To an unprecedented degree, the nation's welfare now depends on constitutionally sound outcomes to disputes between Congress and the President over executive branch information. Yet we still lack a satisfying theoretical account of the optimal method for achieving those outcomes. In the years since Watergate, courts and scholars have embraced a theory premised on an unexamined faith that the Constitution's structure embeds in the political process the tools and incentives necessary for each branch to vindicate its interests. Judicial interference, this conventional model further assumes, is both unnecessary and unwise; left to their own devices, the political branches will pursue a salutary course of escalating battle that will ultimately yield the correct constitutional balance in any given information dispute.
This Article subjects that conventional theory to the rigorous examination it has thus far escaped. It begins by dispelling the notion that the theory describes a unique mechanism endemic to one species of constitutional conflict. In fact, the Article reveals, this conventional model is a faithful translation to the separation-of- powers context of an approach that has long (and controversially) governed the relationship between the federal government and the states. Building upon that recognition, the Article exposes an unjustifiable inconsistency between the conventional model and the Court's treatment of broader executive- legislative disagreement. The Article then assesses the model on its own terms, finding powerful reason to doubt that the political process alone will produce a satisfactory allocation of authority over information. Courts, the Article concludes, must play some substantive role in a coherent system for resolving interbranch conflicts of this kind.
David A. O'Neil,
The Political Safeguards of Executive Privilege,
60 Vanderbilt Law Review
Available at: https://scholarship.law.vanderbilt.edu/vlr/vol60/iss4/2