Volume 70, Number 1 – October 2020

Articles

The Executive’s Privilege
Jonathan David Shaub
PDF

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.

In Search of Prerogative
Ilan Wurman
PDF

The standard formalist account of Article II’s Executive Vesting Clause is that “the executive power” refers to all the powers and authorities possessed by the executive magistrate in Great Britain prior to the Constitution’s adoption, subject to the assignment of such powers and authorities to the other departments of the national government. In recent papers, a handful of scholars have challenged this “residual vesting thesis” by amassing evidence that “the executive power” textually referred only to the power to carry law into execution and not to the bundle of other royal prerogatives—for example over foreign affairs and national security—enjoyed by the British monarch. According to the advocates of both accounts, the scope and nature of the executive is dramatically altered depending on which account one adopts.

This Article dissents from both views. “The executive power” was indeed about law execution and was not a residual grant of power; but both the Founding generation and its key guide, Blackstone, likely shared a “thick” understanding of this power. Their writings and statements suggest that “the executive power,” even in its narrower law-execution sense, plausibly included the powers to appoint, remove, and direct executive officers and to promulgate regulations as necessary incidents to law execution. Not only is this account consistent with Blackstone and the historical meaning of “the executive power,” but it better fits the available data from the Constitutional Convention and early practice than either of the other two accounts. The residual vesting thesis requires us to believe that the Committee of Detail ignored the instructions of the delegates in the Constitutional Convention, to infer that the delegates themselves were unaware of the implications of what they had written, and to ignore the fact that not a single opponent of the Constitution during ratification so much as mentioned the possibility of a residual grant. On the other hand, the law-execution thesis, at least a “thin” version of it, may not account for important practices and precedents. The “thick” view of “the executive power” advanced in this Article is the theory of best fit: it is the only one that fits the text, the Framers’ apparent intent, and the historical practice. The upshot of this approach is that the president probably has more power in the domestic sphere than under a thin law-execution account but less in foreign affairs than under the residual vesting thesis.

Notes

The Gorsuch Test: Gundy v. United States, Limiting the Administrative State, and the Future of Nondelegation
Johnathan Hall
PDF

The future of nondelegation is uncertain. Long considered an “axiom in constitutional law,” the nondelegation principle has almost never been seriously enforced—from the founding of the country to present day. After the Supreme Court’s decision in Gundy v. United States, that truism may soon change.

For much of its recent history, the Court has approached nondelegation challenges using the “intelligible principle” test. Now, for the first time in many years, five Justices have indicated a willingness to revisit that test. In his dissenting opinion in Gundy , Justice Gorsuch proposed a new test—the “Gorsuch test”—for adjudicating nondelegation disputes. He averred that a legislature can only give power under three circumstances: (1) to “fill up the details”; (2) to make the application of a rule dependent on certain executive fact-finding; or (3) to assign nonlegislative responsibilities to either the judicial or executive branch.

This Note is among the first scholarly pieces to examine the Gorsuch test and its potential implications for administrative law. By tracing previous nondelegation tests and proposals, this Note argues that Justice Gorsuch’s proposal would severely curtail Congress’s ability to transfer authority efficiently, limit the administrative state, imperil potentially hundreds of thousands of statutes, cause doctrinal confusion, and force a change that will be difficult to apply. Ultimately, the Court should not adopt this proposal and instead continue to apply the decades-old intelligible principle test.

Preclusion of Exclusion: How Many Bites Does DHS Get at the Deportation Apple?
Christine M. Mullen
PDF

The common law doctrine of res judicata prevents parties from relitigating claims that were, or could have been, litigated in a previous proceeding. In the background of all civil law, the doctrine has been regularly applied to executive agency adjudications. However, recent developments have highlighted a circuit split and tension between the branches of government, as different adjudicative bodies have come to differing conclusions on whether, and to what extent, res judicata applies in removal proceedings.

This Note argues that res judicata should apply broadly and uniformly in removal proceedings, limiting the Department of Homeland Security (“DHS”) to only one bite at the deportation apple. The text and structure of the Immigration and Nationality Act, as well as its judicial interpretations and the regulations created to enforce it, command this result. Furthermore, the principles of fairness, reliance, and efficiency that drive res judicata are especially salient as immigrant defendants face unique challenges while the U.S. immigration system becomes increasingly overburdened. This Note concludes with a survey of the available avenues to reach a uniform application of the doctrine and to provide much needed clarity for the adjudicators applying the law, the lawyers on both sides, and the noncitizens facing one of the most severe penalties—deportation.

Volume 70, Number 1 – October 2020

Articles

The Executive’s Privilege
Jonathan David Shaub
PDF

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.

In Search of Prerogative
Ilan Wurman
PDF

The standard formalist account of Article II’s Executive Vesting Clause is that “the executive power” refers to all the powers and authorities possessed by the executive magistrate in Great Britain prior to the Constitution’s adoption, subject to the assignment of such powers and authorities to the other departments of the national government. In recent papers, a handful of scholars have challenged this “residual vesting thesis” by amassing evidence that “the executive power” textually referred only to the power to carry law into execution and not to the bundle of other royal prerogatives—for example over foreign affairs and national security—enjoyed by the British monarch. According to the advocates of both accounts, the scope and nature of the executive is dramatically altered depending on which account one adopts.

This Article dissents from both views. “The executive power” was indeed about law execution and was not a residual grant of power; but both the Founding generation and its key guide, Blackstone, likely shared a “thick” understanding of this power. Their writings and statements suggest that “the executive power,” even in its narrower law-execution sense, plausibly included the powers to appoint, remove, and direct executive officers and to promulgate regulations as necessary incidents to law execution. Not only is this account consistent with Blackstone and the historical meaning of “the executive power,” but it better fits the available data from the Constitutional Convention and early practice than either of the other two accounts. The residual vesting thesis requires us to believe that the Committee of Detail ignored the instructions of the delegates in the Constitutional Convention, to infer that the delegates themselves were unaware of the implications of what they had written, and to ignore the fact that not a single opponent of the Constitution during ratification so much as mentioned the possibility of a residual grant. On the other hand, the law-execution thesis, at least a “thin” version of it, may not account for important practices and precedents. The “thick” view of “the executive power” advanced in this Article is the theory of best fit: it is the only one that fits the text, the Framers’ apparent intent, and the historical practice. The upshot of this approach is that the president probably has more power in the domestic sphere than under a thin law-execution account but less in foreign affairs than under the residual vesting thesis.

Notes

The Gorsuch Test: Gundy v. United States, Limiting the Administrative State, and the Future of Nondelegation
Johnathan Hall
PDF

The future of nondelegation is uncertain. Long considered an “axiom in constitutional law,” the nondelegation principle has almost never been seriously enforced—from the founding of the country to present day. After the Supreme Court’s decision in Gundy v. United States, that truism may soon change.

For much of its recent history, the Court has approached nondelegation challenges using the “intelligible principle” test. Now, for the first time in many years, five Justices have indicated a willingness to revisit that test. In his dissenting opinion in Gundy , Justice Gorsuch proposed a new test—the “Gorsuch test”—for adjudicating nondelegation disputes. He averred that a legislature can only give power under three circumstances: (1) to “fill up the details”; (2) to make the application of a rule dependent on certain executive fact-finding; or (3) to assign nonlegislative responsibilities to either the judicial or executive branch.

This Note is among the first scholarly pieces to examine the Gorsuch test and its potential implications for administrative law. By tracing previous nondelegation tests and proposals, this Note argues that Justice Gorsuch’s proposal would severely curtail Congress’s ability to transfer authority efficiently, limit the administrative state, imperil potentially hundreds of thousands of statutes, cause doctrinal confusion, and force a change that will be difficult to apply. Ultimately, the Court should not adopt this proposal and instead continue to apply the decades-old intelligible principle test.

Preclusion of Exclusion: How Many Bites Does DHS Get at the Deportation Apple?
Christine M. Mullen
PDF

The common law doctrine of res judicata prevents parties from relitigating claims that were, or could have been, litigated in a previous proceeding. In the background of all civil law, the doctrine has been regularly applied to executive agency adjudications. However, recent developments have highlighted a circuit split and tension between the branches of government, as different adjudicative bodies have come to differing conclusions on whether, and to what extent, res judicata applies in removal proceedings.

This Note argues that res judicata should apply broadly and uniformly in removal proceedings, limiting the Department of Homeland Security (“DHS”) to only one bite at the deportation apple. The text and structure of the Immigration and Nationality Act, as well as its judicial interpretations and the regulations created to enforce it, command this result. Furthermore, the principles of fairness, reliance, and efficiency that drive res judicata are especially salient as immigrant defendants face unique challenges while the U.S. immigration system becomes increasingly overburdened. This Note concludes with a survey of the available avenues to reach a uniform application of the doctrine and to provide much needed clarity for the adjudicators applying the law, the lawyers on both sides, and the noncitizens facing one of the most severe penalties—deportation.