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not significantly altered because it may be the Attorney General rather than his brother, Mally Daugherty, who is asked about misconduct in the Department of Justice. That which is "essentially a judicial question ... in suits between private partics (or between them and the government) ... is not diffcrent in a suit between States,"760 or between different branches of the same state. In fine, the courts can draw upon the precedents in private litigation for guide lines in almost every category of executive privilege.

States, and the governinin suits bc Justice. That who is askc

3. There is No Special Difficulty in Shaping Relief

Another criterion of political question,” in the words of Mr. Justice Frankfurter, is the difficulty of "finding appropriate modes of relief."761 A Court which did not boggle at the formidable remedial difficulties762 posed by reapportionment768 should not shy from requiring an executive officer to deliver information or to declare that he is under no duty to do so. Compared with the complexities involved in reapportionment this is a marvelously simple judicial order, differing little from countless orders which direct public officers to do or refrain from doing something.

If the assertion of a right to obtain or to withhold information be deemed “political,” that “does not mean it presents a political question."764 Judicial resolution of the executive privilege controversy will not "risk embarrassment of our government abroad, or grave disturbance at home."766 It will not embroil the Court in

760 Pennsylvania v. West Virginia, 262 U.S. 553, 591 (1923). 761 369 U.S. at 278 (disscnting opinion). C). Jaffe 1306.

162 Professor Bickel points out that "the decisive factor in Cologrove could not well have been the difficulty or, uncertainty that might attend enforcement of a judicial decrec. A judicial system that swallowed Brown v. Board of Education and Cooper v. Aaron would hardly strain at Colegrove v. Green or Baker v. Carr." Bickel, The Durability of Colegrove v. Green, 72 YALE L.J. 39, 40 (1962). The Court itself acknowledged in Brown v. Board of Education, 347 U.S. 483, 495 (1954), that "the formulation of decrces in these cases presents problems of considerable complexity."

783 Emerson 75-80. CJ. Sindler, Baker v. Carr: How to "Sear the Conscience" of Legislators, 72 YALE L.J. 23, 32-38 (1962).

764 369 U.S. at 209; Jafic 1304. “From the beginning, the Court had to resolve what were essentially political issues the proper accommodation between the states and the central government." FRANKFURTER & LANDIS, THE BUSINESS OF THE SUPREME COURT 318 (1927). It needs to be borne in mind that a "Constitution is a political instrument. It dcals with government and governmental powers .... It is not a question whether the considerations are political, for nearly every consideration arising from the Constitution can be so described ...." Melbourne v. Commonwealth of Australia, 74 Commw. L.R. 31, 82 (1947) (Dixon, J.). This had been anticipated by De Tocquevillc: "The American judge is brought into the political arena independently of his own will. ... The political question which he is called upon to resolve is con. nocled with the interest of the suitors and he cannot refuse to decide it without abdicating the dutics of his post." I DE TOCQUEVILLE, DEMOCRACY IN AMERICA, 101 (1900). Scc also note i supra.

768 369 U.S. at 226.




the “over-whelmingly party or intra-party contests" such as Mr. Justice Frankfurter fcared might flow from the reapportionment decision for, as the clinical examples earlier set out show, information withholdings seldom are "strongly entangled in popular scelings."767 When onc compares the “violently partisan nature" of the reapportionment controversy,768 the “political” overtones of executive resistance to a congressional request for an Inspector General's report seem like flutterings over teacups.

In sum, the political question doctrine, in my opinion, interposes no obstacle to judicial determination of the rival legislative-executive claims to receive or withhold information. The power to decide these claims plainly has not been lodged in either the legislative or executive branch; equally plainly, the jurisdiction to demark constitutional boundaries between the rival claimants has been confided to the courts. The criteria for judging whether a claim of "executive privilege” is maintainable are a familiar staple of judicial business. And the framing of a remedy is attended by no special difficulty but rather falls into familiar patterns. Each of the parties seeks power allegedly conferred by the Constitution and each maintains that interference by the other with the claimed function will seriously impair it, the classic situation for judicial arbitrament.

Of those who assume that the executive privilege controversy poscs a nonjusticiable political question, Kramer and Marcusc alonc aliompil 10 supply a footing, but in the form of citations rather than l'irst they cilc Massachuschls v. Mellon.790 That case did not, of coursc, dccidc that a dispulc bclwccn iwo entities of government is per sc "political" as is immediately maullo plain loy the row of adjudicalcd disputes between a state and the United States, between two states, and between a department and an independent agency.761 It held, first, that "the United States, not the State, represents the citizens as parens patriae in their relations to the federal government,'702 and second, that the state had no standing to challenge the constitutionality of federal grants which it could accept or reject and which therefore imposed no obligation.768 Because of the absence of injury, the Court declined “to

766 Id. at 324 (dissenting opinion). 767 Id. at 267. 788 Emerson 65. 760 Kramer & Marcuse 903. 700 262 U.S. 447 (1923). 701 Sce notes 703, 721 and 722 supra. 782 Gcorgia v. Pennsylvania R.R., 324 U.S. 439, 446 (1945). 768 262 U.S. at 482. DAVIS, ADMINISTRATIVE LAW 682 (1951).



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adjudicate . . . abstract questions of political power."764 Given rcal rather than abstract disputes between governmental instru. mentalitics, the Court, as the above-cited examples show, has not hesitated to decide thcm.

Next they cite Muskrat v. United States.796 It has been said that "its fundamental unsoundness in terms of present law is overwhelmingly clear”; 700 but in any cvcnt it turns on the alleged absence of truly adverse interests necessary to a "case or controversy" and makes no mention of "political questions.” Again, that portion of Marbury v. Madison707 is cited which discusses whcther Marbury had a remedy for the withholding of his signcd commission, and in which the Court states that “in cases in which the executive possessCS a constitutional or legal discrction"708 the acts of department heads "are only politically examinable.” This leaves open the question whether the executive possesses "uncontrolled discretion" to withhold information from Congress. Marbury did not intimate that the executive branch can finally, determine the scope or area of its own discretion. Only the choices within that area are not dictated by the courts; the "court decides in each case what the area of discretion is."760 Thus the Kramer and Marcuse citations fall far short of establishing the proposition that the executive privilege conflict constitutes a non-reviewable political question.770

704 262 U.S. at 484-85. 768 219 U.S. 346 (1911). 700 3 Davis 119.

707 i Cranch (5 U.S.) 137 (1803). This was a suit by a District of Columbia Justice of Peace against the Secretary of State for delivery of his commission, and the Court decided that Congress cannot enlarge the original jurisdiction of the Court. So Marshall explained in Cohens v. Virginia, 6 Whcat. (19 U.S.) 264, 398 (1821). Why cannot the Court, therefore, in a suit by Congress against an cxecutive officer, determinc that the officer may not curtail the jurisdiction of Congress, equally a problem of demarking constitutional boundaries?

768 Id. at 166. (Emphasis added.)

700 JAFFE & NATHANSON, ADMINISTRATIVE Law: CASES & MATERIALS 791 (1961). C). Social Security Bd. v. Nierotko, 327 U.S. 358, 369 (1946) ("an agency may not finally decide the limits of its statutory powers.")

770 Kramer & Marcuse 903 n.791, also citc Craig v. Leitensdorfer, 123 U.S. 189 (1887), which seems irrelevant. Lcitonsdorfer filed a bill to cnjoin an officer from delivering a plat to Craig. The Court said that a decree would be "entirely inci. ficacious” because “if the acts complained of arc . . . void as being without authority of law, then they can have no legal effect whatever, and cannot be set up by the officers of the Department ... as reasons for refusing to cntcrtain and dctcrminc the appcals of Leitendorfer. . , . The proper remedy is by a writ of mandamus, and not by a bill in cruity." Id. at 214.

Another Kramer and Marcusc citation is Cohens v. Virginia, 6 Wheal. (19 U.S.) 264 (1821), an information for selling lottery tickets in violation of state law. The Court held that it had appcllate jurisdiction when a state statutc was alle cdiy repus,nant to the Constitution notwithstanding one of the partics was a state and the other a citizen of that statc. At page 405, thc Court rejected thc argument that there can be "a case in law or equity," arising under the Constitution, to which the judicial power does not extend. The relevance of this 10 "political questions" is obscure.




The contrary of that proposition flows from their recognition of the fact that:

A case or controversy could arise if Congress cited for contcmpt, pursuant to 2 U.S.C. § 194, a Government official who had refused to comply with a demand for information and criminal procccdings were thcrcupon instituted, or if Congress excrciscd its own contempt powers and dircctly ordered the arrest of the official without invoking the assistance of the courts, and the prisoner sought relief by way of habeas corpus.771

In short, say Kramer and Marcuse, the courts can entertain a conflict between Congress and the executive in a criminal or habeas corpus proceeding. But since the subject of such suits, ex hypothcsi, remains a “political question,” justiciability cannot be made to turn on the accident of remedy. If conflicting claims to power between Congress and the executive branch present a "political question," a shift in procedure from an injunction to a habeas corpus for illegal imprisonment-cannot transform the subject matter;772 that remains “political." And an injunction against a wrongdoing officer in his individual capacity would no less involve an “individual" than would the habeas corpus proceeding. To conclude alternatively that such controversies are nonjusticiable in any type of proceeding would be to permit Congress to imprison executive officers without hindrance, 773 unless the issuc. is to be left to a "trial of physical strength," a solution alrcady rejected."74

There remains the rccurring suggestion that the controversy should be resolved at the polls.176 Il is unrcalistic lo assume, however,

Kramer and Marcuse also cite Osborn v. U.S. Bank, 9 Whcat. (22 U.S.) 738 (1824), where the issue was the "right of the Bank to suc in the Courts of thc United Stales," id. at 816, and where the Court stated that thc judicial power is "capable of acting only when the subject is submitted to it by a party who asserts his rights in the form prcscribed by law. It then becomes a casc. ... The suit of the Bank of the United States v. Osborn ... is a case." Id. at 819.

For the argument that a suit by Congress against an exccutive officer alleging failure to comply with a statute or failure to furnish iníormation would also be a "casc," see note 643-59 supra.

771 Kramer & Marcuse 903. Professor Bishop, as Kramer and Marcuse remark, is also of this view. Bishop) 484-85.

772 Compare ICC v. Brimson, 154 U.S. 447, 486 (1894): "We cannot asscnt to any view of the Constitution that conccdes the power of Congress to accomplish a named result, indirectly by particular forms of judicial procedure, but dcnics its power to accomplish the same result, directly, and by a dificrent proceeding judicial in form."

773 The courts "will not stand impotent before an obvious instance of a manifestly unauthorized exercise of power." 369 U.S. at 217.

774 United States v. Texas, 143 U.S. 621, 641 (1892).
776 Kramer & Marcuse 626; Younger 784. CJ. TAYLOR 87.



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that refusals to furnish investigatory reports respecting such matters as forcign aid to Pakistan or Laos or Viet Nam can bc blown up to campaign proportions. Often they arc stale by the time a national campaign is waged, and in any event they must be lost in the swirling clash of larger issues. Withholding issues are unlikcly to arouse sufficient popular inter :st to affect the course of a campaign. There is, moreover, a "strong American bias in favor of judicial determination of constitutional and legal issues."776 From the beginning it was contemplated, in Madison's words, that the courts would be "an impenetrable bulwark against every assumption of power in the Legislative or Executive."777 It would be passing strange to conclude that a citizen may seek the protection of that bulwark against a $20 fine*78 but that it is unavailable to protect a branch of the government from impairment of a process essential to our democratic system. The President no less than Congress must be protected against such impairment, as, for example, when he complains that a statute enacted by Congress over his veto unconstitutionally cuts down the executive power.

X. CONCLUSION Congressional investigation is “the surest guard ... against corruption and bureaucratic waste, inefficiency and rigidity,"776 and the need for the unclogged exercise of that function greatly outweighs the benefits that may be deemed to flow from executive withholding. The practices of the Eisenhower Administration illustrate that the greater part of such withholding serves no crucial administrative needs, as is confirmed by the fact that the executive branch has survived President Kennedy's drastic amputation of withholding without noticeable ill effect. Although President Johnson has followed in his footsteps780 it may be doubted in light of the past, whether future successors who lack their legislative experience will follow suit. Recurrent strife is to be expected, accompanied by interminable bickering over the right to information that is for the most part innocuous. When weighed in terms of serious needs of government this is a luxury that we can no longer afford. Both Congress and the executive branch are constantly confronted by aching, undreamed of exigencies that explode in every corner of the globe and

776 Jaffe 1302. Sce also 3 Davis 348.
777 Quoted in TAYLOR 137.
778 Frank v. Maryland, 359 U.S. 360 (1959),

770 Wyzanski 103. The Suprcmc Court has adverted to the "danger to effective and honcst conduct of the Government is the legislaturc's power to probe corruption in thc cxccutive branch were unduly bampered." Watkins v. United States, 354 U.S. 178, 194-95 (1957).

780 See note 548 supra.

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