Too Big a Canon in the President’s Arsenal: Another Look at United States V. Nixon

60 Pages Posted: 16 Dec 2009

See all articles by Eric Lane

Eric Lane

Hofstra University - Maurice A. Deane School of Law

Frederick A. O. Schwarz

New York University School of Law

Emily Berman

affiliation not provided to SSRN

Date Written: December 14, 2009

Abstract

The article addresses the critical, and much-discussed, issue of the growth of executive branch secrecy from a unique perspective. It identifies the case of United States v. Nixon - a case that ironically is celebrated for limiting presidential power - as a foundation for the modern culture of excessive executive secrecy, and especially for the use of executive privilege to block legislative inquiries into executive-branch policy. The article first sets forth the reasoning in the Nixon case, and traces the spread of excessive executive secrecy to the presumption, established by the Nixon Court, that a president’s communications with his advisors must remain confidential. This presumption is based on the premise that, without an assurance of confidentiality, presidential advisors will not offer candid advice. The article then turns a critical eye on Nixon’s reasoning, demonstrating that the basic premise on which the Nixon Court relied in recognizing the presumption of secrecy is fatally flawed. The presumption of secrecy itself is both wrong and dangerous. Wrong because it rests on a misunderstanding of the true relationship between secrecy and candid advice; and dangerous because it undermines the constitutional structure of checks and balances while ignoring the dangers that secrecy poses to democratic governance. The article then goes on to explain the proper view of executive secrecy from the perspective of the Constitution’s structure, and finally to offer some ideas regarding how each branch of government could act to combat the insidious effects of the Nixon presumption.

Keywords: constitutional law, statutory interpretation

JEL Classification: K40, K30, K39

Suggested Citation

Lane, Eric and Schwarz, Frederick A. O. and Berman, Emily, Too Big a Canon in the President’s Arsenal: Another Look at United States V. Nixon (December 14, 2009). George Mason Law Review, Forthcoming, Hofstra Univ. Legal Studies Research Paper No. 09-28, Available at SSRN: https://ssrn.com/abstract=1523313

Eric Lane (Contact Author)

Hofstra University - Maurice A. Deane School of Law ( email )

121 Hofstra University
Hempstead, NY 11549
United States
516-463-5886 (Phone)
516-463-4800 (Fax)

HOME PAGE: http://www.hofstra.edu/academics/law/law_lane.cfm

Frederick A. O. Schwarz

New York University School of Law

40 Washington Square South
New York, NY 10012
United States

Emily Berman

affiliation not provided to SSRN

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