Revisiting Contempt: Congress's Arrest Power and the Limits of Liquidation
58 Pages Posted: 21 Feb 2018 Last revised: 23 Feb 2018
Date Written: February 21, 2018
Suppose that a private citizen or an executive branch officer does something that the House or Senate considers contemptuous — say, refusing to respond to a congressional subpoena, or printing false statements about the chamber’s deliberations. 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. Beginning with the Constitution’s text, I argue that this power has no basis the enumerated powers of each chamber. What’s more, the express provision of other unicameral powers (say, the power to punish members) reinforces this absence, and the Constitution’s other rights-protecting provisions make it unlikely that such a power exists by implication. The Article then responds to two other arguments in favor of the inherent contempt power. First, defenders argue that both Parliament and the pre- and post-revolutionary state legislatures had the power; therefore, this authority should be inherent in Article I’s grant of “legislative power.” Conceding the empirical claim, I challenge the conclusion. Put simply, the Constitution’s commitments to popular sovereignty and separation of powers undermine the relevance of pre-constitutional precedent. Second, defenders argue that Congress must have this inherent contempt power by implication; otherwise, it could not perform its constitutional functions. Applying the doctrinal means-end test — that contempt be the “least possible power necessary to the end proposed” — I argue that Congress has less-constitutionally-problematic ways to serve the interests asserted.
The Article contributes to the literature on interpretive methodology. Because the inherent contempt power has been exercised by Congress since 1795, some argue that the Constitution’s meaning has been “liquidated” or “glossed” to allow the power. This generally unchallenged constitutional practice, pursued in the teeth of contrary constitutional text, raises thorny questions about interpretive methodology. First, I argue that decisions that do not result from inter-branch contestation and settlement should not be considered authoritative liquidations of constitutional meaning. Second, I argue that, even if the meaning of the Constitution has been liquidated, it can be de- and re-liquidated if practice shifts over a period of time. Third, I argue that if the constitutional justification for past assertions turns on a structural argument that no longer obtains (as here), then that precedent can be ignored without issue. 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.
Keywords: Congress, legislation, congressional contempt, contempt of Congress, constitutional law, liquidation, gloss, constitutional interpretation, separation of powers
JEL Classification: K00, K10, K19,K23, K30, K39
Suggested Citation: Suggested Citation