“H.R. 4187, the Presidential Records Act Amendment of 2002"
Mark J. Rozell
Professor of Politics
The Catholic University of America
Congressional Testimony before the
Committee on Government Reform’s
Subcommittee on Government
Efficiency, Financial Management,
and Intergovernmental Relations
April 24, 2002
Thank you, Mr. Chairman, for the opportunity to address the subcommittee. I am the author of various studies on executive privilege and I testified last year before this subcommittee that Executive Order 13233 improperly expands the scope of the privilege and that it wrongly supercedes Congress’s legislative authority.
There was a strong consensus at that hearing, and the scholarly community has since overwhelmingly weighed in, that the Executive Order is deeply flawed. In addition to violating the traditional standards of executive privilege and the legislative power, the Executive Order unlawfully displaces the decision-making authority vested in the Archivist. The Executive Order undercuts both the text and the legislative history of the Presidential Records Act.
In our constitutional system of separated power, the president does not have the authority to use executive orders to negate statutory policy. An executive order is proper when it concerns an independent presidential power contained in the Constitution or some executive power granted by an Act of Congress. Neither circumstance exists in this case. The Supreme Court ruled in Nixon v. Administrator of General Services that Congress possesses the power to legislate in the area of public access to presidential papers. No legislative enactment authorizes an executive order to govern the release of presidential records.
Thus, the question no longer is whether the Executive Order is legitimate - clearly, it is not - but whether a legislative remedy is proper or necessary. I believe that it is well within congressional authority to repeal this Executive Order and also to define the process for claiming and resolving executive privilege claims that arise from requests for the papers of past administrations.
It is not sufficient for Congress merely to reinstate the Presidential Records Act and to repeal the Executive Order. The administration is correct in its view that the Presidential Records Act needs to be revisited and that, in hindsight, some of the law’s provisions are flawed. And the Executive Order raises some legitimate points about the practical difficulties of implementing Congress’s intent under the law in certain circumstances, such as the disability of a former president. But a legislative remedy is the appropriate course of action to solve such problems rather than to allow an executive order to supercede an Act of Congress. I also believe that a legislative remedy is far preferable to waiting for a resolution in the courts or a redrafting of the Executive Order by the executive branch.
A Flawed Executive Order
Presidential papers should be handled by statute and not by an executive order. Presidential papers are ultimately public documents - a part of our national records - and they are paid for with public funds. They should not be treated merely as private papers.
The Bush Executive Order conflicts with the established principle that an ex-president’s interest in maintaining confidentiality erodes substantially once he leaves office and it continues to erode over time. Executive privilege exists for former presidents, but the standard for sustaining such a claim of privilege is very high. Executive Order 13233 actually allows an ex-president’s claim of privilege in almost all cases to override a sitting president’s judgment.
The Bush Executive Order creates overly burdensome procedures that prevent access to presidential records. The legal constraints built into the Executive Order will have the effect of delaying documents requests for years as these matters are fought in the courts. These obstacles alone will settle the issue in favor of former presidents because many with an interest in access to government records will conclude that they do not have the time or the financial resources to stake a viable challenge. Under the Executive Order, the burden shifts from those who must justify withholding information on to those who have made a claim for access to information.
Finally, the Bush Executive Order allows a former president to designate a representative to make executive privilege claims on his behalf, even after the former president has died. In testimony before this subcommittee last year, the Administration’s witness stated that a former president “may designate whomever he sees fit.”  Thus, the Executive Order wrongly allows executive privilege - an exclusive presidential power – to be transferred to a private citizen.
A Proper Legislative Response
As I stated in my November 6, 2001, testimony to this subcommittee, I am very dubious about the idea of a legislated definition of executive privilege. Very appropriately, H.R. 4187 leaves the definition of the scope of that power to presidents and the courts and instead merely remedies troublesome procedures over the exercise of the privilege. Thus, this bill does not infringe on a president’s or ex-president’s constitutional prerogative.
Indeed, the bill protects the interests of former and incumbent presidents by establishing a procedure whereby they are provided a reasonable time period to review government records to consider whether to claim executive privilege. The bill further requires the Archivist to abide by any such claim of privilege by an incumbent President and places a burden on those seeking access to such records to seek a judicial remedy.
There is nothing in the bill that suggests the likely outcome of any executive privilege dispute. The bill appropriately allows such disputes to be settled on a case-by-case basis either through a process of accommodation or by the courts.
H.R. 4187 thus fulfills some of the objectives of the Bush Executive Order, without improperly expanding the scope of executive privilege. It also offers a reasonable timeframe for former and incumbent presidents to consider a claim of executive privilege, which protects the interests of those in need of a timely release of information.
This bill remedies the problem of the Executive Order displacing the authority vested in the Archivist. Under the Executive Order, the Archivist loses his or her discretion to rule on the propriety of a former president’s claim of privilege. This provision clearly conflicts with the congressional intent of the Presidential Records Act. H.R. 4187 offers a workable middle ground by requiring the Archivist to withhold records long enough for the former president to file a suit to protect his claim of privilege.
H.R. 4187 reaffirms the principle that executive privilege is a presidential power that cannot be delegated to some other person and cannot be exercised independently by a current or former vice president. The bill also reaffirms the important principle that the incumbent or former president formally invoke executive privilege in writing and specify the reasons for so doing.
Finally, this bill overcomes a major flaw in the provision of the Bush Executive Order that requires an incumbent president to support a former president’s claim of privilege, even if the incumbent disagrees. This provision clearly violates the constitutional requirement that the president “take care” to faithfully execute the law. For a president to uphold what he believes may be an improper use of executive privilege by a predecessor would violate the Article II, Section 3, “take care” clause of the Constitution.
In my previous testimony, I expressed the concern that the Bush Executive Order improperly shifts the burden from those seeking to withhold documents to those seeking access to public records. Consistent with the intent of the Presidential Records Act, H.R. 4187 places the burden once again where it belongs: on those who want to withhold information. Secrecy occasionally is necessary for any government to function. But in a democracy, the presumption must be in favor of openness. In our system of government, secrecy is the rare exception, not the rule.
Statement of Mark J. Rozell, U.S. Congress, House Subcommittee on Government Efficiency, Financial Management and Intergovernmental Relations. Hearing: “The Implementation of the Presidential Records Act of 1978.” November 6, 2001, 2154 Rayburn House Office Building, Washington, D.C. See also “American Political Science Association Response to Executive Order 13233,” “American Historical Association Response to Executive Order 13233,” and Martha Joynt Kumar, “Executive Order 13233: Further Implementation of the Presidential Record Act,” all in Presidential Studies Quarterly, Vol. 32, No. 1 (March 2002).
 An exception may be that an executive order could negate a congressional enactment if the statute trenched upon executive authority.
“The Presidential power, if any, to issue the order must stem either from an act of Congress or from the Constitution itself.” Youngstown Sheet & Tube Co. V. Sawyer, 343 U.S. 579, 585 (1952). Justice Jackson’s famous concurring opinion in Youngstown is germane: “When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter.” 343 U.S. 579, 638 (1952).
Nixon v. Administrator of General Services, 433 U.S. 435 (1977).
Ibid at 451.
Statement of Acting Assistant Attorney General Edward Whalen III, U.S. Congress House Subcommittee on Government Efficiency, Financial Management and Intergovernmental Relations. Hearing: “The Implementation of the Presidential Records Act of 1978.” November 6, 2001, 2154 Rayburn House Office Building, Washington, D.C.
 Indeed, the D.C. Circuit Court rejected an attempt by the Reagan administration Office of Legal Counsel (OLC) to require the Archivist to abide by any claim of privilege by a former president. The court ruled that the OLC position violated the intent of the Presidential Records Act as well as the “take care” clause of the Constitution. See Public Citizen v. Burke, 843 F.2d 1473 (D.C. Cir. 1988).
The D.C. Circuit Court ruled that the “ presidential communications privilege” applies to advice that pertains to direct presidential decision making. Thus, the court reasoned that this privilege is a presidential power alone and involves the president’s independent powers under Article II. In re Sealed Case, 121 F. 3d 729 (D.C. Cir. 1997). These powers do not belong co-equally to the vice president. Professor Peter Shane, in testimony before this subcommittee, put it well: “I know of no authority that suggests that there is an independent executive privilege to protect the office of the vice presidency.” Statement of Peter M. Shane, U. S. Congress, House Subcommittee on Government Efficiency, Financial Management and Intergovernmental Relations. Hearing: “The Implementation of the Presidential Records Act of 1978.” November 6, 2001, 2154 Rayburn House Office Building, Washington, D.C.