Reviewability of executive privilegedecisions

t Counter arguments to SCt’s holding in Nixon that separation of powersdoctrine did not preclude judicial preview of president’s claim of privilege.

n Gunther C/A. Burgermisused Marburyhere and conveyed misleadingly broad view of judicial competence, exclusivity, and supremacy. There is nothing in Marbury precluding constitutional interpretation which gives final authority to another branch.

n Tribe C/A. Law might be executive discretion. “SC’s opinion simply rejects w/o extended discussion any notion that as general rule executive discretion is applicable rule of law in matters of evidentiary privilege.” (Tribe)

n KoppelmanC/A (1). Does SCt’s holding here mean that President is obligated to comply with SCt’s order, even if he thinks that executive privilege is absolute? Given that presidency was at one of its weakest points in American history, this was unusually convenient opportunity to assert judicial supremacy. Relevance of this precedent to presidential privilege in more normal times is doubtful.

n KoppelmanC/A (2). SCt should not have granted certiorari before Circuit Court could review district court’s decision. While waiting would have been stressful, such stress was contemplated by USC’s impeachment procedures.

i. Congress had also subpoenaed tapes, so there was a constitutionally contemplated process of review already underway. (failure to obey subpoena was basis of third article of impeachment.)

ii. Congress’ need for information was much stronger than Jaworski’s.

t Does Cooper v. Aaronsupport SC’s holding in Nixon?

t Was Nixon’s position here different from positions of Jefferson and Lincolnabout presidential power to interpret USC independently of courts?

t In other contexts, courts have sometimes held that executive branch decisions about how to enforce law are unreviewable (using “take Care” clause for support). (Heckler v. Chaney, 1985; failure of FDA to regulate drugs used in human executions is not subject to judicial reviewunder Administrative Procedure Act).

n By this view, separation of powersprevents courts from ordering executive to execute laws.

n This permits president effectively to nullify, through non-enforcement, laws enacted by Congress, including those enacted over his veto. Are political checks sufficient safeguard against this possibility?

Date: 2015-01-02; view: 820