Presidential Records Act Is Finally Challenged

President Trump looks to be on the right track by challenging the validity of a Carter-era law that forces commanders in chief to hand over all their White House records to Congress. The law, the Presidential Records Act of 1978, was a post-Watergate measure passed by the Democrats in an effort to curb presidential power. Where in the Constitution, though, did the solons get the idea that they had authority to meddle in the affairs of the executive branch? It’s a question these columns asked in 2022, but liberals were quick to pounce. MS Now’s Steve Benen calls Mr. Trump’s move a “major blow against White House transparency” and “radical.” The law itself, though, amounted to an upending of the balance of powers between the federal branches, as Mr. Trump’s Justice Department points out in an opinion memorandum by an assistant attorney general, T. Elliot Gaiser, of the office of legal counsel. The opinion, reflecting DOJ’s view, calls the act “unconstitutional” because “it exceeds Congress’s enumerated and implied powers.” The law, Mr. Gaiser writes, “aggrandizes the Legislative Branch at the expense of the constitutional independence and autonomy of the Executive.” In short, Congress lacks “power to compel an entire branch of government to create and save every single possible piece of paper,” a White House official told Axios.Prior to the act’s enactment, executive branch “records were considered the President’s private property,” per the Congressional Research Service. This was a tradition dating back to Washington. At the end of his second term, the first president “had his secretaries remove the papers his successor would need,” leaving those items behind, “and had them pack the rest to ship to Mount Vernon,” reports Washington’s presidential library.Yet once President Carter signed the measure into law, presidential papers and records became what the CRS calls “the property of the United States.” It’s remarkable to find that Mr. Trump is the first president with the gumption to question the constitutionality of this intrusion into the workings of the executive branch. The law, though, reflected the Democrats’ ascendancy after Watergate and their impulse to weaken the institution of the presidency.The records law, too, had “found some justification in the Supreme Court’s reasoning in United States v. Nixon,” these columns reported, after that “ruling eroded the blanket expectation that presidential papers were protected by executive privilege.” Yet the tradition of executive privilege is one that has shielded presidents of all parties, going back to Washington’s refusal to let Congress snoop into the details of his negotiations over the Jay Treaty with Britain.President Truman reckoned that none of his presidential predecessors had “ever complied with an order” from Congress “to produce confidential documents” when a president deemed it “contrary to the public interest.” Truman vowed to resist “any act of the Congress which would threaten or diminish so preeminently a right of the Chief Executive.” Carter, it would seem, was made of flimsier stuff.The law he signed, after all, lets Congress order the commander in chief as to how “information is controlled, accessed, and released during and after a President’s time in office,” the CRS says. The law purports to put the director of the National Archives between a president and his or her records, supposedly to supply “advice and assistance” on “records management practices.” This amounts to a kind of legislative watchdog peering over the president’s shoulder. The Justice Department now takes a dim view of the records law. “Congress cannot preserve presidential records merely for the sake of posterity,” Mr. Gaiser avers. The law “exceeds Congress’s regulatory power over statutory agencies,” he adds, by seeking “to regulate a constitutional office — the Presidency— that Congress did not create and that Congress cannot abolish.” That kind of clear-eyed constitutional logic is one for the record books.

Presidential Records Act Is Finally Challenged

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