The Executive’s Privilege

Both the executive branch and Congress claim the final word in oversight disputes. Congress asserts its subpoenas are legally binding. The executive branch claims the final authority to assert executive privilege and, accordingly, to refuse to comply with a subpoena without consequence. These divergent views stem in large part from the relative absence of any judicial precedent, including not a single Supreme Court decision on the privilege in the context of congressional oversight. In that vacuum—unconstrained by precedent—the executive branch has developed a comprehensive theory of executive privilege to support and implement prophylactic doctrines that render Congress largely powerless in oversight disputes. For the first time, this Article sets out the full extent of the executive branch’s doctrine, the various pieces of which have been expressed in OLC opinions, letters to Congress, and court filings. Existing scholarship largely ignores this doctrine and addresses executive privilege on the basis of two unexamined premises: first, that the privilege is an affirmative constitutional authority belonging to the president, and, second, that the privilege is akin to an evidentiary privilege that protects specified categories of information. Moreover, existing scholarship rarely distinguishes between executive privilege in the context of judicial proceedings and congressional oversight. Rejecting those premises, this Article proposes an understanding of executive privilege specific to congressional oversight that better reflects history and first principles of constitutional interpretation. Executive privilege in the context of congressional oversight is not an affirmative constitutional authority based on specific types of information but a limited presidential immunity from compelled congressional process—the Executive’s privilege. Both Congress’s oversight authority and executive privilege are recognized as implied constitutional authorities. But rather than infer two competing affirmative authorities, this Article proposes to infer a limit—presidential immunity—on the first. Doing so is more consonant with first principles of constitutional interpretation, more consistent with history, and more conducive to the proper balance of power between the branches. The Executive’s privilege, as set out in this Article, is an immunity contingent upon a president’s finding that concrete, identifiable harm would result from the disclosure of specific information to Congress. Understanding executive privilege as a limited immunity—and severing the privilege from the undifferentiated confidentiality interests and broad categories of information with which the executive branch has conflated it—eliminates the prophylactic doctrines on which the executive branch relies to thwart legitimate congressional oversight. Further, this understanding of the privilege provides a theoretical foundation to explain why it does not apply in impeachment, a position consistent with the historical understanding of Congress’s broad powers of inquiry during impeachments and subsequent trials

The Executive\u27s Privilege

Both the executive branch and Congress claim the final word in oversight disputes. Congress asserts its subpoenas are legal binding. The executive branch claims the final authority to assert executive privilege and, accordingly, to refuse to comply with a subpoena without consequence. These divergent views stem in large part from the relative absence of any judicial precedent, including not a single Supreme Court decision on the privilege in context of congressional oversight. In that vacuum - unconstrained by precedent - the executive branch has developed a comprehensive theory of executive privilege to support and implement prophylactic doctrines that render Congress largely powerless in oversight disputes

Expatriation Restored

Expatriation - the loss or relinquishment of citizenship - has a long and divisive history as a fundamental concept of American citizenship. It has been the subject of contentious and robust debate from the very beginning of the country. This Article posits that the concept of expatriation today has little jurisprudential salience, despite its increasing rhetorical valence in the context of terrorism, because the historical development of the concept has obscured its meaning. Expatriation originally had a precise meaning: an individual right declared by the country in 1868 to be indispensable to the inalienable rights identified in the Declaration of Independence. That meaning has largely been lost due to what this Article identifies as the precession of the subject of expatriation\u27s root verb expatriate. This Article attempts to reverse this precession and unencumbered expatriation from the language of rights. In so doing, it seeks to restore the original concept grounded in allegiance. Without that restoration, the possibility of the state acting to expatriate an individual involuntarily continues to be a viable, if difficult, path, as demonstrated by recent and repeated legislative proposals. If expatriation is restored as a singular, coherent, historical concept, however, that possibility no longer exists. And without that restored concept of expatriation, grounded in allegiance, citizens\u27 rights may be imperiled by a formal, as opposed to functional, understanding of citizenship

Delegation Enforcement by State Attorneys General

State attorneys general have taken on an increasingly active role in challenging the actions of the federal government, and, in particular, the actions of the President. During the Obama Administration, state attorneys general began suing the federal government at an increasing rate, and these actions resulted in some of the most consequential judicial decisions of the time period—as both a matter of judicial precedent and a matter of policy impact. State-initiated action against the Obama Administration resulted in a new doctrine preventing state coercion, the implications of which are only starting to be recognized. It also resulted in court-ordered cessation of significant policy initiatives of the Administration, including, among others, nullifying the Deferred Action for Parents of Childhood Arrivals (“DAPA”) program, halting in part the Waters of the United States Rule, and the Clean Power Plant initiative