1965] WITHHOLDing informATION 1361 the energies of both branches would be better spent on consideration of problems that cry out on every hand for solution. Although I consider that history, the normal index of constitutional construction, strongly indicates that the argument for unlimited congressional power to require information from the executive branch is much more solidly based than the executive claim of absolute power to withhold, and that that claim is little advanced by the practical considerations adduced on its behalf, I do not suggest that absolute discretion to demand information should be substituted for unlimited power to withhold it. All "unlimited power" is inherently dangerous. Already the Supreme Court has remarked that "far-reaching" as is the congressional power of inquiry, it does not embrace matters which are within the "exclusive province" of the executive branch."781 Who is to determine the limits of that "exclusive province"? Presently the executive branch is in the driver's seat if only because effective congressional retaliation is too clumsy and injurious to the national welfare. Neither the Congress nor the nation can be content to have the executive branch finally draw constitutional boundaries when the consequence is seriously to impair a legislative function that is so vital to the democratic process. No more may Congress decide the scope of executive power. Neither branch, in Madison's words, has the "superior right of settling the boundaries between their respective powers." 782 That power was 781 Barenblatt v. United States, 360 U.S. 109, 111-12 (1959). 782 THE FEDERALIST, No. 49. Madison sets forth Jefferson's reasoning saying that it has "great force." A statement Madison made in the First Congress during the debate on the President's "removal" power may be thought to contradict the "boundary" statement: "There is not one Government . . . in which provision is made for a particular authority to determine the limits of the constitutional division of power between the branches of the Government. In all systems there are points which must be adjusted by the departments themselves, to which no one of them is competent. If it cannot be determined in this way, there is no resource left but the will of the community, to be collected in some mode to be provided by the Constitution. . . .” 1 Annals of Cong. 520 (1789-1791). At issue was the power of the House to "grant" to the President a “removal" power, id. at 385, and Madison himself concluded that the House was "not in possession of this power," and that "the Constitution fairly vests the President with the power," id. at 605, so in fact Madison was asking the House to construe favorably a power of another branch, a situation that had no bearing on a "boundary" dispute. He himself gave the best possible refutation of the practicability of secking the "will of the community" in such disputes. Sce THE FEDERALIST, Nos. 49 and 50. In any event, spokesmen for both the majority and minority stated that the issue should be left to the courts. 1 Annals of Cong. 477, 48586, 496, 505, 524, 540, 572, 582, 585 (1789-1791). To the extent that the issue would become involved in controversy between the Senate and the President, Gerry said, "let it go before the proper tribunal; the judges are the constitutional umpires on such questions." Id. at 491-92. "Some arbiter is almost indispensable when power . . . is also balanced between different branches, as the legislative and the executive. Each unit cannot be left to judge the limits of its own power." JACKSON, THE STRUGGLE FOR JUDICIAL SUPREMACY 9 (1941). ... 1362 UCLA LAW REVIEW [Vol. 12: 1287 given to the courts; it has been exercised in disputes between two states, between the United States and a state, between a Department and an independent agency,783 and if we look to substance rather than form, between Congress and the President. Why should conflicting claims of constitutional authority by Congress and the President alone of governmental conflicts be insulated from judicial review? Increasingly, committees and members of Congress have shown a disposition to recognize that the courts have the last word," whereas, if one may judge from Attorney General Rogers' sadly mistaken argument against judicial jurisdiction,78% the executive branch considers itself beyond judicial reach, a view that is not conducive to executive responsibility.780 This "intolerably prolonged controversy," as the veteran Senator Neely said, must be submitted to the courts,787 both to preserve the congressional inquiry function from unwarranted executive interference and to protect the executive branch from congressional encroachment on its "exclusive province." APPENDIX Unless otherwise indicated the following authorities are cited by author's name only. BOOKS BARTH, GOVERNMENT BY INVESTIGATION (1955). BOWEN, THE LION AND THE THRONE (1957). CHANDLER, HISTORY AND PROCEEDINGS OF THE THIRD PARLIAMENT OF KING GEORGE II (1743). DAVIS, ADMINISTRATIVE LAW TREATISE (1958). FARRAND, THE FRAMING OF THE CONSTITUTION OF THE UNITED STATES (1948) [cited as FARRAND, FRAMING]. FARRAND, RECORDS OF THE FEDERAL CONVENTION OF 1787 (1911) [cited as FARRAND, RECORDS]. GARDNER, The Administrative Process, in PAULSEN, Legal INSTITUTIONS TODAY GELLHORN & BYSE, ADMINISTRATIVE LAW: CASES AND COMMENTS (1960). 783 See notes 703, 721-22 supra. 784 See note 3 supra. 785 See text accompanying note 321 supra; see note 316 supra. Att'y Gen. Memo. 44-46, 72. 780 Warner Gardner, who was a long-time highly-placed official, says that "the availability of judicial review is by far the most significant safeguard against administrative excesses which can be contrived." Quoted in GELLHORN & BYSE 217. See also id. at 218; HORSKY, THE Washington LAWYER 78 (1952); Jarte & NATHANSON, ADMINISTRATIVE LAW: CASES and MateriALS 30 (1961). 787 See note 3 supra. 1965] WITHHOLDING inforMATION 1363 Hart & Wechsler, Tiie Federal Courts and the Federal System (1953). KEIGWIN, CASES IN COMMON Law Pleading (2d ed. 1934). KOENIG, THE Invisible PresidENCY (1960). PAGE SMITII, JOHN ADAMS (1962). TAYLOR, GRAND INQUEST (1955). WADE, ADMINIStrative Law (1961). Warren, CongrESS, THE CONSTITUTION, AND THE SUPREME Court (1925). WIGMORE, EVIDENCE (McNaughton rev. 1961). WRIGHT, FEDERal Courts (1963). ARTICLES Ames, The History of Assumpsit, 2 HARV. L. REV. 53 (1888). Berger, Discovery in Administrative Proceedings: Why Agencies Should Catch up With the Courts, 46 A.B.A.J. 74 (1960) [cited as Berger, Discovery]. Berger, Constructive Contempt: A Post-Mortem, 9 U. CHI. L. Rev. 602 (1942). Berger & Krash, Government Immunity From Discovery, 59 YALE L.J. 1451 (1950). Bickel, Foreword: The Passive Virtues, 75 HARV. L. Rev. 40 (1961). Bishop, The Executive's Right of Privacy: An Unresolved Constitutional Question, 66 YALE L.J. 477 (1957). Carrow, Governmental Nondisclosure in Judicial Proceedings, 107 U. Pa. L. REV. 166 (1958). Douglas, The Bill of Rights is Not Enough, 38 N.Y.U.L. Rev. 207 (1963). Emerson, Malapportionment and Judicial Power, 72 Yale L.J. 64 (1962). Hardin, Executive Privilege in the Federal Courts, 71 Yale L.J. 879 (1962). Jaffe, Standing to Secure Judicial Review: Public Actions, 74 HARV. L. REV. 1265 (1961). Kramer & Marcuse, Executive Privilege-A Study of the Period 1953-1960 (pts. 1-2), 29 GEO. WASH. L. Rev. 623 (1961). Landis, Constitutional Limitations on the Congressional Power of Investigation, 40 HARV. L. Rev. 153 (1926). Loevinger, Private Action-The Strongest Piller of Antitrust, 3 ANTITRUST BULL. 167 (1958). MacIntyre, The Role of the Private Litigant in Antitrust Enforcement, 7 ANTITRUST BULL. 113 (1962). McKay, The Right of Confrontation, 1959 WASH. U.L.Q. 122. Nathanson, The Supreme Court as a Unit of the National Government: Herein of Separation of Powers and Political Questions, 6 J. PUB. L. 331 (1957). Newman & Keaton, Congress and the Faithful Execution of Laws-Should Legislators Supervise Administrators?, 41 CALIF. L. Rev. 565 (1953). Parry, Legislators and Secrecy, 67 HARV. L. Rɛv. 737 (1954). Philos, The Public's Right to Know and the Public Interest-A Dilemma Revisited, 19 FED. B.J. 41 (1959). Rogers, Constitutional Law: The Papers of the Executive Branch, 44 A.B.A.J. 941 (1958). Schwartz, Executive Privilege and Congressional Investigatory Power, 47 Calif. L. REV. 3 (1959). Stern, "Inconsistency" in Government Litigation, 64 Harv. L. Rev. 759 (1951). Taubeneck & Sexton, Executive Privilege and the Court's Right to KnowDiscovery Against the United States in Civil Actions in Federal District Courts, 48 GEO. L.J. 486 (1960). Wechsler, Toward Neutral Principles of Constitutional Law, 73 Harv. L. Rev. 1 (1959). Wiggins, Government Operations and the Public's Right to Know, 19 FED. B.J. 62 (1959). Wyzanski, Standards for Congressional Investigations, 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). MISCELLANEOUS Hearings Before a Subcommittee of the House Committee on Governmental Operations on Availability of Information from Federal Departments and Agencies, 85th Cong., 2d Sess., pt. 16 (1958) (Rep. John E. Moss, Chairman) [cited as Moss Hearings]. Memorandum, Foreign Operations and Government Information Subcommittee (H.R.), Aug. 1963 (unpublished) [cited as Gov't Info. Memo.]. Power of the President to Withhold Information from Congress, The, 85th Cong., 2d Sess. (1958) (memorandum of Attorney General Rogers compiled by the Subcommittee on Constitutional Rights of the Senate Committee on the Judiciary) [cited as Att'y Gen. Memo.]. 68-287 O-71 - 14 That completes my statement, Mr. Chairman. I appreciate again, may I say, your leadership in this area. I don't think there is anything more important before the Congress today than this issue of reestablishing the congressional role in our constitutional system. Senator ERVIN. Did the exhibits that you asked to have placed in the record include the correspondence you had with the Secretary of Defense in the effort of the Foreign Relations Committee to obtain the 5-year military assistance plan? Senator FULBRIGHT. Yes, I have prepared to give to your clerk all the things I mentioned, including those letters, which underline the same point that you yourself made with regard to your own requests for information. I felt a great similarity in the way they replied to some of your requests and the way they replied to mine. They have developed a custom, a certain nomenclature, which they apply to those requests to which they do not wish to respond. Senator ERVIN. Now, your committee has jurisdiction as far as authorization of appropriations is concerned, over the 5-year plan— your committee has undoubted jurisdiction under Senate Rules of any authorization of money to implement the 5-year plan. Senator FULBRIGHT. That is right. This is the foreign military assistance 5-year plan. This is not a domestic program. In this field my committee has the jurisdiction for authorization. Senator ERVIN. Not only do you have the jurisdiction to study it, but the committee is under duty of the Senate Rules to study it on behalf of the Senate and to file a report in connection with the bill which authorizes the subsequent appropriation of the money. Senator FULBRIGHT. Mr. Chairman, that is exactly right. You see, under this legislation the Defense Department has created an enormous exchange program. They bring thousands of foreign military personnel to this country and train them in their techniques and so on. Many of these people go back and become the leaders of their countries particularly in recent years. This has a great significance for the foreign relations of this country. This is part of the program I was referring to. The Foreign Relations Committee has the most legitimate interest and responsibility for this program. Senator ERVIN. When you asked for information concerning the program which was outlined in the bill you were considering and which you were charged by the Senate Rules to study and give the benefit of your views to the committee and to the Senate so it might act in an intelligent manner, you were informed that the program itself was merely something for further planning only? Senator FULBRIGHT. There were two aspects, of course. One was a 5-year plan; the other was an evaluation study of how foreign military training was working. We wanted to see what the Executive's attitude was towards the way this subsidiary program was working, that is, with regard to the military training program. Senator ERVIN. In other words, you were informed-the committee was informed-in substance that you couldn't receive the information that you requested on a program for which you were called upon to authorize appropriations because the information was only for further planning and study within the Department; that is the way I construe the letter from the Defense Department. |