How far can Congress take its inherent contempt powers? |
How far can Congress take its inherent contempt powers?
The inherent power of Congress to jail or fine recalcitrant witnesses has become somewhat of an obscure footnote in the ongoing tug of war between the legislative branch and the executive.
It was last used in 1935, though there was an unsuccessful effort to employ it against Attorney General Merrick Garland during the Biden administration. But with the looming prospect of a Democratic House seeking oversight of a stubbornly uncooperative Trump administration, attention has turned to just how Congress can enforce its subpoenas for administration documents and witnesses.
Criminal remedies are off the table, as that approach relies on the Trump Justice Department for enforcement. And with civil enforcement looking at a two- to three-year window for resolution, it seems inevitable that use of Congess’s inherent power to punish or coerce compliance will become an urgent consideration.
There is, however, a problem. The Supreme Court has on three occasions found that Congress does possess such power, and the Justice Department’s Office of Legal Counsel has also recognized it as a legitimate legislative tool, albeit a limited one in the face of a claim of executive privilege.
But both the court and the Justice Department have missed an important and historical constitutional fact in their analysis: the framers, during the Constitutional Convention in 1787, explicitly considered and decided to deny Congress any summary powers of enforcement.
Legislative power to punish third parties grows out of the centuries-long battle between Parliament and royal prerogative in Great Britain. Parliament claimed certain “privileges” of its members to........