Clash of the titans: Congressional and executive information disputes and negotiations.

Abstract

Efforts by Congress to obtain information frequently have led to clashes with the Executive and have escalated with formal presidential assertions of executive privilege. Litigation has also resulted from such controversies. Executive privilege is widely regarded as being grounded in the constitutional doctrine of separation of powers. This study argues that resort to separation of powers postulates that the Executive was given a constitutional withholding power upon which legislative inquiry encroaches. Separation of powers does not create or grant power; it only protects powers conferred by the Constitution. Only after it is established, therefore, that a right to withhold information from the legislature was an attribute of executive power at the adoption of the Constitution can it be maintained that that attribute is invaded by congressional inquiry. Since it was not an attribute of executive power to refuse information to the legislature at the adoption of the Constitution, a congressional requirement of information from the executive branch does not violate separation of powers. Thus, this study concludes, the claim of a constitutional right to withhold information is the only basis for the relationship between interbranch information access and the doctrine of separation of powers--no more and no less. It is odd to critique the congressional-executive information-access dispute cases as a single category of "separation of powers" cases as each deals with a problem in the distribution of governmental powers that in some obvious respects is different from the problems addressed in the other cases. Whatever our speculation about the weightiness of competing interests in the disputes litigated, this study contends that the Constitution does not embody any unitary principle called "separation of powers.". This study suggests some broad substantive guidelines that could help foster a degree of disclosure or withholding likely to be consistent with interests of both branches, and of the public. Likewise, procedural steps are offered, along with interviews with current and former officials involved in this issue, to enable the branches to reach agreements more efficiently than they now do in some disputed cases.