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Confidence v. No Confidence

It looks like we’re on the “confidence” theme this week. I admit that I came down pretty hard on Paul Vallely in my article, “Former general confuses US with UK,”  mocking his call for a vote of “no confidence” on President Obama in the House of Representatives. Granted, I correctly noted that such a vote has no legal significance, but I did not fairly label it what it really is, a political ploy. (The idea that a vote by a majority of the Republican-controlled House would result in an Obama resignation is  ludicrous.) In this country, the political party in power governs, and the opposition tries to get them out. And those out of power in Washington today use every trick they can to make the Obama Administration look bad, and this “vote of no confidence” scheme should be viewed as what it is, politics.

One of the reasons that I wanted to back off a little on the current “no confidence” move is that it is not just something that right-wing nut jobs cooked up in their anti-Obama program. The other side tried the same gambit when it was the Bush administration in power. Turn the clock back to May of 2007 and read this from Think Progress:

Last week, Sens. Dianne Feinstein (D-CA) and Charles Schumer (D-NY) called on the Senate to hold a no-confidence vote on Attorney General Alberto Gonzales.

The White House and its conservative allies quickly derided the vote, calling it “nothing more than a meaningless political act.” This morning on Fox News Sunday, Sen. Lindsey Graham (R-SC) called it a “gotcha game.”

So what happened with that move? A resolution of no confidence was introduced, but even though  53 Senators voted to debate the issue (38 opposed), it fell shy of the 60-vote supermajority necessary to fend off a Republican filibuster. Although the “no confidence” vote was not held, Gonzalez did resign (for more on this controversial figure, check out the Wikipedia).

Folks like me on the Internet try to get good information, but we don’t govern the country, or try legal cases. If I make a mistake, the only consequence is a little hit on my credibility. When it comes to members of Congress, they have to make real decisions that affect real people, and their standard of correctness must needs be far higher than mine. When Congress needs a legal opinion, they may seek guidance from the Congressional Research Service, an arm of the Library of Congress, and that’s exactly what some did in 2007 regarding the “no confidence” question, resulting in the production of this report: “No Confidence” Votes and Other Forms of Congressional Censure of Public Officials from June of 2007.

The report concludes (in part):

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.

The report is of particular interest in its tabulation of historical resolutions of this type, going back to 1973.

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32 Responses to Confidence v. No Confidence

  1. avatar
    Joey January 16, 2014 at 7:02 pm #

    Attorney General Alberto Gonzales DID eventually resign!

  2. avatar
    Jim January 16, 2014 at 7:05 pm #

    I am totally behind a no-confidence vote…in fact I think it’s a great idea! A symbolic gesture that carries no weight fits the birthers perfectly. I’d like to nominate Mike Zullo as the first…I have no confidence he could carry out a proper investigation of…anything! The reason for my lack of confidence is
    A) Lying to his constituents
    B) Running a scam on senior citizens
    C) No experience in investigations of Government Documents
    D) Profiting from the investigation
    E) Incompetence

    My vote: NO confidence

  3. avatar
    Dave B. January 16, 2014 at 9:20 pm #

    I would imagine the news that one has been nominated to be Attorney General of the United States would be greeted without as much enthusiasm as a cancer diagnosis.

  4. avatar
    JPotter January 16, 2014 at 10:16 pm #

    Jim: Lying to his constituents

    Zullo (thankfully!) doesn’t have constituents.But I know what you mean … either his listeners in general, or his patron’s (Papa ‘Paio’s) constituents.

  5. avatar
    Hermitian January 16, 2014 at 11:18 pm #

    You picked the wrong CRS analysis !

    Here’s the one that applies to Obama’s continuous disregard of the laws passed by the Congress.

    “Congress’s Contempt Power and the Enforcement of Congressional Subpoenas:”

    “A Sketch

    Todd Garvey
    Legislative Attorney

    “Alissa M. Dolan
    Legislative Attorney

    “August 14, 2012

    “Congressional Research Service
    7-5700
    http://www.crs.gov
    RL34114

    “Congress’s contempt power is the means by which Congress responds to certain acts that in its view obstruct the legislative process. Contempt may be used either to coerce compliance, punish the contemnor, and/or to remove the obstruction.”

    “This report examines the source of Congress’s contempt power, analyzes the procedures associated with inherent contempt, criminal contempt, and the civil enforcement of subpoenas, and discusses the obstacles that face Congress in enforcing a contempt action against an executive branch official. A more fully developed and detailed version of this report, complete with sources and references, can be found at CRS Report RL34097, Congress’s Contempt Power and the
    Enforcement of Congressional Subpoenas: Law, History, Practice, and Procedure, by Todd Garvey and Alissa M. Dolan.”

    Although Congress has not applied its power to arrest, try and incarcerate since 1935 it nevertheles still reserves the right to do so.

    Congress’s Contempt Power is absolute under the Constitution. Otherwise Congress could not carry out its legislative function.

  6. avatar
    Greenfinches January 16, 2014 at 11:46 pm #

    One reason to be against this vote is that it is a waste of time and money. Not, of course, that some folk in Congress will mind that, with the 78 votes (or whatever it is) they have had to repeal ‘Obamacare’…………. and the time they have NOT spent doing something for jobs.

  7. avatar
    The Magic M January 17, 2014 at 5:36 am #

    Don’t give them ideas; I think Republicans would be perfectly fine with holding “votes of no confidence” about basically everything. They could brand it “Impeachment Light”.

  8. avatar
    Curious George January 17, 2014 at 8:41 am #

    Zullo and Arpaio……NO Confidence!

  9. avatar
    alg January 17, 2014 at 8:47 am #

    I have no confidence that birthers will appreciate or understand this article. :-)

  10. avatar
    Keith January 17, 2014 at 11:14 am #

    Hermitian: You picked the wrong CRS analysis !

    Here’s the one that applies to Obama’s continuous disregard of the laws passed by the Congress.

    “Congress’s Contempt Power and the Enforcement of Congressional Subpoenas:”

    ‘Contempt of Congress’ does not apply to the other branches of Government. The President nor the Supreme Court justices cannot be held in ‘contempt’.

  11. avatar
    sfjeff January 17, 2014 at 11:44 am #

    Hermitian: Here’s the one that applies to Obama’s continuous disregard of the laws passed by the Congress.

    Did you even bother to read the article?

    I think not.

    I did.

    And the article is pretty clear why Congress has never been able to take effective contempt action against any administrative official.

    Of course the article doesn’t address such action against the President at all.

    Interesting side bar for strict Constitutionalists- essentially the ability of Congress to issue subpoenas and take contempt actions was essentially given to them by the Supreme Court. It is not in the Constitution but the Court declared such abilities were necessary for Congress to perform its functions.

    In other words- an ‘activist Supreme Court’ gave Congress that power.

    But of course its never an ‘activist Supreme Court’ when the right agrees with the courts actions.

  12. avatar
    Daniel January 17, 2014 at 12:06 pm #

    Hermitian: You picked the wrong CRS analysis !

    You picked the wrong word…….

    We’re talking about a vote of no confidence, not a charge of contempt.

    I know it’s hard, but do try to keep up if you’re going to try to participate in the adult’s conversation, won’t you?

  13. avatar
    1% Silver Nitrate January 17, 2014 at 1:42 pm #

    “The report is of particular interest in its tabulation of historical votes of this type, going back to 1973.”
    Just a little quibble, Doc. The tabulation is of resolutions introduced, not votes. Scanning the last column in the table, I can find only 2 instances of any action taken by either chamber, & only one was a floor vote.
    BTW, it should be noted that one of the authors of this 2007 “no confidence” report was CRS attorney Jack Maskell, who, you’ll recall, was the author several years later of the CRS reports that demolished the many bogus birther claims regarding the law of presidential eligibility.

  14. avatar
    Dr. Conspiracy January 17, 2014 at 1:49 pm #

    I have corrected the article. Thanks.

    1% Silver Nitrate: Just a little quibble, Doc. The tabulation is of resolutions introduced, not votes.

  15. avatar
    Hermitian January 17, 2014 at 7:17 pm #

    Keith: Keith
    January 17, 2014 at 11:14 am Keith(Quote)
    #

    Hermitian: You picked the wrong CRS analysis !
    Here’s the one that applies to Obama’s continuous disregard of the laws passed by the Congress.
    “Congress’s Contempt Power and the Enforcement of Congressional Subpoenas:”
    ‘Contempt of Congress’ does not apply to the other branches of Government. The President nor the Supreme Court justices cannot be held in ‘contempt’.

    1. Read the in-depth CRS report (see my ref.).

    2. Then come back and retract your false statement.

    If they wanted to, the House could have sent the Sargent of Arms to arrest Holder the WithHolder and bring him to the well of the House for trial. Since the House found him in contempt, they could have locked him up for the duration of this term.

  16. avatar
    Hermitian January 17, 2014 at 8:03 pm #

    sfjeff: In other words- an ‘activist Supreme Court’ gave Congress that power.

    Actually Congress didn’t ask the SCOTUS for this power. Instead Congress has this INHERENT POWER.

    “Although subject to practical limitations, Congress retains the
    ability to exercise its own constitutionally based authorities to enforce a subpoena through inherent contempt.”

    Because, the SCOTUS is avoiding everything remotely controversial, there’s no way they would rule that Congress’s power is limited. Congress could make a strong case that Obama has unlawfully impeded their legislative efforts.

  17. avatar
    Steve January 17, 2014 at 9:54 pm #

    Hermitian: Congress could make a strong case that Obama has unlawfully impeded their legislative efforts.

    It could be argued that the opposite is true.

  18. avatar
    JPotter January 17, 2014 at 10:33 pm #

    Hermitian: SCOTUS is avoiding everything remotely controversial,

    Yep, cowering in the corner, refusing to rule on hot items such as Obamacare, gay marriage, various abortion related albatrosses …. er, wait.

    Earth to Herms: even when SCOTUS refuses to hear an appeal, the court is making a rulling, saying that SCOTUS has determined that the lower court decision stands and does not warrant further exploration.

    Hermitian: Congress could make a strong case that Obama has unlawfully impeded their legislative efforts.

    Yes, and vice-versa, Congress impedes the President. That’s their jobs, ninnymuggin. Their Constitutionally-mandated duty! You may have heard the phrase “checks and balances”. Congrats, you just discovered a few.

  19. avatar
    Keith January 17, 2014 at 10:43 pm #

    Hermitian: 1.Read the in-depth CRS report (see my ref.).

    I have done so. Your ‘ref’ does not work, by the way; I had to go looking for it on my own.

    2.Then come back and retract your false statement.

    I did not make a false statement so there is nothing to retract.

    The discussion was about a ‘vote of no confidence in the President’. You have attempted to conflate ‘no confidence’ with ‘contempt of Congress’. Congress cannot charge other Constitutional officers from other Governmental Branches with contempt. The President is a Constitutional Officer and cannot be charged with contempt. The President also has a great deal of leeway in declaring as ‘Executive Privilege’ the actions and documents of his Cabinet Officers in the necessary process of doing their job.

    Recall the kerfuffle when Congress attempted to subpoena records from Dick Cheney. Congress decided that as ‘President of the Senate’ he worked for them, and he decided that, as Vice-President, should be protected by Executive Privilege. Recall also who won that argument.

    If they wanted to, the House could have sent the Sargent of Arms to arrest Holder the WithHolder and bring him to the well of the House for trial.Since the House found him in contempt, they could have locked him up for the duration of this term.

    When did Eric Holder become President? I said that the President cannot be (successfully) held in contempt by Congress. Remember the discussion is about ‘no confidence’ in the President; not the Attorney General.

    To the extent that the President chooses to invoke Executive Privilege for the Attorney General’s work, the Attorney General is also immune from Contempt charges.

    Since you clearly did not “Read the in-depth CRS report” properly, I will include the two paragraphs that discuss this issue.

    Civil enforcement, however, has limitations. Most notable is that the statute granting jurisdiction to the courts to hear such cases is, by its terms, inapplicable in the case of a subpoena issued to an officer or employee of the federal government acting in their official capacity. Enacted as part of the Ethics in Government Act of 1978, early drafts of the civil enforcement statute did not include an exception for federal government officers and employees acting within the scope of their duties. It appears that the section was drafted primarily in response to the District Court’s dismissal, for lack of jurisdiction, of an Ervin Committee’s request for a declaratory judgment regarding the lawfulness of its subpoena of President Nixon’s tape recordings. Thus, one of the purposes of the statute was to expressly confer jurisdiction upon courts to determine the validity of congressional requests for information.

    During the course of the debates regarding this legislation, the executive branch strongly opposed conferring jurisdiction upon the federal courts to decide such sensitive issues between Congress and the executive branch. Testifying before a subcommittee of the Senate Committee on Governmental Operations, then-Assistant Attorney General Antonin Scalia argued that weighing the legislature’s need for information against the executive’s need for confidentiality is “the very type of ‘political question’ from which … the courts [should] abstain.” In response, Congress amended the proposed legislation excluding from its scope federal officers and employees acting in their official capacity. However, as noted in a report from the House Judiciary Committee in 1988, the exclusion was to apply only in cases in which the President had directed the recipient of the subpoena not to comply with its terms.

    Notice who made the argument about ‘executive privilege’? Its “Conservative Hero” Antonin Scalia, longest serving Justice on the Supreme Court, appointed by Saint Ronald, and unswerving opponent of a ‘living Constitution’.

  20. avatar
    Keith January 17, 2014 at 10:59 pm #

    Further to the above note, which was already too long.

    The House is trying to enforce subpoenas against Holder, and the case is pending in D.C. District Court. There is no telling when that will be resolved, but I think it won’t be the resolution that the House wants. If it gets to the Supremes, I think you will find that they will have a dim view the House’s attempt to base their court action not on law or the Constitution, but on a unilateral declaration of jurisdiction. Scalia has already explained his views on the matter, and he is the most conservative member.

    I remind you, however, Holder is not President, and there is no such contempt charge pending against the President.

  21. avatar
    sfjeff January 18, 2014 at 1:20 am #

    Hermitian: If they wanted to, the House could have sent the Sargent of Arms to arrest Holder the WithHolder and bring him to the well of the House for trial. Since the House found him in contempt, they could have locked him up for the duration of this term.

    Well the House could have tried to do that.

    What if Holder said no?

    And exactly where would Congress have locked him up?

    Congress may have the technical ‘right’ to do so- but Congress has no practical way to arrest a member of the Executive Branch- and would not risk the Executive just ignoring the Sargeant of Arms.

  22. avatar
    sfjeff January 18, 2014 at 1:28 am #

    Hermitian: Actually Congress didn’t ask the SCOTUS for this power. Instead Congress has this INHERENT POWER.

    “Although subject to practical limitations, Congress retains the
    ability to exercise its own constitutionally based authorities to enforce a subpoena through inherent contempt.”

    And Scotus- acting as Conservatives would call an “Activist” court if they didn’t like it- was the one who decided that Congress has that ‘inherent’ power- because its not in the Constitution.

    Point being again- nowhere in the Constitution does it say Congress has any power to hold anyone in contempt or to issue subpoena’s.

    The Supreme Court interpreted the Constitution in such a way tas conferring that authority.

    Those who don’t agree with Courts decision call that ‘an activist’ court.

    Of course not when they agree with the Court.

  23. avatar
    Andrew Vrba, PmG January 18, 2014 at 8:27 am #

    Hermitian:

    2.Then come back and retract your false statement.

    Still waiting for you to retract any one of YOUR false statements.

  24. avatar
    nbc January 18, 2014 at 4:18 pm #

    Hermitian: Congress’s Contempt Power and the Enforcement of Congressional Subpoenas

    A number of obstacles face Congress in any attempt to enforce a subpoena issued against an executive branch official. Although the courts have reaffirmed Congress’s constitutional authority to issue and enforce subpoenas, efforts to punish an executive branch official for non-compliance with a subpoena through criminal contempt will likely prove unavailing in many, if not most,
    circumstances.

  25. avatar
    nbc January 18, 2014 at 4:19 pm #

    Keith: ‘Contempt of Congress’ does not apply to the other branches of Government. The President nor the Supreme Court justices cannot be held in ‘contempt’.

    Seems that our friend Hermitian is not familiar with our Constitution. No news…

  26. avatar
    JPotter January 18, 2014 at 4:25 pm #

    nbc: Seems that our friend Hermitian is not familiar with our Constitution. No news…

    Not so, NBC! Our friend Herms was instrumental in the “rediscovery” of the Articles of Confederation over on the Amazon forums back in 2012! Amazing scholarship!

    Who even knew they were lost!

    (teehee! good times, good times, brings a tear to me eye ;) )

  27. avatar
    Dr. Conspiracy January 18, 2014 at 6:13 pm #

    By all means, the Congress must not embarrass the President.

    nbc: Although the courts have reaffirmed Congress’s constitutional authority to issue and enforce subpoenas, efforts to punish an executive branch official for non-compliance with a subpoena through criminal contempt will likely prove unavailing in many, if not most,
    circumstances.

  28. avatar
    Keith January 18, 2014 at 7:11 pm #

    Dr. Conspiracy: By all means, the Congress must not embarrass the President.

    ;-)

  29. avatar
    nbc January 18, 2014 at 8:25 pm #

    JPotter: Not so, NBC! Our friend Herms was instrumental in the “rediscovery” of the Articles of Confederation over on the Amazon forums back in 2012! Amazing scholarship!

    ROTFL, yes, he is quite the ‘researcher’…

  30. avatar
    Rickey January 18, 2014 at 8:42 pm #

    Hermitian: Congress could make a strong case that Obama has unlawfully impeded their legislative efforts.

    A Presidential veto impedes the legislative efforts of Congress, but it is sanctioned by the Constitution.

    A Senate filibuster impedes the legislative efforts of the majority in Congress, and it isn’t even sanctioned by the Constitution, but I don’t know anyone who would call it unlawful.

  31. avatar
    Thomas Brown January 18, 2014 at 9:47 pm #

    nbc: A number of obstacles face Congress in any attempt to enforce a subpoena issued against an executive branch official. Although the courts have reaffirmed Congress’s constitutional authority to issue and enforce subpoenas, efforts to punish an executive branch official for non-compliance with a subpoena through criminal contempt will likely prove unavailing in many, if not most,
    circumstances.

    If I remember correct, didn’t Congress try to subpoena Cheney and threaten him with Contempt of Congress while he was VP? And wasn’t his response, based on his constitutional immunity as a member of the Executive Branch, essentially “Ninny nanny boo-boo, stick yer head in doo-doo?”

    Those may not have been his exact words, but I believe the sentiment is accurate.

  32. avatar
    Joey January 18, 2014 at 10:09 pm #

    The House of Representatives held Attorney General Holder in CIVIL contempt, not criminal contempt.