Constitution of the United States/Art. II/Section 3 Duties

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Constitutional Law Treatise
Table of Contents
US Constitution.jpg
Constitutional Law Outline
Introduction
The Preamble
Article I Legislative Branch
Art. I, Section 1 Legislative Vesting Clause
Art. I, Section 2 House of Representatives
Art. I, Section 3 Senate
Art. I, Section 4 Congress
Art. I, Section 5 Proceedings
Art. I, Section 6 Rights and Disabilities
Art. I, Section 7 Legislation
Art. I, Section 8 Enumerated Powers
Art. I, Section 9 Powers Denied Congress
Art. I, Section 10 Powers Denied States
Article II Executive Branch
Art. II, Section 1 Function and Selection
Art. II, Section 2 Powers
Art. II, Section 3 Duties
Art. II, Section 4 Impeachment
Article III Judicial Branch
Art. III, Section 1 Vesting Clause
Art. III, Section 2 Justiciability
Art. III, Section 3 Treason
Article IV Relationships Between the States
Art. IV, Section 1 Full Faith and Credit Clause
Art. IV, Section 2 Interstate Comity
Art. IV, Section 3 New States and Federal Property
Art. IV, Section 4 Republican Form of Government
Article V Amending the Constitution
Article VI Supreme Law
Article VII Ratification
First Amendment: Fundamental Freedoms
Religion
Establishment Clause
Free Exercise Clause
Free Speech Clause
Freedom of Association
Second Amendment: Right to Bear Arms
Third Amendment: Quartering Soldiers
Fourth Amendment: Searches and Seizures
Fifth Amendment: Rights of Persons
Sixth Amendment: Rights in Criminal Prosecutions
Seventh Amendment: Civil Trial Rights
Eighth Amendment: Cruel and Unusual Punishment
Ninth Amendment: Unenumerated Rights
Tenth Amendment: Rights Reserved to the States and the People
Eleventh Amendment: Suits Against States
Twelfth Amendment: Election of President
Thirteenth Amendment: Abolition of Slavery
Thirteenth Amend., Section 1 Prohibition on Slavery and Involuntary Servitude
Thirteenth Amend., Section 2 Enforcement
Fourteenth Amendment: Equal Protection and Other Rights
Fourteenth Amend., Section 1 Rights
Fourteenth Amend., Section 2 Apportionment of Representation
Fourteenth Amend., Section 3 Disqualification from Holding Office
Fourteenth Amend., Section 4 Public Debt
Fourteenth Amend., Section 5 Enforcement
Fifteenth Amendment: Right of Citizens to Vote
Fifteenth Amend., Section 1 Right to Vote
Fifteenth Amend., Section 2 Enforcement
Sixteenth Amendment: Income Tax
Seventeenth Amendment: Popular Election of Senators
Eighteenth Amendment: Prohibition of Liquor
Eighteenth Amend., Section 1 Prohibition
Eighteenth Amend., Section 2 Enforcement of Prohibition
Eighteenth Amend., Section 3 Ratification Deadline
Nineteenth Amendment: Women's Suffrage
Twentieth Amendment: Presidential Term and Succession
Twentieth Amend., Section 1 Terms
Twentieth Amend., Section 2 Meetings of Congress
Twentieth Amend., Section 3 Succession
Twentieth Amend., Section 4 Congress and Presidential Succession
Twentieth Amend., Section 5 Effective Date
Twentieth Amend., Section 6 Ratification
Twenty-First Amendment: Repeal of Prohibition
Twenty-First Amend., Section 1 Repeal of Eighteenth Amendment
Twenty-First Amend., Section 2 Importation, Transportation, and Sale of Liquor
Twenty-First Amend., Section 3 Ratification Deadline
Twenty-Second Amendment: Presidential Term Limits
Twenty-Second Amend., Section 1 Limit
Twenty-Second Amend., Section 2 Ratification Deadline
Twenty-Third Amendment: District of Columbia Electors
Twenty-Third Amend., Section 1 Electors
Twenty-Third Amend., Section 2 Enforcement
Twenty-Fourth Amendment: Abolition of Poll Tax
Twenty-Fourth Amend., Section 1 Poll Tax
Twenty-Fourth Amend., Section 2 Enforcement
Twenty-Fifth Amendment: Presidential Vacancy
Twenty-Fifth Amend., Section 1 Presidential Vacancy
Twenty-Fifth Amend., Section 2 Vice President Vacancy
Twenty-Fifth Amend., Section 3 Declaration by President
Twenty-Fifth Amend., Section 4 Declaration by Vice President and Others
Twenty-Sixth Amendment: Reduction of Voting Age
Twenty-Sixth Amend., Section 1 Eighteen Years of Age
Twenty-Sixth Amend., Section 2 Enforcement
Twenty-Seventh Amendment: Congressional Compensation

Article II Executive Branch

Section 3 Duties

Clause Text
He shall from time to time give to the Congress Information of the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient; he may, on extraordinary Occasions, convene both Houses, or either of them, and in Case of Disagreement between them, with Respect to the Time of Adjournment, he may adjourn them to such Time as he shall think proper; he shall receive Ambassadors and other public Ministers; he shall take Care that the Laws be faithfully executed, and shall Commission all the Officers of the United States.

The President's Legislative Role[edit | edit source]

The first two clauses of Article II, Section 3 relate to the President's legislative role. The first clause, directing the President to report to the Congress on the state of the union, imposes a duty rather than confers a power and serves as the formal basis of the President's legislative leadership. The President's legislative role has grown substantially since 1900. This development, however, reflects changes in political and social forces rather than any pronounced change in constitutional interpretation. The rise of parties and the accompanying recognition of the President as party leader, the appearance of the National Nominating Convention and the Party Platform, and the introduction of the Spoils System all contributed to the growth of the President's legislative role.[1] While certain pre-Civil War Presidents, mostly of Whig extraction, professed hesitation regarding "usurping" legislative powers,[2] still earlier Presidents--including George Washington, Thomas Jefferson, and Andrew Jackson--took a very different line, albeit less boldly and persistently than their later successors.[3] Today, there is no subject on which the President may not appropriately communicate to Congress, in as precise terms as he chooses, his conception of its duty. Conversely, the President is not obliged by this Clause to impart information which, in his judgment, should in the public interest be withheld.[4]

The second clause of Article II, Section 3 authorizes the President to convene or adjourn the Houses of Congress in certain circumstances. The President has frequently summoned both Houses into "extra" or "special sessions" for legislative purposes, and the Senate alone for the consideration of nominations and treaties. His power to adjourn the Houses has never been exercised.

Head of State[edit | edit source]

Early Doctrine on Receiving Ambassadors and Public Ministers[edit | edit source]

The third clause of Article II, Section 2 directs the President to "receive Ambassadors and other public ministers." An early opinion from Attorney General Caleb Cushing interpreted "Ambassadors and other public ministers" to encompass "all possible diplomatic agents which any foreign power may accredit to the United States."[5] According to John Bassett Moore in his famous International Law Digest, the term, as a practical construction of the Constitution, also encompasses all foreign consular agents who may not exercise their functions in the United States without an exequatur from the President.[6] The power to "receive" ambassadors and other foreign diplomatic and consular agents includes the right to refuse to receive them, to request their recall, to dismiss them, and to determine their eligibility under our laws.[7]

During the United States' formative years, the Founders expressed differing views regarding the scope of the President's reception power. Writing in 1790, Thomas Jefferson stated that "[t]he transaction of business with foreign nations is executive altogether."[8] The function "belongs . . . to the head of that department, except as to such portions of it as are specially submitted to the Senate."[9] Thus, when Edmond-Charles Genet, envoy to the United States from the first French Republic, sought an exequatur for a consul whose commission was addressed to the Congress of the United States, then-Secretary of State Jefferson informed Genet that as the President was the only channel of communication between the United States and foreign nations, it was from him alone "that foreign nations or their agents are to learn what is or has been the will of the nation." [10] Secretary Jefferson accordingly returned the consul's commission and declared that the President would issue no exequatur to a consul except upon a commission correctly addressed.

Consistent with Jefferson's view, Congress later in 1798 passed An Act to Prevent Usurpation of Executive Functions, or the Logan Act, which prohibits U.S. citizens from engaging in unauthorized negotiations with foreign governments having a dispute with the United States.[11] Congress enacted the law in response to the actions of a Philadelphia Quaker named George Logan, who went to Paris on his own to negotiate with the French Government in an effort to avert war between France and the United States.[12] The next year, John Marshall, then a Member of the House of Representatives, defended President John Adams for delivering a fugitive from justice to Great Britain under the twenty-seventh article of the Jay Treaty rather than leaving the matter to the courts. In Marshall's view, "[t]he President is the sole organ of the nation in its external relations, and its sole representative with foreign nations." Thus, according to Marshall, "the demand of a foreign nation can only be made on [the President]," and "any act to be performed by the force of the nation is to be performed through him."[13] Ninety-nine years later, a Senate Foreign Relations Committee took occasion to reiterate Marshall's doctrine with elaboration.[14]

In contrast, James Madison expressed a more limited view of the President's reception power. In his attack upon President George Washington's Proclamation of Neutrality in 1793 at the outbreak of war between France and Great Britain, Madison argued that all large questions of foreign policy fell within the ambit of Congress, by virtue of its power to declare war. In support of this proposition, Madison disparaged the presidential function of reception, asserting that "little, if anything, more was intended by the [reception] clause, than to provide for a particular mode of communication, almost grown into a right among modern nations."[15] The Clause, in his view, did nothing more than "point[ ] out the department of the government" that is "most proper for the ceremony of admitting public ministers, of examining their credentials, and of authenticating their title to the privileges annexed to their character by the law of nations."[16] Accordingly, Madison concluded that "it would be highly improper to magnify the function into an important prerogative."[17] The right to receive ambassadors, in his view, did not grant the Executive the right to, for instance, recognize a new foreign government--a right that "belongs to the nation."[18]

In defending Washington's proclamation, Alexander Hamilton advocated for a broader view of the President's reception power. Writing under the pseudonym Pacificus, Hamilton opined that

The right of the executive to receive ambassadors and other public ministers, may serve to illustrate the relative duties of the executive and legislative departments. This right includes that of judging, in the case of a revolution of government in a foreign country, whether the new rulers are competent organs of the national will, and ought to be recognized, or not; which, where a treaty antecedently exists between the United States and such nation, involves the power of continuing or suspending its operation . . . . This power of determining virtually upon the operation of national treaties, as a consequence of the power to receive public ministers, is an important instance of the right of the executive, to decide upon the obligations of the country with regard to foreign nations.Letter of Pacificus, No. 1, 7 Works of Alexander Hamilton 76, 82-83 (J. Hamilton ed., 1851).

In Hamilton's view, this right of the Executive, in certain cases, "to determine the condition of the nation" can sometimes "affect the exercise of the power of the legislature to declare war."[19] Nevertheless, Hamilton acknowledged that the Executive cannot control Congress's exercise of that power. In his view, however, "the executive, in the exercise of its constitutional powers, may establish an antecedent state of things, which ought to weigh in the legislative decision," such that the two braches share concurrent authorities in particular circumstances.[20]

Jefferson likewise did not officially support Madison's point of view. Writing about his July 10, 1793 conversation with Genet, Jefferson noted that he informed Genet that Congress was not the United States' sovereign. Instead, Congress was "sovereign in making laws only, the executive was sovereign in executing them, and the judiciary in construing them where they related to their department."[21] Thus, Jefferson explained to Genet, it is the President's--and not Congress's--responsibility "to see that treaties are observed," and that "the Constitution had made the President the last appeal" for his decisions related to treaties.[22]

History has largely affirmed Hamilton's view of the President's reception power. After reviewing the circumstances surrounding the United States' recognition of new states, governments, and belligerency before 1906, John Basset Moore observed that "[i]n every case, . . . the question of recognition was determined solely by the Executive."[23] The President's power to receive thus encompasses the power to recognize new states, communities claiming the status of belligerency, and changes of government in established states. By the same token, the power also encompasses the power to decline recognition, and thereby decline diplomatic relations with such new states or governments.[24]

Specific Cases on Receiving Ambassadors and Public Ministers[edit | edit source]

The question concerning whether Congress shares with the President the right to recognize new states was prominently raised in connection with Cuba's successful struggle for independence. Beset by numerous legislative proposals of a more or less mandatory character, urging recognition upon the President, the Senate Foreign Relations Committee, in 1897, made an elaborate investigation of the subject. The Committee concluded in a memorandum that "[t]he executive branch is the sole mouthpiece of the nation in communication with foreign sovereignties," and that "[i]n the department of international law, . . . a Congressional recognition of belligerency or independence would be a nullity."[25]

The Committee reasoned that the recognition of independence or belligerency of a foreign power "is distinctly a diplomatic matter" evidenced "either by sending a public minister to the government thus recognized, or by receiving a public minister therefrom."[26] The reception of a foreign envoy, the Committee stated, "is the act of the President alone."[27] The next step of sending a public minister to the nation thus recognized, is likewise "primarily the act of the President."[28] The Committee noted that the Senate can take no part in the selection at all until the President has sent in a nomination, and upon such nomination, act "in its executive capacity, and, customarily, in 'executive session.'"[29] Because "[f]oreign nations communicate only through their respective executive departments," their legislative departments' resolutions upon diplomatic matters "have no status in international law." Thus, while Congress can help the Cuban insurgents by legislation in many ways, "it cannot help them legitimately by mere declarations, or by attempts to engage in diplomatic negotiations, if our interpretation of the Constitution is correct."[30]

Congress was able ultimately to bundle a clause recognizing the independence of Cuba, as distinguished from its government, into the declaration of war of April 11, 1898, against Spain. For the most part, the sponsors of the clause defended it by arguing that at that point, diplomacy had come to an end, after the President himself had appealed to Congress to provide a solution for the Cuban situation. In response, Congress was about to exercise its constitutional power of declaring war, and as part of the exercise of that power, it has the right to state the purpose of the war which it was about to declare.[31]

After Cuba, numerous presidents had occasions to exercise their power to recognize--or in some cases, not recognize--new foreign states or governments. The recognition of the Union of Soviet Socialist Republics in 1933, for instance, was an exclusively presidential act. President Woodrow Wilson, early in 1913, refused to recognize Provisional President Jose Victoriano Huerta as the de facto government of Mexico, thereby contributing materially to Huerta's downfall the year following. President Wilson also announced a general policy of nonrecognition of any government founded on acts of violence. While he observed this rule with considerable discretion, he consistently refused to recognize the Union of Soviet Socialist Republics, and his successors prior to President Franklin D. Roosevelt did the same. President Herbert Hoover's Administration similarly refused in 1932 to recognize the independence of the Japanese puppet state of Manchukuo. The People's Republic of China (PRC) likewise remained unrecognized from President Harry Truman's Administration until President Richard Nixon's de facto recognition through a 1972 visit, not long after the People's Republic of China was admitted to the United Nations and Taiwan excluded. President Jimmy Carter's official recognition of the PRC became effective on January 1, 1979.[32] The earlier nonrecognition of the PRC proved to be an important part of American foreign policy during the Cold War.[33]

Modern Doctrine on Receiving Ambassadors and Public Ministers[edit | edit source]

The Supreme Court considered whether the President has the exclusive power to grant formal recognition to a foreign sovereign in Zivotofsky v. Kerry.[34] At issue in that case was a provision of the Foreign Relations Authorization Act that allowed United States citizens born in Jerusalem to list their place of birth as "Israel" in their passports.[35] This provision sought to override legislatively a State Department policy that instructed agency employees to list the place of birth for citizens born in Jerusalem as "Jerusalem" in passports because the United States did not recognize any country as having sovereignty over Jerusalem.[36]

After examining the historical practice related to recognition and other functional considerations, the Supreme Court held that the President retains exclusive authority over the recognition of foreign sovereigns and their territorial bounds.[37] Although Congress, pursuant to its enumerated powers in the field of foreign affairs, may properly legislate on matters which precede and follow a presidential act of recognition--including in ways which may undercut the policies that inform the President's recognition decision--it may not alter the President's recognition decision.[38]

Enforcer of Laws[edit | edit source]

Overview of Take Care Clause[edit | edit source]

The Constitution provides that the President "shall take Care that the Laws be faithfully executed . . . ." This duty potentially implicates at least five categories of executive power, including: (1) powers the Constitution confers directly upon the President by the opening and succeeding clauses of Article II; (2) powers that congressional acts directly confer upon the President; (3) powers that congressional acts confer upon heads of departments and other executive agencies of the federal government; (4) power that stems implicitly from the duty to enforce the criminal statutes of the United States; and (5) power to carry out the so-called "ministerial duties," regarding which an executive officer can exercise limited discretion as to the occasion or manner of their discharge. The following essays explore some of the questions raised by these executive powers, including how the President may exercise the powers which the Constitution or the statutes confer upon him, the relationship between the Take Care Clause and the President's power to remove--and thus supervise--those who wield executive power on his behalf, and the extent to which Congress can direct the actions of executive officials.

Who Can Fulfill the Take Care Duty[edit | edit source]

Whereas the British monarch is constitutionally required to always act through agents if his acts are to receive legal recognition, the President is presumed to exercise certain of his constitutional powers personally. In an 1855 opinion, Attorney General Caleb Cushing identified several such examples, including the President's granting of reprieves and pardons for offenses against the United States and his role as "the supreme commander in chief of the Army and Navy of the United States, and of the militia of the several States when called into the actual service of the United States."[39] According to Cushing, the President's power as Commander in Chief is "constitutionally inherent in the person of the President" such that "[n]o act of Congress, no act even of the President himself, can, by constitutional possibility, authorize or create any military officer not subordinate to the President."[40]

Moreover, according to Cushing, the President's obligation to act personally may be sometimes enlarged by statute. The act organizing the President with other designated officials into "an Establishment by name of the Smithsonian Institute," in Cushing's view, is one such example. Cushing also believed that expenditures from the "secret service" fund, in order to be valid, must be vouched for by the President personally.[41] On like grounds the Supreme Court once held void a court martial decree because it was not specifically approved by the President as required by the 65th Article of War.[42] The Court, however, has effectively overruled this case, and at any rate such cases are exceptional.[43]

Over time, the general rule that developed is that when any duty is cast by law upon the President, it may be exercised by him through the head of the appropriate department, whose acts, if performed within the law, become the President's acts.[44] In Williams v. United States,[45] for instance, the Supreme Court considered a statute that prohibited the advance of public money in any case whatsoever to disbursing officers of the United States, except under special direction by the President.[46] The Supreme Court held that the act did not require the personal performance by the President of this duty.[47] Such a practice, said the Court, would "absorb the duties of the various departments of the government in the personal acts of one chief executive officer" and be not just impracticable but "impossible."[48] While "[t]he President's duty in general requires his superintendence of the administration," the Court reasoned that "he cannot be required to become the administrative officer of every department and bureau, or to perform in person the numerous details incident to services" which he is technically required by the Constitution and applicable laws to perform.[49] As a matter of administrative practice, in fact, most orders and instructions are attributed to the heads of the departments, even though such orders and instructions are based on powers conferred by statute on the President.[50]

Relationship Between Take Care Clause and President's Removal Power[edit | edit source]

As the Supreme Court has observed, the Constitution vests all executive power in the President, who must "take Care that laws be faithfully executed."[51] Because no single person could fulfill that responsibility alone, the Court notes, "the Framers expected that the President would rely on subordinate officers for assistance."[52] As a result, the Court reasoned that "[t]he President's power to remove--and thus supervise--those who wield executive power on his behalf follows from the text of Article II."[53]

Some early views of the President's removal power grounds this authority in large part in the Take Care Clause. In a 1789 debate in the First Congress concerning whether the Constitution authorizes the President to remove Executive Branch officers unilaterally, for instance, Representative James Madison expressed the view that the heads of certain executive departments should be removable by the President alone. According to him, it was "the intention of the Constitution, expressed especially in the faithful execution clause, that the first magistrate should be responsible" for the executive department, and this responsibility carried with it the power to "inspect and control" the conduct of subordinate Executive Officers.[54] Vesting removal power in the Senate jointly with the President would, in Madison's view, "abolish at once the great principle of unity and responsibility in the executive department, which was intended for the security of liberty and the public good."[55]

Over time, however, as the Supreme Court refined its jurisprudence on the President's removal power, it came to characterize the basis of this power as stemming more generally from separation of power principles embedded in the Constitution's scheme, as evidenced by provisions including the Vesting Clause, Take Care Clause, and the Appointment Clause.[56]

Removal Power as the President's Primary Means of Supervision[edit | edit source]

If the President's duty to "take care" that laws are faithfully executed in part provides the basis for his authority to remove the principal officers who wield executive power on his behalf, a related question is whether such duty also entitles the President to substitute his own judgment for that of such principal officers regarding the discharge of such duty.[57] Put another way, does the Take Care Clause allows Congress to vest, in a head of an executive department, certain discretion which the President is not entitled to control, such that the President's only means of supervision is through the exercise of his removal authority?

An 1823 opinion rendered by Attorney General William Wirt asserted the proposition that the President's duty under the Take Care Clause generally required him to do no more than exercise his removal authority when those subordinate officers failed to discharge their duty to execute the laws faithfully, including by removing them or by setting in motion against them the processes of impeachment or of criminal prosecutions.[58]

In its 1838 decision Kendall v. United States ex rel. Stokes,[59] the Supreme Court agreed that the President's Take Care duty does not foreclose the possibility that Congress may entrust the construction of its statutes to an executive officer other than the President. In that case, the United States owed several mail carriers, who had performed services under contract, money. When Postmaster General Amos Kendall, at President Andrew Jackson's instigation, refused to pay it, Congress passed a special act ordering payment.[60] When Kendall continued to refuse to pay, the mail carriers sued and obtained a mandamus in the United States circuit court for the District of Columbia. The lower court concluded that the duty of the President under the Take Care Clause gave him no other control over the officer than to see that he acts honestly, with proper motives, but no power to construe the law and see that the executive action conforms to it.[61]

The Supreme Court affirmed, rejecting the argument every officer in the Executive Branch is under the exclusive direction of the President.[62] The Court noted that while there are "certain political duties imposed upon many officers in the executive department, the discharge of which is under the direction of the President," it would be "an alarming doctrine" to hold "that Congress cannot impose upon any executive officer any duty they may think proper, which is not repugnant to any rights secured and protected by the Constitution."[63] In such cases, the Court continued, "the duty and responsibility grow out of and are subject to the control of the law, and not to the direction of the President."[64] This was especially the case, the Court added, "where the duty enjoined is of a mere ministerial character."[65] In short, the Court recognized the underlying question of the case to be whether the President's duty to "take Care that the Laws be faithfully executed" made it constitutionally impossible for Congress ever to entrust the construction of its statutes to anybody but the President, and it answered this in the negative.

Interpretations of Law as Part of the President's Take Care Duties[edit | edit source]

Because the interpretation of law and its scope is a necessary prerequisite to any enforcement action, the precise scope of the President's authority to "take Care that the laws be faithfully executed" is informed and shaped by this interpretive task. The power accruing to the President from such interpretations is daily illustrated in relation to such statutes as the Anti-Trust Acts, the Taft-Hartley Act, and many other statutes.

Nor is this interpretive task the whole story. Not only do all presidential regulations and orders based on statutes that vest power in him or on his own constitutional powers have the force of law, provided they do not transgress the Supreme Court's reading of such statutes or of the Constitution,[66] but in several early cases, the Supreme Court has suggested that the President can sometimes make law in a more special sense. In the famous Neagle case,[67] an order of the Attorney General to a United States marshal to protect a Justice of the Supreme Court whose life has been threatened by a suitor was attributed to the President and held to be "a law of the United States" in the sense of section 753 of the Revised Statutes, and as such to afford basis for a writ of habeas corpus transferring the marshal, who had killed the attacker, from state to national custody. Speaking for the Court, Justice Samuel Miller inquired: "Is this duty [the duty of the President to take care that the laws be faithfully executed] limited to the enforcement of acts of Congress or of treaties of the United States according to their express terms, or does it include the rights, duties and obligations growing out of the Constitution itself, our international relations, and all the protection implied by the nature of the government under the Constitution?"[68] The Court assumed an affirmative answer to the second branch of this inquiry, after noting several historical precedents.[69] And, in United States v. Midwest Oil Co.,[70] the Court ruled that the President had, by dint of repeated assertion of it from an early date, acquired the right to withdraw, via the Land Department, public lands, both mineral and non-mineral, from private acquisition, particularly given that Congress had never repudiated the practice.[71]

The President's Take Care Duties and International Law[edit | edit source]

The President's duty to discharge the responsibilities of the United States in international law raises unique foreign relations considerations. One example of a significant exercise of the President's powers in this context was the closure of the Marconi Wireless Station at Siasconset, Massachusetts, by President Woodrow Wilson--in effort to avoid difficulties with other foreign governments--on the outbreak of the European War in 1914, after the company refused to assure that it would comply with naval censorship regulations. Justifying this drastic invasion of private rights, Attorney General Thomas Gregory said:

The President of the United States is at the head of one of the three great coordinate departments of the Government. He is Commander in Chief of the Army and the Navy. . . . If the President is of the opinion that the relations of this country with foreign nations are, or are likely to be endangered, by action deemed by him inconsistent with a due neutrality, it is his right and duty to protect such relations; and in doing so, in the absence of any statutory restrictions, he may act through such executive office or department as appears best adapted to effectuate the desired end. . . . I do not hesitate, in view of the extraordinary conditions existing, to advise that the President, through the Secretary of the Navy or any appropriate department, close down, or take charge of and operate, the plant . . . should he deem it necessary in securing obedience to his proclamation of neutrality.30 Ops. Atty. Gen. 291 (1914).

Impounding Appropriated Funds[edit | edit source]

The Take Care Clause has figured in debates between the political branches over the Executive Branch practice of impounding appropriated funds. No definition for this term exists in statute or in Supreme Court case law. One possible definition, though, describes Executive Branch action or inaction that results in a delay or refusal to spend appropriated funds, whether or not a statute authorizes the withholding.

It is difficult to state with certainty how frequently the Executive Branch has used impoundment. In perhaps the earliest example, President Thomas Jefferson delayed spending funds appropriated in 1803 for the purchase of gun boats, a response to international tensions concerning the port of New Orleans.[72] After Congress made the funds available, the President negotiated the Louisiana Purchase, rendering the immediate use of the gun-boat appropriation "unnecessary."[73] Presidents in the nineteenth[74] and twentieth centuries[75] similarly signaled a willingness to delay or withhold spending appropriated funds.

Impoundments usually proceeded on the view that an appropriation sets a ceiling on spending for a particular purpose but typically did not mandate that all such sums be spent.[76] According to this view, if that purpose could be accomplished by spending less than the appropriation's total amount, there would be no impediment in law to realizing savings.[77] Impoundments were also justified on the ground that a statute, other than the appropriation itself, authorized the withholding.[78]

Executive impoundment reached its apex under President Richard Nixon, who employed impoundment more frequently than his predecessors.[79] Often, his Administration justified impoundments by stating that different funding levels,[80] or different funding models,[81] were preferable to the ones that Congress had selected when it appropriated the funds.

The Nixon impoundments were scrutinized in congressional hearings.[82] Members of Congress likened the impoundments to an unconstitutional assertion of a line-item veto.[83] By withholding funding for a program, these Members argued, the President could modify or terminate the program without having to veto formally the entire act that made the withheld funds available.[84] Administration officials, on the other hand, located the President's authority to impound funds in, among other places, the Take Care Clause.[85] These officials argued that the President's duty to ensure faithful execution of the laws was not confined to mechanically spending the funds provided in a particular appropriation. Instead, the President had to "consider all the laws" that bore on fiscal policy (e.g., statutes allegedly bearing on inflation) and accommodate the "purposes" of these other laws when deciding whether to spend all, or only some, of the funds appropriated for a particular program.[86]

The constitutional dimensions of impoundment disputes have been confined to the political branches. The Supreme Court has not directly considered the extent of the President's constitutional authority, if any, to impound funds.[87] However, a case decided in 1838, United States v. Kendall,[88] has been cited as standing for the proposition that the President may not direct the withholding of certain appropriations that, by their terms, mandate spending.[89]

In that case, the Court considered a statute directing one official (the Solicitor of the Treasury) to determine amounts the government owed to a mail contractor.[90] A second official (the Postmaster General) was then required to credit the contractor's account according to the Solicitor's findings.[91] The Postmaster General refused to make the full credit.[92] When the contractor then asked the federal courts to order that the full credit be made, the Postmaster General responded that only the President could control his execution of the law.[93] The Court rejected that argument. The President's duty to see that the laws be faithfully executed did not include the power to forbid the execution of a law requiring a precise, definite action, such as updating Post Office accounts to reflect the Solicitor's credit findings.[94]

Executive Privilege[edit | edit source]

Overview of Executive Privilege[edit | edit source]

The doctrine of executive privilege defines the authority of the President to withhold documents or information in his possession or in the possession of the Executive Branch from the Legislative or Judicial Branch of the government. While the Constitution does not expressly confer upon the Executive Branch any such privilege, the Supreme Court has held that executive privilege derives from the constitutional separation of powers and from a necessary and proper concept respecting the carrying out of the duties of the presidency imposed by the Constitution.[95] Although there are various and distinct components to executive privilege,[96] the privilege's foundation lies in the proposition that in making judgments and reaching decisions, the President and his advisors must be free to discuss issues candidly, express opinions, and explore options without fear that those deliberations will later be made public.[97]

Conceptually, the doctrine of executive privilege may well reflect different considerations in different factual situations. Congress may seek information within the possession of the President in the course of exercising its investigatory powers;[98] government prosecutors may seek information in the course of investigating and prosecuting crimes;[99] and private parties may seek information in the possession of the President for use as evidence in either a criminal or civil proceeding.[100] In all of these contexts, the courts have generally assessed any asserted privilege by weighing the President's need for confidentiality against the interests of the party seeking the information.[101]

Today, it is apparent that executive privilege is qualified rather than absolute. For the vast majority of U.S. history, however, the existence and appropriate scope of the privilege was uncertain and nearly untouched by the courts.[102] Chief Justice John Marshall referred to the confidentiality of presidential communications in Marbury v. Madison and during the treason trial of former Vice President Aaron Burr,[103] but in "neither instance [ ] was Marshall forced to definitively decide whether such a presidential privilege existed and if so, in what form."[104] In fact, the judiciary's involvement in addressing the privilege's use in resisting disclosure in the face of either judicial or legislative subpoenas did not begin in earnest until the 1970s and the Administration of Richard Nixon.[105] Prior to the Nixon era, executive privilege's contours were defined, if at all, by historical practice and the actions and interpretations of Congress and the President. And with little further explication coming from the Supreme Court since, the Nixon era remains the defining era of judicial consideration of the privilege.

This lack of judicial involvement is most pronounced in the context of executive privilege disputes between Congress and the President. The Supreme Court has never directly considered the application of executive privilege in the context of a congressional investigation.[106] Lower federal court decisions are similarly scarce. The only appellate-level decision to reach the merits of an executive privilege dispute between Congress and a sitting President occurred nearly 50 years ago.[107] In light of this near judicial vacuum, the historical actions and interpretations of the branches necessarily play a significant role in establishing the meaning of executive privilege.

Defining Executive Privileges[edit | edit source]

There is not a single "executive privilege." Instead, a suite of distinct privileges exist, each of different--though sometimes overlapping--scope.[108] The political branches, in support of their often competing interests and priorities, have adopted somewhat divergent views on these different component privileges. Whereas Congress has generally interpreted executive privilege narrowly, limiting its application to the types of presidential, national security, and diplomatic communications referenced by judicial decisions,[109] the Executive Branch has historically viewed executive privilege more broadly, providing protections to different categories of documents and communications that implicate Executive Branch confidentiality interests.[110] Under the Executive Branch's interpretation, these privileges include

The Executive Branch has tended to consolidate these various privileges into one "executive privilege," particularly when responding to congressional investigative requests.[111] Congressional committees, on the other hand, have typically distinguished among the different individual privileges.[112]

The executive privileges may appropriately be treated as distinct, not only because of the different communications they protect, but also because the privileges appear to arise from different sources of law, with some more firmly established in judicial precedent than others. In short, the different privileges apply with different strengths and, in the congressional context, are balanced against Congress's Article I powers differently. For example, courts have "traditionally shown the utmost deference" to presidential claims of a need to protect military or diplomatic secrets.[113] The President's more generalized interest in the confidentiality of his other communications, though arising implicitly from the Constitution, has not been "extended this high degree of deference."[114] Because the other privileges have been given less weight, they are assessed differently in the face of an exercise of Congress's investigative powers. For example, when compared to the Presidential Communications Privilege, the Deliberative Process Privilege is more easily overcome by Congress and "disappears altogether when there is any reason to believe government misconduct occurred."[115] Its legal source also appears to be different from the Presidential Communications Privilege, as it arises "primarily" from the common law,[116] but may have a "constitutional dimension."[117] Least potent are those executive privileges that arise purely from the common law, which have generally been viewed, at least by Congress, as legally insufficient to justify noncompliance with a congressional subpoena.[118]

State Secrets Privilege[edit | edit source]

In civil cases, the government may invoke the State Secrets Privilege to ensure the government is not forced to reveal military or other secrets. By contrast, in criminal cases, the Sixth Amendment guarantees a defendant compulsory process to obtain witnesses, and the Due Process Clause of the Fifth Amendment guarantees access to relevant exculpatory information in possession of the prosecution.[119] Generally speaking, when a judicial order directs the prosecution to provide information to a defendant that the prosecution does not wish to make available, the prosecution has the option of dropping the prosecution to avoid disclosure.[120]

In 1876, the Supreme Court first recognized the State Secrets Privilege in Totten v. United States.[121] Totten involved a breach of contract claim brought by the estate of a former Union Civil War spy against the government for compensation owed for secret wartime espionage services.[122] The Court dismissed the claim because "as a general principle, [ ] public policy forbids the maintenance of any suit in a court of justice, the trial of which would inevitably lead to the disclosure of matters which the law itself regards as confidential."[123] The Court reasoned that "[t]he service stipulated by the contract was a secret service; the information sought was to be obtained clandestinely, and was to be communicated privately; the employment and the service were to be equally concealed."[124]

Totten has continued to inform the treatment of claims brought against the government. In 2005, the Supreme Court considered a contract claim brought against the Central Intelligence Agency (CIA) by alleged Cold War spies in Tenet v. Doe.[125] Affirming the "Totten" bar,[126] the Tenet Court stated: "Totten precludes judicial review in cases such as respondents' where success depends upon the existence of their secret espionage relationship with the [g]overnment."[127] In 2011, the Supreme Court again applied the Totten bar to dismiss a suit against the United States but this time outside the context of espionage contracts. In General Dynamics Corp. v. United States, the federal government asserted the State Secrets Privilege to prevent disclosing sensitive stealth technology in a defense contract dispute. While the government contractor in General Dynamics had set forth a prima facie valid affirmative defense to the government's allegation of breach of contract,[128] the Court held that the underlying subject matter of the suit rendered it nonjusticiable and the parties must remain "where they stood when they knocked on the courthouse door."[129] Referring to Totten and Tenet, the Court stated: "We think a similar situation obtains here, and that the same consequence should follow."[130] In not finding an enforceable contract, the Court held that "[w]here liability depends upon the validity of a plausible . . . defense, and when full litigation of that defense 'would inevitably lead to the disclosure of' state secrets, neither party can obtain judicial relief."[131] The Court reasoned: "Both parties--the [g]overnment no less than petitioners--must have assumed the risk that state secrets would prevent the adjudication of claims of inadequate performance."[132]

In a separate line of judicial inquiry regarding protection of state secrets outside the context of contract claims, the Supreme Court articulated an analytical framework for the State Secrets Privilege in its 1953 decision in United States v. Reynolds.[133] Reynolds involved multiple wrongful death claims against the government brought by the widows of three civilians who died aboard a military aircraft that crashed while testing secret electronic equipment.[134] The plaintiffs sought discovery of the official Air Force post-incident report and survivors' statements that were in the possession of the U.S. Air Force.[135] The Air Force opposed disclosure of the documents as the aircraft and its occupants were engaged in a secret mission.[136]

While Reynolds recognized that it is the judiciary's role to evaluate the validity of a claim of privilege, the Court declined to require that courts automatically compel inspection of the underlying information. The Court stated: "[T]oo much judicial inquiry into the claim of privilege would force disclosure of the thing the privilege was meant to protect, while a complete abandonment of judicial control would lead to intolerable abuses." To evaluate assertions of the State Secrets Privilege, the Reynolds Court identified a two-step analysis. The first requirement is a largely procedural hurdle to assure that the privilege is not "lightly invoked," in which the head of the department in control of the information in question, after "personal consideration," invokes the privilege in writing. The second requirement asks the court to evaluate whether there is a reasonable danger that disclosure "will expose military matters which, in the interest of national security, should not be divulged."

The Supreme Court accepted the government's claim, holding that courts "must determine whether the circumstances are appropriate for the claim of privilege, and yet do so without forcing a disclosure of the very thing the privilege is designed to protect."[137] According to the Court, a private litigant's specific showing of necessity for the information should govern how far the trial court should probe. Where the necessity is strong, the trial court should require a strong showing that the privilege is appropriate, but once that is satisfied, the privilege must prevail no matter how compelling the need.[138] While Reynolds dealt with an evidentiary privilege, cases may be "dismissed on the pleadings without ever reaching the question of evidence" in other circumstances.[139]

While Reynolds and Totten remain the foundational cases on the state secrets privilege, the Supreme Court issued a pair of decisions in 2022 that impact the judicial understanding of that privilege. First, in United States v. Zubaydah, the Court determined that a court cannot declare that classified information apparently in the public domain is exempt from the State Secrets Privilege when the United States has not officially confirmed or denied such information.[140] Second, in Federal Bureau of Investigation v. Fazaga, the Court decided that certain Foreign Intelligence Surveillance Act of 1978 (FISA) provisions, which specifically require courts to review the underlying classified FISA applications and information to determine the lawfulness of surveillance, do not displace the traditional Reynolds privilege that protects information that would harm national security if disclosed.[141]

Presidential Communications Privilege Generally[edit | edit source]

Deriving implicitly from the President's powers under Article II and the separation of powers doctrine, the Presidential Communications Privilege (Communications Privilege) protects the confidentiality of the President's decisionmaking process.[142] The Communications Privilege is grounded on the proposition that to make judgments and reach decisions the President and his advisers must be free to discuss issues candidly, express opinions, and explore options without fear that those deliberations will later be made public.[143]

The Communications Privilege is qualified, rather than absolute, and applies only to confidential communications made in support of official presidential decisionmaking that directly involve the President or close presidential advisers.[144] For the vast majority of U.S. history, however, the existence and appropriate scope of the Communications Privilege was uncertain and nearly untouched by the courts.[145] While Chief Justice John Marshall referred to the confidentiality of presidential communications in Marbury v. Madison and during the treason trial of former Vice President Aaron Burr,[146] in "neither instance [ ] was Marshall forced to definitively decide whether such a presidential privilege existed and if so, in what form."[147] In fact, the Judiciary's involvement in addressing the Communications Privilege's use in resisting disclosure in the face of either judicial or legislative subpoenas did not begin in earnest until the 1970s and the Administration of President Richard Nixon.[148] Prior to the Nixon era, the Communications Privilege's contours were instead left to be defined, if at all, by historical practice and the actions and interpretations of Congress and the President.

The years during and immediately following the Nixon Administration are arguably the defining era of the Communications Privilege's judicial development. It was during that time period (1972-1977) that the courts first confirmed the Communications Privilege's existence and began to delineate--but did not significantly develop--its application in criminal and civil proceedings, as well as its use in response to exercises of Congress's oversight and legislative powers.[149] In each of these contexts, courts were asked to resolve significant but unsettled questions of constitutional law, ranging from whether the President is immune from all compulsory process to the scope and force of presidential claims of the Communications Privilege.[150]

Congressional Access to Presidential Information[edit | edit source]

Presidents have claimed a right to withhold their communications from Congress since the start of the Republic.[151] Congress's resistance to such claims, however, is equally grounded in history.[152] The resulting, recurring, and often prominent disagreements over what has come to be known broadly as "executive privilege" tend to place in opposition two implied and often competing constitutional principles: Congress's right to obtain information necessary to carry out its legislative functions and the President's interest in protecting the confidentiality of his (and sometimes his subordinates') communications.[153]

Unlike more traditional legal disagreements between parties, resolution of these interbranch executive privilege disputes has not historically come from the courts. Instead, when conflict has been avoided, it has typically been because of a process of compromise and accommodation in which absolute claims--for either access or confidentiality--are relinquished and replaced by a negotiated resolution acceptable to both Congress and the Executive.[154]

The traditional preference for political rather than judicial solutions is supported by the fact that neither Congress nor the President appears to have sought judicial resolution of an interbranch executive privilege dispute until the 1970s.[155] Courts have also been wary of judicially declared outcomes and have generally sought to avoid adjudicating executive privilege disputes, instead encouraging the political branches to settle their differences while noting that judicial intervention should, as a prudential matter, "be avoided whenever possible" or at least "delayed until all possibilities for settlement have been exhausted."[156]

As a result, the judiciary has historically played a limited role in determining how executive privilege may be used to restrict congressional access to information.[157] The Supreme Court has never directly considered applying executive privilege in the context of a congressional investigation.[158] Lower federal court decisions are similarly scarce.[159] The only appellate-level decision to reach the merits of an executive privilege dispute between Congress and a sitting President occurred nearly fifty years ago during President Richard Nixon's administration.[160] In that case, the Senate Select Committee on Presidential Campaign Activities elected to seek a declaratory judgment in the courts with respect to the President's obligations to obey its subpoenas.[161]

Although not involving executive privilege, the Court in its 2020 decision, Trump v. Mazars, nevertheless recognized several important separation of powers-based limitations on Congress's ability to access presidential records.[162] Writing on behalf of the Court, Chief Justice John Roberts began by acknowledging three central limits on all congressional inquiries, regardless of the target of the inquiry: (1) there must be a valid legislative purpose related to a subject of legislation, (2) the purpose of the inquiry must not be for law enforcement or to expose for the sake of exposure, and (3) certain constitutional and common law privileges can limit disclosures of information.[163] The Court, however, viewed these limitations, standing alone, as inadequately checking Congress's powers in a dispute with the Executive Branch.[164] After all, according to Mazars, any paper possessed by a President could relate to a conceivable subject of legislation, possibly allowing Congress significant authority to interfere with the Executive Branch.[165]

Recognizing that the typical limits on the subpoena power did not prevent Congress from attempting to "aggrandize itself at the President's expense," the Chief Justice feared that judicial resolution of such a dispute using only those limits could deter negotiation between the two branches, historically the hallmark of such inquiries, and encourage Congress to seek compliance through the courts.[166] As a result, the Chief Justice instructed lower courts to perform a "careful analysis" using "[s]everal special considerations" that take "adequate account" of the separation of powers principles at stake during a legislative inquiry into the President's records.[167] Specifically, in such a dispute, courts should, among other considerations, (1) carefully assess whether the confrontation can be avoided by relying on other sources to provide Congress the information it needs in light of its legislative objective; (2) "insist" on a subpoena that is no broader than is reasonably necessary to support Congress's objective; (3) consider the nature of the evidence of Congress's legislative purpose, preferring more detailed and substantial evidence to vague or loosely worded evidence of Congress's purpose; and (4) assess the burdens, such as time and attention, the subpoena imposes on the President.[168]

Prosecutorial and Grand Jury Access to Presidential Information[edit | edit source]

Recognizing that the "public has a right to every man's evidence," the Supreme Court has held that the President may be required to testify or produce documents in criminal proceedings when required by the courts.[169] This principle dates to the earliest days of the Republic, when Chief Justice John Marshall presided as the Circuit Justice for Virginia over the infamous treason trial of Aaron Burr. In that case, Chief Justice Marshall concluded that President Thomas Jefferson could be subject to a subpoena to provide a document relevant to the trial.[170] Specifically, he declared that, in contrast to common law privileges afforded the King of England, the President was not "exempt from the general provisions of the constitution," like the Sixth Amendment, that provide for compulsory process for the defense.[171] Nonetheless, Chief Justice Marshall recognized that while the President could be subject to a criminal subpoena, the President could still withhold specific information from disclosure based on the existence of a privilege.[172] In the two centuries since the Burr trial, historical practice by the Executive Branch[173] and Supreme Court rulings "unequivocally and emphatically endorsed" Chief Justice Marshall's position that the President was subject to federal criminal process.[174] In 2020, the Court extended the precedent developed in federal criminal proceedings to state criminal proceeding in Trump v. Vance, concluding that the President was not absolutely immune from state criminal subpoenas.[175]

While the President is subject to criminal process, the question remains as to the limits on that process. The Court has recognized several constraints on the ability of a prosecutor to obtain evidence from the President through the use of a criminal subpoena.[176] First, like any citizen, the President can challenge a particular subpoena on the grounds that it was issued in bad faith or was unduly broad.[177] Second, the timing and scope of criminal discovery must be informed by the nature of the office of the President--for example, granting deference in scheduling proceedings to avoid significant interference with the President's official responsibilities.[178] Third, the President can raise subpoena-specific constitutional challenges, arguing that compliance with a particular subpoena would significantly interfere with his efforts to carry out an official duty.[179] As the Court first recognized in United States v. Nixon, one particularly notable constitutionally based challenge that a President can lodge against a criminal subpoena is a claim of executive privilege in certain presidential communications.[180]

In Nixon,[181] the Court confirmed several fundamental principles of the privilege protecting presidential communications.[182] First, Nixon recognized an implied constitutional privilege protecting presidential communications.[183] The Court stated that the "privilege of confidentiality of presidential communications" is "fundamental to the operation of Government and inextricably rooted in the separation of powers" and "the supremacy of each branch within its own assigned area of constitutional duties."[184] The Court held that the Communications Privilege, however, must not be "expansively construed" as it, like other privileges, is "in derogation of the search for truth."[185]

Second, the Court explicitly reaffirmed its role as the "ultimate interpreter of the Constitution" and the privileges emanating from it, noting that it was the Court, and not the President, that must have the final say on the Communications Privilege.[186]

Third, the Court held that the underlying justification for the Communications Privilege related to the "public interest" in the integrity of presidential decisionmaking.[187] "Human experience," the Court reasoned, "teaches that those who expect public dissemination of their remarks may well temper candor with a concern for appearances and for their own interests to the detriment of the decisionmaking process."[188] The Court added that there is a

public interest in candid, objective, and even blunt or harsh opinions in Presidential decisionmaking. A President and those who assist him must be free to explore alternatives in the process of shaping policies and making decisions and to do so in a way many would be unwilling to express except privately.Id. at 708.

As such, the Court held that "[t]he President's need for complete candor and objectivity from advisers calls for great deference from the courts" and justified a "presumptive privilege for Presidential communications" made in "the exercise of Art. II powers."[189]

Fourth, the Court emphasized that the implied constitutional Privilege was not "absolute" or "unqualified," at least not when founded upon a "generalized" need for confidentiality in "nonmilitary and nondiplomatic discussions."[190] Instead, when the Communications Privilege is invoked in response to a judicial subpoena, a "confrontation with other values arise[s]" requiring courts to "resolve those competing interests in a manner that preserves the essential functions of each branch."[191] The President's interest, therefore, would need to be balanced against the "fundamental and comprehensive" need to "develop all relevant facts" and evidence in a criminal case.[192] In weighing these interests, the Court held the following:

We cannot conclude that advisers will be moved to temper the candor of their remarks by the infrequent occasions of disclosure because of the possibility that such conversations will be called for in the context of a criminal prosecution. On the other hand, the allowance of the privilege to withhold evidence that is demonstrably relevant in a criminal trial would cut deeply into the guarantee of due process of law and gravely impair the basic functions of the courts.

As a result, the Communications Privilege, when based "only on a generalized interest in confidentiality," "cannot prevail over the fundamental demands of . . . the fair administration of justice" and therefore "must yield to the demonstrated, specific need for evidence in a pending criminal trial."[193]

Finally, Nixon approved a "staged decisional structure." If a President determines that "compliance with a subpoena would be injurious to the public interest he may properly . . . invoke a claim of privilege."[194] Such an invocation creates "presumptive" protections for the subpoenaed material. As a result of these initial protections, a court may only order in camera review when the party has "made a sufficient showing to rebut the presumption."[195] Once the presumptively privileged material is reviewed in camera, a court may then direct the further disclosure of all "relevant" and "admissible" information.[196]

The Nixon opinion made two additional points worth noting. First, the Court repeatedly suggested that its analysis may have been different if instead of a generalized interest in the confidentiality of his communications, the President had asserted a claim of "military or diplomatic secrets."[197] "As to these areas of Art. II duties the courts have traditionally shown the utmost deference to Presidential responsibilities."[198] Second, the Court explicitly disclaimed any attempt to assess the application of the Communications Privilege in a congressional investigation: "we are not here concerned with the balance between the President's generalized interest in confidentiality . . . and congressional demands for information."[199]

Statutory Requirements and Communications Privilege[edit | edit source]

The Supreme Court considered the nature of executive privilege in a statutory context in its 1977 decision of Nixon v. Administrator of General Services (Nixon II).[200] In that case, former President Richard Nixon challenged the Presidential Recordings and Materials Preservation Act, a statute that nullified a contract that gave Nixon control over his own presidential records. The Act instead established a process to secure and preserve his records with a government agency.[201] Along with other claims, Nixon argued that provisions of the law permitting the screening and cataloguing of presidential materials by Executive Branch archivists impermissibly infringed on his Privilege. Nixon II was therefore distinct from Nixon I, because it concerned disclosure within the Executive Branch pursuant to a statutory provision, rather than disclosure outside the Executive Branch pursuant to a subpoena.

The Court rejected former President Nixon's position, holding that the statutory arrangement for preservation of the President's records worked only a "very limited intrusion" into the President's confidentiality interests, especially given that the law built in safeguards to prevent the public disclosure of protected materials.[202] Like the previous cases, the Court engaged in a balancing test, evaluating whether the public interest justified such an intrusion, ultimately holding that it did. Congress had acted, the Court determined, based on a variety of "important objectives," including to "preserve the materials for legitimate historical and governmental purposes"; "restore public confidence in our political processes by preserving the materials as a source for facilitating a full airing of the events leading to appellant's resignation"; and based on its "need to understand how those political processes had in fact operated in order to gauge the necessity for remedial legislation."[203]

The Court's view of the severity of the intrusion appears to have been colored by the fact that the claim was being made by a former President.[204] Although recognizing that the Communications Privilege "survives the individual President's tenure" and thus can be invoked by former Presidents to protect covered communications occurring while in office, the Court nonetheless noted that the President's interest in confidentiality is "subject to erosion over time after an administration leaves office."[205]

Nixon II also provided the Court's clearest explanation of the types of communications covered by the Communications Privilege. Interpreting Nixon, the Court held that the "the privilege is limited to communications 'in performance of [a President's] responsibilities,' 'of his office,' and made 'in the process of shaping policies and making decisions.'"[206] This passage reflects the fundamental principle that the Communications Privilege does not act as a generalized safeguard for "Presidential privacy," but instead protects the public interest in effective and deliberative presidential decisionmaking. As such, the Communications Privilege applies not to all presidential communications, but only those that bear a relationship to a presidential decision.

Nixon II marked the end of President Nixon's lengthy and largely unsuccessful legal battles over the release of his communications. But the importance of the Nixon-era cases transcends those materials. The cases established the fundamental characteristics of the Communications Privilege: (1) there is a qualified constitutional privilege that provides presumptive protections to confidential communications made to assist presidential decisionmaking; (2) the Communications Privilege can be invoked to resist disclosure of covered communications in various contexts; and (3) the Communications Privilege is not absolute, and can be overcome when the party seeking the information can articulate a sufficient showing of need.

Separation of Powers and Communications Privilege[edit | edit source]

In 2004, the Supreme Court issued Cheney v. United States District Court[207] in which it reaffirmed distinctions first articulated in the Nixon-era cases between civil and criminal proceedings and expounded on the relationship between the Communications Privilege and the separation of powers.

The Cheney decision interacted with the Communications Privilege in a complicated procedural posture, and for this reason the implications of the decision to more traditional scenarios, especially to the congressional context, are difficult to discern. In Cheney, a federal district court had entered orders in a Federal Advisory Committee Act (FACA) lawsuit allowing discovery of documents relating to the structure and operation of the National Energy Policy Development Group (NEPDG), a task force chaired by the Vice President and established to give policy recommendations on energy issues to the President.[208] The George W. Bush Administration, though not asserting executive privilege, challenged that discovery order on the ground that it represented a "substantial intrusion[ ] on the process by which those in closest operational proximity to the President advise the President" in violation of the separation of powers.[209] The district court and the D.C. Circuit rejected the Administration's arguments, mainly because the Administration had another means to protect its interests; it could assert executive privilege in response to the civil discovery subpoena.[210]

The Supreme Court reversed, holding that when a lower court has allowed "unnecessarily broad" discovery, reviewing courts have authority to "explore other avenues, short of forcing the Executive to invoke privilege."[211] The Court reasoned that to require the Executive Branch to assert the Communications Privilege in such a scenario would ignore the "weighty separation of powers objections raised in the case," because "[o]nce executive privilege is asserted, coequal branches of the Government are set on a collision course."[212] The Court determined that the lower courts had "labored under the mistaken assumption that the assertion of executive privilege is a necessary precondition to the Government's separation of powers objections."[213] Cheney, therefore, appears to suggest that there are separation of powers concerns associated with executive confidentiality issues that attach even before executive privilege is asserted.[214]

Cheney also reaffirmed the principle that the confidentiality interests associated with the Communications Privilege are weighed differently in different types of proceedings. In fact, the nature of the proceeding, whether civil or criminal, appears to affect both sides of the judicially developed balancing test. As for the requesting party, the Court held that "[t]he need for information for use in civil cases, while far from negligible, does not share the urgency or significance of [a] criminal subpoena," where the need for the information "is much weightier."[215] As for the President's interest, the court viewed the potential for a civil subpoena to disrupt the functioning of the Executive Branch as far greater than a criminal subpoena. In the criminal context, "there are various constraints . . . to filter out insubstantial legal claims," but "there are no analogous checks in the civil discovery process."[216] Like past cases, however, Cheney did not address how a congressional proceeding relates to either civil or criminal proceedings.[217]

Former Presidents and Communications Privilege[edit | edit source]

In Nixon II, the Supreme Court determined that the Communications Privilege continues to protect presidential communications after the conclusion of the Administration within which the communication occurred and may be asserted by the former President.[218] As described above, the Court found that a former President may "legitimately" assert the Communications Privilege to prevent disclosure of his official records after he has left office.[219] The Court reasoned that the confidentiality necessary to ensure the free exchange of ideas between the President and his advisers while the President is in office

cannot be measured by the few months or years between the submission of the information and the end of the President's tenure; the privilege is not for the benefit of the President as an individual, but for the benefit of the Republic. Therefore the privilege survives the individual President's tenure. Id. (citations omitted).

The Court's determination appears to have rested on the reasoning that the general purpose of the Communications Privilege--ensuring the provision of frank advice to the President--could be threatened or undermined no matter when the disclosure of the covered communications occurs. Nixon II distinguished former Presidents from incumbents in three important ways. First, the Court explicitly stated that "to the extent that the privilege serves as a shield for executive officials against burdensome requests for information which might interfere with the proper performance of their duties, a former President is in less need of it than an incumbent."[220] Second, the Court concluded that the "expectation of the confidentiality of executive communications" is "subject to erosion over time after an administration leaves office."[221] Thus, the strength of a former President's Communications Privilege claim appears to dwindle as time passes.

Third and perhaps most importantly, the Court determined that because only the sitting President is "charged with performance of executive duty under the Constitution," he is "in the best position to assess the present and future needs of the Executive Branch, and to support invocation of the privilege accordingly."[222] In Nixon II, the fact that President Carte--the sitting President at the time--did not support former President Nixon's privilege claim "detract[ed] from the weight of" Nixon's assertion.[223] In the Court's view, it is the incumbent President who is better situated to make determinations about the need for executive confidentiality, because it is the incumbent President who may suffer the harm that the Communications Privilege purports to protect against if privileged documents were disclosed (namely that current advisers would be dissuaded from giving the incumbent President candid advice).[224] As a result, when the incumbent President does not support a former President's privilege claim, the strength of the claim declines.

The importance of the incumbent's concurrence to a privilege claim by a former President was recently reaffirmed in Trump v. Thompson.[225] Thompson arose from the inquiry conducted by the House Select Committee to Investigate the January 6th Attack on the U.S. Capitol (Select Committee). As part of its investigation, the Select Committee requested that the National Archives and Records Administration (NARA) produce relevant presidential records from the former Trump Administration pursuant to the Presidential Records Act (PRA).[226] The request sought various categories of White House communications and documents created on or around January 6, 2021. Under the PRA, if any congressional committee requests a presidential record on a "matter within its jurisdiction" that is "needed for the conduct of its business and that is not otherwise available," the National Archives "shall" make the record available.[227] However, consistent with principles established in Nixon and Nixon II, the PRA also preserves the right of both current and former Presidents to assert privilege claims by providing that disclosure by NARA is "subject to any rights, defenses, or privileges which the United States or any agency or person may invoke."[228]

Shortly thereafter, President Joseph Biden determined that under the "unique and extraordinary circumstances" and because of Congress's "compelling need" to understand the "horrific events" of January 6, asserting executive privilege over the requested documents would not be "in the best interests of the United States."[229] Former President Trump disagreed and notified the Archivist that he was asserting the Communications Privilege. After President Biden clarified that he would "not uphold the former President's assertion of Privilege," former President Trump filed suit in federal district court to block NARA from disclosing privileged documents to the Select Committee.[230]

The D.C. District Court in Thompson viewed the case as "a dispute between a former and incumbent President."[231] Citing to Nixon II, the court stated that because the incumbent President is "best suited" to identify and determine the best interests of the Executive Branch, former President Trump's Privilege claim was "outweighed by President Biden's decision not to uphold the Privilege."[232] Moreover, the court reasoned that to side with the former President would not only second guess the sitting President's judgment, but also the Legislative Branch's judgment--for both President Biden and the House agreed that the requested documents should be disclosed.[233]

The D.C. Circuit affirmed the district court decision on appeal. The court acknowledged, with reference to Nixon II, that there was "no question" that former President Trump could assert the Communications Privilege and that the Communications Privilege was "of constitutional stature."[234] Nevertheless, the court held that a "rare and formidable alignment of [three] factors" supported disclosure of the documents to the Committee and outweighed the former President's interest in confidentiality.[235]

First, the court stated that President Biden's determination that it was neither in the Executive Branch's nor the public's interest to assert Privilege over the requested documents "carries immense weight in overcoming the former President's" claim.[236] Consistent with previous case law, the court viewed President Biden as "the principal holder and keeper of executive privilege" and the judiciary as "ill equipped to . . . second guess the expert judgment of the sitting President."[237]

Second, the House had a "uniquely weighty interest in investigating the causes and circumstances" of the January 6 attack on the U.S. Capitol.[238] Indeed, the court noted that having presented a "sound factual predicate" for the requested documents, "there would seem to be few, if any, more imperative interests squarely within Congress's wheelhouse than ensuring the safe and uninterrupted conduct of its constitutionally assigned business."[239]

Third, and "weighing still more heavily" against former President Trump, was "the fact that the judgment of the Political Branches is unified as to these particular documents."[240] The court was unwilling to "needlessly disturb 'the compromises and working arrangements that" the Congress and the President had already reached.[241]

In light of these three factors, the D.C. Circuit held that "the profound interests in disclosure advanced by President Biden and the January 6th Committee far exceed [former President Trump's] generalized concerns for Executive Branch confidentiality."[242] That holding was given added significance by the court's determination that it would have been compelled to reach that conclusion "under any of the tests advocated by former President Trump," including the "demonstrated, specific need" standard from Nixon or the "demonstrably critical" standard from Senate Select.[243] As such, it appears the Select Committee would have been able to overcome the Communications Privilege in this circumstance even if President Biden had supported former President Trump's Privilege claim.

The Supreme Court picked up on this point in denying former President Trump's petition to stay the D.C. Circuit decision.[244] In interpreting the opinion below, the Supreme Court--in an unsigned order--reasoned that Mr. Trump's "status as a former President [ ] made no difference to the court's decision" since the D.C. Circuit had "concluded that President Trump's claims would have failed even if he were an incumbent."[245] Because the former President's assertion of privilege would have been unsuccessful either way, the Court declared the D.C. Circuit's discussion of when executive privilege claims could properly be asserted by former Presidents to be nonbinding dictum.[246]

Deliberative Process and Law Enforcement Privileges[edit | edit source]

Of the various executive privileges, the Deliberative Process Privilege is the one most frequently asserted.[247] The purpose underlying the Privilege is to protect the "'quality of agency decisions' by allowing government officials freedom to debate alternative approaches in private."[248] But the Deliberative Process Privilege applies only to those documents and communications that are predecisional, meaning they are created prior to the agency reaching its final decision, and deliberative, meaning they relate to the thought process of Executive officials and are not purely factual.[249] The Privilege does not protect entire documents. Rather, the Executive Branch must disclose non-privileged factual information that can be reasonably segregated from privileged information in the requested documents. And like the other executive privileges, the Deliberative Process Privilege is overcome by an adequate showing of need.[250]

The idea of the Deliberative Process Privilege was developed under the Freedom of Information Act (FOIA) to provide limited protection for communications and documents evidencing the predecisional considerations of agency officials.[251] Over time, the Executive Branch has melded this deliberative process idea with the recognized confidentiality interest in the President's communications with close advisers, such that the privilege would extend to any policy deliberations or communications within the Executive Branch in which the President may have an interest.

The result has been a presumption by the Executive, though regularly contested by Congress, that its predecisional deliberations are beyond the scope of congressional demand. For instance, Attorney General William French Smith advised President Ronald Reagan that "Congress will have a legitimate need to know the preliminary positions taken by Executive Branch officials during internal deliberations only in the rarest of circumstances."[252] According to this view, the need for the Executive to prevent disclosure of its deliberations is at its apex when Congress attempts to discover information about ongoing policymaking within the Executive Branch. In that case, the Executive has argued, the deliberative process exemption serves as an important boundary marking the separation of powers. When congressional oversight "is used as a means of participating directly in an ongoing process of decisionmaking within the Executive Branch, it oversteps the bounds of the proper legislative function."[253]

The legal justifications asserted by the Barack Obama Administration for withholding documents from Congress during a House probe into Operation Fast and Furious appear to reflect a heavy reliance on the Deliberative Process Privilege. In a letter to the President asking him to invoke executive privilege over the subpoenaed documents, Attorney General Eric Holder noted that "Presidents have repeatedly asserted executive privilege to protect confidential Executive Branch deliberative materials from congressional subpoena."[254] The Attorney General went on to argue that "[i]t is well established that 'the doctrine of executive privilege . . . encompasses Executive Branch deliberative communications.'"[255] The dispute ultimately reached the courts, and although the litigation was eventually settled, a federal district court initially held that after "balancing the competing interests" at stake, in this instance the Deliberative Process Privilege must yield to Congress's "legitimate need" for the documents.[256]

Similar to Deliberative Process Privilege, the Law Enforcement Privilege operates to protect information, the disclosure of which by the Executive Branch would have a chilling effect on conducting "the candid and independent analysis essential to just and effective law enforcement."[257]

Presidential Immunity[edit | edit source]

Presidential Immunity to Suits and Official Conduct[edit | edit source]

In its 1867 decision Mississippi v. Johnson, the Supreme Court established that the President is largely beyond the reach of the judiciary by holding that it could not direct President Andrew Johnson in how he exercised his "purely executive and political" powers.[258] The Court stated, it had "no jurisdiction . . . to enjoin the President in the performance of his official duties."[259]

In subsequent decisions, however, the Court made clear that Johnson does not stand for the proposition that the President is immune from judicial process. For example, in United States v. Nixon,[260] the Court held that President Richard Nixon was amenable to a subpoena to produce evidence for use in a federal criminal case. There, the President had argued that he was immune to judicial process, claiming "that the independence of the Executive Branch within its own sphere insulates a President from a judicial subpoena in an ongoing criminal prosecution."[261] The Supreme Court unanimously disagreed, holding that "neither the doctrine of separation of powers, nor the need for confidentiality of high-level communications, without more, can sustain an absolute, unqualified Presidential privilege of immunity from judicial process under all circumstances."[262] The Court noted that the constitutional duty of courts "to do justice in criminal prosecutions" was counterbalanced by the claim of presidential immunity. To accept the President's argument, the Court further reasoned, would undermine the separation of powers that was at the core of "a workable government" as well as "gravely impair the role of the courts under Art. III."[263]

Throughout the Watergate investigation, it was unclear whether the President could be subject to criminal prosecution prior to being convicted upon impeachment.[264] The Court, however, resolved that courts may require the President to testify or produce documents in criminal proceedings.[265] This principle dates to the earliest days of the Republic, when Chief Justice John Marshall presided as the Circuit Justice for Virginia over the treason trial of Aaron Burr. In that case, Chief Justice Marshall concluded that President Thomas Jefferson could be subject to a subpoena to provide a document relevant to the trial.[266] Specifically, Chief Justice Marshall declared that, in contrast to common law privileges afforded the King of England, the President was not "exempt from the general provisions of the constitution," like the Sixth Amendment, which provides the defense compulsory process.[267]

Nonetheless, Chief Justice Marshall recognized that while the President could be subject to a criminal subpoena, the President could still withhold information from disclosure based on executive privilege.[268] In the two centuries since the Burr trial, the Executive Branch's practices[269] and Supreme Court rulings "unequivocally and emphatically endorsed" Chief Justice Marshall's position that the President was subject to federal criminal process.[270] In its 2020 opinion in Trump v. Vance, the Court extended this precedent to state criminal proceedings, concluding that the President was not absolutely immune from state criminal subpoenas.[271]

Finally, with respect to civil liability, the Court held in Nixon v. Fitzgerald that the President is absolutely immune in actions for civil damages for all acts within the "outer perimeter" of his official duties.[272] The Court's close decision was premised on the President's "unique position in the constitutional scheme," that is, the Court conducted a "kind of 'public policy' analysis" of the "policies and principles that may be considered implicit in the nature of the President's office in a system structured to achieve effective government under a constitutionally mandated separation of powers."[273] Although the Constitution expressly afforded Members of Congress immunity in matters arising from "speech or debate" and was silent on presidential immunity, the Court nonetheless considered immunity to be "a functionally mandated incident of the President's unique office, rooted in the constitutional tradition of the separation of powers and supported by our history."[274]

While the Court relied, in part, upon its practice of finding immunity for officers, such as judges, for whom the Constitution is silent, but for which a long common-law history exists, and in part upon historical evidence, which it admitted was fragmentary and ambiguous,[275] the Court focused on the fact that the President is different from all other executive officials. The President is charged with a long list of "supervisory and policy responsibilities of utmost discretion and sensitivity,"[276] and diversion of his energies by concerns with private lawsuits would "raise unique risks to the effective functioning of government."[277] Moreover, the presidential privilege is rooted in the separation of powers doctrine, counseling courts to tread carefully before intruding. While some interests are important enough to require judicial action, the Court reasoned that "merely private suit[s] for damages based on a President's official acts" do not serve this "broad public interest" necessitating the courts to act.[278] Finally, qualified immunity would not adequately protect the President, because judicial inquiry into a functional analysis of his actions would bring with it the evil immunity it was to prevent; absolute immunity was required.[279]

Presidential Immunity to Suits and Unofficial Conduct[edit | edit source]

In Clinton v. Jones,[280] the Court, in a case of first impression, held that President William Clinton did not have qualified immunity from civil suit for conduct alleged to have taken place prior to his election, and therefore denied President Clinton's request to delay both the trial and discovery. The Court held that its precedents affording the President immunity from suit for his official conduct--primarily so that the President could perform his duties effectively absent fear that a particular decision might lead to personal liability--did not apply when the alleged conduct at issue had occurred before his election. Moreover, the Supreme Court observed, the separation of powers doctrine did not require a stay of all private actions against the President, as the trial court had sufficient powers to accommodate the President's schedule and his workload so as not to impede the President from performing his duties. Finally, the Court stated that allowing such suits to proceed would not generate a large volume of politically motivated harassing and frivolous litigation. Congress has the power, the Court advised, if it should think necessary, to protect the President.[281].

While courts may be unable to compel the President to act or prevent him from acting, his acts, when performed, are generally subject to judicial review and disallowance. Typically, the President's subordinates, through whom he acts, may be sued pursuant to a legal fiction to enjoin committing acts that might lead to irreparable damage[282] or to compel by writ of mandamus performing a duty required by law.[283] Such suits are usually brought in the United States District Court for the District of Columbia.[284] In common law, courts may hold a subordinate executive officer personally liable for damages that resulted from any act the officer committed that was beyond his authority,[285] although he has immunity for anything, even malicious wrongdoing, that he does in performing his duties.[286]

Different rules prevail when a plaintiff sues an officer for wrongs based on a "constitutional tort."[287] The Court has suggested that, in some "sensitive" areas, officers acting in the "outer perimeter" of their duties may be accorded absolute immunity from liability.[288] To reach such officers for acts for which they can be held responsible, courts must use the general "federal question" jurisdictional statute.[289]. On deleting the jurisdictional amount, see Pub. L. No. 94-574, 90 Stat. 2721 (1976); Pub. L. No. 96-486, 94 Stat. 2369 (1980). If such suits are brought in state courts, they can be removed to federal district courts. 28 U.S.C. § 1442(a). See [1] 28 U.S.C. § 1331.

Qualified Immunity Doctrine[edit | edit source]

While the courts may be unable to compel the President to act or to prevent him from acting, his acts, when performed, are in proper cases subject to judicial review and disallowance. Typically, the subordinates through whom he acts may be sued, in a form of legal fiction, to enjoin the commission of acts which might lead to irreparable damage[290] or to compel by writ of mandamus the performance of a duty definitely required by law.[291] Such suits are usually brought in the United States District Court for the District of Columbia.[292] In suits under the common law, a subordinate executive officer may be held personally liable in damages for any act done in excess of authority,[293] although immunity exists for anything, even malicious wrongdoing, done in the course of his duties.[294]

Different rules prevail when such an official is sued for a "constitutional tort" for wrongs allegedly in violation of our basic charter,[295] although the Court has hinted that in some "sensitive" areas officials acting in the "outer perimeter" of their duties may be accorded an absolute immunity from liability.[296] Jurisdiction to reach such officers for acts for which they can be held responsible must be under the general "federal question" jurisdictional statute, which, as recently amended, requires no jurisdictional amount.[297]

  1. N. Small, Some Presidential Interpretations of the Presidency (1932); W. Binkley, The President and Congress (2d ed. 1962); Edward Corwin, Total War and the Constitution chs. 1, 7 (1946).
  2. Presidents William Harrison, James Polk, Zackary Taylor, and Millard Fillmore all fathered sentiments to this general effect. See 4 Messages and Papers of the Presidents 1860, 1864 (J. Richardson ed. 1896); 6 id. at 2513-19, 2561-62, 2608, 2615.
  3. See sources cited supra note here.
  4. Warren, Presidential Declarations of Independence, 10 B.U. L. Rev. 1 (1930).
  5. 7 Ops. Atty. Gen. 186, 209 (1855).
  6. 5 John Bassett Moore, International Law Digest 15-19 (1906).
  7. 4 Id. at 473-548; 5 id. at 19-32.
  8. Opinion on the Question Whether the Senate Has the Right to Negative the Grade of Persons Appointed by the Executive to Fill Foreign Missions (April 24, 1790) in 5 Writings of Thomas Jefferson 161, 162 (P. Ford ed., 1895).
  9. Id.
  10. 4 Moore, supra note here, at 680-81.
  11. This measure is now contained in 18 U.S.C. § 953.
  12. See Memorandum on the History and Scope of the Law Prohibiting Correspondence with a Foreign Government, S. Doc. No. 696, 64th Cong. (1917). The author was Mr. Charles Warren, then Assistant Attorney General. Further details concerning the observance of the Logan Act are given in Edward Corwin, supra note here, at 183-84, 430-31.
  13. 10 Annals of Cong. 596, 613-14 (1800). Marshall's statement is often cited, e.g., United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 318, 319 (1936), as if he were claiming sole or inherent executive power in foreign relations, but Marshall carefully propounded the view that Congress could provide the rules underlying the President's duty to extradite. When, in 1848, Congress did enact such a statute, the Court sustained it. Fong Yue Ting v. United States, 149 U.S. 698, 714 (1893)
  14. 9S. Doc. No. 56, 54th Cong. (1897).
  15. 1 Letters and Other Writings of James Madison 611 (1865).
  16. Id.
  17. Id.
  18. Letters of Helvidius, 5 Writings of James Madison 133 (G. Hunt ed., 1905).
  19. Id.
  20. Id.
  21. 4 J. Moore, supra note here, at 680-81.
  22. Id.
  23. Id at 243-44. (noting that "In the case of the Spanish-American republics, of Texas, of Hayti, and of Liberia, the President, before recognizing the new state, invoked the judgment and cooperation of Congress; and in each of these cases provision was made for the appointment of a minister, which, when made in due form, constitutes, as has been seen, according to the rules of international law, a formal recognition. In numerous other cases, the recognition was given by the Executive solely on his own responsibility"), See also Restatement, Foreign Relations §§ 204, 205.
  24. See 4 J. Moore, supra note here, at 243-44.
  25. S. Doc. No. 56, 54th Cong. 20-22 1897).
  26. Id.
  27. Id.
  28. Id.
  29. Id.
  30. Id.
  31. Senator Knute Nelson of Minnesota said: The President has asked us to give him the right to make war to expel the Spaniards from Cuba. He has asked us to put that power in his hands; and when we are asked to grant that power--the highest power given under the Constitution--we have the right, the intrinsic right, vested in us by the Constitution, to say how and under what conditions and with what allies that war-making power shall be exercised. 31 Cong. Rec. 3984 (1898).
  32. Joint Communique of the United States of America and the People's Republic of China (Jan. 1, 1979).
  33. President Carter's termination of the Sino-American Mutual Defense Treaty (SAM Defense Treaty) with Taiwan, which precipitated a constitutional and political debate, was perhaps an example of nonrecognition or more appropriately derecognition. The Supreme Court declined to hear a challenge to whether President Carter could unilaterally terminate the SAM Defense Treaty absent Senate consent. Goldwater v. Carter, 444 U.S. 996 (1979) (per curiam) (holding that the case was not justiciable). On recognition and nonrecognition policies in the post-World War II era, see Restatement, Foreign Relations, §§ 202, 203.
  34. 576 U.S. 1 (2015).
  35. Id. at 7.
  36. Id.
  37. The Court identified the Reception Clause, along with additional provisions in Article II, as providing the basis for the Executive's power over recognition. Id. at 11-15.
  38. See Zivotofsky, 576 U.S. at 29-30. While observing that Congress may not enact a law that directly contradicts a presidential recognition decision, the Court stated that Congress could still express its disagreement in multiple ways: For example, it may enact an embargo, decline to confirm an ambassador, or even declare war. But none of these acts would alter the President's recognition decision. Id. at 30
  39. 7 Ops. Atty. Gen. 453, 464-65 (1855).
  40. Id.
  41. Cf. Act of May 10, 1800, 2 Stat. 78. The provision has long since dropped out of the statute book.
  42. Runkle v. United States, 122 U.S. 543 (1887).
  43. Cf. In In re Chapman, 166 U.S. 661, 670-671 (1897), the Supreme Court held that presumptions in favor of official action preclude collateral attack on the sentences of courts-martial. See also United States v. Fletcher, 148 U.S. 84, 88-89 (1893); Bishop v. United States, 97 U.S. 334, 341-42 (1905), both of which in effect repudiate Runkle.
  44. In exercising his or her executive power under the Constitution, the President speaks and acts through the heads of the several departments in relation to subjects which appertain to their respective duties. The heads of the departments are the President's authorized assistants in the performance of the his or her executive duties, and their official acts, promulgated in the regular course of business, are presumptively the President's acts. Wilcox v. McConnel, 38 U.S. (13 Pet.) 498, 513 (1839). See also United States v. Eliason, 41 U.S. (16 Pet.) 291 (1842); Williams v. United States, 42 U.S. (1 How.) 290, 297 (1843); United States v. Jones, 59 U.S. (18 How.) 92, 95 (1856); The Confiscation Cases, 87 U.S. (20 Wall.) 92 (1874); United States v. Farden, 99 U.S. 10 (1879); Wolsey v. Chapman, 101 U.S. 755 (1880).
  45. 42 U.S. (1 How.) 290 (1843).
  46. 3 Stat. 723 (1823) (codified at 31 U.S.C. § 3324).
  47. See Williams, 42 U.S. at 297.
  48. Id.
  49. Id. at 297-98.
  50. See 38 Ops. Atty. Gen. 457, 458 (1936). If the President exercises his or her duty through subordinates, the President must appoint them or appoint the officers who appoint them, Buckley v. Valeo, 424 U.S. 1, 109-143 (1976), and he or she must have the power to discharge those officers in the Executive Branch, Myers v. United States, 272 U.S. 52 (1926).
  51. Seila Law LLC v. CFPB, No. 19-7, slip op. 2 (U.S. 2020).
  52. Id.
  53. Id.
  54. 1 Annals of Cong. 495, 499 (1789). For more information about the 1789 debate, also known as the "decision of 1789", see Art. II, Sec. 2, Cl. 2: Decision of 1789 and Removals in Early Republic.
  55. Id. Shortly thereafter, however, when the question arose as to the power of Congress to regulate the tenure of the Comptroller of the Treasury, Madison assumed a very different position. He conceded in effect that this office was to be an arm of certain of Congress's own powers and should therefore be protected against the President's removal power. Id. at 611-612. In Marbury v. Madison, 5 U.S. (1 Cr.) 137 (1803), Justice John Marshall drew a parallel distinction between the duties of the Secretary of State under the original act which had created a "Department of Foreign Affairs" and those which had been added by a later act. Id. at 166. The former duties were, according to Chief Justice Marshall, entirely political and thus must "conform precisely to the will of the President." Id. The latter duties, on the other hand, were exclusively of statutory origin and sprang from the powers of Congress. Id. Chief Justice John Marshall reasoned that with respect to these duties, the Secretary was "an officer of the law" and "amenable to the law for his conduct," suggesting that Congress may exercise certain removal power over Executive Officers.
  56. For a detailed discussion of the President's removal power and the evolution in its interpretation, see Art. II, Sec. 3: Overview of Take Care Clause through Art. II, Sec. 2, Cl. 2: Twenty-First Century Cases on Removal.
  57. For more information about the distinction between principal and inferior executive officers, see Art. II, Sec. 2, Cl. 2: Overview of Principal and Inferior Officers through Art. II, Sec. 2, Cl. 2: Modern Doctrine on Principal and Inferior Officers.
  58. 1 Ops. Atty. Gen. 624 (1823). See also B. Wyman, The Principles of the Administrative Law Governing the Relations of Public Officers 231-32 (1903) (describing the case of the Jewels of the Princess of Orange, in which the King of the Netherlands requested the return of certain jewels belonging to the Princess of Orange that were allegedly illegally imported into the United States and later seized by officers of the United States Customs; then Attorney General Roger Taney expressed the view that while the President may order the District Attorney to discontinue a prosecution, the decision to comply resides with the District Attorney, and in the event he "still continues a prosecution which the President is satisfied ought not to continue, the removal of the disobedient officer and the substitution of one more worthy in his place would enable the President through him faithfully to execute the law.").
  59. 37 U.S. (12 Pet.) 524 (1838).
  60. See id. at 528.
  61. See id. at 543.
  62. See id. at 610.
  63. Id.
  64. Id.
  65. Id.
  66. United States v. Eliason, 41 U.S. (16 Pet.) 291, 301-02 (1842); Kurtz v. Moffitt, 115 U.S. 487, 503 (1885); Smith v. Whitney, 116 U.S. 167, 180-81 (1886). For an analysis of the approach to determining the validity of presidential, or other executive, regulations and orders under purported congressional delegations or implied executive power, see Chrysler Corp. v. Brown, 441 U.S. 281, 301-16 (1979).
  67. In re Neagle, 135 U.S. 1 (1890).
  68. 135 U.S. at 64. The phrase, "a law of the United States," came from the Act of March 2, 1833, 4 Stat. 632. However, in the Act of June 25, 1948, 62 Stat. 965 (codified at 28 U.S.C. § 2241(c)(2)), the phrase is replaced by the term, "an act of Congress," thereby eliminating the basis of the holding in Neagle.
  69. Neagle, 135 U.S. at 64-65.
  70. 236 U.S. 459 (1915). See also Mason v. United States, 260 U.S. 545 (1923).
  71. See Midwest Oil, 236 U.S. at 471-72.
  72. See Sally K. & William D. Reeves, Two Hundred Years of Maritime New Orleans: An Overview, 35 Tul. Mar. L.J. 183, 186 (2010) (describing the Spanish intendant's refusal to allow American use of the port of New Orleans before its acquisition by the United States).
  73. 10 The Works of Thomas Jefferson in Twelve Volumes 41 (Paul L. Ford ed., 1905) (Third Annual Message to Congress). The next year, President Jefferson reported that the appropriation was slated for use. See Id. at 115 (Fourth Annual Message to Congress) (stating that the 1803 appropriation "is now in a course of execution to the extent there provided for").
  74. See, e.g., Ulysses S. Grant, Special Message to the House of Representatives (Aug. 14, 1876), reprinted in 7 A Compilation of the Messages and Papers of the Presidents: 1789-1897, at 377 (James D. Richardson, ed., 1898) (asserting that though he approved of an act providing appropriations for river and harbor projects, no funds would be spent on projects that served "purely private or local interest" as opposed to national interests).
  75. See, e.g., H.R. Doc. No. 89-492, at 4 (1966) (message from President Lyndon B. Johnson stating that, as a means of controlling inflation, his Administration would withhold sums appropriated above the levels set forth in the administration's budget request); Budget of the United States Government For The Fiscal Year Ending June 30, 1943, at IX (1942) (relaying President Franklin D. Roosevelt's plan to restrict expenditures for certain civilian construction projects so as to focus on the war effort).
  76. See H.R. Exec. Doc. No. 44-23, at 2 (1876) (report of Secretary of War James Cameron arguing that spending "the full amount" of an appropriation "was in no way mandatory").
  77. Presidential Authority to Direct Departments and Agencies to Withhold Expenditures from Appropriations Made, 1 Op. O.L.C. Supp. 12, 16 (1937). In 1950, Congress authorized the use of reserves to realize savings. See General Appropriations Act of 1951, ch. 896, § 1211, Pub. L. No. 81-759, 64 Stat. 595, 765-66 (1950).
  78. Executive Impoundment of Appropriated Funds: Hearings Before the Subcomm. on Separation of Powers of the S. Comm. on the Judiciary, 92nd Cong. 96 (1971) [hereinafter 1971 Impoundment Hearings] (statement of C. Weinberger, Deputy Director, Off. of Mgmt. & Budget, Exec. Off. of the President) (asserting that to stay within the statutory debt limit President Eisenhower directed that fiscal year (FY) 1958 spending not exceed FY1957 levels).
  79. Josh Chafetz, Congress's Constitution: Legislative Authority and the Separation of Powers 64 (2017) (noting estimates of $18 billion in Nixon-era withholdings and scholarly opinion that the extent of these impoundments constituted "a difference in kind, not simply in degree," from prior impoundments).
  80. Withholding of Funds for Housing and Urban Development Programs, Fiscal Year 1971: Hearing before the Subcomm. on Hous. and Urban Affs. of the S. Comm. on Banking, Hous., and Urban Affs., 92nd Cong. 163, 165 (1971) (statement of George Romney, Sec'y of Transp.) (explaining that the administration did not "intend to accelerate" grant programs it had "scheduled for termination" and that therefore "extra" funds provided by Congress for one fiscal year would not be spent until the next).
  81. Letter to Rep. Clement J. Zablocki, U.S. House of Representatives, from Caspar W. Weinberger, Deputy Director, Office of Management and Budget (Mar. 9, 1971), reprinted in 1971 Impoundment Hearings, supra note here, at 310 (urging that sums the administration was withholding from infrastructure categorical grant programs be repurposed for a revenue sharing program).
  82. This congressional interest eventually resulted in the Congressional Budget and Impoundment Control Act of 1974, which establishes the statutory framework that today governs the delay or withholding of budget authority. See Pub. L. No. 93-344, Title X, 88 Stat. 297, 332 (1974).
  83. For a discussion of line-item vetoes, see Art. I, Sec. 7, Cl. 2: Line Item Veto.
  84. See, e.g., Impoundment of Appropriated Funds by the President, Joint Hearings Before the Ad Hoc Subcomm. on Impoundments of Funds of the S. Comm. on Gov't Ops. and the Subcomm. on Separation of Powers of the S. Comm. on the Judiciary, 93d Cong. 59 (1973) (statement of Sen. Hubert H. Humphrey).
  85. Officials also argued that, acting under his foreign affairs or Commander in Chief powers, the President could withhold spending in these areas. See Id. at 271 (statement of Roy L. Ash, Director-Designate, Off. of Mgmt. & Budget, Exec. Off. of the President).
  86. See id. at 372, 381 (testimony of Joseph T. Sneed, Deputy Att'y Gen. of the United States).
  87. The Supreme Court resolved one impoundment-related dispute on statutory grounds. See Train v. City of New York, 420 U.S. 35, 43-44 (1975).
  88. 37 U.S. 524 (1838).
  89. See, e.g., The President's Veto Power, 12 Op. O.L.C. 128, 167 (1988) (noting that the Supreme Court has not recognized "an inherent power to impound" and that Kendall "can be read to support the proposition that the executive's duty faithfully to execute the laws requires it to spend funds at the direction of Congress"). Kendall did not involve foreign affairs or defense duties, where additional considerations might apply for determining the President's authority to engage in impoundment.
  90. Act of July. 2, 1836, ch. 284, 6 Stat. 665.
  91. Id.
  92. Kendall, 37 U.S. at 611.
  93. Id. at 612-13.
  94. Id.
  95. See United States v. Nixon, 418 U.S. 683, 711 (1974) ("Nowhere in the Constitution . . . is there any explicit reference to a privilege of confidentiality, yet to the extent this interest relates to the effective discharge of a President's powers, it is constitutionally based.").
  96. See Todd Garvey, Cong. Rsch. Serv., R47102, Executive Privilege and Presidential Communications: Judicial Principles (2022).
  97. Id. at 708.
  98. See, e.g., S. Select Comm. On Presidential Campaign Activities v. Nixon, 498 F.2d 725 (D.C. Cir. 1974).
  99. See, e.g., Nixon, 418 U.S. at 686.
  100. See, e.g., Dellums v. Powell, 561 F.2d 242 (D.C. Cir. 1977).
  101. Nixon, 418 U.S. at 707.
  102. See Nixon v. Adm'r of Gen. Servs., 433 U.S. 425 (1977).
  103. Marbury v. Madison, 5 U.S. (1 Cranch) 137, 169-70 (1803) (suggesting that "[t]he intimate political relation, subsisting between the president of the United States and the heads of departments, necessarily renders any legal investigation of the acts of one of those high officers peculiarly irksome, as well as delicate; and excites some hesitation with respect to the propriety of entering into such investigation"); United States v. Burr, 25 F. Cas. 30, 37 (noting that if a letter to President Jefferson "does contain any matter which it would be imprudent to disclose, which it is not the wish of the executive to disclose, such matter, if it be not immediately and essentially applicable to the point, will, of course, be suppressed").
  104. In re Sealed Case, 121 F.3d 729, 738 (D.C. Cir. 1997).
  105. Id. at 739-40 ("[I]t was not until the 1970s and Watergate-related lawsuits seeking access to President Nixon's tapes as well as other materials that the existence of the presidential privilege was definitively established as a necessary derivation from the President's constitutional status in a separation of powers regime."); see also Id. at 742 ("These lawsuits, referred to generically as the Nixon cases, remain a quarter century later the leading--if not the only--decisions on the scope of the presidential communications privilege.").
  106. The Supreme Court recently issued an opinion addressing congressional subpoenas for presidential records, but that case did not involve an assertion of executive privilege. See Trump v. Mazars USA, LLP, No. 19-760, slip op. at 5 (U.S. July 9, 2020) ("The President did not, however, resist the subpoenas by arguing that any of the requested records were protected by executive privilege."); Id. at 2 ("We have never addressed a congressional subpoena for the President's information.").
  107. See S. Select Comm. on Presidential Campaign Activities v. Nixon, 498 F.2d 725 (D.C. Cir. 1974). The D.C. Circuit recently reached the merits of a dispute between the House and a former President. Trump v. Thompson, 20 F.4th 10 (D.C. Cir. 2021), cert. denied, No. 21A272, slip op. (U.S. Jan. 20, 2022) (2022).
  108. In re Sealed Case, 121 F.3d at 736 (noting that "executive officials have claimed a variety of privileges to resist disclosure of information"). See also John E. Bies, Primer on Executive Privilege and the Executive Branch Approach to Congressional Oversight, Lawfare (June 16, 2017), [2] ("[A] review of Executive Branch practice identifies a number of categories of information that the Executive Branch, at least, believes may be protected by an invocation of the privilege.").
  109. See Rep. on President Bush's Assertion of Executive Privilege in Response to the Committee Subpoena to Attorney General Michael B. Mukaskey, H. Comm. on Oversight and Gov't Reform, 110th Cong. 8 (Comm. Print 2008) (rejecting an executive privilege claim on the grounds that "[t]he Attorney General did not cite a single judicial decision recognizing this alleged privilege"); H.R. Rep. No. 105-728, at 16 n. 43 (1998) ("As the D.C. Circuit has recently held, the doctrine of executive privilege which arises from the constitutional separation of powers applies only to decisionmaking of the President. Since the subject of the Committee's subpoena is not one that does (or legally could) involve Presidential decisionmaking, no constitutional privilege could be invoked here.") (citations omitted)).
  110. See Assertion of Executive Privilege Over Documents Generated in Response to Congressional Investigation into Operation Fast and Furious, 8 Op. O.L.C. 101, 116 (2012) ("The scope of executive privilege includes several related areas in which confidentiality within the Executive Branch is necessary for the effective execution of the laws.").
  111. See 8 Op. O.L.C. 101, 116 (1984) (reasoning that "[t]he scope of executive privilege includes several related areas"); 13 Op. O.L.C. 153, 154 (1989) (reasoning that "the Executive Branch's interest in keeping the information confidential" is "usually discussed in terms of 'executive privilege'").
  112. See , Rep. on President Bush's Assertion of Executive Privilege in Response to the Committee Subpoena to Attorney General Michael B. Mukaskey H. Comm. on Oversight and Gov't Reform, 110th Cong. 8 (Comm. Print 2008) ("The Attorney General's argument that the subpoena implicates the 'law enforcement component' of executive privilege is equally flawed. There is no basis to support the proposition that a Law Enforcement Privilege, particularly one applied to closed investigations, can shield from congressional scrutiny information that is important for addressing congressional oversight concerns. The Attorney General did not cite a single judicial decision recognizing this alleged privilege."); H.R. Rep. No. 105-728, at 16 n. 43 (1998) ("As the D.C. Circuit has recently held, the doctrine of executive privilege which arises from the constitutional separation of powers applies only to decisionmaking of the President. Since the subject of the Committee's subpoena is not one that does (or legally could) involve Presidential decisionmaking, no constitutional privilege could be invoked here.") (citations omitted).
  113. United States v. Nixon, 418 U.S. 683, 710 (1974).
  114. Id. at 711.
  115. In re Sealed Case, 121 F.3d 729, 746 (D.C. Cir. 1997). Given its broad scope, the Deliberative Process Privilege is "the most frequent form of executive privilege raised." Id. at 737.
  116. In In re Sealed Case, the D.C. Circuit determined that "the deliberative process privilege is primarily a common law privilege," but that "[s]ome aspects of the privilege, for example the protection accorded the mental processes of agency officials, have roots in the constitutional separation of powers." 121 F.3d at 745, 737 n.4.
  117. Comm. on Oversight & Gov't Reform v. Lynch, 156 F. Supp. 3d 101, 104 (D.D.C. 2016). The scope and source of the Law Enforcement Privilege is unclear, particularly when asserted in the context of congressional investigations where committees have voiced consistent objections to its use. Congress has previously viewed the Executive Branch's position on the confidentiality of law enforcement information as a nondisclosure "policy" rather than a constitutionally based privilege. See Rep. on President Bush's Assertion of Executive Privilege in Response to the Committee Subpoena to Attorney General Michael B. Mukaskey, H. Comm. on Oversight and Gov't Reform, 110th Cong. 8 (Comm. Print 2008).
  118. The Supreme Court recently stated in dicta that the recipients of a congressional subpoena "have long been understood to retain common law . . . privileges with respect to certain materials. . . ." Trump v. Mazars USA, LLP, No. 19-760, slip op. at 12 (U.S. July 9, 2020). This statement is in tension with the congressional practice of treating common law privileges as discretionary and has been subject to some criticism. See Christopher M. Davis, Todd Garvey, Ben Wilhelm, et al. Cong. Rsch. Serv., RL30240, Congressional Oversight Manual, at 62-63 (2022).
  119. See Brady v. Maryland, 373 U.S. 83 (1963), and Rule 16, Federal Rules of Criminal Procedure. For an early judicial dispute involving executive privilege concerns, see United States v. Burr, 25 F. Cas. 30 and 187 (C.C.D. Va. 1807), where Aaron Burr sought certain exculpatory material from President Thomas Jefferson.
  120. See, e.g., Alderman v. United States, 394 U.S. 165 (1969).
  121. 92 U.S. 105 (1876).
  122. Id.
  123. Totten v. U.S., 92 U.S. at 107.
  124. Id. at 106.
  125. 544 U.S. 1 (2005).
  126. The Totten bar has been labeled a "rule of non-justiciability, akin to a political question." Al-Haramain Islamic Found. Inc. v. Bush, 507 F.3d 1190, 1197 (9th Cir. 2007).
  127. Id. at 8.
  128. General Dynamics Corporation v. United States, 563 U.S. 478, 482 (2011).
  129. Id. at 487.
  130. Id. at 486.
  131. Id. at 486 (quoting Totten v. United States, 92 U.S. 105, (1876)).
  132. Id. at 491.
  133. 345 U.S. 1 (1953).
  134. Id. at 3.
  135. Id.
  136. 345 U.S. 1 (1953).
  137. Id. at 8.
  138. Id. at 7-8, 9-10, 11. Privilege is often claimed for information relating to government employee clearances, disciplines, or discharges. See, e.g., Webster v. Doe, 486 U.S. 592 (1988); Department of the Navy v. Egan, 484 U.S. 518 (1988). After the Court approved a government secrecy agreement for CIA employees, Snepp v. United States, 444 U.S. 507 (1980), the government expanded its secrecy program for classified and "classifiable" information. When Congress sought to curb this policy, a federal district judge declared the restrictions void as they encroached on the President's executive powers. Nat'l Fed'n of Fed. Emps. v. United States, 688 F. Supp. 671 (D.D.C. 1988), vacated and remanded sub nom. Am. Foreign Serv. Ass'n v. Garfinkel, 490 U.S. 153 (1989).
  139. Reynolds, 345 U.S. at 11, n.26.
  140. No. 20-827, slip op. (U.S. Mar. 3, 2022).
  141. No. 20-828, slip op. (U.S. Mar. 4, 2022).
  142. See United States v. Nixon, 418 U.S. 683, 705-06 (1974).
  143. Id. at 708. In this sense, executive privilege is partly based on the theory that transparency can inhibit decisionmaking.
  144. See Nixon v. Adm'r of Gen. Servs., 433 U.S. 425 (1977).
  145. See, e.g., Raoul Berger, Executive Privilege: A Constitutional Myth 1 (1974) (describing executive privilege as a "myth" and a "product of the nineteenth century, fashioned by a succession of presidents who created 'precedents' to suit the occasion.").
  146. Marbury v. Madison, 5 U.S. (1 Cranch) 137, 169-70 (1803) (suggesting that "[t]he intimate political relation, subsisting between the president of the United States and the heads of departments, necessarily renders any legal investigation of the acts of one of those high officers peculiarly irksome, as well as delicate; and excites some hesitation with respect to the propriety of entering into such investigation"); United States v. Burr, 25 F. Cas. 30, 37 (noting that if a letter to President Jefferson "does contain any matter which it would be imprudent to disclose, which it is not the wish of the executive to disclose, such matter, if it be not immediately and essentially applicable to the point, will, of course, be suppressed"). The Supreme Court addressed the State Secrets Privilege in United States v. Reynolds, 345 U.S. 1, 7-8 (1953) (articulating a "privilege which protects military and state secrets" that "belongs to the Government and must be asserted by it" but "is not to be lightly invoked.").
  147. In re Sealed Case, 121 F.3d at 738.
  148. Id. at 739-40 ("[I]t was not until the 1970s and Watergate-related lawsuits seeking access to President Nixon's tapes as well as other materials that the existence of the presidential privilege was definitively established as a necessary derivation from the President's constitutional status in a separation of powers regime."); see also Id. at 742 ("These lawsuits, referred to generically as the Nixon cases, remain a quarter century later the leading--if not the only--decisions on the scope of the presidential communications privilege.").
  149. See, e.g., Nixon, 418 U.S. 683, 707 (1974) (assessing the Privilege in the context of a criminal trial);Sirica, 487 F.2d 700, 717 (D.C. Cir. 1973) (assessing the Privilege in the context of a grand jury investigation); Senate Select, 498 F.2d at 731 (assessing the Privilege in the context of a congressional investigation); Dellums v Powell, 561 F.2d 242, 249 (D.C. Cir. 1977) (assessing the Privilege in the context of civil case).
  150. President Nixon also asserted the Privilege in the impeachment context in response to subpoenas issued by the House Judiciary Committee. The House did not, however, enlist the aid of the courts in order to enforce its demands for information in that context, and instead chose to respond to the President's refusals by adopting a specific article of impeachment rebuking the President for his failure to comply with the committee's subpoenas. See H. Rep. No. 93-1305, 93rd Cong. 206-13 (1974).
  151. See In re Sealed Case, 121 F.3d 729, 736 (D.C. Cir. 1997) ("Since the beginnings of our nation, executive officials have claimed a variety of privileges to resist disclosure of information the confidentiality of which they felt was crucial to fulfillment of the unique role and responsibilities of the executive branch of our government.").
  152. Disputes between Congress and the President over executive privilege can be traced back to the 1790s. See Mark J. Rozell, Executive Privilege: Presidential Power, Secrecy, and Accountability 31-32 (2002) (describing the House's resistance to President Washington's refusal to disclose information relating to the Jay Treaty).
  153. United States v. Nixon, 418 U.S. 683, 711 (1974) ("Nowhere in the Constitution . . . is there any explicit reference to a privilege of confidentiality, yet to the extent this interest relates to the effective discharge of a President's powers, it is constitutionally based."); Watkins v. United States, 354 U.S. 178, 187 (1957) ("The power of the Congress to conduct investigations is inherent in the legislative process."). For a thorough discussion of the judicial treatment of executive privilege see Todd Garvey, Cong. Rsch. Serv., R47102, Executive Privilege and Presidential Communications: Judicial Principles (2022).
  154. See In re Sealed Case, 121 F.3d at 729 ("[G]iven the restrictions on congressional standing and the courts' reluctance to interfere in political battles, few executive-congressional disputes over access to information have ended up in the courts."); see also Breaking the Logjam: Principles and Practice of Congressional Oversight and Executive Privilege, Hearing before the S. Comm. on the Judiciary, Subcomm. on Fed. Cts., Oversight, Agency Action and Fed. Rts., 117th Cong. (2021) (2021).
  155. See S. Select Comm. On Presidential Activities v. Nixon, 498 F.2d 725 (D.C. Cir. 1974); see also James Hamilton, The Power to Probe: A Study of Congressional Investigations 197 (1976) (noting that the Senate Select Committee's lawsuit to enforce the subpoena issued to President Nixon was "the first civil action to enforce a congressional subpoena issued to the executive").
  156. See Cheney v. U.S. Dist. Ct., 541 U.S. 913, 389 (2004) ("These 'occasion[s] for constitutional confrontation between the two branches' should be avoided whenever possible"); see also Todd Garvey, Cong. Rsch. Serv., LSB10432, Resolving Subpoena Disputes Between the Branches: Potential Impacts of Restricting the Judicial Role (2020).
  157. In addition to other justiciability issues, the Speech or Debate Clause, which generally prevents direct pre-enforcement challenges to congressional subpoenas, also plays a role in limiting litigation connected to Congress's investigatory powers. See Todd Garvey, Cong. Rsch. Serv., R45043, Understanding the Speech or Debate Clause (2017).
  158. See Trump v. Mazars USA, LLP, No. 19-760, slip op. at 2 (U.S. July 9, 2020) ("We have never addressed a congressional subpoena for the President's information.").
  159. There has been a recent increase in information access disputes between the branches making their way to the courts. See, e.g., Civil Enforcement of Congressional Authorities: Hearing before Subcomm. on Cts., Intell. Prop., and the Internet of the Comm. on the Judiciary, 117th Cong. (2021), (Statement of Todd Garvey). These cases have not, however, directly involved the merits of an interbranch executive privilege disputes.
  160. See S. Select Comm. on Presidential Campaign Activities v. Nixon, 498 F.2d 725 (D.C. Cir. 1974). The D.C. Circuit reached the merits of a dispute between a House committee and a former President in 2021. Trump v. Thompson, 20 F.4th 10 (D.C. Cir. 2021), cert. denied, 142 S. Ct. 1350 (2022).
  161. S, Select, 498 F.2d at 726. The House Judiciary Committee's subpoenas were similarly rejected by the President, but instead of going to the courts for enforcement, the Committee adopted as one of its Articles of Impeachment the refusal of the President to honor its subpoenas. President Nixon's position was set out in a June 9, 1974, letter to the Chairman of the House Judiciary Committee. 10 Wkly. Comp. Pres. Docs. 592 (1974). The impeachment article and supporting material are set out in H. Rep. No. 93-1305, 93d Cong., 2d Sess. (1974).
  162. See Trump v. Mazars USA, LLP, No. 19-760, slip op. at 2 (U.S. July 9, 2020).
  163. Trump v. Mazars USA, LLP, No. 19-760, slip op. at 2 (U.S. July 9, 2020).
  164. Id. at 3.
  165. Id.
  166. Id. While the papers at stake in Mazars were the President's personal records, the Court concluded that the close connection between the Office of the President and its occupant did not diminish the separation of powers concerns at issue, and may have even posed a "heightened risk" given the records' "less evident connection to a legislative task." Id. at 2. The Mazars Court likewise rejected the argument that separation of powers concerns were diminished because the records at issue were in the hands of a third party, as opposed to the President himself. Id. For the Court, the central issue was that the President's information was at stake, and ruling otherwise would have encouraged side-stepping constitutional requirements. Id.
  167. Id.
  168. Id. at 5. The Court observed that "[o]ther considerations may be pertinent as well." Id. at 6. While adopting this four-factor test, the Court rejected the need for a more "demanding" standard that would have required Congress to demonstrate a specific need for particular records that were "critical" to a legislative purpose. Id. at 2 (concluding that imposing a standard akin to the one governing executive privilege claims would "risk seriously impeding Congress in carrying out" inquiries to obtain information it needs to legislate effectively).
  169. See Trump v. Vance, No. 19-635, slip op. (U.S. July 9, 2020).
  170. United States v. Burr, 25 F. Cas. 30, 34 (C.C.D. Va. 1807) (No. 14,692D).
  171. See id. (observing that while the King is born to power and can "do no wrong," the President, by contrast is "of the people" and subject to the law).
  172. United States v. Burr, 25 F. Cas. 187, 192 (C.C.D. Va. 1807) (No. 14,694).
  173. Vance, No. 19-635, slip op. (discussing historical practices of Presidents Monroe, Grant, Ford, Carter, and Clinton).
  174. Clinton v. Jones, 520 U.S. 681, 704 (1997) (citing United States v. Nixon, 418 U.S. 683, 706 (1974)). In rejecting separation of powers challenges to claims that the President is immune from federal criminal process, the Court rejected the argument that criminal subpoenas "rise to the level of constitutionally forbidden impairment of the Executive's ability to perform its constitutionally mandated functions." Id. at 702-03.
  175. See Vance, No. 19-635 (rejecting the categorical argument that state criminal subpoenas would unduly distract the President, impose a stigma on the presidency, or result in harassment by state prosecutors). The Vance Court also rejected the argument that a state prosecutor should have to satisfy a heightened standard of need before seeking a sitting President's records, absent any constitutional privileges. Id . Importantly, in Vance, the state prosecutor was seeking private presidential records, and no claim of executive privilege was at stake. Id. (Kavanaugh, J., concurring in the judgment). The Court refused to extend the heightened-need standard established in Nixon to private records, discussed infra, reasoning that: (1) Burr and its progeny foreclosed that argument; (2) the heightened-need standard was unnecessary to allow the President to fulfill his Article II functions; and (3) the public interest in fair and effective law enforcement favors "comprehensive access to evidence." Id. (majority opinion).
  176. See id.
  177. Id.
  178. Id.
  179. Id.
  180. 418 U.S. 683, 708 (1974)
  181. United States v. Nixon, 418 U.S. 683 (1974). The Nixon opinion, which was before the Court on expedited direct appeal from the district court decision in Mitchell, was issued with some urgency. Noting the "public importance of the issues presented and the need for their prompt resolution," the Court issued its opinion only sixteen days after oral argument.
  182. Id. at 706 ("[N]either the doctrine of separation of powers, nor the need for confidentiality of high-level communications, without more, can sustain an absolute, unqualified Presidential privilege of immunity from judicial process under all circumstances.").
  183. Id. at 711 ("Nowhere in the Constitution . . . is there any explicit reference to a privilege of confidentiality, yet to the extent this interest relates to the effective discharge of a President's powers, it is constitutionally based.").
  184. Id. at 708, 705.
  185. Id. at 709-10 ("These and other interests are recognized in law by privileges against forced disclosure, established in the Constitution, by statute, or at common law. Whatever their origins, these exceptions to the demand for every man's evidence are not lightly created nor expansively construed, for they are in derogation of the search for truth.").
  186. Id. at 704.
  187. Nixon, 418 U.S. at 705.
  188. Id. at 705.
  189. Id. at 706.
  190. Id. at 707.
  191. Id.
  192. Nixon ("In this case we must weigh the importance of the general privilege of confidentiality of Presidential communications in performance of the President's responsibilities against the inroads of such a privilege on the fair administration of criminal justice.").
  193. Id. at 713.
  194. Id.
  195. Id. at 714.
  196. During that review (at least when the Privilege is asserted in response to a criminal trial subpoena) a court must distinguish between material that is both "probably admissible in evidence and relevant" and that which is not. Id. at 714. The latter material must be "restored to its privileged status" and "accorded that high degree of respect due the President of the United States," while the former would be provided to the requesting party. Id. at 714-16.
  197. Id. at 710.
  198. Id. at 710.
  199. Id. at 712 n.19. Shortly after the Supreme Court's opinion in Nixon, the House Judiciary Committee voted to recommend articles of impeachment against President Nixon for obstruction of justice, abuse of power, and contempt of Congress for his refusal to comply with congressional subpoenas. The contempt of Congress allegation was based on the President's failure to comply with subpoenas issued by the House Judiciary committee as part of its impeachment investigation. H.R. Rep. No. 93-1305, at 4 (1974). On August 9, 1974, before the full House considered the articles of impeachment but after determining that he had lost support in Congress and would not survive impeachment, President Nixon resigned.
  200. Nixon v. Adm'r of Gen. Servs. (Nixon II), 433 U.S. 425 (1977).
  201. Id. at 430-33.
  202. Id. 451 (noting a "consistent historical practice" in which archivists "have performed the identical task in each of the Presidential libraries without any suggestion that such activity has in any way interfered with executive confidentiality").
  203. Id. at 452-54.
  204. See Art. II, Sec. 3: Former Presidents and Communications Privilege.
  205. Nixon II, 433 U.S. at 451.
  206. Id. at 449 (citations omitted). As such, it was only a "small fraction" of Nixon's complete collection of presidential records that would be covered by the Privilege. Id. at 454.
  207. Cheney v. U.S. Dist. Ct., 542 U.S. 367, 383-91 (2004)
  208. Id. at 376.
  209. Id. at 381. That action was in the form of mandamus, which among other things requires a party to show that there is "no other adequate means to attain the relief" desired. Id. at 403.
  210. Id. at 376-77.
  211. Id. at 390.
  212. Id. at 391, 389.
  213. Cheney, 542 U.S. at 391.
  214. Id. at 385 (noting that "special considerations control when the Executive Branch's interests in maintaining the autonomy of its office and safeguarding the confidentiality of its communications are implicated."). See also, Karnoski v. Trump, 926 F.3d 1180, 1205-06 (9th Cir. 2019).
  215. Cheney, 542 U.S. at 384.
  216. Id. at 386 (noting that in the criminal system decisions are made by a "publicly accountable prosecutor subject to budgetary considerations" and subject to the "responsible exercise of prosecutorial discretion").
  217. The Supreme Court did appear to draw a distinction between the criminal process and the legislative process in Trump v. Mazars USA, LLP, No. 19-715 (U.S. May 12, 2020) ("Unlike in criminal proceedings, where '[t]he very integrity of the judicial system' would be undermined without 'full disclosure of all the facts,' efforts to craft legislation involve predictive policy judgments that are 'not hamper[ed] . . . in quite the same way' when every scrap of potentially relevant evidence is not available. While we certainly recognize Congress's important interests in obtaining information through appropriate inquiries, those interests are not sufficiently powerful to justify access to the President's personal papers when other sources could provide Congress the information it needs.") (citations omitted).
  218. Nixon v. Adm'r of Gen. Servs. (Nixon II), 433 U.S. 425, 446-49 (1977).
  219. Id. at 449.
  220. Id. at 448.
  221. Id. at 451.
  222. Id. at 449.
  223. Id., at 449.
  224. Id.
  225. Trump v. Thompson, 20 F.4th 10 (D.C. Cir. 2021), cert. denied, No. 21A272 (U.S. Jan. 20, 2022).
  226. Id. at 16.
  227. 44 U.S.C. § 2205(2)(C).
  228. Id. at § 2205(2).
  229. Thompson, 20 F.4th at 20-21.
  230. Id. at 21-22.
  231. Trump v. Thompson, 573 F. Supp. 3d 1, 26 (D.D.C. 2021).
  232. Id. at 29.
  233. Id. at 27-29.
  234. Thompson.
  235. Id. at 33.
  236. Id.
  237. Id. at 35.
  238. Id.
  239. Id. at 35-36.
  240. Id., at 37.
  241. Id. at 38 (quoting Trump v. Mazars USA, LLP, No. 19-715 (U.S. May 12, 2020)).
  242. Id. at 33.
  243. Id. at 41 ("The legislative interest at stake passes muster under any of the tests pressed by former President Trump.").
  244. Trump v. Thompson, No. 21A272 (U.S. Jan. 20, 2022). The Supreme Court later denied certiorari. No. 21A272 (U.S. Jan. 20, 2022).
  245. Id. Justice Clarence Thomas would have granted the former President's application. Justice Brett Kavanaugh authored a concurrence to clarify his position that "[a] former President must be able to successfully invoke the Presidential communications privilege for communications that occurred during his Presidency." Id. (Kavanaugh, J., concurring). Once invoked, it appears to be Justice Kavanaugh's view that the tests from Nixon and Senate Select "may apply to a former President's privilege claim as they do to a current President's privilege claim." Id.
  246. Id..
  247. Given its broad scope, the Deliberative Process Privilege is "the most frequent form of executive privilege raised." In re Sealed Case, 121 F.3d 729, 737 (D.C. Cir. 1997).
  248. Id. at 737 (quoting NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 151 (1975)).
  249. See Assassination Archives & Rsch. Ctr. v. CIA, No. 18-5280, 2020 U.S. App. LEXIS 40001, 5-6 (D.C. Cir. Dec. 21, 2020) ("The privilege covers information that is both 'predecisional' and 'deliberative.' Documents are predecisional if they were 'generated before the adoption of an agency policy,' and deliberative if they 'reflect[ ] the give-and-take of the consultative process.'") (quoting Coastal States Gas Corp. v. Dep't of Energy, 617 F.2d 854, 866 (D.C. Cir. 1980).
  250. See Comm. on Oversight & Gov't Reform v. Lynch, 156 F. Supp. 3d 101, 112-14 (D.D.C. 2016) (finding that a congressional committee's need for deliberative materials outweighed the Executive Branch's interest in confidentiality).
  251. See EPA v. Mink, 410 U.S. 73, 85-90 (1973).
  252. Letter from Attorney General William French Smith to President Reagan (October 31, 1981), reprinted in 5 Op. O.L.C. 27, 31 (1981) [hereinafter Smith Letter/Watt]; accord Memorandum to General Counsels' Consultative Group Re: Congressional Requests for Confidential Executive Branch Information, 13 Op. O.L.C. 153, 192 (1989) ("Congress will seldom have any legitimate legislative interest in knowing the precise predecisional positions and statements of particular Executive Branch officials.") [hereinafter Barr Memo]; Letter from Assistant Attorney General Robert Rabkin, Office of Legislative Affairs, DOJ, to Honorable John Linder, Chairman House Subcommittee on Rules and Organization of the House, Committee on Rules (June 27, 2000), at 5-6 ("[T]he Department has a broad confidentiality interest in matters that reflect its internal deliberative process. In particular, we have sought to ensure that all law enforcement and litigation decisions are products of open, frank, and independent assessments of the law and facts--uninhibited by political and improper influences that may be present outside the department. We have long been concerned about the chilling effect that would ripple throughout government if prosecutors, policy advisors at all levels and line attorneys believed that their honest opinion--be it 'good' or 'bad'--may be the topic of debate in Congressional hearings or floor debates. These include assessments of evidence and law, candid advice on strength and weaknesses of legal arguments, and recommendations to take or not to take legal action against individuals and corporate entities."); see also Smith Letter/Watt, supra, at 30 ("congressional oversight interest will support a demand for predecisional, deliberative documents in the possession of the Executive Branch only in the most unusual circumstances").
  253. Smith Letter/Watt supra note hereat 30; see also Executive Privilege: The Withholding of Information by the Executive: Hearings Before the Subcomm. on Separation of Powers of the S. Comm. on the Judiciary, 92nd Cong. 424 (1971) (Statement of Assistant Attorney General William H. Rehnquist) ("The notion that the advisors whom he has chosen should bear some sort of a hybrid responsibility to opinion makers outside of the government, which notion in practice would inevitably have the effect of diluting their responsibility to him, is entirely inconsistent with our tripartite systems of government. The President is entitled to undivided and faithful advice from his subordinates, just as Senators and Representatives are entitled to the same sort of advice from their legislative and administrative assistants, and judges to the same sort of advice from their law clerks.").
  254. Letter to President Barack Obama from Eric Holder, Attorney General (June 19, 2012), at 3.
  255. Id.
  256. Comm. on Oversight & Gov't Reform v. Lynch, 156 F. Supp. 3d 101, 112, 115 (D.D.C. 2016).
  257. Letter from Assistant Attorney General Robert Rabkin, Office of Legislative Affairs, DOJ, to Honorable John Linder, Chairman House Subcommittee on Rules and Organization of the House, Committee on Rules (June 27, 2000), at 5-6 ("The foregoing concerns apply with special force to Congressional requests for prosecution and declination memoranda and similar documents. These are extremely sensitive law enforcement materials. The Department's attorneys are asked to render unbiased, professional judgments about the merits of potential criminal and civil law enforcement cases. If their deliberative documents were made subject to Congressional challenge and scrutiny, we would face a grave danger that they would be chilled from providing the candid and independent analysis essential to just and effective law enforcement or just as troubling, that our assessments of the strengths and weaknesses of evidence of the law, before they are presented in court. That may result in an unfair advantage to those who seek public funds and deprive the taxpayers of confidential representation enjoyed by other litigants."). See also Protective Assertion of Executive Privilege Over Unredacted Mueller Report and Related Investigative Files, 43 Op. O.L.C. 374 (2019).
  258. 71 U.S. (4 Wall.) 475 (1867). The Court declined to express an opinion on "whether, in any case, the President of the United States may be required, by the process of this court, to perform a purely ministerial act under a positive law, or may be held amenable, in any case, otherwise than by impeachment for crime." Id., at 498. See Franklin v. Massachusetts, 505 U.S. 788, 825-28 (1992) (Scalia, J., concurring). In NTEU v. Nixon, 492 F.2d 587 (D.C. Cir. 1974), the court held that it could issue a writ of mandamus to compel the President to perform a ministerial act, although it said that if any other officer were available to whom the writ could run, it should be applied to him.
  259. Johnson, 71 U.S. at 501.
  260. United States v. Nixon, 418 U.S. 683 (1974)
  261. Id. at 706.
  262. Id.
  263. Id. at 706-07. The lower courts considered the issue more fully. In re Grand Jury Subpoena to Richard M. Nixon, 360 F. Supp. 1, 6-10 (D.D.C. 1973) (Judge Sirica), aff'd sub nom., Nixon v. Sirica, 487 F.2d 700, 708-712 (D.C. Cir. 1973) (en banc) (refusing to find President immune from process). Assessments of the subpoena of President Jefferson in the Burr trial have conflicted. United States v. Burr, 25 F. Cas. 187 (No. 14694) (C.C.D.Va. 1807). For the history, see Paul Freund, Foreword: On Presidential Privilege, The Supreme Court, 1973 Term, 88 Harv. L. Rev. 13, 23-30 (1974).
  264. The Impeachment Clause provides that a party convicted upon impeachment shall nonetheless be liable for criminal proceedings. Art. I, Sec. 3, Clause 7 Impeachment Judgments. Gouveneur Morris in the Convention and Alexander Hamilton in the Federalist Papers asserted that a criminal trial would follow a successful impeachment. See 2 The Records of the Federal Convention of 1787, at 500 (Max Farrand ed., 1937); The Federalist Nos. 65 & 69.
  265. See Trump v. Vance, No. 19-635 (July 9, 2020) (recognizing that the "public has a right to every man's evidence").
  266. See United States v. Burr, 25 F. Cas. 30, 34 (C.C.D. Va. 1807) (No. 14,692D).
  267. See id. (observing that while the King is born to power and can "do no wrong," the President, by contrast, is "of the people" and subject to the law).
  268. See United States v. Burr, 25 F. Cas. 187, 192 (C.C.D. Va. 1807) (No. 14,694).
  269. See Vance, No. 19-635, slip op. at 7-9 (discussing historical practices of Presidents James Monroe, Ulysses S. Grant, Gerald Ford, Jimmy Carter, and William Clinton).
  270. Clinton v. Jones, 520 U.S. 681, 704 (1997) (citing United States v. Nixon, 418 U.S. 683, 706 (1974)). In rejecting separation of powers challenges to claims that the President is immune from federal criminal process, the Court rejected the argument that criminal subpoenas "rise to the level of constitutionally forbidden impairment of the Executive's ability to perform its constitutionally mandated functions." Id. at 702-03.
  271. See Vance, No. 19-635, slip op. at 12-15 (rejecting the categorical argument that state criminal subpoenas would unduly distract the President, impose a stigma on the presidency, or result in harassment by state prosecutors). The Vance Court also rejected the argument that a state prosecutor should satisfy a heightened standard of need when seeking a sitting President's records. Id. at 15-16. More important, in Vance, the state prosecutor sought private presidential records, and executive privilege was not at issue. Id. (Kavanaugh, J., concurring in the judgment). The Court refused to extend the heightened-need standard established in Nixon to private records, reasoning that: (1) Burr and its progeny foreclosed that argument; (2) the heightened-need standard was unnecessary to allow the President to fulfill his Article II functions; and (3) the public interest in fair and effective law enforcement favors "comprehensive access to evidence." Id. (majority opinion).
  272. Nixon v. Fitzgerald, 457 U.S. 731 (1982)
  273. Id. at 748.
  274. Id. at 749.
  275. Id. at 750-52 n.31.
  276. Id. at 750.
  277. Id. at 751.
  278. Id. at 754.
  279. Id. at 755-57. Justices Byron White, William Brennan, Thurgood Marshall, and Henry Blackmun dissented. The Court reserved decision on whether Congress could expressly create a damages action against the President and abrogate immunity, id. at 748-49 n.27, thus appearing to disclaim that the Constitution mandated the decision; Chief Justice Warren Burger disagreed with the implication of this footnote, id. at 763-64 n.7 (concurring opinion), and the dissenters noted they agreed with the Chief Justice on this point. Id. at 770 & n.4.
  280. 520 U.S. 681 (1997)
  281. 457 U.S. at 749.
  282. E.g., Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952) (suit to enjoin Secretary of Commerce to return steel mills seized on President's order); Dames & Moore v. Regan, 453 U.S. 654 (1981) (suit against Secretary of Treasury to nullify presidential orders on Iranian assets). See also Noble v. Union River Logging Railroad, 147 U.S. 165 (1893); Philadelphia Co. v. Stimson, 223 U.S. 605 (1912).
  283. E.g., Marbury v. Madison, 5 U.S. (1 Cr.) 137 (1803) (suit against Secretary of State to compel delivery of commissions of office); Kendall v. United States ex rel. Stokes, 37 U.S. (12 Pet.) 524 (1838) (suit against Postmaster General to compel payment of money owed under act of Congress); Decatur v. Paulding, 39 U.S. (14 Pet.) 497 (1840) (suit to compel Secretary of Navy to pay a pension).
  284. This was based on the theory that the Supreme Court of the District of Columbia had inherited, via the common law of Maryland, the jurisdiction of the King's Bench "over inferior jurisdictions and officers." Kendall v. United States ex rel. Stokes, 37 U.S. (12 Pet.) 524, 614, 620-21 (1838). Congress has since authorized federal district courts outside the District of Columbia to entertain such suits. Act of Oct 5, 1962, Pub. L. No. 87-748, 76 Stat. 744 (codified at 28 U.S.C. § 1361).
  285. E.g., Little v. Barreme, 6 U.S. (2 Cr.) 170 (1804); Bates v. Clark, 95 U.S. 204 (1877); United States v. Lee, 106 U.S. 196 (1882); Virginia Coupon Cases (Poindexter v. Greenhow), 114 U.S. 270 (1885); Belknap v. Schild, 161 U.S. 10 (1896).
  286. Spalding v. Vilas, 161 U.S. 483 (1896); Barr v. Matteo, 360 U.S. 564 (1959). See Westfall v. Erwin, 484 U.S. 292 (1988) (an action must be discretionary in nature as well as within the scope of employment, before a federal official is entitled to absolute immunity). Following the Westfall decision, Congress enacted the Federal Employees Liability Reform and Tort Compensation Act of 1988 (the Westfall Act), which authorized the Attorney General to certify that an employee was acting within the scope of his office or employment at the time an incident occurred that led to a lawsuit; upon certification, the employee is dismissed from the action, and the United States is substituted. As a result, sometimes the action will be dismissed against the government because the government has not waived sovereign immunity under the Federal Tort Claims Act. United States v. Smith, 499 U.S. 160 (1991) (the Westfall Act bars suit against federal employee even if sovereign immunity forecloses suit against the government). Cognizant of the temptation of the government to immunize both itself and its employee, the Court in Gutierrez de Martinez v. Lamagno, 515 U.S. 417 (1995), held that an Attorney General's certification is subject to judicial review.
  287. The Supreme Court recognized an implied cause of action against officers accused of constitutional violations in Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971). In Butz v. Economou, 438 U.S. 478 (1978), which concerned a Bivens action, the Court distinguished between common-law torts and constitutional torts and denied high federal officials, including cabinet secretaries, absolute immunity, in favor of the qualified immunity Congress had previously accorded high state officials under 42 U.S.C. § 1983. In Harlow v. Fitzgerald, 457 U.S. 800 (1982), the Court denied presidential aides derivative absolute presidential immunity, but it modified the rules of qualified immunity, making it more difficult to hold such aides, other federal officials, and state and local officials, liable for constitutional torts. In Mitchell v. Forsyth, 472 U.S. 511 (1985), the Court extended qualified immunity to the Attorney General for authorizing a warrantless wiretap in a case involving domestic national security. Although the Court later held such warrantless wiretaps violated the Fourth Amendment, at the time of the Attorney General's authorization, this interpretation was not "clearly established," and Harlow immunity protected officials exercising discretion on such open questions. See also Anderson v. Creighton, 483 U.S. 635 (1987) (in an exceedingly opaque opinion, the Court extended similar qualified immunity to FBI agents who conducted a warrantless search).
  288. Harlow v. Fitzgerald, 457 U.S. 800, 812 (1982)
  289. See [3] 28 U.S.C. § 1331
  290. E.g., Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952) (suit to enjoin Secretary of Commerce to return steel mills seized on President's order); Dames & Moore v. Regan, 453 U.S. 654 (1981) (suit against Secretary of Treasury to nullify presidential orders on Iranian assets). See also Noble v. Union River Logging R.R., 147 U.S. 165 (1893); Phila. Co. v. Stimson, 223 U.S. 605 (1912).
  291. E.g., Marbury v. Madison, 5 U.S. (1 Cr.) 137 (1803) (suit against Secretary of State to compel delivery of commissions of office); Kendall v. United States ex rel. Stokes, 37 U.S. (12 Pet.) 524 (1838) (suit against Postmaster General to compel payment of money owed under act of Congress); Decatur v. Paulding, 39 U.S. (14 Pet.) 497 (1840) (suit to compel Secretary of Navy to pay a pension).
  292. This was originally on the theory that the Supreme Court of the District of Columbia had inherited, via the common law of Maryland, the jurisdiction of the King's Bench "over inferior jurisdictions and officers." Kendall v. United States ex rel. Stokes, 37 U.S. (12 Pet.) 524, 614, 620-21 (1838). Congress has now authorized federal district courts outside the District of Columbia also to entertain such suits. Act of Oct 5, 1962, Pub. L. No. 87-748, 76 Stat. 744 (codified at 28 U.S.C. § 1361).
  293. E.g., Little v. Barreme, 6 U.S. (2 Cr.) 170 (1804); Bates v. Clark, 95 U.S. 204 (1877); United States v. Lee, 106 U.S. 196 (1882); Virginia Coupon Cases (Poindexter v. Greenhow), 114 U.S. 270 (1885); Belknap v. Schild, 161 U.S. 10 (1896).
  294. Spalding v. Vilas, 161 U.S. 483 (1896); Barr v. Matteo, 360 U.S. 564 (1959). See Westfall v. Erwin, 484 U.S. 292 (1988) (action must be discretionary in nature as well as being within the scope of employment, before federal official is entitled to absolute immunity). Following the Westfall decision, Congress enacted the Federal Employees Liability Reform and Tort Compensation Act of 1988 (the Westfall Act), which authorized the Attorney General to certify that an employee was acting within the scope of his office or employment at the time of the incident out of which a suit arose; upon certification, the employee is dismissed from the action, and the United States is substituted, the Federal Tort Claims Act (FTCA) then governing the action, which means that sometimes the action must be dismissed against the government because the FTCA has not waived sovereign immunity. United States v. Smith, 499 U.S. 160 (1991) (Westfall Act bars suit against federal employee even when an exception in the FTCA bars suit against the government). Cognizant of the temptation of the government to immunize both itself and its employee, the Court in Gutierrez de Martinez v. Lamagno, 515 U.S. 417 (1995), held that the Attorney General's certification is subject to judicial review.
  295. An implied cause of action against officers accused of constitutional violations was recognized in Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971). In Butz v. Economou, 438 U.S. 478 (1978), a Bivens action, the Court distinguished between common-law torts and constitutional torts and denied high federal officials, including cabinet secretaries, absolute immunity, in favor of the qualified immunity previously accorded high state officials under 42 U.S.C. § 1983. In Harlow v. Fitzgerald, 457 U.S. 800 (1982), the Court denied presidential aides derivative absolute presidential immunity, but it modified the rules of qualified immunity, making it more difficult to hold such aides, other federal officials, and indeed state and local officials, liable for constitutional torts. In Mitchell v. Forsyth, 472 U.S. 511 (1985), the Court extended qualified immunity to the Attorney General for authorizing a warrantless wiretap in a case involving domestic national security. Although the Court later held such warrantless wiretaps violated the Fourth Amendment, at the time of the Attorney General's authorization this interpretation was not "clearly established," and the Harlow immunity protected officials exercising discretion on such open questions. See also Anderson v. Creighton, 483 U.S. 635 (1987) (in an exceedingly opaque opinion, the Court extended similar qualified immunity to FBI agents who conducted a warrantless search).
  296. Harlow v. Fitzgerald, 457 U.S. 800, 812 (1982).
  297. See 28 U.S.C. § 1331. On deleting the jurisdictional amount, see Pub. L. No. 94-574, 90 Stat. 2721 (1976), and Pub. L. No. 96-486, 94 Stat. 2369 (1980). If such suits are brought in state courts, they can be removed to federal district courts. 28 U.S.C. § 1442(a).