So at virtually the same time I told you that Parliament’s contempt power was in a state of desuetude, this happened. The House of Commons held the British government in contempt for its failure to publish the Attorney General’s legal advice regarding Brexit as the House had previously demanded.
To be sure, my prior post related to the use of contempt to impose punitive measures such as fines or imprisonment. These were not involved in yesterday’s contempt vote, which the article describes as “largely symbolic.” Yet it appears that the government intends to comply with the Commons’ demands as a consequence of the contempt vote. Moreover, while the use of contempt to impose rebukes is more common than fines or imprisonment, it is still extremely rare. According to this 2012 analysis I referred to yesterday, the last time someone was called to the bar of the house to be admonished by the Speaker was in the 1956-57 session. And it is apparently the first time ever that the British government itself has been held in contempt.
It should be noted that Congress’s inherent power of contempt derives from Parliament’s power (and thus has been recognized as being an “inherent” part of the legislative power conveyed in Article I). From time to time, the idea of using the inherent contempt power against a recalcitrant executive branch has been broached, but the idea always founders on practical considerations (e.g., what happens if the recalcitrant executive official is protected by security that does not want to surrender him/her to the custody of the Sergeant at Arms?).
If the House (or Senate) were to follow the procedure apparently used in the House of Commons yesterday, however, these problems largely disappear. The Commons simply voted on a resolution holding the government in contempt, without following the normal practice of referring the matter to the Committee on Privileges. No trial was held, nor was anyone (it appears) called to the bar of the house.
If Congress were to follow such a process, it would more closely resemble a censure or similar resolution, as opposed to a finding of contempt. It could be argued that such a largely symbolic action would have little impact in our system, where the continuation of the government does not depend on majority support in the legislature. On the other hand, if contempt were used, it would be possible for a trial to be held, with an executive official (or the entire executive branch) as the “defendant.” It would be up to the executive branch whether it wanted to attend or mount a defense. One can imagine that such a process could be more powerful as a display of soft power than a simple vote on a resolution.
We will see if some enterprising member of Congress picks up on this.