Contempt Power Research Articles

King Mob and Contempt of Congress

Abstract The aftershocks of the riot at the United States Capitol on January 6, 2021, continue to ripple through the American public square. The United States Department of Justice brought over 750 criminal charges against the assailants. The United States House of Representatives appointed a Select Committee to investigate the riot. And the public continues to discuss the meaning of January 6 as these criminal prosecutions continue and the House's investigation concludes. Although this is the first time in American history that a mob actually breached the Capitol, riots and insurrections attempting to overawe parliamentary bodies on their own grounds are well precedented in the Anglo-American legal tradition. The purpose of this article is to provide historical context for affrays like the Trump Riot of January 6 and provide a framework for how legislatures should respond. Parliamentary precedents on both sides of the Atlantic prove that anyone who riots at the legislature is in contempt of parliamentary privilege. The legislature can refer such contempt to the executive for criminal prosecution. In egregious cases, however, the legislature should not hesitate to vindicate itself by using its own contempt power. The legislature should appoint a joint select committee or independent commission to investigate and hold those politically responsible to account. There may be cases when an officer or an agent of the executive provokes or incites a riot at the Capitol. The legislature must prevail in its efforts to bring them in for a hearing and compel them to produce discovery. Of the three coordinate branches of the federal government the legislature is first among equals. Parliamentary privilege must therefore trump executive privilege during an investigation of an assault on the national assembly. Any member of the executive who contemptuously incites a mob at the seat of government is liable for discipline under the inherent power of Congress.

Is the Contempt Power Obsolete?

Is the Contempt Power Obsolete?

The Endgame of Administrative Law: Governmental Disobedience and the Judicial Contempt Power

Scholars of administrative law focus overwhelmingly on lawsuits to review federal government action while assuming that, if plaintiffs win such lawsuits, the government will do what the court says. But in fact, the federal government’s compliance with court orders is imperfect and fraught, especially with orders compelling the government to act affirmatively. Such orders can strain a federal agency’s resources, interfere with its other legally-required tasks, and force it to make decisions on little information. An agency hit with such an order will often warn the judge that it badly needs more latitude and more time to comply. Judges relent, cutting slack and extending deadlines. The plaintiff who has “won” the suit finds that victory was merely the start of a tough negotiation that can drag on for years. These compliance negotiations are little understood. Basic questions about them are unexplored, including the most fundamental: What is the endgame? That is, if the judge concludes that the agency has delayed too long and demanded too much, is there anything she can do, at long last, to make the agency comply? What the judge can do, ultimately, is the same thing as for any disobedient litigant: find the agency (and its high officials) in contempt. But do judges actually make such contempt findings? If so, can judges couple those findings with the sanctions of fine and imprisonment that give contempt its potency against private parties? If not, what use is contempt? The literature is silent on these questions, and conventional research methods, confined to appellate case law, are hopeless for addressing it. There are no opinions of the Supreme Court on the subject, and while the courts of appeals have handled the problem many times, they have dealt with it in a manner calculated to avoid setting clear and general precedent. Through an examination of thousands of opinions (especially of district courts), docket sheets, briefs, and other filings, plus archival research and interviews, this Article provides the first general assessment of how federal courts handle the federal government’s disobedience. It makes four conclusions. First, the federal judiciary is willing to issue contempt findings against agencies and officials. Second, while several federal judges believe they can (and have tried to) attach sanctions to these findings, the higher courts have exhibited a virtually complete unwillingness to allow sanctions, at times swooping down at the eleventh hour to rescue an agency from incurring a budget-straining fine or its top official from being thrown in jail. Third, the higher courts, even as they unfailingly thwart sanctions in all but a few minor instances, have bent over backward to avoid making pronouncements that sanctions are categorically unavailable, deliberately keeping the sanctions issue in a state of low salience and at least nominal legal uncertainty. Fourth, even though contempt findings are practically devoid of sanctions, they have a shaming effect that gives them substantial if imperfect deterrent power. The efficacy of litigation against agencies rests on a widespread perception that federal officials simply do not disobey court orders and a concomitant norm that identifies any violation as deviant. Contempt findings, regardless of sanctions, are a means of weaponizing that norm by designating the agency and official as violators and subjecting them to shame. But if judges make too many such findings, and especially if they impose (inevitably publicity-grabbing) sanctions, they may risk undermining the perception that officials always comply and thus the norm that they do so. The judiciary therefore may sometimes pull its punches to preserve the substantial yet limited norm-based power it has.

Revisiting Contempt: Congress's Arrest Power and the Limits of Liquidation

Suppose that a private citizen or an executive branch official does something that the House or Senate considers contemptuous—say, refusing to respond to a congressional subpoena. May the House or Senate arrest her, try her for contempt, and detain her until she complies? This power is called the “inherent contempt power,” and conventional constitutional wisdom concedes that the House or Senate can exercise it unilaterally. This Article presents the first sustained challenge to the conventional wisdom. I argue that the inherent contempt power has no textual basis in Congress’s enumerated powers, and by expressio unius, the Constitution’s inclusion of other unicameral powers—e.g., each chamber’s power to punish members or to promulgate rules to govern its own proceedings—makes an argument by implication even more doubtful. This Article also rejects two common arguments defending the power. First, the historical evidence that Parliament and the state legislatures exercised an inherent contempt power does not show that Article I’s grant of “legislative power” includes it. The Constitution’s commitment to popular sovereignty and to a novel theory of separation of powers undermines the relevance of pre-constitutional precedent. Second, the structural argument that Congress must be empowered to perform its constitutional functions also fails. Because the inherent contempt power must be the “least possible power necessary to the end proposed,” Congress must use other mechanisms to perform these functions. This Article also contributes to the literature on interpretive methodology. Because the inherent contempt power has been exercised by Congress since 1795, defenders argue that the Constitution’s meaning has been “liquidated” or “glossed” by this longstanding historical practice. This argument fails for three reasons. First, only decisions that result from inter-branch contestation and settlement should be considered authoritative liquidations of constitutional meaning. Second, even if the Constitution’s meaning was liquidated, it can be de- and re-liquidated as practice shifts with time. Third, if the constitutional justifications for past assertions of the power turn on a structural argument that no longer obtains (as here), then those historical precedents lack binding force. These three assertions bolster the substantive point: Neither chamber of Congress may unilaterally arrest, detain, and try private citizens or executive branch officials for contempt.

Challenging Civil Contempt: The Limits of Judicial Power in Cases Involving Journalists

Despite their assertion of a First Amendment or common law reporter's privilege in federal courts, journalists continue to face jail sentences and exorbitant fines for refusing to divulge their confidential sources when subpoenaed. Efforts to pass even a limited federal shield law have failed so far. This article offers another avenue to protect journalists—examining the roots of contempt law and policy to highlight limits on the contempt power of judges. It argues that because journalists are part of a group resting on steadfast moral and professional convictions, they may validly argue that confinement and excessive fines are improper sanctions. The article also suggests refinements in shield law proposals and other legislation to clarify the extent of judicial contempt power.

A Primer on Tribal Court Contempt Power

Supreme Court doctrine bars tribal courts from exercising criminal jurisdiction over non-Indians, but tribal courts often are the only practical mechanism available to protect Indian women from non-Indian domestic violence. Congress recognized this fact in the Violence Against Women Act by noting that tribal courts may use their civil contempt power to enforce personal protection orders originating in foreign jurisdictions.This short paper describes the civil contempt power of tribal courts, and how tribal courts have used this power. The paper concludes with a short analysis of the implications of federal Indian law on tribal court authority to issue civil contempt citations to non-Indians.This is a paper prepared for the Michigan Indian Judges Association quarterly meeting, held on May 16, 2008, at the Bay Mills Indian Community.

Congress's contempt power: Three mechanisms for enforcing subpoenas

Since the beginning of the 110th Congress, increased oversight by congressional committees into activities of the President and Executive Branch has sparked renewed interest in both political and legal questions involving the separation of powers. Congressional subpoenas for general information, documents, and testimony from high-ranking executive officials has not only generated significant inter-branch conflict but has also developed into a controversy that could result in a legal standoff between Congress and the President. Congress's ability to obtain access to information, whether in the form of documents or testimony, from the Executive is primarily enforced through political negotiation and accommodation that generally take place outside of public view. Contempt may be used by Congress to coerce compliance, punish the contemnor, and/or remove the obstruction. This paper focuses on Congress's contempt power and congressional authority to enforce its requests for information, documents, and testimony from both private individuals and the Executive Branch. First, it examines the source of Congress's contempt power. Next, it discusses and analyzes the procedures associated with each of the three different types of contempt proceedings—inherent contempt, statutory criminal contempt, and statutory civil contempt. Finally, this paper concludes by addressing several of the unique constitutional, legal, and political problems that are associated with congressional contempt proceedings against Executive Branch officials.

Counting the Truants

Perfect attendance. But for one day of third grade, I would have had perfect attendance from kindergarten through high school graduation. I missed that single day because my parents made me stay home. Getting up and going to school was, for me, an act of self-preservation. I was sure that, if I missed any new material, I would get so far behind that I'd never catch up. It was entirely my choice. Sick or healthy, I was at my desk. While Huckleberry Finn's aversion to attending school falls at one end of the spectrum, and my compulsion falls at the other, most students are somewhere in between. When students don't make a choice that places them somewhere in my vicinity, parents usually help them make it. If parents don't follow through or if they're unsuccessful, the school usually steps in. And if that doesn't work, state law asserts itself. MORE THAN 'BE THERE OR BE SQUARE' Compulsory attendance laws help to ensure both that educational services are provided and that students take advantage of those services. These laws set minimum and maximum ages for school attendance. For example, if in Alabama students must begin to attend school at age 7 and continue attending until the age of 16, the mandatory number of years of education is nine. Twelve states require nine years of education; 18 states require 10; eight states require 11; eight require 12; and four states and the District of Columbia require students to attend school for a total of 13 years. The minimum ages range from 5 to 8 years old, with the highest number of states (24) requiring attendance to begin at age 6. Twenty-eight states require students to attend school until they reach the age of 16; 17 states set 18 as the school-leaving age. Between 1984 and 2005, 14 states raised the upper age limit for compulsory attendance in order to keep students in schools longer. TRUANCY AND HABITUAL TRUANCY If students choose not to attend school, however, at what point are they found to be truant? For many years, most state laws did not specify the number of times a student must be absent without an excuse before legal sanctions are enforced. Over the past decade, though, a growing number of states have begun to explicitly define truancy--or require their districts to define it. And some have even established guidelines for when a student should be designated a truant. In Arizona, for example, truancies are defined as unexcused absences for at least one class period during a school day. Habitually students are those for at least five school days during a school year. To be in California a student has to be absent without a valid excuse for three full days in one school year, or absent without a valid excuse for more than any 30-minute period during a single school day on three occasions in one school year, or any combination thereof. And such absences must be reported to the attendance supervisor or to the superintendent. A student is deemed to be a habitual truant if he or she has been reported three or more times during a school year and if the attendance officer has made a conscientious effort to hold a conference with a parent or guardian. Whew! That's some serious record-keeping. In Colorado, four unexcused absences in one month or 10 unexcused absences during any school year make a student a truant. INCREASING ENFORCEMENT States such as Virginia have attempted to put more teeth into their attendance laws. In 2004, the Virginia legislature removed a restriction on the court's use of contempt power in enforcing compulsory school attendance and parental responsibility. The revised law clarifies and reinforces the court's authority to order the child or the parent or both into programs, such as extended-day programs, summer school, or other educational programs, and into treatment, such as counseling. In October 2005, the state board of education in Louisiana reestablished Truancy Assessment and Service Centers, which had previously targeted low-income families, as a means to identify, assess, and intervene to ensure K-6 students attend school regularly. …

Treating incompetent defendants: the Supreme Court's decision is a tough Sell.

Treating incompetent defendants: the Supreme Court's decision is a tough Sell.

THE CONSISTENTLY INCONSISTENT APPLICATION OF CONTEMPT POWER IN JUVENILE COURTS

ABSTRACT A controversy exists over the legal authority of juvenile court judges to apply contempt power to incarcerate nondeliquent youths. The decisions by reviewing courts reflect three distinct approaches to contempt power. One approach gives juvenile court judges unlimited legal authority to incarcerate status offenders for disobeying court orders. A second holds incarceration for contempt to be inappropriate and contrary to legislative directives under each state's Juvenile Court Act. A third strikes a “middle-ground,” in which incarceration of nondeliquent youths for contempt is permissible within narrow legal parameters. Resolving the conflicts created by these disparate approaches likely will require federal court intervention.

Illinois Juvenile Justice: An Emerging Dual System

Trial courts have inherent powers, including the authority to punish for contempt. Historically, contempt charges were limited to adults who understood the consequences of deliberately disregarding a court order or challenging the court's authority. Illinois juvenile court judges now use contempt power to force nondelinquent status offenders to comply with routine court directives, a practice having no legal or historical precedent and conflicting with the legislative intent of the Illinois Juvenile Court Act.

Restrained Dissent; Restrained Repression: Political Offenders and the Victorian Criminal Courts

This article examines the conduct of political trials in Victoria between 1966–1989. Using a definition of political trial which classes trials as “political” if they relate to offences arising out of some form of political activity, the article discusses the problems faced by prosecutors, defendants and magistrates and judges in determining an optimal response to the problems and opportunities created by political trials. It examines prosecution strategies (the decision to withdraw charges); defence strategies (plea, type of defence, use of lawyers, types of plea in mitigation, decisions on whether to pay fines); and court strategies (response to contests, use of the contempt power, sentencing). Changing patterns over time are also explored. Marked differences are found to emerge between political and non-political cases, and between early and late cases.

Limiting the Criminal Contempt Power: New Roles for the Prosecutor and the Grand Jury

Limiting the Criminal Contempt Power: New Roles for the Prosecutor and the Grand Jury

Federal Courts: New Limitations on the Contempt Power of Federal District Court Judges

Federal Courts: New Limitations on the Contempt Power of Federal District Court Judges

The Contempt Power, by Ronald L. Goldfarb

The Contempt Power, <i>by Ronald L. Goldfarb</i>

The Contempt Power

The Contempt Power

The Contempt Power

The Contempt Power

The Contempt Power

The Contempt Power

The Contempt Power

The Contempt Power

Use of Contempt Power to Enforce Subpoenas and Orders of Administrative Agencies

Use of Contempt Power to Enforce Subpoenas and Orders of Administrative Agencies