Administrative Law Article 131 Harv. L. Rev. 685

The Endgame of Administrative Law: Governmental Disobedience and the Judicial Contempt Power


Scholars of administrative law focus overwhelmingly on lawsuits to review federal government action while assuming that, if plaintiffs win such lawsuits, the government will do what the courts say. But in fact, the federal government’s compliance with court orders is imperfect and fraught, especially with orders compelling the government to act affirmatively. Through an examination of thousands of opinions (especially of district courts), docket sheets, briefs, and other filings, plus archival research and interviews, this Article provides the first general assessment of how federal courts handle the federal government’s disobedience. The Article makes four conclusions. 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.

* Professor of Law, Yale Law School. For valuable exchanges about the project, I thank Bruce Ackerman, Nick Bagley, Sam Bray, Josh Chafetz, Don Elliott, Dan Esty, Eugene Fidell, Owen Fiss, Barry Friedman, Jack Goldsmith, Bob Gordon, Alison LaCroix, Richard Lazarus, Ron Levin, Daryl Levinson, Jeff Lubbers, Amy Kapczynski, Robert Katzmann, Doug Kysar, Jerry Mashaw, Nina Mendelson, Tom Merrill, Gillian Metzger, Joel Mintz, Doug NeJaime, Jennifer Nou, James Pfander, Chuck Sabel, Chris Schmidt, Peter Shane, Scott Shapiro, Kevin Stack, Richard Stewart, Peter Strauss, David Super, David Vladeck, Chris Walker, David Zaring, and participants in workshops at the American Bar Foundation, Chicago-Kent College of Law, Northwestern, the University of Chicago, and Yale. I am grateful to the several practitioners who sat for background interviews. I am indebted to several excellent student research assistants: Kim Jackson, Melissa Legge, James Mandilk, Urja Mittal, Christine Monahan, and Jacob Siegel. Librarians John Nann, Sarah Ryan, Michael VanderHeijden, and Drew Adan provided essential support. I thank the Harvard Law Review for thoughtful editorial assistance. The research was sponsored by the Oscar M. Ruebhausen Fund at Yale Law School. All errors are my own.