sole Power of Impeachment.” Article I, § 2. “The Senate shall have the sole Power to try all Impeachments. . . “ Article I, § 3. (This writer and his wife had the honor, as guests of the late Chief Justice William H. Rehnquist, who presided, of observing portions of the Clinton Senatorial Impeachment trial. Those Senators and House of Representatives “Managers” who spoke appeared to have understood the gravity of impeachment and the Senatorial role. They weren’t considering some parliamentary political procedure such as censure; they were considering the Constitutionally authorized criminal procedure of impeachment. This comment, of course, does not address the substantive merits.)
The bottom line is that once again some in Congress attempted a publicity-seeking, Constitutionally unauthorized, parliamentary-not-Congressional procedure; garnered themselves a bundle of publicity; trotted off on recess; let - one hopes - the erroneous quest fade; and now have returned to address what should be the pending issues: Expenditures out of control, immigration out of control, ethics in need of some control; a trying War on Terror; so on.
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