Why Inherent Contempt III
Posted on Sun Jul 22, 2007 at 05:14:55 PM EST
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Eugene Volokh provides more justification for the use of inherent contempt by the Congress to enforce its subpoenas:
[F]irmly insisting on denying Congress any power to initiate prosecutions of people who resist its commands — commands that Congress wants to argue are lawful — would indeed make it much harder for Congress to make its commands stick. . . . Congress can itself prosecute the contumacious official(s) to coerce them to comply — a power that the Supreme Court has affirmed. . . . As Justice Scalia explained in Young v. U.S. ex rel. Vuitton et Fils, S.A., 481 U.S. at 820, this legislative prosecution authority is a constitutional anomaly of sorts — a "limited power of self-defense" for Congress, permissible because "any other course 'leads to the total annihilation of the power of the House of Representatives to guard itself from contempts . . .". . . [H]ere Congress would not only order a prosecution, but could actually try and punish the person, though subject to certain limits. This is a deeper departure from the separation of powers than simply ordering the Justice Department to prosecute — in front of a normal judge and jury — would be.
Nonetheless, it is a departure that is sanctioned by longstanding legal doctrines, and (relatedly) by our constitutional history. . . . [I]t seems like the legally authorized approach — the use of a traditional and narrow departure from standard constitutional norms, and not a new departure.
It seems difficult to see how unitary executive proponents can argue with the power of Congress to commence inherent contempt proceedings while at the same time denying the rights of the courts to review claims of executive privilege. Indeed, Volokh obviously can not. Yet another reason to favor inherent contempt proceedings in the face of the Bush Administration's outlandish assertions.
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