Redefining POTUS's "Executive Privilege"

Great Debates
1

I like to dream of a better future from time to time and I started to ponder this hypothetical situation.

Suppose, just for a moment that some future POTUS decides that “Executive Privilege” has been wildly abused by previous occupants of the Oval Office. It’s been decided that the best option is to strictly and narrowly define in a very public way exactly what “Executive Privilege” means, what it covers and what it very specifically does NOT cover. Even more importantly, in this hypothetical, the current POTUS wants to make sure that future Oval Office inhabitants can’t easily undo this reform.

One option is to aggravate everyone in the world until it all comes crashing down in a major smack-down from SCOTUS. Even then, enforcing it could be an issue and it could be overturned by a future SCOTUS ruling. While potentially entertaining, this is messy.

Congress has little to no authority to define or limit the power of the Executive branch beyond the specifics already contained within the constitution (I think). Anything that comes strictly from one POTUS can just be undone by the next (I think). Absent action from SCOTUS, can this be accomplished without a constitutional amendment and an indeterminate number of porcine aviators?

2

One difficulty is that some laws indicate that some agency will make the regulations to interpret or enforce the law. These agencies are almost always in the executive branch and therefore ultimately the President decides the details of the law.

There is obviously an efficiency in this to help keep things up to date. But there are obviously problems as well.

3

[Moderating]

I don’t see any question here, let alone a factual one. Off to… Great Debates, I guess?

4

I’ll realistically go with the latter as most likely. IOW no way. Imagine Congress passing a bill imposing executive limitations, justified as “clarifying” constitutional language. POTUS vetoes the bill; both houses override; POTUS ignores the legislation; SCOTUS refuses to judge the inter-branch dispute. Stalemate. Look at those soaring piggies!

Maybe POTUS suffers a brain-fart and signs the limiting bill, then plays nice because Pollyanna. A future POTUS then ignores the legislation. SCOTUS sit it out. Stalemate. Reminds me of an old song:
Oh the eagles, they fly high over D.C.
Yes, the eagles, they fly high over D.C.
Oh the eagles, they fly high
And they shit right in your eye
And I’m glad that pigs don’t fly over D.C.
An executive willingly relinquishing power? Right.

5

That seems an unlikely premise. I’m pretty sure the Supreme Court will heavily restrict executive privilege as soon as a Democrat gets elected President.

6

Seems to me like the place to start would be Congress.

The Constitution, as currently written, seems to give Congress the job of overseeing the Executive in some (vague?) sense. But the “laws” written into the Constitution typically don’t have “teeth” – that is, the Constitution doesn’t really specify penalties for enforcement mechanisms.

Consider the Emoluments Clauses, which Trump is accused to violating continuously. Problem is, nothing in the Constitution specifies any penalties.

Similarly, the Constitution doesn’t specify very specifically what the oversight powers of Congress are, nor any penalties against the President for thumbing his nose at Congress. Does the Constitution explicitly say that Congress has subpoena power over the Executive? Or is that just something that Congress invented?

Congress supposedly has, or once had, its own jail, and could send its own Capitol Police out to arrest people who ignored their subpoenas. Is any of this laid out in the Constitution?

I think, for the first pass, as soon as we have a Democrat-controlled House, Senate, and White House, Congress should start passing laws to close all the loopholes that Trump has driven through. They should pass laws stating penalties for Emoluments violations. They should pass laws stating penalties for ignoring subpoenas, and giving Congress enforcement powers to arrest people for contempt of Congress.

Then, we will see how the courts will react. Can such laws be found Constitutional? Will the courts agree that Congress has the power to give itself arrest powers? Can Congress pass laws defining and limiting Executive Privilege (which, after all, was never a creature of the Constitution in the first place)?

If the Courts start knocking those things down, then we need to start thinking about how to get some Amendments through.

7

That also seems unrealistic. The Constitution explicitly says the President has the power to nominate Supreme Court Justices. Then in 2016, the Senate Majority Leader declared that he didn’t think the President should have that power if there was an election in the next year.

That was Congress deciding to ignore the Constitution in order to limit the powers of the President. And getting away with it.

Not that it was a permanent change. That same Senate Majority Leader has said that he wouldn’t require the current President to follow the same rule.

8

A bit more, to respond to RioRico’s argument that the courts will prefer not to get involved in Congress-Executive disputes.

It seems that Congress is generally allowed to pass any laws it wants as long as they don’t contradict the Constitution. That is, for example, they could pass a law granting Congress power to arrest people for contempt of Congress as long as the Constitution doesn’t say they can’t. (Does it?)

If the Supreme Court really prefers to stay out of it (:dubious:) then Congress can go arresting people.

So Congress should start by trying out such laws and see what sticks.

(Of course, Little Nemo suggests that SCOTUS might well change its tune once the Democrats are back in power. Actually, I imagine that’s certainly very likely. But we have to try it and see.)

9

It is perhaps poorly phrased but this is the nub of my factual question. What would be required to specifically limit and define “Executive Privilege”?

I offer sincere apologies for the way in which it was presented.

10

Our current definition of executive privilege has mainly emerged from the court system. So I would say any significant changes would have to originate from there.

11

No, no, no, no, no. I understand that the left feels this way because of the big government explosion of the last 90 years, but Congress is one of limited, enumerated powers. It only has those powers that are specifically granted to it in Article I of the Constitution.

Those powers are to pass laws in conformity with those specifically granted powers and to impeach and try officers of the United States.

It may be helpful to compel witnesses to better inform them regarding what laws to pass or who to impeach, but that is not at all clear from the text of the Constitution that it has this power. Regarding its own members, the Constitution states:

Emphasis added. A decent argument could be made that by only specifying such a coercive power with regard to its own members’ attendance, the Constitution withheld other coercive powers by omission.

But let’s say that they are ready for a throw down and want to arrest an executive branch official for disregarding their subpoena. The executive has guns too. So you really want an armed standoff between the U.S. Marshals, the FBI, the Army, and the House Sergeant at Arms and his deputies? In your mind, that is a good solution to Trump? When a peaceful solution already exists, but it turns out you lost?

Under that theory, shouldn’t the Supreme Court have its own Army to protect its interests? You know, just in case someone doesn’t follow its directives.

Three armies shooting at each other in the United States of America because your side cannot accept the results of the Trump impeachment vote? This is your side’s commitment to constitutional order?