Today in Supreme Court History: February 4, 1824

2/4/1824: Gibbons v. Ogden argued.

Comments

[Dan Schiavetta]

Dice v. Akron, Canton & Youngstown R.R. Co., 342 U.S. 359 (decided February 4, 1952): release of personal injury defendant sued under Federal Employers' Liability Act is determined by federal, not state, law and issue of whether release was obtained by fraud is to be tried by a jury

Martino v. Michigan Window Cleaning Co., 327 U.S. 173 (decided February 4, 1946): can sue for inadequate overtime under Fair Labor Standards Act even though union contract allowed it (superseded by statute, see 186 Wash. 2d 357)

Canizio v. People, 327 U.S. 82 (decided February 4, 1946): 19-year-old denied right to counsel after arrest could not show prejudice because represented by counsel at pleading stage and at trial (presumably overruled by later Court decisions)

Estep v. United States, 327 U.S. 114 (decided February 4, 1946): defendants prosecuted for refusing induction into armed services; Congress can provide that findings of local draft boards are final and cannot be judicially reviewed but court can review argument that board acted outside jurisdiction

Jurney v. MacCracken, 294 U.S. 125 (decided February 4, 1935): Congress can punish for contempt even though subpoenaed records had been destroyed, making subpoena moot (witness was suspected of corruption in awarding air mail contracts and Congress had him imprisoned for ten days)

[John F. Carr]

Canizio may or may not have been unrepresented when he pleaded guilty, but he had the benefit of counsel at sentencing and his lawyer should have asked to withdraw the guilty plea if he didn't like the deal (plea to unarmed robbery when the facts showed armed robbery). The dissents note that the withdrawn guilty plea might be admissible as a confession. One dissent anticipates modern practice, where the uncounseled guilty plea is voidable.

[Dr. Ed 2]

I find it more interesting that he was a minor...

[John F. Carr]

In 19th century Massachusetts not only was a 19 year old a minor, all his earnings belonged to his father.

[Kazinski]

Old ways is the best way.

[John F. Carr]

In more modern language: MacCracken argued that he was not guilty of civil contempt, but Congress found him guilty of criminal contempt. Under modern rules you can't be imprisoned more than six months without a fair trial.

[The Margrave of Azilia]

Although both Congress and the Supreme Court have frequently allowed each House of Congress to punish non-members for contempt, and impose what we would call civil-contempt penalties, I am still dubious about this power, which is not mentioned in a Constitution of enumerated powers.

Maybe Congress shares this doubt, since I don’t believe they’ve used this power since the 1930s.

[Dan Schiavetta]

Margrave:

Any body with an established power must have ancillary powers to make it effective. For example, appellate courts hear appeals, but it's always been accepted that they have other powers in aid of their appellate jurisdiction. For example, they can stay a judgment pending appeal. Their power to overturn a money judgment would be useless if the winner in the trial court has already absconded with the $. Their power to overturn a judgment of execution would be useless if the condemned man has already been executed.

Congress's power to subpoena would be useless if they couldn't enforce it with some kind of penalty.

[The Margrave of Azilia]

My scruple is that there are specific provisions that Congress can compel the attendance of absent *members,* punish its *members* for disorderly behavior, and expel a *member.* No mention of punishing regular Joes and Josephines.

As my grandpappy used to say, expressio unius est exclusio alterius – there’s a specific power to punish a house’s own members, which seems just as inherent as punishing witnesses, yet they had to spell it out. They didn’t mention imprisoning outside witnesses.

If they’re worried a hostile Justice Department won’t prosecute, then a law requiring the appointment of a special counsel to prosecute the contemnors in regular court would seem to be the answer, while avoiding the difficulties I’ve mentioned.

Still, since I can’t do anything about the precedents, maybe I can learn to live with Congress using its “inherent” powers to punish recalcitrant witnesses the Justice Dept doesn’t want punished.

My bottom line objection remains, though. Can police use a supposed inherent authority to punish contempts of *their* authority without a judicial trial? When they try this, it tends to be controversial.

[Dan Schiavetta]

The “contemnor” can probably go to court if there was a Due Process violation. Possibly that could have been argued in the MacCracken case, though it seemed to have been admitted that the subpoena was valid and that MacCracken had disobeyed it without excuse.

[Dilan Esper]

Right. To get to Margrave's position, you have to believe that Congress has no power to call witnesses at all, because after all, the Constitution mentions compulsory process (with respect to criminal defendants) but doesn't mention that Congress has the power.

Which is... nuts. Not only as a matter of history-- Parliament had the power to bring witnesses before it-- but also as a matter of "how a legislature functions". How are they supposed to know what to legislate about without being able to call witnesses and find out about societal problems?

So if they can call witnesses, the Necessary and Proper Clause means they can compel attendance and punish those who don't attend. The Due Process Clause, in turn, means that if they do so in a completely unfair way, it may violate someone's constitutional rights, and the Suspension Clause ensures that the defendant can bring a habeas petition to get out of jail if that happens.

[The Margrave of Azilia]

"To get to Margrave’s position, you have to believe that Congress has no power to call witnesses at all"

No, and my comment made clear that's not my position.

Since the rest of your comment simply builds on that straw man, it's meaningless.

Congress has operated with criminal referrals for almost a century, without using the inherent contempt power it (with the Supreme Court) granted itself. A bit of real-world detail intruding into your scenario.

[Dilan Esper]

The problem with relying solely on criminal referrals is it would mean that the executive branch could prevent Congress from investigating the executive branch.

That’s not only not in the Constitution, it’s a terrible position substantively.

[The Margrave of Azilia]

I mentioned special-counsel referrals, but in your indignation you missed that part.

[Noscitur a sociis]

The problem with relying solely on criminal referrals is it would mean that the executive branch could prevent Congress from investigating the executive branch.

Doesn't the fact that Congress hasn't exercised this power for nearly 100 years suggest that it may not be so necessary after all?

[The Margrave of Azilia]

From Reuters, 2019: "It has been almost a century since Congress exercised this arrest-and-detain authority, and the practice is unlikely to make a comeback, legal experts said."

https://www.reuters.com/article/us-usa-trump-congress-subpoena-explainer-idUSKCN1S02K8

[David Nieporent]

How are they supposed to know what to legislate about without being able to call witnesses and find out about societal problems?

Through voluntary witnesses?

[Harvey Mosley]

Shouldn't Congress at least have to pass a law that gives them the statutory power to incarcerate unwilling witnesses before they incarcerate unwilling witnesses? I realize they would be subject to a presidential veto but that can be overcome if enough of the Congress critters want it to be.

[Noscitur a sociis]

If they’re worried a hostile Justice Department won’t prosecute, then a law requiring the appointment of a special counsel to prosecute the contemnors in regular court would seem to be the answer, while avoiding the difficulties I’ve mentioned.

While adding the issue of vesting some of the executive power of the United States in someone other than the president.

[The Margrave of Azilia]

As opposed to having a legislative body exercise executive and judicial powers?

This seems to be straining at a gnat and swallowing a camel.

[Dan Schiavetta]

John F. Carr: Thanks as always for your annotations!