A few dozen issues into Iron Man’s original Tales of Suspense run, Senator Harrington Byrd (presumably R-NY, weird as that now sounds) made Tony Stark’s life a living hell. Byrd didn’t approve of Stark’s “playboy” lifestyle and was uncomfortable having so many defense contracts going to Stark Industries. His main threat to get what he wanted out of Stark was threatening him with contempt of Congress.
This, as it turns out, is a real thing, associated with Congress’s ability to compel people to appear before congressional committees and subcommittees to answer questions and provide documentation. The Supreme Court first recognized this as an inherent power of Congress in 1821 with Anderson v. Dunn, 19 U.S. 204 (1821). The common law form was replaced by statute in the middle of the nineteenth century, and the current statute is 2 U.S.C. § 192, which provides that a person who refuses to cooperate can be fined up to $1,000 and spend up to a year in jail.
Note that judicial proceedings are unnecessary here: Congress merely needs to issue a finding that a person is in contempt. A person who disputes Congress’s finding may presumably pursue a habeas corpus petition, but as long as a court finds that Congress is acting within its authority, no court will stand in Congress’ way. This is an inherent power, i.e. a power which a particular office may exercise in its own right, on its own behalf, and without needing any particular statutory authorization for it. Inherent powers are conceived to be powers without which a particular office cannot really exist. If Congress lacked the ability to compel people to appear before it, there’s a lot of really important business that couldn’t get done. Congress relies on the testimony and input of outside parties as it attempts to make the best decisions, including constitutionally mandated decisions like giving its advice and consent regarding presidential appointees. Granted, a lot of congressional committee hearings are as much showmanship as they are actual fact finding—believe me, I’ve seen ’em—and a lot of the real information gathering and sharing happens through informal channels, but that is largely because Congress has the power to demand the information it needs if people don’t cooperate informally.
Contempt of court is the most obvious analog among the other branches. Courts do not need statutory authorization to find someone in contempt, nor do those accused of contempt necessarily get a trial. If a person disobeys a court order, a judge can theoretically order them jailed indefinitely, i.e. so long as they continue to disobey. If a judge or civil party wants to actually punish a “contemnor,” i.e. impose some penalty designed not to coerce cooperation but as an actual sanction, there needs to be a trial, but as long as the detention remains coercive, no due process is necessary. Again, contempt of court is an inherent power: it does not derive from a statutory grant, nor can Congress limit the judiciary’s power to find people in contempt. The Supreme Court would strike down such a law before the ink had dried.
The President has inherent powers too. Prosecutorial discretion is one of the big ones. Neither Congress nor the courts may direct the President or his agents to bring charges or maintain a case against anyone, nor can they require that charges be dropped. The ability to choose which cases to prosecute and which not to remains entirely at the discretion of the President. Granted, the President has sworn an oath to uphold the law, but even staying within the bounds of good-faith attempts to do so, there can be wild differences in emphasis. The Department of Justice has a finite budget, but there is an effectively infinite number of potential cases to pursue. An obvious criterion observed by almost all Attorneys General is to only pursue cases where there’s a reasonable chance of winning. Hard to argue with that one. But if, for example, President Obama decided that he wasn’t going to prosecute possession of narcotics charges… there isn’t a lot anyone could do about it. I mean, Congress could defund the entire Department of Justice in retaliation, but that’s a rather ham-fisted approach. Other political compromises are obviously on the table, but when it comes to actually forcing the President to do something, that’s about all there is. Other inherent executive powers include the commander-in-chief power (i.e. only the President can give orders to the military) and the pardon power.
So, back to Tony. Senator Byrd threatens him with two main things: contempt of Congress and revoking his defense contracts. The contempt threat is real. But the latter? Not quite as much. Congress can theoretically exclude a particular contractor from getting any government money—they did the same thing to ACORN in 2009—but though Congress does retain the ability to control Pentagon spending to a significant degree, getting a defense contract revoked within twenty-four hours just isn’t going to happen. It would require a bill passing both houses of Congress and being signed by the President. Now the Secretary of Defense could probably do it that quickly, so pissing off the President is probably a bad idea, but not a Senator. Then again, if a judge ordered Tony Stark to reveal the identity of Iron Man—which could happen for a number of reasons—refusal to do so would likely get him jailed for contempt.
But what about superheroes whose mundane identities aren’t the heads of major national and multinational corporations? Senator Byrd could cause a huge problem for Iron Man without knowing it because he had a beef with Stark, who was associated with Iron Man even before Tony went public as Iron Man. But a politician who wanted to expose Spider-Man or Superman would have a much harder time of it as neither was really associated with a well-known figure. It’s hard to force someone you can’t identify or locate to do much of anything, particularly within the bounds of the law.
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