Secrecy and Separated Powers: Executive Privilege Revisited

Abstract

This Article considers the constitutional validity of executive privilege claims made by the President against statutorily authorized information requests. The Article concludes that such claims are constitutionally illegitimate and that courts, when turned to, should order compliance with statutorily authorized demands for information in the face of executive privilege claims. This conclusion is reached in two steps. First, perusal of Article I's list of legislative powers and Article II's list of presidential powers does not clearly resolve the issue. Rather, such perusal alone offers fair ground to deem control of executive branch information both within Congress' "sweeping clause" power and within the President's execution power. Second, a broader analysis of constitutional text, structure and history demonstrates that information control has special constitutional significance. Specifically, such analysis suggests that secrecy within the political branches must, to be legitimate, remain a politically controllable tool of the people. To keep such secrecy within the ultimate control of the people, mechanisms must exist to keep the secrecy "shallow" and politically checkable. In other words, mechanisms must exist to ensure that the very fact of such secrecy is subject to public debate, reconsideration and reprisal. This is particularly crucial with respect to executive branch activities, given that branch's special capacity for secrecy. The natural mechanisms to keep government secrecy shallow and politically checkable are statutory authorizations to Congress, to the public and to agencies to demand information. Furthermore, the statutory process itself is sufficiently protective of any interests in secrecy.

Keywords: constitutional law, separation of powers, government secrecy