CRS Report for Congress
Censure of the President by the Congress
Updated December 8, 1998
Jack Maskell
Legislative Attorney
American Law Division

Congressional Research Service ˜ The Library of Congress

Exploring a possible compromise between an impeachment and taking no congressional
action, certain Members of Congress and congressional commentators have suggested a
congressional “censure” of the President to express the Congress’ disapproval of the
President’s conduct which has been the subject of an ongoing independent counsel
investigation. This report provides an overview and discussion of the legal basis and
congressional precedents regarding a congressional “censure” of the President.

Censure of the President by the Congress
There is no express constitutional provision which authorizes Congress to
“censure” the President or any other executive branch official. A censure of the
President does not appear to be, and has not traditionally been, part of the
impeachment process, which involves an impeachment in the House and a trial and
conviction in the Senate. A censure of the President is clearly not part of Congress’
express authority to “punish” its own Members (Article I, Section 5, clause 2), nor
would it be in most cases within the inherent contempt powers of legislatures to
protect the dignity, privileges and proceedings of the institution and its Members.
Rather, a “censure” has been and would most likely be in the nature of “sense of the
Congress,” or sense of the Senate or House, resolutions which have developed in
congressional practice as vehicles to state opinions or facts in non-binding,
nonlegislative instruments. The House and Senate have, on infrequent occasions, and
mostly in the 19 Century, expressed their disapproval, reproof or censure ofth
executive officials, including the President, or certain of their actions in simple
resolutions. Precedents indicate that one action of the Senate (Andrew Jackson in
1834, although expunged in 1837) and two actions of the House (Tyler in 1842 and
Buchanan in 1860) may be categorized in a broad definition of a congressional
"censure" of a President.
Similar to a censure of the President, there is no express constitutional authority
to “fine” the President or any other individual outside of Congress, or to require
anyone outside of Congress to make a monetary restitution. However, unlike a
censure or other “sense of” the House or Senate resolution used to express an
opinion, a mandatory fine legislated by Congress against a particular individual may
run afoul of the “Bill of Attainder” Clause of the Constitution, as well as, if directed
at the President, raise issues concerning the constitutional prohibition on diminishing
the salary of the President. Also, unlike censure or other statement of disapproval
formally expressed by Congress, there have been found no precedents for the
Congress to legislate or formally adopt a resolution expressly directing a specified
individual, who is not a Member of Congress, to pay a fine or a restitution to the
It may at least be theoretically possible for an agreement to be reached between
the President and the Congress for the President to voluntarily “accept” a
congressional statement, suggestion and/or direction concerning particular restitution
or other act of contrition, and not to challenge the authority or constitutionality of any
such legislative statement or act. In such a case, as a practical matter, it may be
difficult for anyone other than the individual actually aggrieved or harmed (that is,
the President), to possess the requisite legal standing to challenge in court such an
arrangement on the basis of an alleged absence of legislative authority or violation
of constitutional precepts. Such legal questions of authority, power and standing
aside, however, there may be implications for policy and precedent which the
Congress may wish to consider and weigh in adopting a congressional response to
alleged wrongdoing by an executive official, particularly the President, when such
response is other than through impeachment, and is not provided for in the

Background/Summary ............................................ 1
Censure ....................................................... 2
Censure Precedents..........................................4
Fines ..................................................... 8
Constitutional Issues.............................................9
Bills of Attainder............................................9
Diminution of Salary........................................14
Separation of Powers and Policy Implications.....................14

Censure of the President by the Congress
Exploring a possible compromise between an impeachment and taking no
congressional action, certain Members of Congress and congressional commentators
have suggested a congressional “censure” of the President to express the Congress’
disapproval of the President’s conduct which has been the subject of an ongoing
independent counsel investigation. This report provides an overview of the legal
basis and congressional precedents regarding a congressional “censure” of the
A “censure” is commonly defined in modern parlance to mean: “The formal
resolution of a legislative, administrative, or other body reprimanding a person,
normally one of its own members, for specified conduct.” In Congress, censures1
are most typically known as simple resolutions of the House or Senate formally
adopted by a vote of that body, and expressing some form of disapproval or other
term of rebuke or condemnation concerning a Member’s conduct which bears
generally on a “breach of the rights and privileges” of the institution. These2
censures of Members are implemented under the express authority in the
Constitution, at Article I, Section 5, clause 2, for each House of Congress to “punish”
one of its own Members.
A House, Senate or congressional “censure” of the President, unlike a
congressional punishment of one of its own Members, or an impeachment and trial3
of the President in the legislature, does not have an express constitutional basis.
Although there is no express constitutional provision regarding censure of an
executive officer, there is also no express constitutional impediment for the
Congress, or either House of Congress, to adopt a resolution expressing its opinion,
reproval, disapprobation or censure of an individual in the Government, or of the
conduct of the individual, and, in fact, each House of Congress has on infrequent
occasions adopted such resolutions in the past. Resolutions expressing the House’s
or Senate’s disapproval, censure or reproof of an individual or of his or her conduct
have on occasion been adopted, for example, by the Senate (although later expunged)

Black’s Law Dictionary, at 224, 6 Edition (1990).1th
Deschler’s Precedents of the U.S. House of Representatives, Volume 3, Ch. 12, § 16;2
Riddick & Fruman, Riddick’s Senate Procedure, 270-273 (1992).
United States Constitution, Article I, Section 2, clause 5; Article I, Section 3, clauses 6 and3
7; Article II, Section 4. For a discussion of impeachment procedures and precedents, see
CRS Report 98-186, “Impeachment: An Overview of Constitutional Provisions, Procedure,
and Practice,” February 27, 1998.

regarding President Jackson in 1834, and by the House in 1860 with regard to
President Buchanan. Although not a resolution, a statement of very strong criticism
finding abuse of power by President Tyler was issued by a select House Committee
in the form of a report, which was then formally adopted by the full House of
Representatives in 1842. Simple or concurrent resolutions disapproving of conduct
or censuring the President or other executive official, like similar “sense of the
Congress” resolutions, or sense of the House or Senate resolutions, would have no
particular legal or constitutional consequence, but may have political and/or4
historical import.
In discussing a potential “censure” or other statement of disapproval directed at
the President by the Congress, some have also suggested a “fine” of the President, or
a requirement for the President to make monetary restitution for the costs of the
independent counsel investigation since January of 1998. Like a censure of the
President, there is no express constitutional authority to fine the President or any
other individual outside of Congress. However, unlike a censure or other sense of
the House or Senate resolution used to express an opinion, a mandatory fine
legislated by Congress against a particular individual may run afoul of the “Bill of
Attainder” Clause of the Constitution, and in the case of the President may raise
concerns under the diminution of salary provision in the Constitution. It is at least
theoretically possible that an agreement might be arranged between the President and
the Congress for the President to voluntarily “accept” a congressional statement,
suggestion and/or direction concerning particular restitution or other act of contrition,
and not to challenge the authority of any such legislative statement or act. In such a
case, as a practical matter, and regardless of the potentially significant implications
for policy or precedent, it may be difficult for anyone, other than the individual
actually aggrieved or harmed (that is, the President), to possess the requisite legal
standing to challenge in court such an arrangement on the basis of an alleged absence
of legislative authority or violation of constitutional precepts.
The issue of the propriety and the authority of the Congress or of either House
of Congress to censure or otherwise formally reprimand an executive official,
including the President, in the form of a simple resolution has been debated and
questioned from time to time in the House and the Senate. In early congressional5
considerations some Members of Congress, in their opposition to resolutions which
declared either an opinion of praise or disapproval of the executive, cited the lack of
express constitutional grant of authority for the House or the Senate to state an
opinion on the conduct or propriety of an executive officer in the form of a formal

Deschler’s Precedents, supra at Volume 7, § 5 (Concurrent Resolutions), and § 6 (Simple4th
Resolutions); Brown, House Practice, 104 Cong., 2d Sess. at 161 (1996).
II Hinds’ Precedents of the House of Representatives, §1569, p. 1029: "While the House5
in some cases has bestowed praise or censure on the President or a member of his Cabinet,
such action has at other times been held to be improper."

resolution of censure or disapproval. Others argued that impeachment was the6
proper, and exclusive, constitutional response for the Congress to entertain when the
conduct of federal civil officers is called into question, rather than a resolution of
censure. Concerning judicial officers, precedents indicate that the House has on7
occasion either rejected or not dealt with attempts to consider a “censure” motion of
federal judges offered by the Judiciary Committee as an alternative to articles of
impeachment, and parliamentarians have noted an apparent disinclination of the
House to consider censure as part of the impeachment procedure.8
Both the House and the Senate have, however, in fact adopted resolutions or
statements in the past expressing their opinion, disapproval, or censure of a
Government official other than a Member of Congress. Such an expression of
censure of a federal officer by the House, the Senate or the Congress is not an
“impeachment” of that civil officer under Article I, Section 2, clause 5 and Section

3, clause 6 of the Constitution; nor is it a “punishment” of one of the House’s or9

Senate’s own Members under Article I, Section 5, clause 2. Furthermore, a censure
would also not, in most cases, be within those inherent or implicit authorities, in the
nature of contempt, typically imputed to democratic legislative assemblies to protect
the dignity and integrity of the institution, its members and proceedings.10

II Hinds’ Precedents, supra at §1569, pp. 1029-1030: “It was objected that the Constitution6
did not include such expressions of opinion among the duties of the House ....” (Citing
debate and vote on a resolution of approval of the President’s conduct, which was laid onthnd
the table, 20 Annals of the Congress, 11 Cong., 2 Sess., at 92 -118, 134-151, 156-161,

164-182, 187-217, 219 (1809)).

Note discussion of House resolution in 1867 expressing opinion on the unfitness for the7
office of Mr. Henry Smyth (II Hinds’ Precedents, supra at §1581, pp. 1035-1036), and 1924
Senate resolution indicating its sense that the President “immediately request thethst
resignation” of the Secretary of Navy. 65 Congressional Record, 68 Cong., 1 Sess., 2223-
2245 (1924). Both of these resolutions were objected to by some Members as interfering
with the President’s prerogatives in appointments and removals of executive officials, and
the latter action as labeling with a “brand of shame” an individual in the Government
without conducting impeachment proceedings. See discussion in Fisher, “Congress and the
Removal Power,” in Congress & the Presidency, Volume 10, at 67-68 (1983).
The censure of U.S. District Court Judge Harold Louderback, recommended in a Judiciary8
Committee report in 1933 instead of impeachment, was objected to, for example, by Rep.
Earl Michener of Michigan, who explained: “I do not believe that the constitutional power
of impeachment includes censure.” The recommendation was not approved, and the House
adopted as a substitute an amendment impeaching the judge. 3 Deschler’s Precedents,
supra at Ch. 14, §1.3, p. 400. In other instances recommendations of censure of judges, as
alternatives to impeachment, were made by the Judiciary Committee, but not acted on by
the House. Id. at 400-401; III Hind’s Precedents, supra at §§ 2519, 2520.
See 3 Deschler’s Precedents, supra at Ch. 14, § 1. 9
As to inherent contempt authority, see Anderson v. Dunn, 19 U.S. 204 (1821). Note,10
generally, Cushing, Elements of the Law and Practice of Legislative Assemblies in the
United States of America, 245-255, 255-272 (1856). Since such action does not bear upon
the proceedings and privileges of the House, and is not part of impeachment, such a
resolution would generally not be considered to be a privileged resolution. See 3 Deschler’s
Precedents, supra at Chapter 14, § 1, p. 401.

It has, however, become accepted congressional practice to employ a simple
resolution of one House of Congress, or a concurrent resolution by both Houses, for
certain nonlegislative matters, such as to express the opinion or the sense of the
Congress or of one House of Congress on a public matter, and a resolution of censure
as a concurrent or simple resolution would appear to be in the nature of such a “sense
of Congress” or sense of the House or Senate resolution. The absence of express11
constitutional language that the Congress, or the House or the Senate individually,
may state its opinion on matters of public import in a resolution of praise or censure
is not necessarily indicative of a lack of capacity to do so, or that such practice is per
se unconstitutional. It is recognized in both constitutional law and governmental
theory that there are, of course, a number of functions and activities of Congress
which are not expressly stated or provided in the Constitution, but which are
nonetheless valid as either inherent or implied components of the legislative process
or of other express provisions in the Constitution, or are considered to be within the
internal authority of democratic legislative institutions and elective deliberative
bodies generally. The practice of the House, Senate, or Congress to express facts12
or opinion in simple or concurrent resolutions has been recognized since its earliest
days as an inherent authority of the Congress and of democratic legislative
institutions generally, and the adoption of "sense of" the House or Senate resolutions
is practiced with some frequency in every Congress. A censure of the President, of13
course, may raise issues additional to and different from those concerning
congressional capacity to state opinions in resolutions on other matters.
Censure Precedents
Periodically during the nineteenth century Congress debated and considered the
censure of a President of the United States. In the instances reviewed, the
considerations have been in one House of Congress only, rather than concurrently in

“Simple resolutions are used in dealing with nonlegislative matters such as expressing11
opinions or facts .... Except as specifically provided by law, they have no legal effect, and
require no action by the other House. Containing no legislative provisions, they are not
presented to the President of the United States for his approval, as in the case of bills and
joint resolutions.” Deschler’s Precedents, Volume 7, § 6. “[Concurrent resolutions] are not
used in the adoption of general legislation. ... [They] are used in ... expressing the sense of
Congress on propositions .... A concurrent resolution does not involve an exercise of the
legislative power under article I of the Constitution in which the President must participate.”
Id. at § 5. Brown, House Practice, supra at 161: “Simple or concurrent resolutions are used
... to express facts or opinions, or to dispose of some other nonlegislative matter.” See also
Riddick & Fruman, Riddick’s Senate Procedure, 1202 (1992).
The most common example of inherent or implied authority of Congress is the oversight12
and investigatory authority of either House, including the power to compel attendance of
witnesses and production of documents. Such authority is not expressly provided in the
Constitution, but the ability to collect facts and opinions, and to publish such opinions and
facts, are considered inherent in the authority to legislate. McGrain v. Daugherty, 272 U.S.

135 (1927); Watkins v. United States, 354 U.S. 178, 187, 200 (1957).

See note 11, supra; Cushing, supra at 314. In the 105 Congress, for example, the House13th
unanimously adopted a resolution to "condemn" as a "racist act" the alleged actions of three
expressly named individuals in Texas who were arrested in connection with what is reportedth
as a racially motivated homicide (H.Res. 105-466, 105 Cong ).

both the House and Senate. The Senate adopted a resolution in 1834 stating that
certain conduct of President Andrew Jackson, involving a policy dispute concerning
the removal of the Secretary of the Treasury and the question of the availability of
certain documents, was “in derogation” of the Constitution or the laws of the
nation. President Jackson issued and sent to the Senate a strong protestation of the14
censure concerning both the prerogatives of his office and the powers of the Senate
to censure. The President's protest concerning a vote and a proceeding in the Senate15
was found by the Senate, in formal resolutions adopted by the body, to be
"inconsistent with the just authority of the two Houses of Congress," a "breach of the
privileges of the Senate," and was not allowed to be entered on the Journal. Three16
years later, however, upon the President’s political allies regaining control of the
Senate, the Senate expunged the original censure resolution. The Senate resolution17
concerning President Jackson did not expressly contain the word “censure” or other
specific word of condemnation, and some critics of Congress’ authority to adopt such
resolutions of censure have categorized the 1834 resolution as one other than a
“censure” of the executive.18
In 1860, the House of Representatives adopted a resolution stating that the
President’s conduct was deserving of its “reproof,” in a matter concerning the
conduct of President Buchanan and his Secretary of the Navy in allowing political
considerations and alleged campaign contribution “kickbacks” to influence the letting
of Government contracts to political supporters, rather than the lowest bidder. After19
debating both the substance of the charges and the authority of the House to adopt
such a resolution, characterized by one Member as “censur[ing] indiscriminately the

The resolution of March 28, 1834, read as follows: “Resolved, That the President, in the14
late executive proceedings in relation to the public revenue, has assumed upon himself
authority and power not conferred by the Constitution and laws, but in derogation of both.”
Note II Hinds’ Precedents, supra at §1591, p. 1040.
Register of Debates, 23 Cong., 1 Sess. 1317-1336, April 17, 1834.15rdst
Register of Debates, 23 Cong., 1 Sess. 1712, May 7, 1834, see II Hinds' Precedents,16rdst
supra at §1591.
Register of Debates, 24 Cong., 2d Sess. 379-418, 427-506 (1837), see discussion in17thth
Fisher, Constitutional Conflicts Between Congress and the President, 54-55 (4 ed.1997).
Congressional Globe, 36 Congress, 1 Session, 2938-2939, June 13, 1860. Referring to18thst
the Senate resolution concerning President Jackson, Representative Bobock noted: “You
will observe that in this resolution there is no direct declaration of censure, and no
impeachment of the motives of the President. It was simply a declaration that his act was
not in conformity with the Constitution and the laws of the land.”
“Resolved, That the President and Secretary of the Navy, by receiving and considering the19
party relations of bidders for contracts with the United States, and the effect of awarding
contracts upon pending elections, have set an example dangerous to the public safety, andthst
deserving the reproof of this House.” Congressional Globe, 36 Congress, 1 Sess., 2951,
June 13, 1860.

President of the United States and the Secretary of Navy,” the House adopted the20
resolution 106-61.21
It may also be noted that, although not a resolution of censure, the House in
1842 adopted a report from a select committee, to which the President’s veto
message had been referred, which strongly criticized the actions of President Tyler
for “gross abuse of constitutional power and bold assumption of powers never vested
in him by any law”; for having “assumed ... the whole Legislative power to himself,
and ... levying millions of money upon the people, without any authority of law”; and
for the “abusive exercise of the constitutional power of the President to arrest the
action of Congress upon measures vital to the welfare of the people ...” Similar to22
the instances in the Jackson censure, President Tyler sent a protestation of the
House's action to the House, which then adopted three resolutions of similar wording
and import as the Senate's resolutions in the Jackson case, stating that the President's
protest would not be accepted and was in derogation of the rights and privileges of
the House.23
Other resolutions of disapproval or censure of a President have been debated on
the floor of the House or Senate. The House debated the issue of a resolution
criticizing President John Adams in 1800 because of a communication from the
President to a judge, which the President’s critics deemed to be a “dangerous
interference of the Executive with Judicial decisions,” concerning a celebrated
deportation case. A resolution which originally would have congratulated General24
Zachery Taylor for his conduct in the Mexican War was amended, in a procedural
motion on the House floor to refer the resolution to the Committee on Military
Affairs, to include as an amendment to an amendment of the referral a disapprobation
of President Polk's waging of an "unnecessarily and unconstitutionally begun war."25
Although the amendment to the referral was adopted, research has not indicated that
the underlying resolution was ever passed by the House after referral to the
committee. The Senate in 1862 also debated, and tabled a motion for censure of
James Buchanan, who had recently been President of the United States, for alleged
failures while President to take the necessary action to prevent the secession from the26

Union of several southern states. More recently, a censure resolution concerning
Id. at 2951, Mr. Clark of Missouri.20
Id. at 2951.21
Journal of the House of Representatives, 27 Cong., 2d Sess., 1343, 1346-1352, August22th

17, 1842.

II Hinds' Precedents, supra at §1590, pp. 1039-1040.23

10 Annals of Congress 532-33, 542-578, 584-619 (1800), discussed in Neuman, “Habeas24

Corpus, Executive Detention, and the Removal of Aliens,” 98 Columbia Law Review 961,

995-996 (1998).

Congressional Globe, 30 Congress, 1 Session 95, January 3, 1848.25thst
II Hinds’ Precedents, supra at §1571, p. 1030, citing Congressional Globe, 37 Congress,26thrd

3 Sess. pp. 101-102, December 16, 1862.

President Richard Nixon was introduced in the House in 1974 but received no floor
consideration. 27
The House or the Senate has also from time to time censured or expressed its
disapprobation of other executive officers, or of their conduct, in the form of a
resolution adopted by the body. The earliest attempt found thus far concerned a28
series of resolutions proposing the censure and disapproval of Secretary Alexander
Hamilton in 1793, the texts of which were considered by historians to have been
drafted by Thomas Jefferson for introduction by Representative William Branch
Giles of Virginia. Some congressional resolutions over the years have merely found29
misconduct on the part of an executive officer and urged the President to seek the
officer’s resignation, without expressing a specific term of censure of condemnation.
For example, after having conducted investigations into the conduct of the
administration of the New York custom-house by Mr. Henry Smyth, and finding that
“there is not sufficient time prior” to adjournment to finish the matter, the House
expressed in a resolution “Henry A. Smyth’s unfitness to hold the office,” and
recommended that he “should be removed from the office of collector.” Similarly,30
the Senate in 1924, during the Teapot Dome investigation passed a resolution
indicating its sense that the President “immediately request the resignation” of the
Secretary of Navy.31
The Senate adopted a resolution in 1886 in which it expressed its
“condemnation” of President’s Cleveland’s Attorney General A.H. Garland

See H.Res.93-1288, 93rd Congress, 2d Session. See discussion at 120 Congressional27
Record 26820, August 5, 1974. The resolution stated:
Whereas the people have the right to expect from the President of the United
States high moral standards and personal example, as well as great diligence in the
exercise of official responsibilities and obligations;
And whereas, Richard M. Nixon, in his conduct of the office of President -
despite great achievements in foreign policy which are highly beneficial to every
citizen and indeed to all people of the world - (1) has shown insensitivity to the moral
demands, lofty purpose and ideals of the high office he holds in trust, and (2) has,
through negligence and maladministration, failed to prevent his close subordinates and
agents from committing acts of grave misconduct obstruction and impairment of
justice, abuse and undue concentration of power, and contravention of the laws
governing agencies of the Executive Branch;
Now, therefore, be it resolved by the House of Representatives that Richard M.
Nixon should be and he is hereby censured for said moral insensitivity, negligence and
The precedents and incidents provided are intended to be examples of congressional28
actions, and are not designed to be a definitive list of all resolutions of disapproval of
executive officials that may have been adopted or considered by either House.
Sheridan, Eugene R., "Thomas Jefferson and the Giles Resolutions," William and Mary29
Quarterly, Third Series, Volume 49, Issue 4, at 589-608 (Oct. 1992). The resolutions did
not pass.
Congressional Globe, 40 Cong., 1 Sess., pp. 255-256, 282-285, 394-395 (1867).30thst

65 Congressional Record, 68 Cong., 1 Sess., 2223-2245, February 11, 1924. See31thst

discussion in footnote 7, supra.

concerning his refusal to provide certain records and papers to the Senate about the
removal from office of a district attorney by the President. In 1896, the House32
adopted a resolution where it found that a United States Ambassador, by his speech
and conduct “has committed an offense against diplomatic propriety and an abuse of
the privileges of his exalted position,” and therefore, “as the immediate
representatives of the American people, and in their names, we condemn and censure
the said utterances of Thomas F. Bayard.” 33
As a general proposition it may be stated that there is no authority for the
Congress, or either House of Congress, to levy a mandatory fine against an individual
(or to otherwise “punish” an individual or person) absent some recognized legislative
power, such as the express constitutional authority in Article I, Section 5, clause 2 of
the Constitution allowing either House of Congress to “punish” one if its own
Members. The noted parliamentary and legislative authority, Luther Stearns34
Cushing, in discussing the general and traditional powers of legislative institutions
in the United States, explained in his 1856 treatise:
In England, both houses of parliament were anciently in the practice of
imposing the payment of a fine by way of punishment; and this is understood, at
the present day to be the practice of the lords; but the commons have appeared
to long since waived or abandoned this form of punishment, and it has even been
laid down that they now have no such power. In this country, with one or two
exceptions, in which there is a special constitutional provision to that effect, the
legislative assemblies are not authorized to impose a fine by way of35
In addition to the general absence of authority and practice of a legislative
institution in the United States to fine persons who are not members of that
legislature, the levying of a fine or other such punishment, such as loss of pay,

17 Congressional Record, 49 Cong., 1st Sess., pp. 1584-1591, 2784-2810, March 26,32th

1886: “Resolved, That the Senate hereby expresses its condemnation of the refusal of the
Attorney-General, under whatever influence, to send to the Senate copies of papers calledth
for by its resolution of the 25 of January, and set forth in the report of the Committee on
the Judiciary, is in violation of his official duty and subversive of the fundamental principles
of the Government and of a good administration thereof.”

28 Congressional Record, 54 Cong., 1 Sess., p. 3034, March 20, 1896.33thst

“Each House may determine the Rules of its Proceedings, punish its Members for34
disorderly Behaviour, and, with the Concurrence of two thirds, expel a Member.” Under
this authority each House of Congress has disciplined its own Members (in addition to
expulsion, censure, or [in the House] reprimand) by way of fines or the ordering of monetaryst
restitution. See, for example, S.Rept. 101-382, 101 Cong., 2d Sess., at 14-15 (1990);st
H.Res. 91-2, 91 Cong. (1969), discussed in Deschler’s Precedents, supra, at Ch.12, § 17,thstst
pp. 203-204; H.Rept. 96-351, 96 Cong., 1 Sess., at 20 (1979); H.Rept. 101-610, 101thst
Cong., 2d Sess., at 55 (1990); H.Rept. 105-1, 105 Cong., 1 Sess., at 2-3 (1997). Note alsoth
Rules, House Committee on Standards of Official Conduct, Rule 25(e), 105 Cong. (1997).
Cushing, The Law and Practice of Legislative Assemblies in the United States of America35
[Lex Parliamentaria Americana], Section 676, at 266-267 (Boston 1856).

pension or other remuneration or benefits, may directly implicate the Bill of
Attainder Clause of the Constitution, as discussed below.
Constitutional Issues
Bills of Attainder
No specific “penalty” or “punishment” necessarily follows the adoption of a
resolution which merely expresses a “censure” or states another term of disapproval
or condemnation of an individual, other than the statement itself and the potential
collateral or incidental political damage that might be incurred as a result of
Congress’ expression of its opinion. Furthermore, it is questionable under the Bill
of Attainder Clause of the Constitution (Article I, Section 9, clause 3), whether
Congress may, in any event, inflict a mandatory “penalty” or “punishment” upon the
President, or upon any other specified executive official, by means of a legislative36
act, other than through impeachment. The provision of the Constitution forbidding
Congress from adopting “bills of attainder” is directed at what are generally37
described as legislative punishments. It may be instructive to note that in
discussing the impeachment provisions of the Constitution at the Convention of
1787, George Mason had recommended expanding the grounds for impeachment
beyond merely “treason” and “bribery,” to “maladministration,” indicating that
without such broadening of the grounds for impeachment, the Bill of Attainder
Clause of the Constitution might otherwise bar Congress from dealing with many

In the case of impeachment and conviction, the Constitution provides that the punishment36
of a civil officer by the Congress may extend to removal from office, and additionally, a
disqualification from holding federal office. Article I, Section 3, clause 7. (It may also be
worthy of note that removal of the President from office under the impeachment process has
collateral statutory consequences such as the loss of benefits under the Former Presidents
Act, 3 U.S.C. § 102 note.) In addition to impeachment (and discipline of its own Members),
there is a recognized, inherent authority for the Congress, like other democratic legislative
institutions, to take measures, such as in contempt proceedings, to protect the safety,
integrity and privileges of the institution, its Members and proceedings.
Article I, Section 9, clause 3: “No Bill of Attainder or ex post facto Law shall be passed.”37
A bill of attainder is “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); Selective Service System
v. Minnesota Public Interest Research Group, 468 U.S. 841, 847 (1984); see discussion in
Constitution of the United States of America, Analysis and Interpretation, Senate Documentrdst
No. 103-6, 103 Cong., 1 Sess., at 347-350 (1996). A law that is punitive, that is, intended
to punish an individual or specified individuals, rather than intended as a regulatory,
prophylactic measure to protect the public, falls within the bill of attainder prohibition. See
United States v. Brown, 381 U.S. 437 (1965), and discussion in SBC Communications, Inc.th
et al. v. US West Communications Inc., No. 98-10140 (5 Cir., September 4, 1998). In
addition to bill of attainder issues, an additional or increased “penalty” or “punishment”
imposed by the legislature for an act which has already been committed might raise
questions under the ex post facto provision. See Hiss v. Hampton, 338 F. Supp. 1141, 1153
(D.D.C. 1972).

“great and dangerous offenses” which do not rise to or constitute bribery or treason.38
Under the Bill of Attainder Clause, the Congress may generally not levy a legislative
punishment, such as a mandatory fine, upon a specified individual (who is not a
Member of Congress), nor adopt a punitive measure, for example, in the form of a
legislative prohibition on the payment of salaries to certain specified officials in the
Government. 39
There may be some argument that a public rebuke, such as a censure, because
of the potential for damage to one’s reputation and possible political or other public
aspirations may, in itself, constitute a “punishment” by the Congress, and thus, since
not expressly authorized, would fall within those legislative punishments prohibited
by the Bill of Attainder Clause. It may be argued that the intent of such a censure40
would appear to be clearly punitive and not remedial. However, it does not appear
that a censure adopted in its traditional form as a simple (or even a concurrent)
resolution, with no binding effect and stating only an opinion, qualifies as a “bill of
attainder,” - since it is not in the constitutional and congressional context a "bill," as
it does not becomes law nor is it a measure that has the force or effect of law.41
A censure which would take a less traditional form than a simple or concurrent
resolution and would be included, for example, in a joint resolution presented to the
President would, however, clearly be a "bill," since it is a vehicle which would
become a public law. As such, it would then raise the legal and constitutional issue

2 Farrand, The Records of the Federal Convention of 1787, at 550, September 8, 1787:38

“Why is the provision restrained to Treason & bribery only? Treason as defined in the
Constitution will not reach many great and dangerous offenses. ... As bills of attainder which
have saved the British Constitution are forbidden, it is the more necessary to extend: the
power of impeachments.” The suggested language was opposed by James Madison, who
argued that the term “maladministration” was “so vague” that it would be “equivalent” to
the President having only “tenure during pleasure of the Senate.” Id. at 550. The
compromise language of “other high crimes & misdemeanors” was substituted by Col.
Mason, and adopted. Id. at 550.
In United States v. Lovett, 328 U.S. 303 (1946), an appropriations rider was struck down39
by the Supreme Court as a bill of attainder where the legislative language forbade the use
of money to pay the salaries of three persons in an agency whom the House had wanted
removed from Government service because they were thought “subversive.”
See, for example, James Madison’s discussion of a legislative “denunciation” as a40
punishment for constitutional purposes, 4 Annals of Congress 934, cited in US West
Communications Inc., supra , at note 17.
A "bill" as used in the constitutional context "refers to the chief vehicle employed by the41
Congress in the enactment of laws under its legislative powers." Deschler, supra at Volume
7, Chapter 24, § 2. See Article I, Section 7, clauses 1-3 of the Constitution concerning the
requirements for "Bills." In Nixon v. Administrator of General Services, supra at 468, the
Supreme Court described a bill of attainder as “a law that legislatively determines guilt and
inflicts punishment upon an identified individual ....” (emphasis added). In United States
v. Lovett, supra, the Supreme Court noted that bills of attainder are “legislative acts, no
matter what their form,” that inflict legislative punishments on individuals. 328 U.S. at 315
(emphasis added). The Court there made this point to explain that the Clause applies to
appropriations acts (passed by both Houses of Congress and signed by the President), as
well as to a permanent law. 328 U.S. at 315-316.

of whether a formal, public expression of opinion and disapproval by the legislature
in that law directed at a specified individual is a legislative “punishment”
contemplated by the Bill of Attainder provision. The Supreme Court has explained
in Nixon v. Administrator of General Services, supra, that there are three tests for
determining whether a law directed at a specific individual is a prohibited legislative
"punishment": the historical test, the functional test, and the motivational test. The42
"historical" test looks to determine if the punishment inflicted is one which has been
traditionally considered a punishment as either a bill of attainder or bill of pains and
penalties. As succinctly summarized in a lower federal court, the historically
recognized "punishments" include: "the death sentence; imprisonment; banishment;
confiscation of property; and barring individuals and groups from participating in
specified employment or vocations." Since the Supreme Court recognized the43
"possibility that new burdens and deprivations" might be legislatively fashioned in
the future, two further and additional tests were provided for any such "new burdens
and deprivations" created by the legislature. The "functional" test looks to44
determine if there are non-punitive, regulatory or remedial legislative purposes that45
are advanced by the new legislative "burdens imposed." The "motivational" test
inquires into "whether the legislative record evinces a congressional intent to
punish." 46
A mere "censure" of the President or other executive official in a law enacted
by a joint resolution would not appear to meet the "historical" test as specified by the
Supreme Court, as it is neither a death sentence, imprisonment, banishment,
confiscation of property, nor barring of individuals and groups from participating in
specified employment or vocations. Although the "function" and "motivation" for
a censure might, in fact, be able to be convincingly argued to be punitive in nature,
it is clear from the Supreme Court's explanation that the act of the legislature must
as a threshold matter place some sort of "burden or deprivation" upon the subject of
the legislation. There is thus an issue as to whether an expression of censure or
condemnation in a law is, in itself and without further disabilities or penalties, a

Nixon v. Administrator of General Services, supra at 473-482.42
Springfield Armory, Inc. v. City of Columbus, 805 F. Supp. 489, 494 (S.D. Ohio 1992),43
reversed in part on other grounds, 29 F.3rd 250 (6th Cir. 1994), explaining Nixon v.
Administrator of General Services, supra at 473-474. Note historical judicial construction
of “punishment.” Ex Parte Garland, 71 U.S. 333 (1866); Cummings v. Missouri, 71 U.S.

277, 320 (1866): “the deprivation of any rights, civil or political, previously enjoyed ...”

Nixon v. Administrator of General Services, supra at 475. There might be some argument44
made that since "censure" was a procedure known to and practiced by the Parliament, as
well as colonial legislatures and early Congresses, that it is not a "new" deprivation or
burden fashioned by the legislature, and thus since not considered part of the punishments
included in the bills of attainder or pains and penalty historically, there is no need to apply
the further functional or motivational tests.
Id. at 475-476; "Where such legitimate legislative purposes do not appear, it is reasonable45
to conclude that punishment of individuals disadvantaged by the enactment was the purpose
of the decisionmakers."
Id. at 478.46

"burden or deprivation" in fact or in law upon the subject of the censure. As can be47
seen by the foregoing analysis and discussion, enacting a censure in a non-traditional
(and unprecedented) format of a "bill" (such as a joint resolution) would provide at
the very least an opportunity for a constitutional argument of "bill of attainder" that
would not exist if a censure were adopted in a non-"bill" vehicle, that is, a simple or
concurrent "sense of" resolution.
As to fines and bills of attainder (and ex post facto laws), it may be noted that
in some instances the courts have found that certain civil fines and forfeitures were
“remedial” measures and not “punitive,” so as not to violate the ex post facto
provision or the Excessive Fines Clause. It may be possible under this analysis to48
argue that certain fines or required “restitutions” of funds to the Government may
also not be punitive under the Bill of Attainder Clause, as long as they merely
“reimburse the government for investigative and prosecutorial cost.” Any argument49
of this nature in the instance at hand, however, would also face the seemingly
difficult task of overcoming the "motivational" test, considering the express
statements by individual Members concerning the appropriate “punishment” in this
particular case, as well as the inference that a mandatory “fine” or required restitution
that accompanies or is coupled with an express “censure” or other explicit statement
of disapproval, directed at one specified individual, would appear in that context to
be indicative of a punitive legislative intent, rather than merely a remedial one.50

Justice Stevens, concurring in Nixon v. Administrator of General Services, appeared to47
suggest that humiliation or injury to one's reputation may implicate the Bill of Attainder
Clause. Legislation denying President Nixon custody of his papers "subjects a named
individual to this humiliating treatment [which] must raise serious questions under the Bill
of Attainder Clause. Bills of attainder were typically directed at once powerful leaders of
government. By special legislative Acts, Parliament deprived one statesman after another
of his reputation, his property, and his potential for future leadership." Id. at 484. The
humiliation and loss of reputation noted by Justice Stevens in both the Nixon and the
parliamentary Acts, however, were collateral results to the other deprivations of liberty or
property that such legislative acts inflicted, and not the sole penalty. It is not clear whether
mere publicity or publication is such a "burden or deprivation" as to raise bill of attainder
or ex post facto problems (note generally, EEOC v. Sears, Roebuck & Co., 504 F. Supp. 241
(D.C. Ill. 1980) and discussion of "publication" as punishment in Artway v. Attorney
General of New Jersey, 876 F. Supp. 666, aff’d in part, vacated in part, 81 F.3d 1235, 1253-rdrd
1263 (3 Cir.), rehearing den., 83 F.3rd 594 (3 Cir. 1996)). The question of whether any
"deprivation or burden" results from a censure may also particularly be raised in a case
where the facts are already widely and publicly known, and public admissions of
wrongdoing already made by the subject. Finally, it may be possible that the wording of any
resolution may be relevant as to whether it is a deprivation or burden upon one's reputation.
United States v. Halper, 490 U.S. 435, 445-446 (1989); Karpa v. C.I.R., 909 F.2d 784 (948th
Cir. 1990), noting the non-penal nature of fines which are not “overwhelmingly
disproportionate” to the damages caused to the Government and thus not so “divorced from
the Government’s damages and expenses to constitute punishment.” 909 F. 2d at 788, citing
Halper, supra; Austin v. United States, 509 U.S. 602 (1993); U.S. v. Certain Fundsnd
Contained in Account Nos., 96 F.3rd 20 (2 Cir. 1996), cert. den. 117 S.Ct. 954 (1997).
Karpa, supra at 788, citing Halper, supra at 445-446, n. 6.49
See discussion of congressional intent and “intent of Members of Congress who voted its50

It would appear to be within the realm of possibility, although without apparent
precedent, that the President might voluntarily agree not to challenge the authority
and constitutionality of a particular legislative action or statement, and might
voluntarily agree to pay a “suggested” monetary amount as a fine or restitution along
with a “censure,” or to accept some other form of contrition or expiation suggested
by Congress in a sense of Congress resolution. If the payment of restitution or a fine
is merely incorporated into a legislative vehicle such as a simple or a concurrent
resolution, which is merely a statement of opinion by or “sense of” the Congress, and
which therefore is not binding and does not have force or effect of law, it may be
argued, as discussed above, that such a legislative measure would not be a “bill of
attainder,” since it is not a "bill," a law, nor is it mandatory or enforceable.51
In any event, if the President agrees to abide by the “suggestion” or opinion, or
even if such formulation were incorporated into a mandatory fine or other legislative
vehicle with the force and effect of law with the President’s agreement, the question
could still be ultimately raised as to who, if anyone, would have legal standing to
challenge the act as beyond the powers and authority of the legislature if the person
affected or aggrieved by the act does not challenge it. This is not to suggest that the
President, or any subject of a legislative act, has the ability to "waive" a constitutional
incapacity of the legislature to act, but rather it is a practical question to be raised if
such legislative act does in fact take place. Standing to challenge a congressional act
in the courts requires a showing that the plaintiff has an injury in fact as a result of
the challenged action. A Member of Congress does not necessarily have any52
additional standing beyond a member of the public to challenge a legislative act
based merely on an arguable institutional injury or loss of political power, unless
there is some personal injury to the legislator, such as where a legislator’s vote would
be “completely nullified.”53
Diminution of Salary

passage,” in determining whether a measure is punitive or merely remedial or regulatory in
Nixon v. Administrator of General Services, 433 U.S. supra at 473-484. Also in United
States v. Lovett, supra at 313, the Court looked not only to the “section’s language,” but “the
circumstances of its passage” as well, as indicative of Congress’ intent.
See footnote 41, supra.51
Association of Data Processing Service Organizations v. Camp, 397 U.S. 150, 152 (1970).52
“In order to meet the standing element of the case-or-controversy requirement, appellees
must allege a personal injury that is particularized, concrete, and otherwise judicially
cognizable.” Raines v. Byrd, 117 S.Ct. 2312, 2313 (1997), citing Lujan v. Defenders of
Wildlife, 504 U.S. 555 (1992), and Allen v. Wright, 468 U.S. 737 (1984). Standing does not
turn on the merits of complaint, but whether the plaintiff has a legal right to a judicial
determination of the issues raised. Flast v. Cohen, 392 U.S. 83 (1968).
In Raines v. Byrd, supra, plaintiff Senators alleged that the line-item veto alters the53
“constitutional balance of powers” between the President and Congress, as well as altering
the “legal and practical effect” of their votes, and divests Members of their constitutional
role in the repeal of legislation. 117 S.Ct. at 2316. The Court found, however, that plaintiff
Senators did not have legal standing to challenge the legislation, as there was no personal
injury, but only a “loss of political power.” 117 S.Ct at 2318.

It is has also been postulated that a provision of law which fines, or requires
monetary restitution from the President might, in effect, be a diminution of the salary
of the President, in contravention of Article II, Section 1, clause 7, of the
Constitution. Proponents of this theory cite to the cases concerning the similar54
constitutional limitations on the diminution of salary of federal judges during their
tenure in office, which have demonstrated that even some “indirect” lessening of
judicial compensation, such as by the imposition of a new tax after judges have taken
office, may work to diminish the over-all compensation of those federal judges as55
contemplated by that provision of the Constitution. There is no precedent which
makes it clear or provides a definitive ruling as to whether a mandatory “fine” or
required “restitution” directed at a particular officer would be a diminution of salary
under the Constitution. It may be noted that the fine or restitution to the Government
could be paid out of funds other than the President’s salary or compensation (such
as from private contributions or loans); however, it would be a new financial
obligation to the United States Government placed by the Congress upon the funds
available to the President during his term (and not an application of a pre-existing
provision of law or regulation, or merely an increase in current, existing financial
obligations), and would be a reduction which is applied directly and solely to the
President by the Congress.
Separation of Powers and Policy Implications
Critics of a congressional "censure" of the President or of other executive
officials often argue that such congressional action violates the principles of
"separation of powers" within the constitutional framework of separated powers.
Many of the arguments forwarded, however, appear in their nature to be policy
arguments of why it would or would not be a good policy, practice or precedent for
the House, Senate or Congress to censure, or for the President to agree to a censure.
As important and significant as such policy arguments are, they do not necessarily
address the legal or constitutional capacity or incapacity, as interpreted by the
Supreme Court, of the House or Senate to adopt such resolutions. Very briefly, those
types of congressional actions which the Supreme Court has found to violate the
principles of "separation of powers" within the Constitution have been those which
aggrandize the powers of one branch at the expense of the powers of the other, or that
independently interfere with or impermissibly undermine the powers of another
branch, by preventing that branch from carrying out its constitutional duties. As56
stated by the Supreme Court: "[I]n determining whether the Act disrupts the proper

“The President shall, at stated Times, receive for his Services, a Compensation, which54
shall neither be increased nor diminished during the Period for which he shall have been
elected ....”
Evans v. Gore, 253 U.S. 245 (1920); Hatter v. United States, 64 F.3d 647 (Fed. Cir. 1995),55
affirmed ,United States v. Hatter, 117 S.Ct. 39 (1996); on remand to the Federal Court of
Claims, the court found, as a factual matter, that subsequent increases in judicial salaries had
made up for any diminution of over-all compensation of federal judges caused by
application of new Social Security and Medicare taxes on salaries of sitting federal judges.

38 Fed.Cl. 166 (1997). As to the President, see 13 Ops. Atty. Gen. 161 (1869).

United States v. Nixon, 418 U.S. 683, 711-712 (1974); Commodity Futures Trading56
Commission v. Shor, 478 U.S. 833 (1986); Morrison v. Olson, 487 U.S. 654, 695 (1988).

balance between the coordinate branches, the proper inquiry focuses on the extent to
which it prevents the Executive Branch from accomplishing its constitutionally
assigned functions." The issue may thus need to be framed as to whether statements57
of censure of the House or the Senate, or the Congress concurrently, would be found
to impermissibly undermine the authority of the President by interfering and
preventing the carrying out of the executive's constitutional duties and functions.
Legal and constitutional issues and questions of legal standing aside, there are
also potentially important policy implications which the Congress may wish to
consider. On the one hand, an agreement or deal where the President of the United
States voluntarily accepts a “censure” vote of the Congress (either through a simple
or concurrent resolution, or through a joint resolution which the President signs to
indicate his acceptance), or a censure “plus” some other act of contrition, might
arguably provide for an appropriate public consequence to the acts of a President
which, while found either highly offensive or even illegal, might not be considered
by Congress to constitute “treason,” “bribery” or other “high crimes or
misdemeanors.” It might be argued that a censure and/or other “punishment”
recommended and agreed to by the President would allow for a formal, public
statement by the representatives of the American people indicating strong disapproval
of such conduct, without subjecting the country to as wrenching and disruptive a
process as impeachment and an attempt to remove a democratically elected President.
If crimes were committed by the President, the President would be subject to criminal
indictment and prosecution in the normal judicial process after leaving office.
However, on the other hand, it might be argued that action of this nature, even
merely a “censure” of a President, is an extra-constitutional measure not
contemplated by the express provisions nor the design of the Constitution. The sole
method in the Constitution for dealing with serious Executive wrongdoing is the
impeachment provision. As to legislative “punishments” outside of impeachments,
it may be noted that the Bill of Attainder Clause was an intentional limitation on
congressional powers to punish specified individuals, based on due process and
separation of powers concerns. Additionally, the diminution of salary provision was
adopted within the Constitution’s separation of powers framework, and among its
checks and balances, to ensure the independence of the Executive from the
Congress. It has thus been argued that even if not technically a bill of attainder nor58
a diminution of salary, and/or even if unchallenged by the subject of the fine or
similar congressional “punishment,” such action might establish a precedent for
future actions, threats of large monetary fines, or “agreements” (into which a

Nixon v. Administrator of General Services, 433 U.S. supra at 443.57
See Story, Commentaries on the Constitution of the United States, Vol 2, at §1486, pp.58
311-312 (1873): “It is obvious that, without due attention to the proper support of the
President, the separation of the executive from the legislative department would be merely
nominal and nugatory. The legislature, with a discretionary power over his salary and
emolument, would soon render him obsequious to their will. ... The legislature, upon the
appointment of a President, is once for all to declare what shall be the compensation for his
services during the time for which he shall have been elected. This done, they will have no
power to alter it, either by increase or diminution.... They can neither weaken his fortitude
by operating upon his necessities, nor corrupt his integrity by appealing to his avarice.”

President may be pressured by the specter of impeachment proceedings) which could
tend to interfere with or upset to some degree the balance contemplated in the
Constitution in the relationship between the Executive and the Congress.