• "No Confidence" Votes in a System of Separated Powers
• 23, 2016 (RL34037) Jump to Main Text of Report

  Contents

  Propriety of Congressional Censure of Public Officials
• Relation to Other Forms of Congressional Action
• "No Confidence" Votes in a System of Separated Powers
Characteristics of Resolutions Proposed Since 1973
• Terms of Disapprobation Used
• Preambles
• Inclusion of "Sense" Language
• Form of Measure
• Legislative Action
• Examples of Earlier Resolutions
• Censure and Condemnation
• Resignation and No Confidence
• Concluding Observations

The issue of the propriety and the authority of Congress or of either House of Congress to officially express an opinion concerning an executive branch officer, such as an opinion that the President should remove an official, or that a cabinet official should resign, or to otherwise formally reprimand, "censure," or express disapprobation or loss of confidence concerning an executive official has been debated and questioned from time to time in the House and the Senate.³ In early congressional 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 an 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 resolution of censure or disapproval.⁴2 Others have argued, including during the more recent consideration of the impeachment of President William Jefferson Clinton, that impeachment was the proper, and exclusive, constitutional response for Congress to entertain when the conduct of federal civil officers is called into question, rather than a resolution of censure.⁵ 3 Resolutions expressing disapproval of executive officials considered in the House in 1867, and in the Senate in 1924,⁴ were objected to by some Members as interfering with the President's prerogatives in appointments and removals of executive officials, and as labeling with a "brand of shame" an individual in the government without proper proceedings or due process.⁵ Concerning judicial officers, precedents indicate that the House has on 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. Parliamentarians have noted an apparent disinclination of the House to consider censure as part of the impeachment procedure.⁶

It has, however, become accepted congressional practice to employ a simple resolution of one Househouse of Congress, or a concurrent resolution by both Houseshouses, for certain non-legislativenonlegislative matters, such as to express the opinion or the sense of the Congress or of one Househouse of Congress on a public matter, and a resolution expressing an opinion of "no confidence" in, or other expression of censure or disapproval of an executive branch official within a concurrent or simple resolution would appear to be in the nature of such a "sense of Congress" or "sense of the Senate" (or House) resolution.⁷ The absence of express 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.⁸ The practice of the House, Senate, or Congress to express facts 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 on various subjects and in reference to various people, is practiced with some frequency in every Congress.⁹

As noted, precedent exists for the House or Senate on infrequent occasions to adopt such a "sense of" or similar resolution criticizing, censuring, or condemning a particular public official in the executive branch of government, or that official's conduct.¹⁰ Relation to Other Forms of Congressional Action

The resolutions or statements both the House and the Senate have adopted in the past concerning a Governmentgovernment official, other than a Member of Congress, have expressed disapproval, censure, or opinion that an officer should be removed,. Such an expression of opinion, censure, disapproval or lack of confidence in or 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;¹⁰11 nor is it a "punishment" of one of the House's or Senate's own Members under Article I, Section 5, clause 2.

Furthermore, a censure or vote of no confidence 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.¹¹12 Finally, because there is no legal consequence to a resolution expressing an opinion of the Senate or the House, and because such expression in a simple resolution does not appear to technically be a "bill" referred to in the constitutional prohibition on "bills of attainder," it is unlikely that such an expression would violate that constitutional restriction on Congress.¹²

13 "No Confidence" Votes in a System of Separated Powers

In addition to using words of disapproval such as "condemn" or "censure," the House or the Senate have considered resolutions which have used language expressing a loss of confidence in an official, and which have been described as proposing a vote of "no confidence" in an executive branch official.¹⁴

The use of the term "vote of no confidence" to reflect a Senate, House or joint congressional action on a resolution concerning an official of the executive branch might be somewhat misleading because of the particular nature and impact of "no confidence" votes in parliamentary democracies. A vote of no confidence has a technical meaning and concrete consequences only in a parliamentary form of government, in which the continuance of the executive in office is dependent on its maintaining majority support in the parliament (or one house thereof). The American system of separated powers, on the other hand, makes no provision for votes of no confidence in the parliamentary sense. Except through the process of impeachment, accordingly, no action by the Congress (or of either house) can have any practical effect similar to that of a parliamentary vote of no confidence.

For example, votes of "no confidence" or "votes of censure" in the British Parliament,¹⁵ are votes instituted in Parliament by the opposition party which, if they succeed, indicate that the Government no longer has the support of the majority of Parliament (including the Government's own party members), and thus lead to a dissolution of the Government and new elections.¹⁶ Under the U.S. system of government, with the constitutional scheme of separated powers, the legislature—Congress—does not impact directly the removal of officials in the executive branch of the federal government (other than through impeachments). Adoption of a resolution expressing a lack of confidence could have symbolic effects as an expression of the sense of Congress (or of either house). A vote expressing "no confidence" of the Senate or the House in a particular official of the government, while it may certainly have political implications, would have no specific legal import.

Terms of Disapprobation Used

It appears that such resolutions have been stated not usually in terms of no confidence, but more often more often stated in terms of censure or condemnation, or as calls for resignation. Of the 3159 resolutions identified by the search, 1330 expressed censure of the official, condemnation of the official or his or her actions, or both. The remaining 18 resolutions called either forIn 26 of the resolutions the official in question was asked to resign or for the President called upon to request resignation, often coupled with other forms of disapproval or disapprobation, including censure, condemnation, or no confidence. In 11 of the resolutions identified, a loss of or no "confidence" was expressed, coupled with a call for the official to resign or for the President to request the resignation of such official. In only 4 of the recent resolutions has a loss of confidence been statedto request resignation, making this form of disapproval the most common among measures identified from recent times.

Previous to S.J.Res. 14, nevertheless, no resolution known in recent times has stated only a loss of confidence, unaccompanied by reference to any other form of disapprobation. The use solely of this language might suggest a lack of awareness that the reference to a loss of confidence, in the American context, lacks any distinctive or special force not shared by other terms in which resolutions with similar prospective effects have been couched. The use of "no confidence" language would not suffice actually to endow the proposal uniquely with any such distinctive or special force.

In none of the recent instances, since the 93^rd Congress, has a sense of Congress resolution expressing "no confidence" in an executive official been adopted. Preambles Preambles

Most of the resolutions identified that were submitted in or after 1973 have included a preamble stating the reasons for the congressional disapproval. Of the total number of resolutions, it appears that just five of 31, just three lacked such a preamble. The current S.J.Res. 14, which also lacks a preamble, accordingly represents a less common variation.

lacked such a preamble. Inclusion of "Sense" Language

Similarly, 1623 of the 31 resolutions identified by electronic search explicitly declared themselves to be statements of the sense of the Congress or of the house acting (usually in those terms, though a few refer instead to the "sentiment" or "judgment" of Congress or either house). This form of language again appears consistent with an understanding that any such measure could have symbolic, rather than determinative, effects. This language appears to have been included in measures of this kind less frequently since 1996 (105^th Congress), but is adopted by S.J.Res. 14.

All 31 of the Form of Measure The resolutions identified through the electronic search were generally either concurrent resolutions or simple resolutions of one house. No search was conducted for joint resolutions, because of the inappropriateness of this form of measure to the kind of action possible in the American system. For this reason, no conclusion can be offered about whether any earlier measures to express disapproval of a federal official have taken the form ofIn certain more recent instances, however, the form of the measure introduced was a joint resolution. a joint resolution.

Use of simple and concurrent resolutions suggests awareness that adoption of such a measure would have no imperative force parallel to that of a vote of no confidence or censure in a parliamentary system. By contrast, even though the language of S.J.Res. 14 explicitly disavowsin certain proposed joint resolutions appear to disavow any mandatory intent, by stating itself as an expression of the sense of the Senate or House, the measure iswas couched as a joint resolution. Joint resolutions, however, are normally lawmaking vehicles, and require passage by both chambers and presentation to the President. It is not clear what proponents intendintended by submitting the measuremeasures in this form, which would have the effect of affording the House of Representativesother house of Congress and the President a role in stating what the sense of the Senate is. It is conceivable that the use of this form of measure in the current case implicitly indicates an intent to achieve effects resembling those of an actual vote of no confidence.

Congress did not finally adopt any of the 31 or House is. Legislative Action As of this writing, in only one instance has the House or Senate, or the Congress (for a concurrent resolution), finally adopted any of the resolutions identified in the present search (from the 93^rd Congress on), and on none but twothree did any floor action occur at all. In 1997 (105^th Congress), the House adopted H.Con.Res. 197, declaring that Sara A. Lister, Assistant Secretary of the Army for Manpower and Reserve Affairs, should resign or be removed. In 1999 (106^th Congress), the Senate rejected an attempt to bring to the floor S.Res. 44, censuring President Clinton.

However, since this was a concurrent resolution (which needed both houses to approve), it was not adopted by Congress as the Senate took no action. In 1999 (106^th Congress), the Senate rejected an attempt to bring to the floor S.Res. 44, censuring President Clinton. In 2014 the House adopted a simple resolution (H.Res. 644, 113^th Congress), which—although not censuring or condemning a particular individual—did state that the House "condemns and disapproves of the failure of the Obama administration" to give the required 30-day notice to Congress concerning the prisoner swap from the detention center at Guantanamo Bay, Cuba. Examples of Earlier Resolutions No feasible means appeared of comprehensively identifying similar measures for the period preceding the availability of electronically searchable data. In the historical period before that covered by the LIS database, nevertheless, several instances are known in which the House or the Senate expressed a specific opinion disapproving of conduct of an executive official, or suggesting that a particular executive officer resign or be removed by the President.¹⁵

19 The instances discussed in this section constitute only examples of congressional actions; they. They are known not to compose a comprehensive list of all resolutions to censure executive (and judicial) officials that may have been adopted or considered by either Househouse. Accordingly, available information can permit no definite assertion whether a vote of no confidence fully similar to that proposed, for example, by S.J.Res. 14 has ever previously occurred in American history. It might be considered unlikely, however, that resolutions critical of officials during earlier periods of history would have been couched solely in terms of "no confidence," because proponents would likely have understood that these terms have a technical meaning only in a parliamentary system of government.

Censure and Condemnation

The earliest attempt to censure an official found thus far concerned a 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.¹⁶

20 In 1860, the House of Representatives adopted a resolution stating that the conduct of the President, and his Secretary of the Navy, was deserving of its "reproof," in a matter concerning the alleged conduct of President Buchanan and his Secretary of the Navy in allowing political considerations and alleged campaign contribution "kickbacks" to influence the letting of Governmentgovernment contracts to political supporters, rather than the lowest bidder.¹⁷21 After 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 President of the United States and the Secretary of Navy,"¹⁸22 the House adopted the resolution 106-61.¹⁹

23 The Senate adopted a resolution in 1886 in which it expressed its "condemnation" of President Cleveland's Attorney General A.H. Garland concerning his refusal to provide certain records and papers to the Senate about the removal from office of a district attorney by the President.²⁰

24 In 1896, the House 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."²¹

25 Resignation and No Confidence

Some congressional resolutions over the years have merely found 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 or condemnation, or a specific expression of loss of "confidence." 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."²²

26 Similarly, 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.²³

27 In the 81^st and 82^nd Congresses (1949-1952), six resolutions were submitted containing demands for the resignation of Secretary of State Dean Acheson, and one seeking that of Secretary of Defense George C. Marshall. All of these resolutions, unlike many more recent measures, lacked preambles setting forth the reasons for the action. These measures provide one of the few earlier instances known that were described as proposing votes of no confidence in the respective officials. Three of the seven resolutions explicitly stated a popular loss of confidence along with (but not instead of) the calls for resignation (although one, like the 1983 instance discussed earlier, did so only in the preamble). Several of these resolutions, apparently including those whose text did not contain this explicit phrase, were also described, in public discussion, as declarations of no confidence. Finally, during the same time period, a loss of public confidence in Secretary Acheson was declared by votes of the Republican Conference in at least one chamber. These events illustrate that a resolution may be described as a "no confidence" measure without having the characteristics that would make it equivalent to an actual vote of no confidence in a parliamentary system.

Concluding Observations

Although there has been discussion in both Houseshouses of Congress of the appropriateness of such actions, resolutions have been introduced and considered in each Househouse of Congress in the past, and on occasion have been adopted, wherein the House or the Senate has expressed the "sense" of the institution that an official in the executive branch has engaged in conduct worthy of censure, condemnation, or other expression of disapprobation; should resign or be removed by the President; and, in a few circumstances, expressly stating in the preamble or the operative portion of the resolution that the public or the particular Househouse of Congress has lost "confidence" in the official. Such actions and proposals would appear to be in the nature of "sense of Congress" or "sense of the Senate" (or House) resolutions in which it has been the practice for the Senate or the House to address certain non-legislativenonlegislative matters, such as to express the opinion or the sense of Congress or of one Househouse of Congress on a public matter.²⁴28 Aside from obvious symbolic, political, or publicity implications, there are no specific legal consequences in the passage of such a resolution, nor is there any legal significance or consequence for the Senate or the House to choose one phrase of disapprobation or condemnation over another, or to include or not to include the concept or expression of a loss of "confidence" in an official.

Several features of S.J.Res. 14 seem to make explicit its difference from an actual "vote of no confidence" such as could occur in a parliamentary system, but others suggest a failure to take account of that difference. To the extent that the resolution To the extent that a resolution containing a "vote of no confidence" purports to present a proposition functionally similar to a vote of no confidence in a parliamentary system, present knowledge does not permit identifying any similar proposition as having been offered in the past. On the other hand, to the extent that the presentsuch resolution purports to present such a proposition, it cannot, under the American constitutional system, succeed in doing so. Instead, the proposition actually presented by thea resolution of this nature can only be that of expressing congressional disapproval of a federal official, and in that general respect the resolution is not dissimilar from a number of others that have been offered, from time to time, throughout American history.

Appendix. Examples of Congressional Resolutions Expressing Disapprobation of Executive Branch Officials, 1973-2006