November 11, 2011

TELL THEM TO POUND SAND:

Obama Should Still Resist Congress on Solyndra (Stephen L. Carter, 11/11/11, Bloomberg)

[T]he constitutional scholar in me finds something admirable in the administration's original instinct to demur. Congressional investigations of the executive branch have been out of control for a very long time, under both parties, and a little more resistance now and then would be a useful corrective. [...]

From the earliest days of the republic, every President has taken the position that it is up to him, and not the legislators, to decide how much of the private deliberations of the chief executive and his advisers should be disclosed.

George Washington denied some congressional requests for internal documents of his administration. Perhaps the best-known case was his refusal in 1794 to provide the Senate with copies of the correspondence between the French government and the U.S. ambassador, and between that envoy and the State Department. After consulting his Cabinet, Washington agreed to the request "except in those particulars which, in my judgment, for public considerations, ought not be communicated."

Every president has made similar reservations, even up to the point of resisting subpoenas. Andrew Jackson refused to give Congress memoranda from his advisers. Abraham Lincoln successfully resisted congressional efforts to obtain documents on many controversies. More recently, Bill Clinton relied on the claim of privilege to shield everything from documents on the firings at the White House travel office to a 1996 memorandum supposedly critical of his handling of the drug war. George W. Bush refused to release papers relating to matters ranging from communication between the White House and the Environmental Protection Agency to pardons issued by his predecessor.

Often the president wins these confrontations. Sometimes the parties fight and snarl before reaching some compromise, respecting both the legitimate role of the legislature and the need to protect the internal deliberations of the executive.

For most of the nation's history, both branches understood that this political byplay was precisely what the Framers of the Constitution expected. Only in recent decades has the president's effort to assert his constitutional prerogative been attacked as some sort of illegitimate concealment.

If they want to read the Executive's emails they should serve in that branch.

Posted by at November 11, 2011 6:21 PM
  

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