Publication of a Report to the President on the Effect of Automobile and Automobile-Part Imports on the National Security ( 2020 )

(Slip Opinion)
Publication of a Report to the President on the
Effect of Automobile and Automobile-Part
Imports on the National Security
The President may direct the Secretary of Commerce not to publish a confidential report
to the President under section 232 of the Trade Expansion Act of 1962, notwithstand-
ing a recently enacted statute requiring publication within 30 days, because the report
falls within the scope of executive privilege and its disclosure would risk impairing
ongoing diplomatic efforts to address a national-security threat and would risk interfer-
ing with executive branch deliberations over what additional actions, if any, may be
necessary to address the threat.
January 17, 2020
MEMORANDUM OPINION FOR THE
DEPUTY COUNSEL TO THE PRESIDENT
In February 2019, the Secretary of Commerce submitted a report to the
President under section 232 of the Trade Expansion Act of 1962, 19
U.S.C. § 1862, advising him that imports of certain automobiles and
automobile parts threaten to impair the national security and recommend-
ing action to address that threat. Although section 232 authorized the
President to impose tariffs in response, the President deferred a decision
on that remedy and instead directed the United States Trade Representa-
tive (“USTR”) to pursue negotiations with foreign countries that are the
sources of those imports. Section 232 contemplates that the Secretary will
eventually publish his report to the President, see id. § 1862(b)(3)(B), but
the Secretary has kept the report confidential while USTR’s negotiations
continue. In a recent appropriations act, however, Congress sought to
accelerate the report’s disclosure by requiring the Secretary to publish it
by January 19, 2020. Commerce, Justice, Science, and Related Agencies
Appropriations Act, 2020, Pub. L. No. 116-93, div. B, § 112, 133 Stat.
2317, 2385, 2395–96 (Dec. 20, 2019).
You have asked whether the President may direct the Secretary to
withhold the report beyond the statutory deadline while negotiations
continue and the President considers what additional measures may be
necessary to address the national-security threat. We conclude that the
Executive Branch may rely on the constitutional doctrine of executive
privilege to decline to release the report at the deadline. The report is a
confidential presidential communication, the disclosure of which would
risk impairing ongoing diplomatic efforts to address a national-security
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Opinions of the Office of Legal Counsel in Volume 44
concern. Disclosure would also risk interfering with executive branch
deliberations over what additional actions, if any, may be necessary to
address the threat. Although Congress may have a legitimate interest in
ultimately reviewing the report to understand the basis for the President’s
exercise of his section 232 authority, that generalized interest does not
overcome the constitutionally rooted confidentiality interests that justify
withholding the report until the resolution of diplomatic negotiations and
action by the President. 1
I.
A.
Section 232 of the Trade Expansion Act delegates to the President the
authority to adjust imports in order to ensure that the Nation’s domestic
industrial capacity remains sufficient for the requirements of national
security. See 19 U.S.C. § 1862(d). The statute broadly authorizes the
President to take “action” that “in the judgment of the President . . . must
be taken to adjust” imports “so that such imports will not threaten
to impair the national security.” Id. § 1862(c). Before the President
may take such an action, however, the Secretary of Commerce must
conduct, on request or his own motion, an “appropriate investigation to
determine the effects on the national security of imports of the article.”
Id. § 1862(b)(1)(A). Within 270 days after the Secretary initiates the
investigation, he “shall submit to the President a report on the findings of
such investigation” and his recommendations “for action or inaction”
under section 232. Id. § 1862(b)(3)(A). If the Secretary finds that the
relevant imports “threaten to impair the national security,” then the Presi-
dent has 90 days to decide whether he agrees with that finding. Id.
§ 1862(c)(1)(A). If the President does, then he shall “determine the nature
and duration of the action that, in the judgment of the President, must
be taken to adjust the imports of the article and its derivatives so that
such imports will not threaten to impair the national security.” Id.
§ 1862(c)(1)(A)(ii).
The President’s authority under section 232 to adjust imports includes
a range of options that may be used alone or in combination. He may
1 In preparing this opinion, we consulted with the Office of the General Counsel of the
Department of Commerce and the Office of the General Counsel of USTR.
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Publication of Report to President on Automobile and Automobile-Part Imports
impose a tariff or quota on imports of the article in question. See Fed.
Energy Admin. v. Algonquin SNG, Inc., 426 U.S. 548, 561 (1976); The
President’s Power to Impose a Fee on Imported Oil Pursuant to the Trade
Expansion Act of 1962, 6 Op. O.L.C. 74, 75–77 (1982). The President
may also launch negotiations for agreements with other countries to
address the threatened impairment of the national security. See 19 U.S.C.
§ 1862(c)(3)(A). The statute provides for the President to implement
any such action within 15 days of that decision. Id. § 1862(c)(1)(B). 2
No later than 30 days after the decision, the President shall also report
to Congress on “the reasons why the President has decided to take action,
or refused to take action,” under the statute. Id. § 1862(c)(2).
If the President chooses to pursue negotiations, and those negotiations
do not remove the threat to national security, then the statute contemplates
that the President may direct additional measures. If, after 180 days, no
international agreement has been reached, or if any agreement “is not
being carried out or is ineffective,” then the President “shall take such
other actions as the President deems necessary to adjust the imports of
[the] article so that such imports will not threaten to impair the national
security.” Id. § 1862(c)(3)(A). The statute provides that the President
shall publish in the Federal Register notice of any such action taken, and
similarly that he shall publish a determination to take no additional action.
Id. § 1862(c)(3)(A), (B).
Section 232 contemplates that the Secretary of Commerce will publish
the results of his investigation, except as necessary to protect classified or
proprietary information. First, section 232 requires publication of “a
report” “[u]pon the disposition of each request, application, or motion”
for an investigation under section 232(b). Id. § 1862(d)(1); see also Trade
Expansion Act of 1962, Pub. L. No. 87-794, § 232(d), 76 Stat. 872, 877
2 We have repeatedly recognized that the President has authority to modify action he
has taken to adjust imports under section 232 and its predecessors without a new investi-
gation. See, e.g., Presidential Authority to Adjust Ferroalloy Imports Under § 232(b) of
the Trade Expansion Act of 1962, 6 Op. O.L.C. 557, 562 (1982) (“Ferroalloy Imports”);
Restrictions on Oil Imports, 43 Op. Att’y Gen. 20, 21–23 (1975) (Saxbe, A.G.). The Court
of International Trade recently concluded that the President lacks authority to modify his
initial action, except insofar as he directs additional actions following unsuccessful
negotiations under section 232(c)(3). See Transpacific Steel LLC v. United States, No. 19-
142, 2019 WL 6124906, at *5–6 & n.15 (Ct. Int’l Trade Nov. 15, 2019). That conclusion
has not yet been tested in an appellate court.
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(original version of this provision). 3 Second, the statute requires that
“[a]ny portion of the report submitted by the Secretary” to the President
“which does not contain classified information or proprietary information
shall be published in the Federal Register.” 19 U.S.C. § 1862(b)(3)(B).
We understand that the Department of Commerce implements these
requirements by publishing an executive summary of the Secretary’s
report in the Federal Register and making the full report, except for
classified and proprietary information, available for public inspection.
See 15 C.F.R. § 705.10(c). Although section 232 requires the report’s
publication “upon the disposition” of the Secretary’s investigation, the
statute does not set any deadline for publication. Nor does section 232
address the timing of publication when, as here, the President acts on the
report’s recommendations by directing negotiations with foreign coun-
tries.
B.
On May 23, 2018, the Secretary of Commerce initiated an investigation
under section 232 into the effects on the national security of imports of
certain automobiles and automobile parts. See Notice of Request for
Public Comments and Public Hearing on Section 232 National Security
Investigation of Imports of Automobiles, Including Cars, SUVs, Vans and
Light Trucks, and Automotive Parts, 83 Fed. Reg. 24,735 (May 30, 2018).
On February 17, 2019, the Secretary submitted a report to the President
containing the results of that investigation.
3 Section 232 succeeded two other statutes conferring similar authority on the Presi-
dent. See Trade Agreements Extension Act of 1958, Pub. L. No. 85-686, § 8, 72 Stat. 673,
678–79; Trade Agreements Extension Act of 1955, Pub. L. No. 84-86, § 7, 69 Stat. 162,
166. Both statutes authorized the President to adjust imports of an article based upon the
investigation and recommendation of a subordinate regarding whether the imports threat-
en national security. Section 8(d) of the 1958 Act required publication of “[a] report”
“upon the disposition” of the investigation. 72 Stat. at 679. Section 7 of the 1955 Act did
not address publication. 69 Stat. at 166. The 1955 Act charged the Director of the Office
of Defense Mobilization with the investigation and recommendation. See id. Congress
transferred this function to the Secretary of the Treasury in the Trade Act of 1974, Pub. L.
No. 93-618, § 127(d)(1), 88 Stat. 1978, 1993 (Jan. 3, 1975). President Carter transferred
this function to the Secretary of Commerce in section 5 of Reorganization Plan No. 3 of
1979, 44 Fed. Reg. 69,273, 69,274 (Dec. 3, 1979), and Congress codified the Secretary of
Commerce’s role in 1988, see Omnibus Trade and Competitiveness Act, Pub. L. No. 100-
418, § 1501, 102 Stat. 1107, 1258.
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Publication of Report to President on Automobile and Automobile-Part Imports
On May 17, 2019, the President issued a proclamation noting his con-
currence in “the Secretary’s finding that automobiles and certain automo-
bile parts are being imported into the United States in such quantities and
under such circumstances as to threaten to impair the national security of
the United States.” Proclamation No. 9888, 84 Fed. Reg. 23,433, 23,434
(May 21, 2019). As described in the proclamation, the report found that
the United States’ defense-industrial base depends upon the American-
owned automotive sector for the development of technologies vital to the
national security. See id. ¶¶ 2–3, 84 Fed. Reg. at 23,433. Imports of auto-
mobiles and automobile parts, however, have displaced American-owned
production, in part because of foreign protective barriers that disadvan-
taged American-owned manufacturers. See id. ¶¶ 3–5, 84 Fed. Reg. at
23,433. The resulting displacement in the American-owned automotive
industry threatened to weaken U.S. technological leadership in an area
vital to the national defense. See id. ¶¶ 6–8, 84 Fed. Reg. at 23,433–34.
Accordingly, the Secretary concluded that “the present quantities and
circumstances of automobile and certain automobile parts imports threat-
en to impair the national security” of the United States. Id. ¶ 9, 84 Fed.
Reg. at 23,434.
While concurring in the Secretary’s finding, the President chose not to
invoke his section 232 authority to impose tariffs or quotas on imports of
automobiles or automobile parts. The Secretary had recognized that
“successful negotiations could allow American-owned automobile pro-
ducers to achieve long-term economic viability” and “develop cutting-
edge technologies that are critical to the defense industry.” Id. ¶ 11, 84Fed. Reg. at 23,434. The President thus directed USTR to “pursue negoti-
ation of agreements contemplated in 19 U.S.C. 1862(c)(3)(A)(i) to ad-
dress the threatened impairment of the national security with respect to
imported automobiles and certain automobile parts from the European
Union, Japan, and any other country the Trade Representative deems
appropriate.” Id. cl. 1, 84 Fed. Reg. at 23,435. 4 USTR advises that negoti-
ations remain ongoing, but have not yet produced an agreement that
addresses the national-security threat. We are also advised that the Presi-
dent has not yet decided what, if any, “other actions” to take under section
232(c)(3)(A) to adjust imports of automobiles and automobile parts,
4 The cited provision, section 232(c)(3)(A)(i), refers to agreements that “limit[] or re-
strict[] the importation into, or the exportation to, the United States of the article that
threatens to impair national security.”
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Opinions of the Office of Legal Counsel in Volume 44
including whether to impose tariffs or quotas on those imports. In view of
pending international negotiations and executive branch deliberations, the
Secretary of Commerce has not yet published his report.
On December 20, 2019, Congress enacted the Commerce, Justice, Sci-
ence, and Related Agencies Appropriations Act, 2020, as part of a consol-
idated appropriations act. The Act purports to direct the Secretary of
Commerce to publish his February 2019 report to the President within 30
days. In particular, section 112 of the Act states:
Not later than thirty days after the date of the enactment of this
Act, using amounts appropriated or otherwise made available in this
title for the Bureau of Industry and Security for operations and ad-
ministration, the Secretary of Commerce shall—
(1) publish in the Federal Register the report on the findings of
the investigation into the effect on national security of imports of
automobiles and automotive parts that the Secretary initiated on
May 23, 2018, under section 232(b) of the Trade Expansion Act
of 1962 (19 U.S.C. 1862(b)), as required under paragraph (3)(B)
of that section; and
(2) submit to Congress any portion of the report that contains
classified information, which may be viewed only by Members of
Congress and their staff with appropriate security clearances.
Pub. L. No. 116-93, div. B, § 112, 133 Stat. at 2395–96. Upon signing the
Act, the President noted that certain provisions, including section 112,
“purport to mandate or regulate the dissemination of information that may
be protected by executive privilege.” Statement on Signing the Consoli-
dated Appropriations Act, 2020, 2019 Daily Comp. Pres. Doc. No.
DCPD201900881, at 2 (Dec. 20, 2019). Accordingly, the President deter-
mined that his Administration would “treat these provisions consistent
with the President’s constitutional authority to control information, the
disclosure of which could impair national security, foreign relations, the
deliberative processes of the executive branch, or the performance of the
President’s constitutional duties.” Id.
Section 112’s 30-day deadline for publishing the report in the Federal
Register falls on January 19, 2020. Section 112(2) is not at issue because
the report contains proprietary information but not any classified infor-
mation. The question, then, is whether the President’s constitutional
authority to control privileged information permits him to direct the
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Publication of Report to President on Automobile and Automobile-Part Imports
Secretary not to comply with the publication deadline in section 112(1)
at this time.
II.
Section 112 purports to require the Secretary of Commerce to publish
his report to the President by January 19, 2020, even though the Executive
Branch remains engaged in active deliberations and ongoing international
negotiations about the very subject addressed in the report. That require-
ment implicates confidentiality interests rooted in the doctrine of execu-
tive privilege. Executive privilege is a “constitutionally based” “corollary
of the executive function vested in the President by Article II of the Con-
stitution,” and it empowers the President to withhold confidential infor-
mation from the other Branches and the public when necessary to support
that function. Congressional Requests for Confidential Executive Branch
Information, 13 Op. O.L.C. 153, 154 (1989) (“Congressional Requests”);
see also United States v. Nixon, 418 U.S. 683, 705–06 (1974). Because
the Secretary’s report falls within the scope of executive privilege, it is
presumptively protected from disclosure.
A.
The Secretary’s report is protected by executive privilege. It is a quin-
tessential privileged presidential communication—a report from a Cabinet
Secretary to the President advising him of the officer’s opinions and
recommending decisions by the President. The report is also protected by
the deliberative process component of executive privilege, because it
reflects a recommendation made in connection with deliberations over the
President’s final decision. In addition, disclosure of the full report at this
time could compromise the United States’ position in ongoing interna-
tional negotiations. The Executive Branch accordingly has strong confi-
dentiality interests in the report.
1.
The presidential communications component of executive privilege
clearly applies to confidential advice that an agency head provides to the
President. The courts have recognized that the privilege covers “docu-
ments or other materials that reflect presidential decisionmaking and
deliberations and that the President believes should remain confidential.”
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Opinions of the Office of Legal Counsel in Volume 44
In re Sealed Case, 121 F.3d 729, 744 (D.C. Cir. 1997). In United States v.
Nixon, the Supreme Court explained that this privilege protects “the
public interest in candid, objective, and even blunt or harsh opinions in
Presidential decisionmaking” by ensuring that the President and his advis-
ers are “free to explore alternatives in the process of shaping policies and
making decisions and to do so in a way many would be unwilling to
express except privately.” 418 U.S. at 708. The privilege for presidential
communications is “fundamental to the operation of Government and
inextricably rooted in the separation of powers under the Constitution.”
Id.The report at issue is a confidential communication to the President
containing a Cabinet Secretary’s advice on decisions delegated by statute
to the President—whether automobile and automobile-part imports
“threaten to impair the national security” and whether they should be
adjusted to remove that threat. 19 U.S.C. § 1862(b)(3)(A). The report
is therefore a core presidential communication. See, e.g., Loving v. Dep’t
of Def., 550 F.3d 32, 39 (D.C. Cir. 2008) (“easily” holding that “memo-
randa from the Army and Defense Secretaries directly to the President
advising him” on his statutory review of a court-martial death sentence
“fall squarely within the presidential communications privilege”). The
presidential communications privilege applies to the report in its entirety.
See Sealed Case, 121 F.3d at 745–46.
This conclusion is not affected by the fact that the report reflects the
exercise of statutory authority delegated to the President pursuant to
Congress’s constitutional powers to impose “Taxes, Duties, Imposts and
Excises” and to “regulate Commerce with foreign Nations.” U.S. Const.
art. I, § 8, cls. 1, 3. The presidential communications component of execu-
tive privilege protects the President’s power to faithfully execute all of the
laws. Communications related to the President’s independent constitu-
tional functions may raise “particularly strong” confidentiality concerns,
Assertion of Executive Privilege Concerning the Dismissal and Replace-
ment of U.S. Attorneys, 31 Op. O.L.C. 1, 2 (2007) (Clement, Act’g A.G.),
but the privilege applies equally to communications concerning the execu-
tion of statutes, see, e.g., Assertion of Executive Privilege Over Communi-
cations Regarding EPA’s Ozone Air Quality Standards and California’s
Greenhouse Gas Waiver Request, 32 Op. O.L.C. 1, 3 (2008) (Mukasey,
A.G.); Assertion of Executive Privilege for Memorandum to the President
Concerning Efforts to Combat Drug Trafficking, 20 Op. O.L.C. 8, 8
(1996) (Reno, A.G.).
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Publication of Report to President on Automobile and Automobile-Part Imports
Indeed, this Office has previously advised that executive privilege pro-
tects the confidentiality of communications regarding the President’s use
of his section 232 authority. On April 2, 1980, President Carter imposed
a gasoline-conservation fee under the authority of section 232 following
an investigation by the Secretary of the Treasury (who was previously
responsible for investigations under section 232). See Proclamation No.
4744, 45 Fed. Reg. 22,864 (Apr. 3, 1980). 5 After a House subcommittee
subpoenaed documents related to the President’s decision, this Office
advised that the President had the constitutional authority to protect the
confidentiality of executive branch deliberations, including those related
to his decision to issue the section 232 proclamation. See Memorandum
for the Attorney General from John M. Harmon, Assistant Attorney Gen-
eral, Office of Legal Counsel, Re: The Constitutional Privilege for Execu-
tive Branch Deliberations: The Dispute with a House Subcommittee over
Documents Concerning the Gasoline Conservation Fee at 9–12 (Jan. 13,
1981). The ability of the President to receive such advice from an agency
head directly implicates his power to “require the Opinion, in writing, of
the principal Officer in each of the executive Departments, upon any
Subject relating to the Duties of their respective Offices.” U.S. Const. art.
II, § 2, cl. 1.
2.
The deliberative process component of executive privilege also applies
to the Secretary of Commerce’s report. This aspect of executive privilege
likewise has constitutional roots. See, e.g., Assertion of Executive Privi-
lege with Respect to Prosecutorial Documents, 25 Op. O.L.C. 1, 2 (2001)
(Ashcroft, A.G.). It “covers ‘documents reflecting advisory opinions,
recommendations and deliberations comprising part of a process by which
governmental decisions and policies are formulated.’” Dep’t of the Interi-
or v. Klamath Water Users Protective Ass’n, 532 U.S. 1, 8 (2001) (quot-
ing NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 150 (1975)). The
privilege protects materials that are “predecisional” and “deliberative” in
nature, though it does not extend to “purely factual” material. Judicial
5 The fee was invalidated by a district court. See Indep. Gasoline Marketers Council,
Inc. v. Duncan, 492 F. Supp. 614, 618–19 (D.D.C. 1980). This Office later described the
fee as “clearly . . . the type of presidential action . . . not authorized by § 232.” Ferroalloy
Imports, 6 Op. O.L.C. at 561.
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Opinions of the Office of Legal Counsel in Volume 44
Watch, Inc. v. Dep’t of Justice, 365 F.3d 1108, 1113 (D.C. Cir. 2004)
(quoting Sealed Case, 121 F.3d at 737).
The report, almost by definition, comprises predecisional and delibera-
tive material. Under section 232, the report presents the Secretary’s “find-
ings,” after his investigation, on whether the imports in question threaten
the national security. 19 U.S.C. § 1862(b)(3)(A). The Secretary is re-
quired, based on those findings, to make “recommendations . . . for action
or inaction” by the President and, ultimately, to “advise the President”
regarding whether the relevant imports threaten to impair the national
security and what action the President should take. Id. 6 The report is
predecisional because it “precedes, in temporal sequence,” the President’s
ultimate findings and policy decisions under section 232; and it is deliber-
ative because it “was written as part of the process by which” the Presi-
dent comes to those decisions under section 232. Abtew v. U.S. Dep’t of
Homeland Sec., 808 F.3d 895, 898–99 (D.C. Cir. 2015) (Kavanaugh, J.)
(internal quotation marks omitted). The Secretary’s report served the
predecisional and deliberative functions contemplated by section 232.
Proclamation No. 9888, ¶¶ 2–11, 84 Fed. Reg. 23,433–44 (summarizing
the report). 7
The Executive Branch’s interest in protecting the confidentiality of this
deliberative material is especially strong because the deliberative process
remains ongoing. See Rein v. U.S. Patent & Trademark Office, 553 F.3d
353, 373 (4th Cir. 2009) (deliberative communications related to “on-
going patent reexaminations” were “naturally” protected by deliberative
process privilege); Congressional Requests, 13 Op. O.L.C. at 160 (“in-
6 Some of the material in the report is “purely factual,” which would generally not be
protected by the deliberative process privilege. Judicial Watch, 365 F.3d at 1113. In this
context, however, disclosing that material would still reveal significant substantive
aspects of the Secretary’s confidential advice to the President. We think that this factual
material is likely “‘inextricably intertwined with policy-making processes’” and thus
protected as deliberative. Id. at 1121 (quoting Soucie v. David, 448 F.2d 1067, 1078 (D.C.
Cir. 1971)). Regardless, such factual material would be independently protected as a
presidential communication, which characterizes the report in its entirety.
7 The proclamation’s summary of and quotation from certain portions of the report did
not waive or forfeit executive privilege over the remainder of the report. See Sealed Case,
121 F.3d at 741 (explaining that an “all-or-nothing approach has not been adopted with
regard to executive privileges generally,” so “release of a document only waives these
privileges for the document or information specifically released, and not for related
materials”).
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Publication of Report to President on Automobile and Automobile-Part Imports
formation concerning ongoing deliberations need rarely be disclosed”);
Assertion of Executive Privilege in Response to a Congressional Subpoe-
na, 5 Op. O.L.C. 27, 31 (1981) (Smith, A.G.) (“the interference with the
President’s ability to execute the law is greatest while the decisionmaking
process is ongoing”). The President has not decided what, if any, “other
actions” to take to adjust imports to address the national-security threat
identified by the Secretary. 19 U.S.C. § 1862(c)(3)(A).
The statute continues to authorize the President to take action to adjust
imports of automobiles and automobile parts under section 232. Follow-
ing the Secretary’s initial transmission of the report, the President had 90
days to decide whether he concurred in the Secretary’s findings and to
determine what action to take in response. Id. § 1862(c)(1)(A). Once the
President decided to address the threat by ordering negotiations, he had 15
days to implement that action. Id. § 1862(c)(1)(B). Because the resulting
negotiations did not produce an agreement within 180 days, the President
is now authorized to “take such other actions as the President deems
necessary to adjust imports of such article so that such imports will not
threaten to impair the national security.” Id. § 1862(c)(3)(A).
There is, however, no statutory deadline for the President to exercise
that power. Congress specifically amended the statute in 1988 to add
some specific deadlines for the President to act in response to the Secre-
tary’s report—the 90- and 15-day periods noted above. See Omnibus
Trade and Competitiveness Act of 1988, Pub. L. No. 100-418, § 1501(3),
102 Stat. 1107, 1258. But in contrast with the President’s initial de-
termination, which must be made “[w]ithin 90 days” and “imple-
ment[ed] . . . by no later than” 15 days after the determination, 19 U.S.C.
§ 1862(c)(1)(A), (B), the statute does not set any further deadline for
presidential action after the conclusion of the 180-day negotiation period.
In giving the President the discretion to take “such other actions as the
President deems necessary” after that period, id. § 1862(c)(3)(A), Con-
gress did not require the President to act within any particular timeframe.
It instead provided him with discretion to shape an appropriate action,
including with respect to continuing the international negotiations that are
the basis for invoking this part of section 232. Here, the decision-making
process expressly contemplated by section 232 remains ongoing, giving
the Executive Branch a strong confidentiality interest in predecisional,
deliberative material relevant to the ongoing process of deciding how to
exercise that authority.
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3.
Finally, the disclosure of the report implicates well-established confi-
dentiality interests in protecting information the disclosure of which
would risk damaging ongoing diplomatic negotiations. Given the Presi-
dent’s role “as Commander-in-Chief and as the Nation’s organ for foreign
affairs,” Chi. & S. Air Lines, Inc. v. Waterman S.S. Corp., 333 U.S. 103,
111 (1948), executive privilege is at its most potent when applied to
national-security and diplomatic materials. See Dep’t of the Navy v. Egan,
484 U.S. 518, 527 (1988); Nixon, 418 U.S. at 710. We have long recog-
nized that “the President has the power to withhold from [Congress]
information in the field of foreign relations or national security if in his
judgment disclosure would be incompatible with the public interest.”
Memorandum from John R. Stevenson, Legal Adviser, Department of
State, and William H. Rehnquist, Assistant Attorney General, Office of
Legal Counsel, Re: The President’s Executive Privilege to Withhold
Foreign Policy and National Security Information at 7 (Dec. 8, 1969).
Many of the earliest assertions of what we now call executive privilege
involved protecting the secrecy of information to avoid undermining the
President’s conduct of diplomacy.
The report at issue plainly implicates information in the field of foreign
relations and national security. “Presidential action under [section 232]
. . . is closely linked to questions of national security, and also to the
foreign relations of the United States.” Memorandum for John W. Dean
III, Counsel for the President, from Ralph E. Erickson, Assistant Attorney
General, Office of Legal Counsel, Re: Mandatory Oil Import Program,
att. at 11 (Mar. 3, 1972). We have accordingly described recommenda-
tions to the President under section 232 as reflecting “confidential advice
given to the President in the field of national security.” Id. at 13. Section
232, moreover, expressly contemplates that the President may choose, as
a means of addressing a national-security threat, to negotiate agreements
with foreign countries. 19 U.S.C. § 1862(c)(1), (3). Consistent with this
statutory design, the report here identifies a threatened impairment of the
national security and recommends diplomatic negotiations. See Proclama-
tion No. 9888, ¶¶ 11, 14–15, 84 Fed. Reg. at 23,434–35. The report con-
tains detailed analysis concerning the nature of the problem at the heart of
those negotiations and therefore bears directly upon the United States’
objectives in the negotiations. It is also suggestive of what measures the
United States believes might satisfy those objectives, including what other
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Publication of Report to President on Automobile and Automobile-Part Imports
measures the Secretary believes the United States should be prepared to
take to adjust imports of automobiles and automobile parts. The report in
these respects is akin to a set of diplomatic instructions, and USTR has
advised us that disclosing the report at this time could negatively affect
the position of the United States in ongoing negotiations.
As Attorney General Reno observed, “[h]istory is replete with exam-
ples of the Executive’s refusal to produce to Congress diplomatic com-
munications and related documents because of the prejudicial impact such
disclosure could have on the President’s ability to conduct foreign rela-
tions.” Assertion of Executive Privilege for Documents Concerning Con-
duct of Foreign Affairs with Respect to Haiti, 20 Op. O.L.C. 5, 6 (1996).
In our prior opinions, we have described examples of withholdings of
diplomatic instructions and related documents by the Washington, Adams,
Jackson, Polk, and Fillmore Administrations. See History of Refusals by
Executive Branch Officials to Provide Information Demanded by Con-
gress: Part I—Presidential Invocations of Executive Privilege Vis-à-Vis
Congress, 6 Op. O.L.C. 751, 753–54, 756–57, 762–64 (1982) (“History of
Refusals”). President Washington, for example, withheld from the Senate
in 1794 certain diplomatic correspondence with France, and he withheld
from the House of Representatives in 1796 various documents related to
the negotiation of the Jay Treaty. See id. at 753–54. As Washington
explained in declining to produce instructions to one of his diplomatic
representatives, “a full disclosure of all the measures, demands, or even-
tual concessions which may have been proposed or contemplated” would
have an obvious adverse impact on negotiations to which such matters
pertain. Message to the House of Representatives (Mar. 30, 1796), re-
printed in 1 A Compilation of the Messages and Papers of the Presidents
194–95 (James D. Richardson ed., 1896) (“Messages and Papers”).
Washington made that objection even though the House resolution ex-
cepted any documents pertaining to “existing negotiations.” Id. at 194.
Presidents likewise have repeatedly resisted demands for the disclosure
of material that would damage ongoing negotiations. In 1832, President
Jackson declined to disclose correspondence regarding discussions be-
tween the United States and the Republic of Buenos Aires “so long as the
negotiation shall be pending.” Message to the House of Representatives
(Dec. 28, 1832), reprinted in 2 Messages and Papers at 608–09. 8 In 1848,
8 In 1833, President Jackson also declined to divulge to the Senate a “conditional ar-
rangement” made between commissioners appointed by Jackson and the State of Maine
13
Opinions of the Office of Legal Counsel in Volume 44
President Polk argued that his objections to disclosing materials related to
negotiations with Mexico “are much stronger than those which existed”
when President Washington withheld the Jay Treaty materials because the
negotiations “have not been terminated, and may be resumed.” Message
to the House of Representatives (Jan. 12, 1848), reprinted in 4 Messages
and Papers at 567 (1897). Other Presidents have echoed Jackson’s and
Polk’s views. See, e.g., History of Refusals, 6 Op. O.L.C. at 765 (describ-
ing President Fillmore’s withholding of documents related to a claim
against Mexico that “was still being negotiated”); id. at 770 (describing
President Hoover’s view that “[t]he Executive was under a duty, in order
to maintain amicable relations with other nations, not to publicize every
negotiating position and statement which preceded final agreement” on a
treaty). The Executive Branch thus has a strong and historically well-
founded interest in delaying publication of the report for so long as it may
affect ongoing diplomatic negotiations.
B.
In concluding that executive privilege applies to the report, we have
considered potential counterarguments arising out of the origins and
nature of the report. Specifically, we recognize that the report was drafted
in connection with a statutory process that contemplates its eventual
public disclosure, and that publication could be viewed as a condition on
the President’s exercising the authority delegated under section 232. We
do not believe, however, that either the statutory origin of the report or its
connection to the President’s exercise of delegated authority means that
executive privilege is inapplicable.
1.
Even before the enactment of section 112 of the appropriations act, sec-
tion 232 provided that the Secretary of Commerce would both create and
eventually publish the report. 19 U.S.C. § 1862(b)(3)(A)–(B), (d)(1).
Accordingly, it could be argued that executive officials do not have any
while the United States negotiated with Great Britain regarding the northeastern bounda-
ry. Message to the President of the Senate (Mar. 2, 1833), reprinted in 2 Messages and
Papers at 637; see also History of Refusals, 6 Op. O.L.C. at 757. Jackson’s reasons for
withholding this information are not entirely clear, but it appears that he may have
intended to avoid affecting the progress of ongoing negotiations with Great Britain.
14
Publication of Report to President on Automobile and Automobile-Part Imports
confidentiality interests in the report because, even though it was ad-
dressed to the President, they prepared the report knowing it would even-
tually be disclosed. We do not think this fact makes privilege unavailable.
First, by requiring that the report be disclosed now, section 112 requires a
different kind of disclosure than was contemplated at the time the report
was drafted. Second, even with respect to the eventual disclosure contem-
plated under section 232, the publication mandate does not make execu-
tive privilege categorically unavailable. To the contrary, executive privi-
lege remains available for statutory reports so long as their disclosure
would impair established executive branch confidentiality interests.
As a threshold matter, the question is not whether the report should be
disclosed, but when. At the time the report was submitted, section 232
governed publication, but that statute does not require, and has never
required, the Secretary’s report to the President to be disclosed on any
particular timeline. Instead, the statute simply says that the unclassified
portions of such reports “shall be published in the Federal Register,” and
that “[u]pon the disposition of each” investigation, the Secretary shall
publish “a report on such disposition.” 19 U.S.C. § 1862(b)(3)(B), (d)(1).
The statutory requirement to publish the Secretary’s report to the Presi-
dent dates from the 1988 amendments, which codified the Department of
Commerce’s then-existing regulations requiring publication of the report
upon the disposition of the investigation. 15 C.F.R. § 359.10(c) (1988). A
“disposition” of the investigation does not occur until the President has
decided whether to adjust imports. See Presidential Authority to Adjust
Ferroalloy Imports Under § 232(b) of the Trade Expansion Act of 1962,
6 Op. O.L.C. 557, 562–63 (1982) (recognizing that the President’s deci-
sion “to retain the [Commerce] Report for further study or to return it to
the Commerce Department for further evaluation would not constitute a
final disposition” for purposes of the publication requirement); see also
H.R. Rep. No. 87-1818, at 41 (1962) (“Section 232(d) requires a report to
be made and published on each final disposition of any request for inves-
tigation under section 232(b).” (emphasis added)). Section 232, and the
Department of Commerce’s administration of it, are therefore sufficient to
protect the Executive Branch’s confidentiality interests in the report
unless or until the President has made his decision.
Consistent with section 232’s framework, the Secretary of Commerce
(like those officials previously responsible for conducting such national-
security investigations) has typically published the report to the President
only after the decisional process has concluded. When the Secretary’s
15
Opinions of the Office of Legal Counsel in Volume 44
investigation concludes that the imports in question do not threaten na-
tional security, then the publication of the report necessarily occurs at the
conclusion of the deliberative process, because the President may act only
if the Secretary finds a national-security threat. In such cases, the submis-
sion of the Secretary’s report represents the final decision and the conclu-
sion of the deliberative process. See 19 U.S.C. § 1862(b)(3)(A).
By contrast, when a section 232 investigation finds that imports do pre-
sent a national-security threat, the general practice appears to have been
to disclose the report only after the President decides whether and how
to adjust imports. In February 1959, for example, the Director of the
Office of Civil and Defense Mobilization, who exercised the Secretary’s
authority under section 232’s statutory predecessor, see supra note 3,
advised the President of his determination that imports of crude oil and its
derivatives threatened to impair the national security and promised that,
“[a]s required by the statute, a report of this investigation will be made
and published shortly.” Memorandum for the President from Leo A. Hoegh,
Director, Office of Civil and Defense Mobilization, reprinted in Small
Business Problems Created by Petroleum Imports: Hearings Before
Subcomm. No. 4 of the Select Comm. on Small Bus., 87th Cong. app. II, at
920–22 (1962) (“Petroleum Imports Hearings”). 9 President Eisenhower
imposed import restrictions in Proclamation No. 3279 on March 10, 1959,
24 Fed. Reg. 1781 (Mar. 12, 1959), but the Director did not submit his
statutory report to Congress until the following July. Report of Investiga-
tion of Imports of Crude Oil and Its Derivatives and Products (July 21,
1959), reprinted in Petroleum Imports Hearings app. II, at 925–30.
Similarly, on January 14, 1975, the Secretary of the Treasury submitted
a report to President Ford advising him that imports of crude oil and
related products threatened to impair the national security. See Effects of
Imported Articles on the National Security, 40 Fed. Reg. 4457, 4457 (Jan.
30, 1975). The Secretary did not publish that report until a week after the
President’s January 23 proclamation imposing supplemental fees on the
imports, Proclamation No. 4341, 40 Fed. Reg. 3965 (Jan. 27, 1975). More
recently, the Secretary of Commerce has typically waited until months
9The Office of Defense Mobilization was renamed the Office of Defense and Civilian
Mobilization in Reorganization Plan No. 1 of 1958. See 23 Fed. Reg. 4991, 4991 (July 1,
1958). The Trade Agreements Extension Act vested this office with the investigation and
recommendation function. See Pub. L. No. 85-686, § 8, 72 Stat. at 678; see also supra
note 3.
16
Publication of Report to President on Automobile and Automobile-Part Imports
after the President’s decision before publishing a summary of the report in
the Federal Register. 10 That practice is consistent with the Executive
Branch’s long-standing confidentiality interest in delaying the report’s
disclosure until its findings have been fully considered and the President
has made his decision. The Secretary’s February 2019 report on automo-
bile and automobile-part imports thus was issued at a time when the
Executive Branch had a legitimate confidentiality interest in delaying the
release of the report until after the President had made a decision whether
to adjust imports to respond to the underlying national-security threat.
Moreover, even if the terms of section 232 and prior practice did not
demonstrate such solicitude for protecting the ongoing decision-making
process, executive privilege still applies to reports called into being by
federal statutes. As a constitutional prerogative of the President, executive
privilege may not be eliminated by statute. See, e.g., U.S. Dep’t of Justice
v. Julian, 486 U.S. 1, 13 (1988) (if a privilege is “constitutionally rooted,”
Congress may not “determine for itself which privileges the Government
may avail itself of and which it may not”); Memorandum for Peter J.
Wallison, Counsel to the President, from Charles J. Cooper, Assistant
10 See, e.g., Summary of Secretarial Report Under Section 232 of the Trade Expansion
Act of 1962, as Amended, on the Effect of Imports of Crude Oil on the National Security,
65 Fed. Reg. 46,427, 46,427 (July 28, 2000) (President decided to take no action on
March 24, 2000); Summary of Secretarial Report Under Section 232 of the Trade Expan-
sion Act of 1962, as Amended, 60 Fed. Reg. 30,514, 30,515 (June 9, 1995) (President
decided to take no action on February 16, 1995); Presidential Decision; Petroleum Section
232 National Security Import Investigation, 54 Fed. Reg. 6556, 6557 (Feb. 13, 1989)
(President decided to take no action on January 3, 1989); Presidential Decision; Anti-
Friction Bearing Section 232 National Security Import Investigation, 54 Fed. Reg. 1974,
1975 (Jan. 18, 1989) (President decided to take no action on November 28, 1988).
We have identified only two examples of earlier publication. In 1979, the Department
of the Treasury published a section 232 report about oil imports over a year before
President Carter issued a proclamation acting on the report’s recommendations. See Effect
of Oil Imports on National Security, 44 Fed. Reg. 18,818 (Mar. 29, 1979); Proclamation
No. 4744, 45 Fed. Reg. 22,864 (Apr. 3, 1980); see also Indep. Gasoline Marketers
Council, 492 F. Supp. at 616 (reviewing chronology). (At the time, section 232 did not
impose any deadline on the President to act in response to Treasury’s report. 19 U.S.C.
§ 1862(b) (1976); see also Ferroalloy Imports, 6 Op. O.L.C. at 562.) In 2018, the De-
partment of Commerce released (but did not publish in the Federal Register) two section
232 reports about imports of steel and aluminum, both within a month of their completion
and before the President had concurred with them and taken responsive action. See Press
Release, Secretary Ross Releases Steel and Aluminum 232 Reports in Coordination with
White House (Feb. 16, 2018).
17
Opinions of the Office of Legal Counsel in Volume 44
Attorney General, Office of Legal Counsel at 3 n.6 (Sept. 8, 1986) (“Con-
gress cannot override executive privilege by statutory enactment”). Thus,
Congress may not eliminate the confidentiality of executive branch delib-
erations by directing officials to communicate their opinions to the Presi-
dent through publicly available reports.
For this reason, the Department of Justice has regularly objected to
proposed legislation that would require the disclosure of materials pre-
pared pursuant to statute. See, e.g., Letter for Paul D. Ryan, Speaker, U.S.
House of Representatives, from Stephen E. Boyd, Assistant Attorney
General, Office of Legislative Affairs (Dec. 11, 2017) (objecting to sec-
tion 108(a) of H.R. 4243, the VA Asset and Infrastructure Review Act of
2017); cf. Loving, 550 F.3d at 35, 39–41 (applying executive privilege to
documents “prepared for the President in connection with his statutory
review of [a] death sentence”); Congressional Requests for Information
from Inspectors General Concerning Open Criminal Investigations, 13
Op. O.L.C. 77, 83–87 (1989) (“Inspector General Requests”) (constru-
ing the Inspector General Act to permit agency heads to withhold privi-
leged information when disclosing statutory reports to Congress). This
Office has long objected to so-called “direct reporting” requirements
based upon the applicability of executive privilege to statutory reports.
See Constitutionality of the Direct Reporting Requirement in Section
802(e)(1) of the Implementing Recommendations of the 9/11 Commission
Act of 2007, 32 Op. O.L.C. 27, 43–46 (2008). Likewise, we have ex-
plained that Congress may not require disclosure of legal advice provided
within the Executive Branch, free from any constraint of privilege, simply
by subjecting all such advice to a statutory reporting requirement. See,
e.g., Constitutionality of the OLC Reporting Act of 2008, 32 Op. O.L.C.
14 (2008) (Mukasey, A.G.) (objecting on constitutional grounds to a bill
that would have required disclosure of “authoritative” legal interpretations
issued within the Department of Justice).
Congress itself has recognized that the Executive Branch may have
legitimate confidentiality interests in the contents of statutorily required
reports, see, e.g., Inspector General Requests, 13 Op. O.L.C. at 85–87
(reviewing legislative history of the Inspector General Act acknowledging
such interests), including in reports bearing on delegated statutory
authority to regulate foreign commerce. Congress acknowledged some
such interests by excluding classified information from the publication
18
Publication of Report to President on Automobile and Automobile-Part Imports
requirement in section 232(b)(3)(B). 11 To take another example from
a related statute, Congress authorized the withholding of any “information
. . . determine[d] to be confidential” upon publication of certain reports
for the President in various provisions of the Trade Act of 1974. 19
U.S.C. §§ 2252(f )(3), 2274(b), 2354(b), 2401c(b), 2436(a)(4). As further
explained in Part II.A.1 above, executive privilege may apply to the
Secretary of Commerce’s report even though it was prepared pursuant to
statutory direction.
2.
We further conclude that executive privilege applies even though the
requirement for the eventual disclosure of the report could be viewed as a
condition on the Executive Branch’s exercise of delegated statutory au-
thority under section 232. The new publication requirement imposed by
section 112 does not reflect a condition imposed upon a choice within the
discretion of the Executive Branch. Section 112 is not conditional: it
commands the Secretary of Commerce to publish the preexisting report
within 30 days. 133 Stat. at 2395–96. Section 112 does not give the Exec-
utive Branch the option of avoiding publication by declining to conduct a
section 232 investigation or to invoke the President’s authority under
section 232. Cf. Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. 1,
25 (1981) (Congress may not “surpris[e] participating States with post-
acceptance or ‘retroactive’ conditions” on federal funding). The statutory
provision addresses a preexisting report and requires publication within
30 days.
11In fact, the Department of Justice objected on privilege grounds to a proposed ver-
sion of section 232(b)(3)(B) that would have provided that the Secretary of Commerce’s
report to the President “may be classified only if public disclosure of such report, or of
such portion of such report, would clearly be detrimental to the security of the United
States.” Memorandum for John C. Filippini, Chief, Legislative Unit, Antitrust Division,
from Douglas W. Kmiec, Deputy Assistant Attorney General, Office of Legal Counsel,
Re: S. 490, “Omnibus Trade Act of 1987” at 4 (Apr. 14, 1987); see also Letter for How-
ard A. Baker, Jr., Chief of Staff for the President, from Arnold I. Burns, Deputy Attorney
General at 2 (June 16, 1987) (describing this objection); H.R. Rep. No. 100-576, at 711
(1988) (noting deletion of the “clearly detrimental” requirement). Although the Depart-
ment did not object more broadly to the publication requirement, that is likely because the
Executive Branch had a general practice of disclosing unclassified portions of section 232
reports for more than two decades, upon the disposition of the investigations.
19
Opinions of the Office of Legal Counsel in Volume 44
Even apart from the retroactive nature of this disclosure requirement,
we have recognized limits on Congress’s authority to impose conditions
upon the President’s exercise of delegated congressional authority. See,
e.g., Presidential Certification Regarding the Provision of Documents to
the House of Representatives Under the Mexican Debt Disclosure Act of
1995, 20 Op. O.L.C. 253, 275–76 (1996). This principle would apply with
particular force where, as here, a statute purports to require the disclosure
of information implicating foreign affairs and national security. See Con-
stitutionality of Proposed Statutory Provision Requiring Prior Congres-
sional Notification for Certain CIA Covert Actions, 13 Op. O.L.C. 258,
261–62 (1989) (“Congressional Notification for Covert Actions”). We
need not address how this principle would apply to publication of the
report at issue, however, because section 112 is not a condition on the
exercise of delegated authority, but a freestanding disclosure requirement
imposed on a preexisting report.
III.
Our determination that the Secretary of Commerce’s report falls within
the scope of executive privilege does not conclude the analysis. In Nixon
v. Administrator of General Services, 433 U.S. 425 (1977), the Supreme
Court assessed a claim that a federal statute impermissibly infringed upon
executive privilege by asking whether there were “adequate justifications”
for the statute’s “intrusion into executive confidentiality.” Id. at 452. The
Court applied a balancing test that it viewed as similar to that applied in
United States v. Nixon, measuring “Congress’ purposes in enacting” the
statute against the degree to which disclosure would intrude upon execu-
tive branch confidentiality interests. Id. (citing United States v. Nixon, 418
U.S. 683). Here, we believe that Congress has not demonstrated an ade-
quate justification for requiring the disclosure of the report now, before
the deliberative process has concluded and while disclosure of the report
could threaten ongoing international negotiations.
In Nixon v. Administrator, the Court upheld a statute that provided gov-
ernment archivists with custody over and access to President Nixon’s
records. In so doing, the Court considered the interests served by the
statute, which ensured that the incumbent President would have “access to
records of past decisions that define or channel current governmental
obligations” and that the records would otherwise be preserved for histor-
ical purposes. See 433 U.S. at 452–53. In weighing these justifications
20
Publication of Report to President on Automobile and Automobile-Part Imports
against the “limited intrusion” on executive confidentiality, the Court
estimated that only a small fraction of the papers (one-half of one percent)
would be covered by privilege and emphasized that the statute preserved
the former President’s ability to claim privilege before the public release
of any particular records, since the only access at issue was that of gov-
ernment archivists. See id. at 449–52.
By contrast with the records law at issue in that case, section 112 tar-
gets a single, privileged document and requires near-immediate public
release. Section 112(1) provides that the Secretary shall publish the report
“as required under paragraph (3)(B)” of section 232(b) within 30 days.
Because section 232 already requires eventual public disclosure, section
112’s legal effect is simply to accelerate the required publication. In
testifying on the proposed disclosure provision that would become section
232(b)(3)(B), Senator Byrd stated that it would “increase[] the visibility
of the entire section 232 process” by enabling Congress and the public “to
know the basis on which . . . decisions are made” under the statute. Hear-
ing on S. 1871 Before the S. Comm. on Fin., 99th Cong. 25 (1986). But
the congressional or public interest in understanding the basis for the
President’s decision under section 232 is a weak justification for requiring
disclosure of a privileged document before the President has made that
decision.
The President’s May 2019 proclamation already provided a substantial
explanation for the basis of his concurrence in the Secretary’s finding that
imports of automobiles and automobile parts threaten the national securi-
ty. “American-owned producers’ share of the domestic automobile mar-
ket,” the President explained, “has contracted sharply, declining from 67
percent . . . in 1985 to 22 percent . . . in 2017.” Proclamation No. 9888,
¶ 4, 84 Fed. Reg. at 23,433. Quoting the Secretary’s report, the President
explained that “‘[t]he contraction of the American-owned automotive
industry, if continued, will significantly impede the United States’ ability
to develop technologically advanced products that are essential to our
ability to maintain technological superiority to meet defense requirements
and cost effective global power projection.’” Id. ¶ 8, 84 Fed. Reg. at
23,434. The President also separately submitted to Congress a letter that,
as section 232 requires, provided a “written statement of the reasons why
the President has decided to take action” to adjust imports. 19 U.S.C.
§ 1862(c)(2); see Letter to Congressional Leaders on the Effects of
Imports of Automobiles and Certain Automobile Parts on the National
Security of the United States, 2019 Daily Comp. Pres. Doc. No.
21
Opinions of the Office of Legal Counsel in Volume 44
DCPD201900400 (June 14, 2019). These explanations already go a sub-
stantial way toward explaining the basis for the President’s initial deci-
sion.
We do not doubt that Congress may also have a legitimate interest in
reviewing the Secretary’s report to understand how the President has
exercised his authority under section 232. Some members of Congress
have introduced bills that would alter the President’s authority under
section 232 to adjust imports. See Trade Security Act of 2019, S. 365,
116th Cong. (2019); Bicameral Congressional Trade Authority Act of
2019, S. 287, 116th Cong. (2019). But it is hard to see how Congress’s
legislative interest would be significantly advanced by mandating disclo-
sure of the report now, as opposed to after the conclusion of international
negotiations and the President’s decision-making process. As then–
Assistant Attorney General Barr explained in an analogous context, the
fact that Congress may have a legitimate interest in being informed about
a matter after the fact—there, the conduct of a covert action abroad—does
not mean that Congress may require disclosure of such a matter when
disclosure would threaten to harm the national security. See Congression-
al Notification for Covert Actions, 13 Op. O.L.C. at 261–62.
To the extent that Congress seeks public disclosure of the report now,
before the President has made a decision, in order to influence his future
decision, we do not believe that would present a legitimate justification
for intruding upon the confidentiality of the Executive Branch. Congress
has no constitutional role in executing the laws. See, e.g., Bowsher v.
Synar, 478 U.S. 714, 733–34 (1986) (“[O]nce Congress makes its choice
in enacting legislation, its participation ends. Congress can thereafter
control the execution of its enactment only indirectly—by passing new
legislation.”); FEC v. NRA Political Victory Fund, 6 F.3d 821, 826–27
(D.C. Cir. 1993) (holding that Congress could not require the presence of
non-voting congressional appointees on the Federal Election Commis-
sion). Congress thus may not demand disclosure of information as a
means of facilitating congressional participation in the execution of the
law. See Assertion of Executive Privilege in Response to a Congressional
Subpoena, 5 Op. O.L.C. at 30 (when “‘oversight’ is used as a means of
participating directly in an ongoing process of decision within the Execu-
tive Branch, it oversteps the bounds of the proper legislative function”).
While Congress may enact legislation either to curtail the President’s
statutory authority to adjust automobile imports or to adjust imports itself,
we do not believe that Congress may seek to participate in an ongoing
22
Publication of Report to President on Automobile and Automobile-Part Imports
decision-making process by requiring the Executive Branch to disclose
confidential information.
In sum, the immediate publication of the Secretary’s report would serve
a generalized informational interest that would seem to provide little
justification for immediate publication. We are presented with the reverse,
in some sense, of the balance struck in United States v. Nixon, where the
Supreme Court held that a “generalized assertion of privilege must yield
to the demonstrated, specific need for evidence in a pending criminal
trial.” 418 U.S. at 713. Here, we similarly conclude that the generalized
interest in immediate disclosure of the report does not justify infringing
on the Executive Branch’s strong, specific, and continuing interest in
maintaining the confidentiality of the report. See Nixon v. Adm’r, 433
U.S. at 452. The Executive Branch may rely on the constitutional doctrine
of executive privilege to decline to release the report at the statutory
deadline, and the President therefore may direct the Secretary of Com-
merce not to disclose it at this time.
IV.
This conclusion does not mean that the Secretary of Commerce’s report
should remain confidential forever. Whether the Executive Branch may
withhold information on privilege grounds depends upon the facts. See
United States v. Nixon, 418 U.S. at 694, 697, 713 (highlighting that the
materials at issue were sought for use in a pending criminal trial). The
President may reasonably decide to withhold the report now, based upon
the ongoing decision-making process and international negotiations. At
the same time, section 232 contemplates disclosure in the future, and the
Executive Branch has a long-standing practice of disclosing these reports
upon the disposition of the relevant matters. But insofar as the delibera-
tive process remains ongoing and disclosure would risk impairing ongoing
negotiations, we believe that the President may direct the withholding of
the report at this juncture, notwithstanding section 112’s publication
requirement.
STEVEN A. ENGEL
Assistant Attorney General
Office Legal Counsel
23