Applicability of Executive Privilege to the Recommendations of Independent Agencies Regarding Presidential Approval or Veto of Legislation ( 1986 )

Applicability of Executive Privilege to the
Recommendations of Independent Agencies Regarding
Presidential Approval or Veto of Legislation
In m aking recom m endations to the [’resident to approve or disapprove legislation, an indepen­
dent agency functions as part of th e President’s core o f executive advisers.
W hen independent agencies render advice to the President concerning his approval or disap­
proval o f legislation, they are acting in an executive capacity, and such advice can be
protected under the doctrine of executive privilege.
December 22, 1986
M em orandum O p i n io n f o r t h e A s s is t a n t A ttorney G eneral,
O f f ic e of L e g is l a t iv e A f f a ir s
As part of the internal executive branch process for presenting to the Presi­
dent recommendations for approval or disapproval of legislation, the Office of
Management and Budget often solicits the views of the “independent agencies”
with respect to legislation of particular concern to them. Their recommenda­
tions and comments are consolidated by OMB and communicated to the
President along with those of the other concerned agencies and departments.
Because existing precedent separates the “independent agencies” somewhat
from the President’s direct supervision and control, see, e.g., Humphrey’s
Executor v. United States, 295 U.S. 602 (1935), the question has arisen as to
whether recommendations and comments made by an independent agency in
this context, i.e., as advice to the President on his approval or disapproval of
legislation, may be protected from disclosure to Congress by the doctrine of
executive privilege.
A preliminary question, which does not depend on the status of an agency as
“independent,” is whether Congress has authority to inquire into approval or
veto recommendations made to the President. The Supreme Court has ac­
knowledged that the investigative power of Congress, while broad, is not
unlimited. There must be a subject matter for the inquiry, the investigation
must be authorized by Congress, there must be a valid legislative purpose, the
witness must be accorded certain constitutional protections, and the informa­
tion demanded must be pertinent to the inquiry. See Gojack v. United States,
384 U.S. 702, 704-05, 714 (1966); Wilkinson v. United States, 365 U.S. 399,
408-09 (1961); Barenblatt v. United States, 360 U.S. 109, 111, 117 (1959);
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Watkins v. United States, 354 U.S. 178, 187 (1957); United States v. Rumely,
345 U.S. 41, 44-46 (1953); McGrain v. Daugherty, 273 U.S. 135, 173, 176
(1927); K ilboum v. Thompson, 103 U.S. 168, 190 (1881). The information
sought by Congress must be “demonstrably critical to the responsible fulfill­
ment of the Committee’s functions.” Senate Select Committee on Presidential
Campaign Activities v. Nixon, 498 F.2d 725, 731 (D.C. Cir. 1974) (en banc).
Congress may of course appropriately request the views of the Executive
Branch on pending legislation, as part of its inquiry into the wisdom of and
need for the legislation. However, once that legislation has been passed by
Congress, the President alone must determine whether it should be approved.
The President’s authority to approve or disapprove legislation is absolute,
unqualified (except insofar as Congress may override a veto through the
legislative process), and unreviewable. Because the veto power is one vested
exclusively in the President by the Constitution, it is therefore difficult to see
how Congress has any legitimate legislative interest in reviewing the exercise
of that power.1
Even if Congress can claim a legitimate legislative interest in recommenda­
tions made to the President with respect to the approval or disapproval of
legislation, it is clear, at least with respect to “nonindependent” Executive
Branch agencies, that the doctrine of executive privilege may be invoked to
prevent disclosure of those recommendations. In United States v. Nixon, 418
U.S. 683 (1974), the Supreme Court established in unequivocal terms that the
privilege is of constitutional stature. The Court rested this ruling, first, on the
need for protection of communications between high government officials and
those who assist and advise them, and, second, on the constitutional separation
of powers between the three branches:
Human experience teaches that those who expect public dis­
semination of their remarks may well temper candor with con­
cern for appearances and for their own interests to the detriment
of the decisionmaking process. Whatever the nature of the privi­
lege of confidentiality of Presidential communications in the
exercise of Article II powers, the privilege can be said to derive
from the supremacy of each branch within its own assigned area
1 In a sim ilar context — that o f rem oval o f executive branch officers — the Executive Branch has
consistently refused to com ply with congressional requests to explore the reasons for dism issal, because
under A rticle II the pow er to rem ove Executive Branch officers is exclusively the President’s. For exam ple,
President Andrew Jackson declined to give the Senate the reasons for dism issal o f an executive officer,
explaining that “the President in cases o f this nature possesses the exclusive pow er o f rem oval from office,
and, under the sanction o f his official oath and o f his liability to impeachm ent, he is bound to exercise it
w henever the public welfare shall require.” 3 J. Richardson, Messages and Papers o f the President 133
(G ov’t Pnnting O ffice ed. 1896). President C leveland sim ilarly rejected “the right of the Senate to sit in
judgm ent upon the exercise o f m y exclusive discretion and Executive function.” 8 J. Richardson, Messages
and Papers o f the President at 381. In the more recent past, G eneral O m ar B radley refused in 1951 to testify
before Senate com m ittees concerning his discussions with President Trum an regarding the firing of G eneral
M acArthur. G eneral B rad ley 's refusal was upheld by the Senate Com m ittees on Armed Services and Foreign
Relations Military Situation in the Far East: Hearings before the Sen. Comm, on Armed Services and Sen.
Comm, on Foreign Relations, 82d Cong., 1st Sess., Part 2, 8 32-72 (1951).
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of constitutional duties. Certain powers and privileges flow
from the nature of enumerated powers; the protection of the
confidentiality of Presidential communications has similar con­
stitutional underpinnings.
Id. at 705-06. In determining whether to approve or disapprove legislation, the
President needs the benefit of full and frank discussions within the Executive
Branch of the merits of the legislation. Recommendations made to the Presi­
dent are therefore quintessentially deliberative type materials that can be
protected under the doctrine o f executive privilege.2
The rationale that justifies withholding this type of material under the
doctrine of executive privilege is equally applicable to the “independent agen­
cies.” In making recommendations to the President to approve or disapprove
legislation, an independent agency is functioning as part of the President’s core
of executive advisers, just as the other departments and agencies. The role
played by the various agencies in the process is virtually indistinguishable,
regardless of whether the agency is termed “independent” or not. It would be
inconsistent with the underlying principle of executive privilege — the need to
preserve the integrity of the President’s decisionmaking process — to conclude
that recommendations made by a Cabinet agency may be protected, whereas
recommendations on the same bill, made as part of the same inter-agency
process, cannot be protected.
This functional analysis is consistent with the Supreme Court’s view in
H um phrey’s Executor of the relationship between the President and the inde­
pendent agencies. Even assuming, arguendo, the continuing validity of
H um phrey’s Executor ,3 it clearly does not divorce entirely the “independent
agencies” from the executive branch. Under Humphrey’s Executor, the Presi­
dent may be limited, in certain questions of removal, from asserting direct
supervision and control over the “quasi- legislative” or “quasi-judicial” func­
tions of the agencies. Nothing in the decision suggests, however, that when an
agency functions in a clearly executive capacity — such as rendering advice to
the President — it is likewise insulated from direct Presidential supervision. A
more detailed discussion of this question can be found in a 1957 opinion of this
Office. Memorandum for the Attorney General from W. Wilson White, Assis­
tant Attorney General, Office of Legal Counsel (Nov. 5, 1957). That opinion
concludes, based on an analysis of Humphrey’s Executor, that, “[i]n many
respects [the] functions and operations [of the independent agencies] are sub­
ject to executive control,” and “[i]n such cases the doctrine of executive
privilege should apply to the independent regulatory commissions to the same
extent that it applies to the executive departments and officers of the federal
government.” A current example of application of this functional analysis is the
2 In o rd e r eo protect the confidentiality o f those recom m endations, the privilege w ould extend as well to
drafts and inter- o r intra-agency deliberative com m unications preparatory to making the final recom m enda­
tion. See generally NLRB v. Sears, Roebuck &. Co., 421 U.S. 132, 150 (1975); Coastal States Gas Corp. v.
Dep t o f Energy, 617 F.2d 854, 866 (D .C. Cir. 1980).
3 See generally Bows her v. Synar, 478 U .S. 714, 761 n.3 (1986).
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Executive Order on classification and declassification of sensitive national
security information. Executive Order No. 12356, 47 Fed. Reg. 14874 (1982).
This order, which is based on the President’s supervisory authority over the
disclosure, of information that may harm the national security — a long-
recognized branch of executive privilege — applies equally to “independent
agencies” and the other executive agencies.
D o u g l a s W . K m ie c
Deputy Assistant Attorney General
Office o f Legal Counsel
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