Described by Alexander Hamilton as the “weakest” and “least dangerous” branch of government, the federal judiciary has few ways it can enforce its authority.
One is the contempt power, which allows a federal judge to compel a party to follow a court order or punish them retrospectively for not following that order.
Amid mounting questions over the Trump administration’s compliance with lower court orders, a federal judge in Washington, D.C., has initiated contempt proceedings against the government in an immigration case. An appeals court has since paused those proceedings, with the Department of Justice saying they raise troubling questions about the separation of powers and further a “constitutional collision.”
Why We Wrote This
A sitting president has never been held in contempt of court, and higher courts have historically been reluctant to allow contempt sanctions against the federal government. The Trump administration is testing those boundaries.
Meanwhile, a federal judge in a second immigration case is investigating the administration’s refusal to follow one of her orders. This could lead to more contempt proceedings.
What does ‘contempt of court’ mean?
There are two types of contempt proceedings: civil and criminal. In both, federal judges have broad discretion over when such contempt proceedings are needed, and broad latitude over how they unfold.
Civil contempt proceedings are typically initiated to compel a party to follow a court order in the future. Criminal contempt proceedings are used to punish a party for failure to comply with a past court order. The U.S. Marshals Service enforces federal contempt orders.
Punishments for disobeying contempt orders can range from fines to jail time, though incarceration is a rare and extreme recourse. Criminal contempt also comes with more procedural guardrails, as the consequences are likely graver, and the party being held in contempt usually can’t take action to avoid sanctions.
U.S. District Court for the District of Washington/Reuters/File
Thus, the contempt power is a high-stakes one. Federal courts need the power to ensure that parties take court cases seriously, but contempt proceedings also give judges a potentially dangerous amount of unilateral power, retired federal judges Nancy Gertner and Mark Bennett wrote in 2020.
“The U.S. Supreme Court has repeatedly emphasized that courts must be extremely careful in exercising the contempt power,” they added.
“Without the exercise of due care, one judge could be playing the role of prosecutor, judge, and jury in the same case — something that would put due process of law at grave risk.”
Has the federal government been held in contempt before?
Federal agencies and officials have been held in contempt in the past, but typically for civil contempt.
In 2019, a federal judge found Secretary of Education Betsy DeVos in contempt for violating an order to stop collecting on loans from students defrauded by a now-defunct for-profit college.
In 2011, a federal judge held the Interior Department in contempt for ignoring his order to scrap a moratorium on offshore oil drilling after the Deepwater Horizon oil rig explosion.
Two Interior Department secretaries, under the Clinton and George W. Bush administrations, were held in contempt in a case concerning government payments owed to a group of Native Americans. A federal judge held the Environmental Protection Agency in contempt for destroying computer files ahead of the 2001 presidential transition.
Contempt charges rarely make their way all the way to the Supreme Court, especially in cases involving the president. Indeed, a sitting president has never been held in contempt of court, and courts – particularly higher courts – have historically been reluctant to allow contempt sanctions against the federal government, according to an in-depth 2018 review from Yale Law School Professor Nicholas Parrillo.
Why are contempt proceedings so sensitive?
Contempt proceedings against the federal government inherently raise questions about the balance of powers. If the judicial branch can somehow force the executive branch to follow its orders, lawful or not, the branches aren’t coequal. But if the executive is free to ignore court orders it doesn’t like, the branches aren’t coequal, either.
There are due process concerns as well. In a typical court case, the judge is a neutral arbiter who referees a dispute between a plaintiff and a defendant and then either reaches a decision or instructs a jury. But the contempt power significantly shakes up that balance of power.
A federal judge is the sole decider of when contempt of court has occurred, although there are thresholds that must be met for a court to make that finding. The judge then determines how the contempt can be avoided and what, if it can’t be avoided, the sanctions will be. Contempt findings can be appealed, and as Professor Parrillo found, appeals are often successful.
Muddying things further, in the (likely) event the president’s Justice Department won’t prosecute a contempt case against the executive branch, outside prosecutors must be deputized in their stead. And if a federal court does find a party in contempt, will the U.S. Marshals Service – an executive branch agency also tasked with protecting federal judges – follow a court order to jail a federal official?
Federal courts should thus be extremely selective in when they use the contempt power, wrote Judges Gertner and Bennett.
Criminal contempt in particular, they added, “should be reserved only for acts so grave and abhorrent that they amount to an offense not just against the presiding judge, but one that has potential for undermining public confidence in the authority and dignity of our courts.”
What does this mean for what’s happening now?
Criminal contempt proceedings against the federal government are underway now in a Washington, D.C. immigration case – and the federal government is fighting back.
Judge James Boasberg ruled this month that the Trump administration showed “willful disregard” for his order on March 15 pausing deportations under the 1798 Alien Enemies Act. Despite Judge Boasberg’s order temporarily pausing such removals, over 250 Venezuelan men were flown to an El Salvador prison that day.
The Supreme Court stayed that order, a move that would usually trigger a winding down of the case. Instead, Judge Boasberg ruled that “probable cause exists” to hold the government in criminal contempt.
“The Court does not reach such conclusion lightly or hastily,” he wrote. “The Constitution does not tolerate willful disobedience of judicial orders — especially by officials of a coordinate branch who have sworn an oath to uphold it.”
The government appealed to the federal appeals court in Washington, D.C., and a panel of appellate judges has stayed the contempt proceedings pending further court order. In its appeal, the DOJ accused Judge Boasberg of “needlessly prompting a constitutional confrontation.”
“Prosecuting criminal contempt is a task exclusively for the Executive Branch,” the government argues. “District courts cannot outsource prosecutorial power to private citizens, insulate them from Executive Branch control, and then unleash them against the Executive Branch.”
That final argument carries some weight, including for legal scholars who think Judge Boasberg’s contempt proceedings against the government are justified.
“It’s not hard to imagine other federal judges abusing this authority,” wrote Steve Vladeck, a Georgetown University Law Center professor, in a blog post this month.
“I sympathize, deeply, with the idea that the government’s behavior in [Judge Boasberg’s case] demands a remedy,” he added. But “we should be wary of giving even the most principled and responsible federal judges [that] power.”
