March 23, 2007


Executive Overreach: The White House Is Taking Privilege Too Far (Beth Nolan, March 23, 2007, Washington Post)

The Framers of our Constitution envisioned that in the exercise of their authorities, the two political branches would assert their prerogatives against each other. A process of negotiation and accommodation between the branches is what one would expect. That process isn't elegant, but a push-pull between the branches doesn't necessarily mean that anything is wrong.

What is going wrong today, however, is the take-it-or-leave-it position of the White House.

The struggle between Congress and the executive branch over the requested testimony of White House officials regarding the removal of eight U.S. attorneys is playing out in the political arena. In fact, the political arena is where the contours of these prerogatives are largely shaped, rather than in our courts. While executive privilege is based in constitutional principles of the separation of powers and the authority of the president over the executive branch, and the privilege has been recognized by the Supreme Court, its scope has been largely determined outside the judicial process.

Having conceded the Executive's prerogative a proper analysis never arrives at a mere legal privilege.

Posted by Orrin Judd at March 23, 2007 12:00 AM
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