Introduction. I. Introduction to Executive Privilege: Further Background and Relationship to Congressional Information Demands. II. Existing Doctrine and Scholarship. A. Existing Doctrine. B. Major Scholarly Arguments. III. Secrecy and Separated Powers: The Argument for a New Approach to Executive Privilege. A. Getting to the New Approach: Overlapping Powers and the Special Constitutional Significance of Information Control. 1. History and Executive Privilege. 2. Article I, Article II, Functional Balancing, and Judicial Restraint. 3. The Role of Information Control's Constitutional Significance. 4. Elaboration on the Shallow/Deep Secrecy Distinction and Its Constitutional Relevance. B. The Constitutional Foundations of the Argument for Shallow and Politically Checkable Secrecy. 1. Openn...
Executive privilege disputes between the political branches shape the boundaries of presidential secrecy and congressional authority. Those disputes often give rise to calls for political rather than judicial resolution. The existing academic literature and judicial doctrine in this area offer limited theoretical accounts of when courts should abstain from or resolve the executive privilege disputes presented to them by the political branches. This Article provides an analytical framework for evaluating the outcomes provided by judicial and political resolution of executive privilege disputes and then explores how those evaluations inform judicial decisions to abstain from or resolve executive privilege disputes. Political resolution of these disputes produces constitutionally acceptabl...
The Constitution provides former Presidents with no powers or role, and yet numerous former presidents including Truman and Nixon have asserted executive privilege in order to withhold information from Congress, historians, and the public. The most recent former President, George W. Bush, is likely to make similar assertions based upon his sweeping view of the rights of former Presidents as reflected in his recently revoked Executive Order 13,233, potentially leading to a constitutional collision between the rights of former Presidents and those of Congress. This Article argues that, notwithstanding Nixon v. Administrator of General Services (GSA), former Presidents should retain no right to assert executive privilege based upon the text, structure, and historical context of the Constit...
Introduction. I. Defining Executive Privilege: Deliberative Process Privilege Versus Chief Executive Communications Privilege. A. Deliberative Process Privilege. B. Chief Executive Communications Privilege. II. Application of the Federal Doctrine of Executive Privilege to State Executive Officials. A. States Recognizing Executive Privilege. B. Standing Alone: Massachusetts's Refusal to Recognize Executive Privilege. C. Summary. III. Demystifying Executive Privilege: The Creation of a Simple, Definite, and Practical Test for State Courts. A. Overview. B. A New Standard of Review. C. Practical Application of the New Standard Using Dann v. Taft as a Template. Conclusion.
This article subjects that conventional theory to the rigorous examination it has thus far escaped. It begins by dispelling the notion that the theory describes a unique mechanism endemic to one species of constitutional conflict. In fact, the Article reveals, this conventional model is a faithful translation to the separation-of-powers context of an approach that has long (and controversially) governed the relationship between the federal government and the states. Building upon that recognition, the Article exposes an unjustifiable inconsistency between the conventional model and the Court's treatment of broader executive-legislative disagreement. The article then assesses the model on its own terms, finding powerful reason to doubt that the political process alone will produce a sati...
Advocates for more open government who had hoped that the Obama administration would be less secretive than its predecessor say it is continuing to use executive privilege to block lawsuits over allegations of past abuses in the fight against terrorism. A new report from OpenTheGovernment.org, a coalition of anti- secrecy groups, criticized the Obama administration's interpretation of the so-called "state secrets privilege." Under it, the Justice Department has argued that courts must dismiss national security cases challenging wiretapping and the transport of suspected terrorists to CIA and foreign jails, where they claim they were tortured.
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