The Power to Privilege
University of Pennsylvania Law Review, Vol. 163, 2015, Forthcoming
69 Pages Posted: 10 Oct 2014 Last revised: 10 Feb 2015
Date Written: October 8, 2014
A new and startling development has recently occurred in the law of delegation: Congress has for the first time expressly delegated to an administrative agency the power to write rules of privilege. Privileges abound in federal law, but until now they have been defined either by statute or by judicial opinion. The type of law that Congress has now authorized agencies to create — the regulatory evidentiary privilege — is a true novelty in our system of law.
This article is the first to grapple with the implications of migrating the power to write rules of privilege from Congress and the courts, on the one hand, to the executive branch, on the other. It begins by describing an underappreciated aspect of the administrative state: that the law of privilege is becoming increasingly important to the functioning of administrative agencies. As a result, administrative agencies are actively pursuing control over the law of evidentiary privilege in order to further their substantive mandates.
Granting agencies that sought-after control through a privilege delegation will imperil key federal and state regulatory and governance interests. First, privilege delegations will reduce agency accountability. A delegated authority to write privileges that enables an agency to shield its own communications from disclosure will allow the agency to insulate itself from external review and oversight. Second, privilege delegations will erode state interests in allowing litigants and the public broad access to information. Agencies promulgating regulatory evidentiary privileges are likely to displace state laws that would permit disclosure to a greater extent than would be the case if Congress and the courts retained the privilege pen. Third, privilege delegations threaten to undercut state sovereignty. When Congress authorizes federal agencies to privilege the communications of state officials, it obstructs the capacity of the states to monitor state agents and thereby produces a type of harm akin to prohibited Congressional commandeering of state governance.
After establishing the risks attendant to privilege delegations, the article offers some principles that should govern the choice of institution responsible for drafting any new set of privileges that may be invoked by executive branch agencies and explains that the existing judicial rule-making system fits well with these principles. Finally, the article explains why this innovation in delegation provides a unique opportunity to test prevailing scholarly models of why and to whom Congress chooses to delegate. When it delegates the power to privilege to an agency, Congress is substituting a new delegate — a politically accountable executive agency — for an old delegate — the politically unaccountable federal courts. Accounts of delegation grounded in party competition have greater explanatory power for this swapping of delegates than alternative accounts.
Keywords: administrative law, privilege, FOIA, delegation, federalism, ObamaCare, Affordable Care Act, PPACA, 6607, waiver, regulatory evidentiary privilege, commandeering
JEL Classification: K19, K23, K29, K39
Suggested Citation: Suggested Citation