Cohen’s ‘No Confidence’ resolution lacks legal standing
© Greg Nash

If you can’t pull a rabbit out of your own hat, use someone else’s. On July 19, Rep. Steve Cohen (D-Tenn.) and 28 of his House Democratic colleagues introduced a resolution “objecting to the conduct of the President of the United States,” which they pitched as being a resolution of “no confidence.”  It was a dazzling display of magic as they yanked a baffled bunny from a hat that wasn’t theirs.  It was a Victorian top hat, no doubt borrowed from the cloakroom of the British House of Commons. 

America’s love of things English didn’t end with our Declaration of Independence.  The first rules adopted by Congress were drawn primarily from those handed down over centuries from the British Parliament. Vice President Thomas Jefferson, as president of the Senate, relied heavily on the precedents of the House of Commons in drafting his “Manual of Legislative Practice for the Use of the Senate of the United States,” first published in 1801. 

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Notwithstanding the many similarities in parliamentary procedures between the two legislative bodies, the systems are distinctly different structurally. Our separation of powers among three branches of government stands in stark contrast to the British placement of executive functions (the cabinet departments) inside the Parliament, presided over by the prime minister who is elected by a majority of MPs. If the Parliament loses confidence in the government, the Parliament is dissolved and new elections are called. 

The last successful no-confidence vote occurred in March 1979 when Prime Minister James Callaghan was defeated on a confidence motion that read: “Resolved, That this House has no confidence in Her Majesty’s Government.”  Because the U.S. Congress and president have fixed but mixed terms, the two branches are not tied together as a single unit.  They cannot be simultaneously dissolved and forced to stand for election.  The Constitution makes no such provision.

The Cohen resolution does not attempt to order the dissolution of the Trump administration (let alone Congress).  Instead, it is a “sense of the House resolution” that declares, after a preamble of 89 “whereas” clauses (62 more charges than the bill of particulars against King George III in the Declaration), that the House “has no confidence that President Trump is faithfully executing the office of President of the United States.”  It goes on to specify 13 actions that the president “should” take to rectify his alleged misconduct, ranging from releasing his tax returns to refraining from “inappropriate” tweets.

This is not the first time that a “no confidence” resolution has been leveled against a U.S. official.  Most recently, on June 11, 2007, Sen. Charles SchumerChuck SchumerHospitals in underserved communities face huge cuts in reckless 'Build Back Better' plan GOP infighting takes stupid to a whole new level Progressive groups urge Schumer to prevent further cuts to T plan MORE (D-N.Y.) brought to the Senate floor a resolution “expressing the sense of the Senate that Attorney General Alberto Gonzales no longer holds the confidence of the Senate and of the American people.”  Minority Whip Trent Lott (R-Miss.) took umbrage and thundered:  “This is not the British Parliament, and I hope it never will become the British Parliament.” 

During debate on Schumer’s resolution, no one claimed it had any legal or binding authority, and Schumer conceded that his initiative was “one with few precedents.”  The measure fell seven votes short of the 60 needed to invoke cloture on a motion to proceed to its consideration.

In 2006 and 2007 Sen. Russ Feingold (D-Wis.) introduced three resolutions censuring President George W. Bush, Vice President Dick Cheney and other administration officials over illegal wiretaps, the Iraq war and other alleged misdeeds.  Feingold did not gain sufficient support from his own party to bring his measures to the floor.  However, his actions did attract considerable public and media attention. 

Censuring a government official is an alternative and less drastic British construct because it does not bring down the government.  As with no-confidence resolutions, censuring executive branch officials in the U.S. has no standing under the Constitution or congressional precedents.  The Senate did censure President Andrew Jackson for withdrawing from the national bank, something he angrily denounced as unconstitutional.  When Jackson’s party retook control of the Senate at the next election, the resolution was “expunged” from the Senate journal.

Some argue that the increasingly polarized and partisan American Congress is rapidly becoming a parliamentary hybrid, only without the accountability. However, no one is seriously suggesting we change the Constitution and adopt the Westminster system.  That is especially important today given widespread recognition of the need for Congress to exercise its First Branch responsibilities as a check on the executive.  Minority party parliamentary gotcha gimmicks do not rise to that high calling.

Don Wolfensberger is a fellow at the Woodrow Wilson Center and Bipartisan Policy Center and former staff director of the House Rules Committee. The views expressed are solely his own.


The views expressed by this author are their own and are not the views of The Hill.