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• Sunday, July 6, 2008 03:50 PM

  nicteis

  The 12 steps to restoring the Constitution look great, but this one:

  VII. Enact a Law That Regulates the Invocation of Executive Privilege

  is probably beyond Congress's power. I think the extent of Executive Privilege is basically whatever the courts say it is, otherwise Congress is encroaching on the legitimate power of the Executive.

  I wondered about that too. I found this:

  70 See e.g., Executive Order 13233 issued by President Bush on November 1, 2001, which gave current and former presidents and vice presidents broad authority to withhold presidential records and delay their release indefinitely. It vests former vice presidents, and the heirs or designees of disabled or deceased presidents the authority to assert executive privilege, and expands the scope of claims of privilege. Hearings held by the House Committee on Government Reform in 2002 raised substantial questions as to the constitutionality of the Order and resulted in the reporting of legislation (H.R. 4187) in the 107th Congress that would have nullified the Order and established new processes for presidential claims of privilege and for congressional and public access to presidential records. H.Rept. No. 107-790, 107th Cong. 2nd Sess. (2002). Substantially the same legislation (H.R. 1225) passed the House on March 14, 2007. See H.Rept. 110-44, 110th Cong. 1st Sess. (2007), and was reported out of the Senate Committee on Homeland Security and Governmental Affairs on June 20, 2007, without amendment and with no written report. See generally, Jonathan Turley, “Presidential Papers and Popular Government: The Convergence of Constitutional and Property Theory in Claims of Ownership and Control of Presidential Records.” 88 Cornell L. Rev. 651, 666-696 (2003). http://www.fas.org/sgp/crs/secrecy/RL30319.pdf

  So, it looks like (a willing) Congress may have some ability to rein in executive privilege. See also http://www.govtrack.us/congress/bill.xpd?bill=h110-1255 and http://www.washingtonpost.com/wp-dyn/content/article/2007/10/12/AR2007101202102.html

  —EJ Read EJ's other letters
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