Tag: contempt

Government Can’t Simply Ignore Judicial Rulings It Doesn’t Like

By design, the federal judiciary is the weakest of the three branches of government. While the executive wields the sword, and Congress holds the purse strings, the courts have no temporal power.

To give effect to their decisions and orders, courts depend on popular legitimacy and the cooperation of the other branches. While that cooperation is normally forthcoming when needed to enforce judicial decisions against private citizens, when the subject of a court’s order is the government itself, there’s always a risk that it will be ignored or avoided.

Such is the case in Hornbeck Offshore Services v. Jewell, which began when the Interior Department (DOI) chose to put itself above the courts and above the law. Following the Deepwater Horizon disaster in April 2010, DOI issued a total ban on drilling activity in the Gulf of Mexico. A district court judge held that this drilling moratorium was irrational and not supported by scientific research or other credible evidence. The judge issued an injunction prohibiting DOI from enforcing its ban.

Instead of obeying the injunction — or appealing it — DOI ignored it. The Secretary of the Interior told Congress that as far as he was concerned, the drilling ban was still in effect. DOI then issued a second ban on drilling that was identical to the first. The district judge held DOI in contempt of court, noting that “each step the government took following the Court’s imposition of a preliminary injunction showcase[d] its defiance” of the court’s authority.

On appeal, a panel of the New Orleans-based U.S. Court of Appeals for the Fifth Circuit sided 2-1 with the DOI’s position that the contempt finding was improper because the issuance of a second (identical) drilling ban was not technically disallowed by the text of the injunction — which explicitly prohibited only enforcement of the initial ban. Cato has filed an amicus brief urging the Supreme Court to hear the case because the appellate court’s ruling undermines the rule of law and the judiciary’s independent authority.

Under the Fifth Circuit’s rule, government agencies will be able to legally avoid court orders with bureaucratic trickery. If only the explicit text of an injunction — and not any of its spirit or clear purpose — binds the federal government, Congress or the executive could simply rename whatever statute or regulation has been declared unconstitutional and continue enforcing the substantively unconstitutional rule. Such an overly technical rule would force district court judges into the role of mind-readers, trying to predict how the government could weasel its way out of a ruling.

Without an effective contempt power to punish the violation of its orders, even the Supreme Court would be unable to enforce its important rulings, such as ending the District of Columbia’s unconstitutional ban on handguns, and striking down section 3 of DOMA. In both of those recent cases, the sort of semantic game-playing endorsed by the Fifth Circuit here would have resulted in hollow victories for liberty and an evisceration of the idea that in our constitutional republic, the government is bound by the same (if not stricter) rules as the rest of us.

Congress vs. Obama/Holder on Fast & Furious

The House Government Oversight Committe has voted, on party lines, to hold Attorney General Eric Holder in contempt for failing to turn over documents related to the bizarre “Fast and Furious” gun sting operation (which program/issues Dave Kopel helpfully summarizes).  The committee, headed by Rep. Darrell Issa (R-CA), took this action despite President Obama’s assertion of executive privilege over the documents.

Now, I haven’t been following the Fast and Furious scandal that closely – seems like a dumb idea to give guns to criminal gangs, but what do I know about law enforcement? – but this latest development, raising the Holder-Issa impasse to a constitutional battle between the executive and legislative branches, is worth noting.  I can’t add much to the excellent and concise analysis provided by the Heritage Foundation’s Todd Gaziano (a member of the U.S. Commission on Civil Rights who formerly served in the DOJ’s Office of Legal Counsel and also as chief counsel to the House Oversight Committee), but I will highlight three points:

  1. Executive privilege is a qualified, not absolute, doctrine that is meant for certain circumscribed purposes – such as to allow the president to receive candid advice from his advisers – not a blanket protection of anything in the executive branch the president wants not to be disclosed.  (And it certainly can’t be invoked to shield wrongdoing.)   Because it is qualified, the president must identify the documents not disclosed and provide a description of the privilege asserted, what attorneys call a “privilege log.”  This has not been done here.
  2. For executive privilege to apply here, the documents at issue have to be related to something the president is involved in, most likely in this context communications to/from the president regarding the Fast & Furious policy.  If Obama knew nothing about F & F, I have trouble seeing the basis for the privilege. 
  3. If the president did know something, let alone have a hand in the decision making, Congress is entitled to learn at least something about it.  Even when there’s a sound basis for invoking executive privilege, the American people’s need for information often outweighs whatever presidential interest is at issue.  As Todd puts it, “the President is required when invoking executive privilege to try to accommodate the other branches’ legitimate information needs in some other way. For example, it does not harm executive power for the President to selectively waive executive privilege in most instances, even if it hurts him politically by exposing a terrible policy failure or wrongdoing among his staff. The history of executive–congressional relations is filled with accommodations and waivers of privilege. In contrast to voluntary waivers of privilege, Watergate demonstrates that wrongful invocations of privilege can seriously damage the office of the presidency.”  (The mention of Watergate is doubly fitting because this past Sunday marked 40 years since the break-in that ultimately brought down the Nixon presidency.)

I doubt that President Obama’s assertion of privilege in this episode has yet risen to Nixonian standards of contempt for the rule of law, but it is a dangerous bit of political gamesmanship designed to delay and push back on the Oversight Committee/Congress’s demand for documents.  As the committee showed in its vote today, however, both sides are ready to play this high-stakes game of chicken. 

Holder’s contempt citation now goes to the floor of the House, where I’m sure many Republican members are salivating at the chance to score political points against an unpopular president and attorney general.   (Recall that the House found former White House counsel Harriett Miers and Chief of Staff Josh Bolten in contempt of Congress for failing to answer questions regarding the firing of U.S. attorneys during the Bush administration.)  We may also see a lawsuit regarding the executive privilege claim, and even, if no agreement on document-production is reached, articles of impeachment drawn up against the attorney general.

Suffice it to say, what began as a head-scratchingly bad policy that cost many lives (including border patrol agent Brian Terry) has now become a large stonewalling and possibly coverup operation.  As with Watergate, Iran-Contra, the Clinton-Lewinsky affair, and so many other presidential scandals, the obstructive aftermath seems to be eclipsing the initial wrongdoing in legal and political importance.