41 Pages Posted: 8 Dec 2010
Date Written: December 7, 2010
This Article explores the connection between government secrecy and a school of thought that I call “presidential supremacy.” Presidential supremacists read the President’s constitutional powers to preclude Congress or the courts from limiting, overseeing, or otherwise checking presidential actions in many cases. Supremacy encompasses, but is not limited to, the school of thought sometimes called “exclusivity.” Exclusivity is the view that statutes that unduly restrict the President’s discretion in either his commander-in-chief or executive capacity are unconstitutional. This Article describes four forms of supremacist reasoning directed against transparency-based checks on the executive: executive privilege, state secrets privilege, exclusivist arguments in support of secret law, and “classified speech” arguments to the effect that classifying information effectively removes it from the protections of the First Amendment. While the Article’s most direct goals are descriptive – to explore supremacist reasoning and the broad and deep impact of the same on transparency and accountability – the goals have normative implications that I flag in the Article and explore in more depth elsewhere. For one thing, I briefly explain in the Article my view that supremacy’s impact on secrecy calls into question its constitutional legitimacy. Furthermore, a point demonstrated in the Article – that executive privilege, state secrets, and classified speech claims vary substantially in their breadth – helps to undermine supremacist arguments that equate relatively narrow historical examples with much broader contemporary claims. The final paragraphs of the Article’s last sub-section before the conclusion – entitled “Discretion to Punish Classified Speech” – includes some thoughts on the developing controversy over WikiLeaks.
Keywords: Presidential Supremacy, National Security
Suggested Citation: Suggested Citation
Kitrosser, Heidi, Supremely Opaque? Accountability, Transparency, and Presidential Supremacy (December 7, 2010). St. Thomas Journal of Law & Public Policy, 2010; Minnesota Legal Studies Research Paper No. 10-67. Available at SSRN: https://ssrn.com/abstract=1721609 or http://dx.doi.org/10.2139/ssrn.1721609