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MCLAUGHLIN, A CONSTITUTIONAL HISTORY OF THE UNITED STATES (1935). MAY, TREATISE ON TIIE LAW, PRIVILEGES, PROCEEDINGS AND USAGE OF PAR.
LIAMENT (16th ed. 1957). PATTERSON, CONSTITUTIONAL PRINCIPLES OF THOMAS JEFFERSON (1953). RICHARDSON, MESSAGES AND PAPERS OF THE PRESIDENTS (1896-1899). ROBERTSON, THE TRIAL OF AARON BURR FOR TREASON (1875). PAGE SMITH, JOHN Adams (1962). STORY, COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES (4th ed.
TAYLOR, GRAND INQUEST (1955).
L. Rev. 1 (1955) [cited as Bickel, The Original Understanding).
· Question, 66 YALE L.J. 477 (1957). Collins, The Power of Congressional Committees of Investigation to Obtain
Information From the Executive Branch: The Argument for the Legislative
Branch, 39 Geo. L.J. 563 (1951). Corwin, The Steel Seizure Case: A Judicial Brick Wähout Straw, 53 COLUM.
L. Rev. 53 (1953). Kramer & Marcuse, Executive Privilege-A Study of the Period 1953-1960
(pts. 1-2), 29 GEO. WASH. L. REV. 623, 827 (1961). Landis, Constitutional Limitations on the Congressional Power of Investigation,
40 HARV. L. Rev. 153 (1926). Mitchell, Government Secrecy in Theory and Practice: "Rules and Regulations
as an Autonomous Screen, 58 Colum. L. Rev. 199 (1958). Newman & Keaton, Congress and the Faithful Execution of Lows-Should
Legislators Supervise Administrators?, 41 Cali. L. Rev. 565 (1953). Philos, The Public's Right to Know and the Public Interest-A Dilemma Re.
visited, 19 FED. B.J. 41 (1959). Potts, Power of Legislative Bodies to Punish for Contempt, 74 U. Pa. L. Rev.
691 (1926). Schwartz, Executive Privilege and Congressional Investigatory Power, 47 Calb.
L. Rev. 3 (1959). Tweed, Provisions of the Constitution Concerning the Supreme Court of the
United States, 31 B.U.L. Rev. 1 (1951). Wiggins, Government Operations and the Public's Right to Know, 19 FED. B.J.
62 (1959). Wofford, The Blinding Light: The Uses of History in Constitutional Interpreta
tion, 31 U. CHI. L. Rev. 502 (1964). Wolkinson, Demands of Congressional Committees for Executive Papers, 10
FED. B.J. 103 (1949). Wyzanski, Standards for Congressional Investigation, 3 RECORD OF N.Y.C.B.A.
93 (1948). Younger, Congressional Investigations and Executive Secrecy: A Study in the
Separation of Powers, 20 U. PITT. L. Rev. 755 (1959).
Oprrations on Availability of Information from Pcdcral Deparlments and
man) [cited as Moss Ilcarings). Memorandum, Forcign Operalions and Government Information Subcommittee
(H.R.), Aug. 1963 (unpublished) [cited as Gov't Info. Mcmo.]. Power of the President to Withhold Information from Congress, The, 85th
Cong., 2d Sess. (1958) (mcmorandum of Attorney Gencral Rogers compiled by the Subcommittee on Constitutional Rights of the Senatc Com. mittee on the Judiciary) [cited at Att'y Gen. Memo.).
EXECUTIVE PRIVILEGE V.
PART II Resistance to the congressional claim to unlimited information from the executive branch presents a dispute about constitutional boundaries. Ascertainable boundaries between the branches are a basic presupposition of the separation of powers, and Part I of this study conned the pages of history in a search for boundaries that obtained at the adoption of the Constitution. Parliamentary and colonial legislative inquiries, it was there concluded, were virtually unlimited, i and the Framers gave no evidence of an intention to confer executive power to withhold information from Congress. Instead of assuming that history was conclusive in the process of constitutional interpretation, Part I posited minimally that it became incumbent upon executive privilege adherents to show that exigencies of an expanding, changing nation required a departure from historical practices.
Part II now assays the practical reasons which have been advanced for a restrictive view of the inquiry power. Then, because conflicting constitutional boundary claims ought to be submitted to impartial arbitrament, and because it is traditionally the function of the courts to draw constitutional boundaries, there follows inquiry into whether constitutional obstacles to judicial resolution of the dispute exist.
VII. EXECUTIVE PRIVILEGE COMPARED WITH
EVIDENTIARY PRIVILEGE It is paradoxical that the claim of “uncontrolled” discretion to withhold information from Congress should first have been asserted
• Visiting Professor, University of California Law School, Berkeley; former General Counsel to the Alien Property Custodian; former Chairman, Section of Administrative Law, ABA.
The volume of citations makes it necessary to employ abbreviations for frequently cited authorities. See Appendix for key.
+ In addition to the materials cited in Part I at pps. 1056-1060, note that in 1774, James Wilson, who later played a prominent role in the Constitutional Convention, stated that thc House of Commons "have checked the progress of arbitrary power, and have supportcd with honour to themsclvcs, and with advantage to the nation, the character of grand inquisitors of the realm. The proudcst ministers of the proudest monarchs have trembled at thcir censurcs; and have appcared at the bar of the house, to give an account of their conduct, and ask pardon for their faults." On the Legislative Authority of the British Parliament, reprinted in 3 WILSON, WORKS 203, 219 (1804).
after a claim of absolute discrction to withhold military secrets from a private litigant had been categorically rejected. If the law were as privilege adherents would have it, a private litigant would enjoy greater rights to information than does Congress, and this although President Tyler, summarizing the first sixty-five years of experience, pushed the claimed executive privilege no further than the recognized catcgories of "evidentiary” privilege. Before summarize ing those categories it will be useful to pull together the threads of the several claims to privilege against the Congress.
A. Exccutive Privilege
After an extended survey, a recent protagonist of executive privilege, Mr. Younger, categorized the various claims of privilege as follows:
(1) A house of Congress or Congress as a whole has no power to
(2) foreign affairs require the withholding of certain information;
(4) the identity of sources of confidential information should not
(5) administrative efficiency requires secrecy. The warp and woof are perfect; there is no gap.
Any exigency will justify withholding from Congress.378 The fifth claim was first asserted by President Eisenhower in defense of the Army against Senator McCarthy, and it may confidently be asserted that it is without historical justification. President Jackson's refusal to reveal a statement he made to his Cabinet370 is a remote analogy, because such confidential communications—what Marshall labelled "secrets of the cabinet"a80—are poles apart from an unlimited discretion to withhold any document or communications between the several million subordinate employees in the interest of 1290
377 Younger 773. He instances Washington's refusal of information to the House respecting the Jay Treaty; the information had been given to the Scnalc. Scc text accompanying note 224 supra. Mr. Younger swallows whole the assumption that the President may finally determinc the scope of Congress' powers when hc is at most empowered to makc an initial and not binding determination of his own powers, as is immediately apparent from Youngstown Shcct & Tubc Co. v. Sawyer, 343 U.S. 579 (1952), the "Steel Scizure" casc. Just as "an agency may not finally decide the limits of its statutory power. That is a judicial function," Social Security Bd. v. Nicrolko, 327 U.S. 358, 369 (1946), so was that power withheld from the President. Sce also text accompanying notes 179-83, 325 supra.
378 Younger 773.
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"administrative officiency."381 Messrs. Kramer and Marcuse prosser a disscrent rationalc. Noting congressional prononcss to dcfcr to privilege in foreign relations as distinguished from Presidential protection of "the internal integrity and efficiency of the Executive establishment,"382 they conclude that "it may be doubted whether there is a qualitative difference between the President's powers when he acts as the principal organ in the field of forcign relations ... and when he takes 'care that the Laws be faithfully exccuted' ....a83 If the test of secrecy be protection of the public interest, then an alleged need, for example, to shield British-American military negotiations for defense against Russia, surcly cannot be cquated with the "necd" for insulation of an Inspector General's report so that “self-criticism” and “cfficiency" may be promolcd.:144 The two are incommensurable. An assumption that information may bc concealed from Congress on thc plca of "administrative efficiency" would have shielded Fall, Denby and Daugherty from congressional investigation and have enabled them to despoil the nation of Teapot Dome, and all in the guise of taking "care that the Laws be faithfully executed”] If Congress is to inquire whether a given operation is "efficient,” as the cases, applying historical precedent, hold it is authorized to do, it cannot be left to the executive to determine that "efficiency” forecloses scrutiny. When the executive branch proceeded on the contrary premise during the Eisenhower Administration, it produced some withholdings that bordered on the grotesque, as will hereafter appear.
But, to go back a step, it is a mistake to posit insulation for foreign affairs in the first place, for such insulation simply does not square with historical fact. William Pitt, it will be recalled, mordantly rejected the claim that state secrets must be shielded from Parlia
881 Judge Wyzánski stated that: "Where the secret is known only to the President and his Cabinet ... it is arguable that the privilege ... can be relcascd only by the President, or with his conscnt. ... Where the secret is known to a lesser official the privilege probably belongs to the nation as a whole. It can certainly bc rclcased by a statute of Congress. Probably it can be released by one house acting alone or by a committce, since secrets of that lower dignity arc often released by action of a subordinate exccutive ofíicer and hence ought to be relcasable by a member of Congress.” Wyzanski 99. The personal relation between President and Cabinet may demand protection that does not extend to lesser officials. In another content, arguing for the President's power summarily to dismiss Cabinet officers, Professor Bickel states the broadening of the President's "personal political responsibility ... demands a special kind of loyalty and responsiveness in his immcdiate subordinates. But it is not arguable on principle that thc security of the nation will be best served if all employees of the Government , .. can be dismissed on whim or bunch." Bickel 76.
382 Kramer & Marcuse 902. 883 Ibid.
384 “A survey of economic conditions ... is hardly to be classed with secret minutes of diplomatic conferences or military plans." TAYLOR 99.