The Inherent Power of Executive Contempt in the Federal Government

The Limited Power of Executive Contempt Enforces the Constitution

Opinion

Executive Contempt: The BrownExplains 30-second Summary

In the United States, the federal, Executive Branch possesses a limited power of Executive Contempt. Executive Contempt permits the President (or Vice President) to issue an order of Executive Contempt against federal, Judicial or Legislative actors who directly and immediately interfere in Executive function. Enforcement includes forfeiture, impoundment , or detention. The Executive controls hearings or appeals by accused wrongdoers through the Justice Department.

What Is Contempt?

Contempt traditionally describes a vaguely-defined set of powers allegedly necessary to enforce the integrity of bona fide Court decisions. Contempt traditionally gives a Court limited power to enforce a Court’s decisions in equity. If a Court commands someone to do or refrain from doing something (such as an equitable, injunction), the Court possesses powers to fine, detain, or otherwise penalize actors who defy the Court’s order.

To a limited extent, Court’s also claim a contempt-power to enforce the dignity of the Court. The latter arises in situations where a party may directly interfere with the Court proceeding such as shouting or disrupting the Court proceeding.

Congress also frequently invokes so-called Congressional-contempt—including power to incarcerate individuals.

An open question remains whether any federal branch possesses any general power of contempt (even the Judiciary outside equity).

Federal Co-Equal Branches “Doctrine”

The alleged, general power of contempt in federal contexts sounds in the notion of “co-equal” branches of federal government.

While not Constitutionally sound, the Judiciary and Congress frequently claim that the three, federal branches stand as “co-equal” branches. (However, the co-equal claim is an intentional misreading of so-called, checks-and-balances. One can have checks-and-balances without the parties being “equal.”)

Nevertheless, the federal Judiciary and federal Legislature (Congress) claim contempt powers apparently derivative of co-equal doctrine. Thus, by extension of the co-equal doctrine, the Executive also possesses an equal, limited, contempt power.

Structural Limits On Executive Contempt

Federal, Executive Contempt serves only to stop direct and immediate interference by members of the co-equal federal branches in the Constitutional operation and integrity of the Executive Branch.

Thus, Constitutional structure imposes natural limits on Executive Contempt (similar to limits on the Legislative or Judicial contempt):

  • only the President or Vice President may order Executive Contempt;
    • neither the President nor Vice President may delegate this power to any other person or entity;
  • an order of Executive Contempt may only be issued against member-actors of the federal, Legislative or Judicial branches;
    • federal, Executive Contempt has no application to any State actors;
    • an order may not issue to members ofthe Executive Branch (firing or removal is the proper enforcement in these situations);
    • obviously, an order may not be issued against general Citizens;
  • the order may arise only from direct and immediate (not speculative) interference in the Constitutionally-specified powers of the Executive;
  • the order may impose penalties necessary to encourage compliance including detention, forfeiture (such as salary or pension), or impoundment;
  • the Justice Department, not Judiciary, handles any appeals or hearings (similar to Congressional Contempt).

The Legislature retains the power of impeachment and removal from office for bona fide abuses of Executive Contempt.

Examples Where The Executive Branch May Order Executive Contempt

  • A federal, district judge (or magistrate) issues a “national injunction” reputing to bar the Executive from carrying-out immigration enforcement. The judge stands subject to Executive Contempt (and subject to both judicial and attorney discipline (disbarment)).
  • A federal Congressman appears at a federal building under the management of the Executive Branch and repeatedly “orders” employees to provide answers or to stop performing duties. The Executive Branch intervenes and asks the Congressman to stop the interference. The Congressman defiantly continues interfering. The Congressman stands subject to Executive Contempt (and possible criminal or civil penalties).

Examples Where No Executive Contempt Applies

  • A group of citizens harass Pro-life advocates praying outside an abortion provider. No Executive Contempt applies since these are ordinary Citizens, not members of the federal Judiciary or Legislature.
  • A State legislator tips-off illegal immigrants to pending immigration raids. As a State actor, Executive Contempt does not apply (but other law may).
  • Congress heatedly debates government spending and limits funds to an Executive Department. This is a legislative function and not subject to Executive Contempt. (This is also likely not “direct and immediate.”)
  • A Court hears an action questioning the Executive Branch’s interpretation and application of a law. The Court grants a temporary, geographically-limited injunction limited to the physical jurisdiction of the Court. This is a proper judicial function and not likely subject to Executive Contempt.

The hallmarks of proper exercise of Executive Contempt are direct and immediate interference by federal members of the Legislative or Judicial branches in Executive action.

Limited Power of Judicial Review

Remember, Judicial interference itself may in fact be the subject of Executive Contempt. In general, the federal Judiciary possesses no plenary power to review Executive Contempt actions. The Judiciary also possesses no general power of habeus corpus or equitable action (e.g., injunctions) in bona fide exercises of Executive Contempt.

As noted, if the Executive abuses Executive Contempt, the Executive may be subject to impeachment and removal (unless the Executive dutifully complied with the structural limits). Impeachment represents the Legislative “check” on Executive Contempt—not Judicial Review.

Note: Even if the Judiciary possessed some extremely limited and narrow power to review Executive Contempt orders, the Judiciary possesses no effective power to enforce a remedy that limits the Executive in these contexts. Otherwise, a contempt-of-contempt situation quickly arises with the Executive properly issuing additional Executive Contempt orders against the interfering Court. Thus, any Judicial Review stands moot ab initio.