Yesterday a federal district judge ordered the federal government to return two asylum seekers to the United States that the government had put on a plane to depart from the country. News coverage of the judge’s order has focused on the judge’s threat for compliance:
in the event that the Defendants do not fully comply with this Order, Defendants Attorney General Jefferson Sessions, III; Secretary of the Department of Homeland Security Kirstjen M. Nielsen; U.S. Citizenship and Immigration Service Director Lee Francis Cissna; and Executive Office of Immigration Review Director James McHenry, preferably accompanied by their attorneys, shall be ORDERED to appear in Court to SHOW CAUSE why they should not be held in CONTEMPT OF COURT.
Questions naturally arise about how such unprecedented contempt threats are and whether courts actually follow through on such threats. Fortunately, thanks Nick Parrillo’s fascinating new study, which was published in the Harvard Law Review earlier this year, we have some answers to these questions.
Here are the core findings, from the abstract (line breaks added):
First, the federal judiciary is willing to issue contempt findings against agencies and officials.
Second, while several federal judges believe they can (and have tried to) attach sanctions (fines and imprisonment) to these findings, the higher courts have exhibited a virtually complete unwillingness to allow sanctions, at times swooping down at the eleventh hour to rescue an agency from incurring a budget-straining fine or its top official from being thrown in jail.
Third, the higher courts, even as they unfailingly thwart sanctions in all but a few minor instances, have bent over backward to avoid making pronouncements that sanctions are categorically unavailable, deliberately keeping the sanctions issue in a state of low salience and at least nominal legal uncertainty.
Fourth, even though contempt findings are practically devoid of sanctions, they have a shaming effect that gives them substantial if imperfect deterrent power.
As is characteristic of Parrillo’s scholarship more generally, The Endgame of Administrative Law: Governmental Disobedience and the Judicial Contempt Power is a deep, careful, balanced historical dive into an area of administrative law and regulatory practice that had previously received little scholarly or empirical attention. Definitely go give the article a read here.
This post is part of the Administrative Law Bridge Series, which highlights terrific scholarship in administrative law and regulation to help bridge the gap between theory and practice in the regulatory state. The Series is further explained here, and all posts in the Series can be found here.