Sunday, March 29, 2009

Chafetz on Executive Contempt of Congress

As is well known by now, the House Judiciary Committee last spring filed a complaint in federal court against former White House Counsel Harriet Miers and then-Chief of Staff Josh Bolton for contempt for failure to comply with Congressional subpoenas in the Committee's investigation into the Bush administration firing of U.S. attorneys.  The district court ruled for the Committee, but the D.C. Circuit stayed the ruling pending appeal and denied the Committee's motion for an expedited appeal.  (Under an agreement announced earlier this month, Miers and Karl Rove will testify under oath, but only to questions on attorney firings, and not to conversations with Bush or with members of the White House Counsel's Office.)

With all the activity, few seemed seriously to delve into this question: Why did the Committee seek to enforce its subpoena in the courts?

This is the question Josh Chafetz (Cornell) takes on in his excellent and thorough review of Congress's contempt power and its power of enforcement in his recently posted piece Executive Branch Contempt of Congress, also forthcoming in the U. Chicago Law Review.  Chafetz argues provocatively that while the Committee certainly has the authority to bring the case in court, other enforcement measures could have been more effective and less power-ceding.

Chafetz starts with a comprehensive historical review of enforcement of legislative privilege, including contempt, that is well worth the read on its own.  (Chafetz is no newcomer to the history of legislative privilege; he's also the author of Democracy's Privileged Few: Legislative Privilege and Democratic Norms in the British and American Constitutions (Yale).)  Chafetz traces the history of parliamentary privilege from 1290, when the Prior of the Holy Trinity cited the Earl of Cornwall to appear before the Archbishop of Canterbury, to legislative privilege in state legislatures before 1789, to Congressional contempt in the Miers case.  Not all of these involve privilege asserted against an executive (or crown); but Chafetz argues that this doesn't matter: "The case for an inherent contempt authority is, if anything, stronger in the case of executive branch officials than in that of ordinary citizens."  The points are that Congressional contempt--independent of judicial enforcement--has a long and impressive pedigree, and that Parliament, state legislatures, and Congress have used a variety of unilateral enforcement methods.  As Chafetz points out, turning to the courts is simply another method, and a very recent one at that.

Chafetz then argues in the core of his paper that Congress has plenty of more effective alternatives, and that in seeking judicial enforcement Congress actually cedes power to a third, otherwise uninterested branch.  Chafetz explores Congressional arrest and detention, impeachment proceedings, and stalling presidential appointments and executive agendas as unilateral enforcement methods.  "Importantly, none of these options require cooperation from another branch.  None of them constitutes a concession by Congress that it is unable to carry out its constitutional role without help."

But they may require or lead to other bads, perhaps even a constitutional crisis.  (Chafetz's historical examplesthemselves show the serious problems that can come from unilateral enforcement of parliamentary or legislative privilege.)  Just imagine if Congress ordered the arrest Miers or Bolton in last spring's political climate and against the famously unyielding Bush administration; Congress might reasonably have sought to avoid that inevitable clash of armed officers.   And Congress might deem it better policy not to block important appointments while the country is dealing with wars in Iraq and Afghanistan and the myriad attendant issues, or to block legislation when the country is dealing with a financial crisis.  In short, maybe the recent cases of judicial enforcment reflect sound political and policy considerations--that Congress is willing to trade any loss of power in judicial enforcement for the significant bads that might come from any course of unilateral enforcement.  Or maybe Congress was simply trying to gain some judicial leverage in its negotiations with the Bush White House (which, ultimately, may have been successful).

In any event, Chafetz provides answers, which make his piece all the more timely (and certainly not preempted by the early March agreement).  This is a thoughtful and important piece.  I highly recommend it.

SDS

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