Making Executive Privilege Work: A Multi-Factor Test in an Age of Czars and Congressional Oversight

Abstract

Executive privilege conflicts are almost unavoidable in times of heightened partisan conflict. Congressional oversight of the executive has been part of American constitutional government since George Washington. Congress requires information to perform its constitutional oversight role when formulating legislation and in order to responsibly appropriate funds for current and ongoing government operations. Concurrently, the President must withhold certain information to properly execute his constitutional duties, given that disclosure of some information would harm the national interest. All other information, however, should be divulged in a free and open society where the government answers to the people. When information is sought through compulsory means, either by Congress or the courts, executive privilege is the doctrine that shields sensitive information from disclosure to protect the nation's interests, while assuring the disclosure of the remainder.

The Constitution empowers Congress to engage in vigorous oversight actions over legislative matters and also over executive actions performed by, or involving, congressionally created offices and Senate-confirmed officers. The Constitution also contemplates an energetic and independent chief executive, separate and distinct from Congress, who is entitled to private deliberations within the White House on the President's performance of his constitutional duties and exercise of those powers textually committed to him. Recent years have upset this interbranch balance of powers, muddying the constitutional waters and unmooring current practice from the Framers' design. Therefore, a clear ruling on the applicability of executive privilege would be helpful to clarify the proper boundaries of legislative oversight and restore normative interbranch relations.

The courts must resolve such controversies when properly presented in an Article III context. It is exceedingly difficult for a court to formulate and apply standards to resolve clashes between the political branches. Yet, when the political branches reach an impasse in a situation that turns on a question of constitutional law, the courts should resolve the issue if properly presented in a justiciable case once these issues reach a tipping point. Indeed, when the courts refuse to engage in a controversy wherein jurisdiction is proper out of a reluctance to become enmeshed in a political matter, that too threatens the courts; legitimacy by giving the appearance of a dereliction of duty. The judiciary should find that executive privilege bars Congress from compelling testimony from senior presidential advisers in the White House regarding their conversations with the President concerning the President's use of a power explicitly granted to him in the text of the Constitution. But the Court must not allow so-called “czars” in the White House to enjoy any confidentiality not afforded to Senate-confirmed department officers, when those “czars” exercise anything resembling operational management of government activities. Allowing Congress to force disclosure when executive privilege properly applies violates the separation of powers, and therefore, the Constitution protects the confidentiality of such conversations. But allowing the President to refuse disclosure when helpful for proper oversight likewise violates the separation of powers. Accordingly, the Constitution does not countenance such refusals. A decision delineating this distinction should improve interbranch relations by clarifying each branch‟s constitutional role.

Keywords: Constitution, separation of powers, Congress, President, executive privilege, presidential communications privilege, deliberative process privilege, justiciability