Dear Readers, Last week, I set forth of some of the facts of what may make for very high political drama later this year – the swirl of controversy surrounding the alleged political motivations behind the prosecution of Don Siegelman, formerly Governor of Alabama. Karl Rove, who was also at the center of similar allegations concerning U.S. Attorney firings and hirings, may soon find himself hauled before Congress, billeted in its bowels, and facing a trial for Contempt of Congress.
But punditry on the legitimacy of the actors in this unfolding “reality TV” can fall to others. More interesting is the judicial elegance giving Congress the right to act thusly.
It does not take a lawyer to understand the brilliant tripartite structure to our Federal government.
Every high school student should eventually be exposed to the simple, but remarkably important principle that our nation’s “sovereignty,” the power to act on behalf of this great country, is bound in the three co-equal powers of the executive office (presidency), the judiciary, and the legislature. Our Constitution is largely comprised of three original articles, describing the nature and limits of these powers, with Article I, by its precedence, describing the legislature as the preeminent body.
Within just a few years of the passage of our new constitutional experiment, battles for supremacy bubbled up between these three competing bodies. By the early 1800s, it was not clear if our brave political experiment would hold together as the President and Congress faced off against each other in a steely-eyed contest to seize ultimate control of the direction of our government.
This potential crisis was resolved by the savvy wisdom of our great Chief Justice John Marshall (after whom my law school in Chicago is named). He established a principle of judicial review which holds that each body of government, in its own way, has the authority and responsibility to determine the constitutionality of political actions.
Yet, to the judiciary, as the interpreter of the Constitution, falls the final duty to issue legal proclamations, in the form of its opinions, to resolve cases and controversies which decrees what is, and is not, constitutional.
This bold proclamation of “judicial review” was extremely controversial at the time and, even in recent memory, its precariousness has been starkly illustrated. What would have happened if the military was not used to enforce the landmark Brown decision to outlaw segregated schools? Thus, the power of the Court is nothing, if its orders are not respected by the other branches of government.
In 1821, in Anderson v. Dunn, the Court was faced with an earlier moment concerning respect for the right of Congress to enforce its own orders. The Sergeant of Arms (Dunn) was authorized to arrest John Anderson for Contempt of Congress. Anderson turned around and sued Dunn for doing so, arguing (rightfully) that the Constitution failed to grant any explicit powers to Congress to enforce its own contempt actions.
Thus, the question before the Court was whether or not such a power implicitly existed.
According to the Court, it did; the power being reflected in the observation that the framers of the Constitution drew “a grant of powers which does not draw after it others, not expressed, but vital to their exercise; not substantive and independent, indeed, but auxiliary and subordinate.”
In the Court’s view, in agreeing to operate pursuant to the Constitution, we passed onto Congress, acting on our behalf, the right to use implied powers to ensure its effectiveness. From this, the “ideal” of our Constitution, the inherent power of Contempt of Congress was born.
Warner Robins attorney Jim Rockefeller is the former Chief Assistant District Attorney for Houston County, and a former Florida Assistant State Attorney. Owner of Rockefeller Law Center, Jim has been in private practice since 2000. E-mail your comments or confidential legal questions to ajr@rockefellerlawcenter.com.
Editor’s Note: Last week’s headline was misleading. It said: Congress flexes its muscle against ‘contempt’ when it should have said: Congress flexes its muscle ‘in’ contempt.
