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[Vol. 12: 1287 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 different in a suit between States," 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.

3. There is No Special Difficulty in Shaping Relief

763

Another criterion of "political question," in the words of Mr. Justice Frankfurter, is the difficulty of "finding appropriate modes of relief." A Court which did not boggle at the formidable remedial difficulties762 posed by reapportionment 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."754 Judicial resolution of the executive privilege controversy will not "risk embarrassment of our government abroad, or grave disturbance at home."75" It will not embroil the Court in

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

162 Professor Bickel points out that "the decisive factor in Colegrove could not well have been the difficulty or uncertainty that might attend enforcement of a judicial decree. 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 decrees in these cases presents problems of considerable complexity."

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

754 369 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 deals 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 Tocqueville: "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 connected with the interest of the suitors and he cannot refuse to decide it without abdicating the duties of his post." 1 DE TOCQUEVILLE, DEMOCRACY IN AMERICA, 101 (1900). See also note 1 supra.

765 369 U.S. at 226.

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the "over-whelmingly party or intra-party contests" such as Mr. Justice Frankfurter feared might flow from the reapportionment decision for, as the clinical examples earlier set out show, information withholdings seldom are "strongly entangled in popular feelings."767 When one compares the "violently partisan nature" of the reapportionment controversy,75 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.

700

Of those who assume that the executive privilege controversy poses a nonjusticiable political question, Kramer and Marcuse alone attempt to supply a footing, but in the form of citations rather than argument. First they cite Massachusetts v. Mellon. That case did not, of course, decide that a dispute between two entities of government is per se "political" as is immediately made plain by the row of adjudicated disputes between a state and the United States, between two states, and between a department and an independent agency. It held, first, that "the United States, not the State, represents the citizens as parens patriae in their relations to the federal government,"762 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." 763 Because of the absence of injury, the Court declined "to

756 Id. at 324 (dissenting opinion).

757 Id. at 267.

758 Emerson 65.

760 Kramer & Marcuse 903.

700 262 U.S. 447 (1923).

761 See notes 703, 721 and 722 supra.

762 Georgia v. Pennsylvania R.R., 324 U.S. 439, 446 (1945).
763 262 U.S. at 482. DAVIS, ADMINISTRATIVE LAW 682 (1951).

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adjudicate abstract questions of political power."74 Given real rather than abstract disputes between governmental instrumentalities, the Court, as the above-cited examples show, has not hesitated to decide them.

Next they cite Muskrat v. United States. It has been said that "its fundamental unsoundness in terms of present law is overwhelmingly clear"; 700 but in any event 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. Madison is cited which discusses whether Marbury had a remedy for the withholding of his signed commission, and in which the Court states that "in cases in which the executive possesses a constitutional or legal discretion"768 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." 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. 765 219 U.S. 346 (1911).

766 3 DAVIS 119.

767 1 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 Wheat. (19 U.S.) 264, 398 (1821). Why cannot the Court, therefore, in a suit by Congress against an executive officer, determine that the officer may not curtail the jurisdiction of Congress, equally a problem of demarking constitutional boundaries?

768 Id. at 166. (Emphasis added.)

769 JAFFE & Nathanson, ADMINISTRATIVE LAW: CASES & MATERIALS 791 (1961). Cf. 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 cite Craig v. Leitensdorfer, 123 U.S. 189 (1887), which seems irrelevant. Leitensdorfer filed a bill to enjoin an officer from delivering a plat to Craig. The Court said that a decree would be "entirely inefficacious" because "if the acts complained of are . . . 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 entertain and determine the appeals of Leitendorfer. . . . The proper remedy is by a writ of mandamus, and not by a bill in equity." Id. at 214.

Another Kramer and Marcuse citation is Cohens v. Virginia, 6 Wheat. (19 U.S.) 264 (1821), an information for selling lottery tickets in violation of state law. The Court held that it had appellate jurisdiction when a state statute was allegedly repugnant to the Constitution notwithstanding one of the parties was a state and the other a citizen of that state. At page 405, the Court rejected the argument that there

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

A case or controversy could arise if Congress cited for contempt, pursuant to 2 U.S.C. § 194, a Government official who had refused to comply with a demand for information and criminal proceedings were thereupon instituted, or if Congress excrcised its own contempt powers and directly 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 hypothesi, 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, unless the issue is to be left to a "trial of physical strength," a solution already rejected."

There remains the recurring suggestion that the controversy should be resolved at the polls.77 It is unrealistic to assume, however,

can be “a case in law or equity" arising under the Constitution, to which the judicial power does not extend. The relevance of this to "political questions" is obscure.

Kramer and Marcuse also cite Osborn v. U.S. Bank, 9 Wheat. (22 U.S.) 738 (1824), where the issue was the "right of the Bank to sue in the Courts of the United States," id. at 816, and where the Court stated that the judicial power is "capable of acting only when the subject is submitted to it by a party who asserts his rights in the form prescribed by law. It then becomes a case. . . . 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 executive officer alleging failure to comply with a statute or failure to furnish information would also be a "case," 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 assent to any view of the Constitution that concedes the power of Congress to accomplish a named result, indirectly by particular forms of judicial procedure, but denies its power to accomplish the same result, directly, and by a different procceding 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).

775 Kramer & Marcuse 626; Younger 784. Cf. TAYLOR 87.

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[Vol. 12: 1287 that refusals to furnish investigatory reports respecting such matters as foreign aid to Pakistan or Laos or Viet Nam can be blown up to campaign proportions. Often they are 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 unlikely to arouse sufficient popular interest to affect the course of a campaign. There is, moreover, a "strong American bias in favor of judicial determination of constitutional and legal issues."77 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." It would be passing strange to conclude that a citizen may seek the protection of that bulwark against a $20 fine778 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," 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. See also 3 Davis 348.

777 Quoted in TAYLOR 137.

778 Frank v. Maryland, 359 U.S. 360 (1959).

770 Wyzanski 103. The Supreme Court has adverted to the "danger to effective and honest conduct of the Government if the legislature's power to probe corruption in the executive branch were unduly hampered." Watkins v. United States, 354 U.S. 178, 194-95 (1957).

780 See note 548 supra.

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