Censure, as many of you know, is not my preferred method for dealing with the legal and constitutional violations of the Bush "administration." But I do think that for Senator Russ Feingold to have reintroduced the idea after having been left standing virtually alone when he last proposed it, is an act of considerable courage.
As a Senator, of course, Feingold is simply not empowered to introduce articles of impeachment, so in terms of direct action, censure is probably about the best that can be expected. Rep. Robert Wexler, on the other hand, who introduced his own resolution of censure in the House, does not have that excuse. And while he surely has a whole raft of reasons to prefer censure over impeachment, none of them are that his hands are tied by the terms of the Constitution.
The advantage of censure -- if it is an advantage -- is that it doesn't face the hurdle of having to garner a 2/3 supermajority in the Senate in order to pass. On the flip side, neither does ordering a large pepperoni pizza with extra cheese. And both pose about the same threat to the White House.
Still, there may be good reason to go on record, both with censure and with contempt charges.
In the now-famous Youngstown case, which has been cited at the heart of the recent court rebukes to some of the Bush "administration's" excesses, there is this additional nugget of dicta:
Deeply embedded traditional ways of conducting government cannot supplant the Constitution or legislation, but they give meaning to the words of a text or supply them. It is an inadmissibly narrow conception of American constitutional law to confine it to the words of the Constitution and to disregard the gloss which life has written upon them. In short, a systematic, unbroken executive practice, long pursued to the knowledge of Congress and never before questioned, engaged in by Presidents who have also sworn to uphold the Constitution, making as it were such exercise of power part of the structure of our government, may be treated as a gloss on "executive Power" vested in the president by §1 of Article II.
I take that to be an acknowledgment by Justice Frankfurter that even bullshit claims like Bush's can become part of the accepted range of presidential powers if they're exercised -- as Bush's violations certainly have been -- with the full knowledge of Congress, and to this point, unquestioned by them.
While impeachment is the correct response here, it needs to be considered that the failure to issue any response at all might end up turning Bush's extraordinary claims into part of the "gloss" on presidential power. Similarly on the issue of contempt, the correct response is inherent contempt and not statutory contempt. But in the absence of the will to proceed with the preferred responses, there's actually an argument to be made for these "half measures."
It's frequently said by others that an impeachment that doesn't result in a conviction might do the same thing as (or worse) than doing nothing at all, but I think that's highly debatable. An impeachment, even when it fails to garner a 2/3 vote to convict in the Senate, is still a pretty clear "questioning" of these exercises. Facing trial before the Senate (and possibly escaping by the skin of one's teeth) is no small matter. Likewise, spinning the vote of something in the neighborhood of half of the membership of Congress for a negative on the continuance in office of the architect of the policy into an affirmative ratification of his wanton lawbreaking is no mere trifle. The same would go for a majority vote on contempt of Congress that the corrupt brass at the "Justice" Department ordered not be prosecuted. Not that we shouldn't expect the president's apologists to attempt either one or both, of course. But the assumption that that public relations battle too would be lost, I think concedes too much, and is as much a defeatist's position as simply giving up entirely.
