Article 1, Section 2, Clause 5 — Alternatives To Impeachment

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Article I, Section 2, Clause 5:

The House of Representatives shall chuse their Speaker and other Officers; and shall have the sole Power of Impeachment.

As an alternative to the impeachment process, both houses of Congress have occasionally formally announced their disapproval of a particular Executive Branch official by adopting a resolution censuring, condemning, or expressing a lack of confidence in the official.[1](https://www.law.cornell.edu/constitution-conan/article-1/section-2/clause-5/alternatives-to-impeachment#fn1art1 " See, e.g., Cong. Globe, 36th Cong., 1st Sess. 2951 (1860) ( “Resolved, That the President and Secretary of the Navy, by receiving and considering the 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, and deserving the reproof of this House.” ); 17 Cong. Rec., 1584–91, 2784–10 (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 called for by its resolution of the twenty-fifth 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.” ). ") No constitutional provision expressly authorizes or prohibits such actions, and the propriety of using resolutions to condemn practices (which some describe as censure) has been the subject of some debate.[2](https://www.law.cornell.edu/constitution-conan/article-1/section-2/clause-5/alternatives-to-impeachment#fn2art1 " See 2 Asher C. Hinds, Hinds’ Precedents of the House of Representatives of the United States § 1569 (1907); Condemning and Censuring William Jefferson Clinton, H.J. Res. 140, 105th Cong., 2d Sess. (1998). Letter from Rep. William D. Delahunt to Rep. Henry J. Hyde, Chair, House Judiciary Committee (Dec. 4, 1998); Peter Baker & Juliet Eilperin, GOP Blocks House Censure Alternative, Wash. Post (Dec. 13, 1998), https://www.washingtonpost.com/wp-srv/politics/special/clinton/stories/impeach121398.htm. ") Nevertheless, both the House and the Senate have passed such resolutions throughout the Nation’s history. For instance, the Senate censured President Andrew Jackson in 1834 for refusing to turn over a document relating to his veto of an act to re-charter the United States Bank.[3](https://www.law.cornell.edu/constitution-conan/article-1/section-2/clause-5/alternatives-to-impeachment#fn3art1 " 10 Reg. Deb. 1187 (1834); Senate Censures President, U.S. Senate, https://www.senate.gov/artandhistory/history/minute/Senate_Censures_President.htm (last visited Jan. 24, 2018). In 1850, the House passed a resolution censuring three members of President Zachary Taylor’s Cabinet for involvement in a scandal regarding the payment of a claim against the United States, when much of the payment went to a Cabinet member. The House considered censuring President Taylor himself, but he died in office without any such action being taken. Michael Gerhardt, Forgotten Presidents 77 (2013). ") In 1860, the House adopted a resolution stating that the actions of President James Buchanan and the Secretary of the Navy Isaac Toucey, regarding the issuance of government contracts on political grounds, were deserving of reproof.[4](https://www.law.cornell.edu/constitution-conan/article-1/section-2/clause-5/alternatives-to-impeachment#fn4art1 " Cong. Globe, 36th Cong., 1st Sess. 2951 (1860). ") And the Senate in 1886 adopted a resolution condemning Attorney General A.H. Garland for refusing to provide records to the Senate concerning President Grover Cleveland’s removal of a district attorney.[5](https://www.law.cornell.edu/constitution-conan/article-1/section-2/clause-5/alternatives-to-impeachment#fn5art1 " 17 Cong. Rec., 1584–91, 2784–2810 (1886). ") Importantly, because such resolutions are not subject to the constitutional requirements of bicameralism and presentment, they impose no formal legal penalties or consequences for any party.[6](https://www.law.cornell.edu/constitution-conan/article-1/section-2/clause-5/alternatives-to-impeachment#fn6art1 " See Michael J. Gerhardt, The Constitutionality of Censure, 33 U. Rich. L. Rev. 33, 35 (1999). ") Instead, they function primarily to express the sense of Congress on a matter and signal disagreement with the actions of the named individual.[7](https://www.law.cornell.edu/constitution-conan/article-1/section-2/clause-5/alternatives-to-impeachment#fn7art1 " The House of Representatives also issued a report critical of President Tyler following his veto of a tariff bill. Oliver P. Chitwood, John Tyler: Champion of the Old South 299–300 (1939); Gerhardt, Forgotten Presidents, supra note 3, at 57. ")

Footnotes

1

See, e.g., Cong. Globe, 36th Cong., 1st Sess. 2951 (1860) ( “Resolved, That the President and Secretary of the Navy, by receiving and considering the 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, and deserving the reproof of this House.” ); 17 Cong. Rec., 1584–91, 2784–10 (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 called for by its resolution of the twenty-fifth 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.” ).

2

See 2 Asher C. Hinds, Hinds’ Precedents of the House of Representatives of the United States § 1569 (1907); Condemning and Censuring William Jefferson Clinton, H.J. Res. 140, 105th Cong., 2d Sess. (1998). Letter from Rep. William D. Delahunt to Rep. Henry J. Hyde, Chair, House Judiciary Committee (Dec. 4, 1998); Peter Baker & Juliet Eilperin, GOP Blocks House Censure Alternative, Wash. Post (Dec. 13, 1998), https://www.washingtonpost.com/wp-srv/politics/special/clinton/stories/impeach121398.htm.

3

10 Reg. Deb. 1187 (1834); Senate Censures President, U.S. Senate, https://www.senate.gov/artandhistory/history/minute/Senate\_Censures\_President.htm (last visited Jan. 24, 2018). In 1850, the House passed a resolution censuring three members of President Zachary Taylor’s Cabinet for involvement in a scandal regarding the payment of a claim against the United States, when much of the payment went to a Cabinet member. The House considered censuring President Taylor himself, but he died in office without any such action being taken. Michael Gerhardt, Forgotten Presidents 77 (2013).

4

Cong. Globe, 36th Cong., 1st Sess. 2951 (1860).

5

17 Cong. Rec., 1584–91, 2784–2810 (1886).

6

See Michael J. Gerhardt, The Constitutionality of Censure, 33 U. Rich. L. Rev. 33, 35 (1999).

7

The House of Representatives also issued a report critical of President Tyler following his veto of a tariff bill. Oliver P. Chitwood, John Tyler: Champion of the Old South 299–300 (1939); Gerhardt, Forgotten Presidents, supra note 3, at 57.