A Raid on the Presidency

The constitutionality of the Presidential Records Act, a Carter-era raid on presidential prerogatives, is heating up as a question in the federal courts. The law, passed in 1978, ended the tradition, dating back to Washington, of presidents keeping ownership of their own White House papers. President Trump is disputing the validity of the law, which attempts to dictate to the commander in chief as an overreach of the powers of Congress. The question is slated to be argued in October before the riders of the District of Columbia Appeals Circuit. That is after the American Historical Association sued Mr. Trump over his attempt to regain control of his presidential papers. The association argues that the courts need to intervene to ensure “the preservation of records that document our nation’s history” and the ability of “the American people” to be “able to access and learn from that history.” Yet Mr. Trump is bolstered by a Justice Department analysis from earlier this year calling the law “unconstitutional.” An assistant attorney general, T. Elliot Gaiser, reckons in a memo that the law is invalid for “two independent but interlocking reasons.” The law, he writes, “exceeds Congress’s enumerated and implied powers” and “aggrandizes the Legislative Branch at the expense of the constitutional independence and autonomy of the Executive.”The records law — in effect, President Carter’s gift to his successors — in Mr. Gaiser’s telling “intrudes on the independence and autonomy of the President guaranteed by Article II” of the national parchment. Mr. Gaiser points to the law’s “permanent and burdensome regime of congressional regulation of the Presidency,” adding that the measure is “untethered from any valid and identifiable legislative purpose.”It is hard to ascertain the delegated constitutional power on which Congress relied to justify the records act. When the Supreme Court, in Nixon v. Administrator of General Services, in 1977 weighed an earlier records law, the Presidential Recordings and Materials Preservation Act, Mr. Gaiser avers that the Nine left unaddressed the question of “whether Congress possessed the Article I power to enact” such a measure “in the first place.”In Nixon, Justice William Brennan, writing for the majority, denied that “the Constitution contemplates a complete division of authority between the three branches.” Mr. Gaiser calls the high court’s ruling “wrong.” Yet the district judge in Mr. Trump’s case, John Bates, a nominee of President George W. Bush, cites the 1977 precedent to defend the records law. He quotes the legal sages George Orwell and Wm. Shakespeare for support.“Access to those records allows future Presidents to pick up where their predecessors left off,” per Judge Bates, as well as for “Congress to identify inefficiency and misfeasance, and the public to learn from the mistakes of the past.” He finds Congress has power under the Constitution’s Property Clause, in Article IV, Section 3, to “prospectively designate presidential records as federal property and then regulate that property.”Judge Bates reckons, too, that the records law is “a valid exercise of the Necessary and Proper Clause as it promotes the accountability and efficiency of Executive Branch operations.” He even finds the law “does not impermissibly intrude on any presidential prerogative,” overlooking the law’s potential harm to executive privilege. Yet Solicitor General John Sauer warns the law “chills presidential advisers from offering the President candid advice.” Mr. Sauer asserts, the Times notes, that Congress dast not “regulate the records of judges and justices in the same way as with the President’s records.” Per Mr. Sauer, an “intrusion on judicial independence would run roughshod over the separation of powers.” The Nine, Mr. Sauer says, “recognize that disclosing information about their deliberations would impair the functions of the Supreme Court.” Wouldn’t the same go for the White House?

A Raid on the Presidency

A Raid on the Presidency

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