Article

Executive Branch Contempt of Congress

Josh Chafetz

Assistant Professor of Law, Cornell Law School

Thanks to Greg Alexander, Akhil Amar, Will Baude, Aaron Bruhl, Michael Dorf, Joey Fishkin, Marin Levy, Bernadette Meyler, David Pozen, Catherine Roach, and Steve Sachs for helpful and thought-provoking comments on earlier drafts, and to Kevin Jackson for excellent research assistance. Any remaining errors or infelicities are, of course, my own.

After former White House Counsel Harriet Miers and White House Chief of Staff Joshua Bolten refused to comply with subpoenas issued by a congressional committee investigating the firing of a number of United States Attorneys, the House of Representatives voted in 2008 to hold them in contempt. The House then chose a curious method of enforcing its contempt citation: it filed a federal lawsuit seeking a declaratory judgment that Miers and Bolten were in contempt of Congress and an injunction ordering them to comply with the subpoenas. The district court ruled for the House, although that ruling was subsequently stayed and a compromise was reached.

This Article examines the constellation of issues arising out of contempt of Congress proceedings against executive branch officials. After briefly describing the Miers litigation, it examines the development of legislative contempt against executive officials in AngloAmerican law. It shows that the contempt power played a significant role in power struggles between the Crown and Parliament and between the Crown and colonial American legislatures, and that this role continued into the early state legislatures. It then traces Congress’s uses of the contempt power against executive branch officials, including in two cases that have generally been overlooked by both judicial and academic commentators, in which a house of Congress sent its sergeant-at-arms to arrest an executive branch officer.

The Article then uses that history to consider how cases of executive branch contempt of Congress should be dealt with today. It notes the variety of political tools that Anglo-American legislatures have used to enforce their contempt findings, as well as the fact that they did not turn to the courts to resolve such disputes until the late twentieth century. It then argues that the resolution of such disputes by the courts does significant harm to the American body politic. This Article therefore concludes both that Congress erred in seeking judicial resolution of the Miers dispute and that the courts erred in finding it justiciable.

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