In the wake of the President’s executive order on immigration, at least one Republican member of Congress has called for a Censure Resolution declaring the President’s conduct either unlawful or wrong. (I’m not sure which.) The precedent for this during Andrew Jackson’s presidency, which I talked about in my first book, is very problematic given that only the Senate censured the President, Jackson protested that the resolution was unconstitutional, and the resolution was later repealed by the Senate.
Here’s a broader question. Is there any limit on Congress’s power to pass a joint resolution that does not create binding law? In other words, can Congress pass any resolution that just gives its opinion? Suppose they want to say that the police officer in Ferguson should have been indicted? Or that Bill Cosby is a rapist? Or that Putin is not the legitimate president of Russia? One thought is that resolutions like these are purely symbolic, and so there are no constitutional limits. But you could say that these statements might matter (for instance, in a civil suit brought against a named person, or in some diplomatic negotiation). If that is true, though, how does one articulate the limits on Congress’s expressive rights? Does the President need to denounce one that goes too far? Should courts not allow such statements to go before a jury?