Revisiting Contempt of Congress

Abstract

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.

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