Document Type

Article

Publication Title

George Mason Law Review

Publication Date

2010

Abstract

A critical element in the legal and rhetorical foundation for the institutionalization of secrecy is United States v. Nixon, the Supreme Court decision that recognized executive privilege as an executive prerogative rooted in Article II of the Constitution. The reasoning of the Nixon decision contains significant flaws. And, in large part because of these flaws, the Supreme Court's decision in Nixon-while nominally addressing only executive privilege-has enabled a culture of executive branch secrecy to take hold.

In Part I, the Nixon decision is examined. In Part II, we explain how Nixon failed to balance the costs and benefits of secrecy in policy making, overvaluing the benefits of secrecy and discounting its costs. In this part, we undertake the more nuanced look at secrecy eschewed by the Nixon Court, exploring both its attraction to policymakers and its potentially harmful consequences. This examination leads, as we explain in Part III, to the inevitable conclusion that Nixon's presumption of secrecy-especially when applied to congressional requests for information-is inconsistent with the constitutional structure envisioned by the Framers. When it threatens to thwart legitimate congressional inquiry, the power that secrecy represents must be amenable to the structural checks embedded in the Constitution. To effectuate this goal, we recommend replacing the Nixon presumption with a different one, one that favors openness. This would mean that when Congress determines that it has a legitimate need-either for its legislative or oversight responsibilities-for information generated or shared in the course of executive branch deliberations, Congress should be able to obtain that information. In Part IV, we offer several approaches for effecting this recommendation.

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