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Senate Democrats should not join Russ Feingold's efforts to censure President Bush. He is charting a path that is ahistorical and extra-constitutional. While Senator Feingold may have doubts about the legality of the once classified electronic surveillance program operated by the National Security Agency and disclosed in December by the New York Times, the Senate risks establishing a precedent it may soon regret. Why? Because once embraced, senators risk subjecting themselves to the same condemnation.

What is censure? Purportedly it is the legislative equivalent of a reprimand or rebuke. Many constitutional scholars argue that since neither the Constitution nor the rules of the House or Senate expressly provide for it, Congress does not have this authority. Historically, the first and last time this power was invoked by the legislature against the executive occurred in 1834. It was carried out by a United States Senate controlled by a Whig Majority and used against President Andrew Jackson, a Democrat.

While it may be politically convenient, the use of "censure" is not at all necessary in order for Congress to carryout its powers. The U.S. Constitution, House, and Senate rules all provide explicit means for Congress to exercise their disagreements with the executive. They have an array of powers to rely upon: they can enact statutes, reduce or end spending on programs they oppose, override a presidential veto and use their impeachment power.

Arguably, "censure" is modeled after the techniques used by the House and the Senate to formally condemn or rebuke members of their own body. Under rules established by the House and Senate, after a simple majority vote, the Member is publicly denounced, but still retains his position as a senator or representative. Using this formulation, Sen. Feingold's resolution would "rebuke" President Bush but would not force him from office.

What is most troubling about Senator Feingold's resolution is the particular application he seeks. Essentially, Senator Feingold is using a reprimand to resolve a "separation of powers" dispute between the president and Congress. Some members of Congress argue that Congress alone has the power to regulate the use of wiretaps domestically.

On the other hand, the White House says that the president's "war powers" and his interpretation of the 9-11 War resolution give him authority to surveil enemy terrorist communications, even on U.S. soil.

Again, this is essentially a "separation of powers" dispute. Separation of powers is the concept that explains the way the political powers of our government are divided between an executive, a legislature and a judiciary. Under this model, each branch has separate and independent powers and areas of responsibility; however, each branch also possesses powers to limit or "check" the power exerted by the other branches.

Because there has yet to be any final determination as to whether the president has acted unlawfully or unconstitutionally, Senator Feingold's action is hasty at a minimum. Yet even if it were timely, members of Congress would need to be very careful about embracing this tactic. If an elected official can be subject to "censure" solely because an action which he or she supported might be or is subsequently declared unconstitutional or unlawful, opportunistic members today may find themselves hoisted on their own petard tomorrow.

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