Executive Authority vs. Executive Privilege

“We’re not just going to be waiting for legislation in order to make sure that we’re providing Americans the kind of help they need. I’ve got a pen and I’ve got a phone.” — President Obama, not-so-subtly implying that he’ll do whatever he can to advance his agenda

As you may have noticed, the current administration of the U.S. government, arguably more than any before it, has a habit of pushing the boundaries of its authority (to put it mildly). It isn’t very subtle about it, either. In fact, usually its efforts are rather bold (e.g., unconstitutional “recess” appointments to the National Labor Relations Board (NLRB); “executive amnesty”) and obvious to those paying attention. Unfortunately, the other two branches of government haven’t always taken the necessary measures to put the President in his place. Or, whatever they do is too little, too late. But, what exactly is “executive authority”, what are its limits, and how does it differ from, say, executive privilege, another term thrown around that sounds like it might be sort of similar? I decided to do a little research to help clarify.

checks and balancesFirst, let’s look at the words separately. The adjective “executive” is defined generally as “of, relating to, or suited for carrying out plans, duties, etc.,” or, even more relevantly, as “pertaining to or charged with the execution of laws and policies or the administration of public affairs.” (See Dictionary.com.) The noun “authority” means “the power to determine, adjudicate, or otherwise settle issues or disputes; jurisdiction; the right to control, command, or determine,” though it can also refer to “a person or body of persons in whom authority is vested, as a governmental agency.”

Now, a quick review from American Government (or Civics) class. In the U.S., we have a separation of powers between three branches of government: the Legislative, Judicial, and Executive. The first consists of the two houses of the U.S. Congress — i.e., the House of Representatives and the Senate. Their main purpose is to make (i.e., write and pass) federal laws. The Judiciary consists of the federal court system, with the U.S. Supreme Court (SCOTUS) being at the top. Their main purpose is to interpret the laws. The Executive branch consists of the President, the Vice President, the Cabinet, and various administrative agencies (e.g., IRS, EPA, FDA, SEC, Cabinet-level departments) that help to carry out executive functions. Those functions are the implementation, enforcement, and administration of federal laws, as directed by the President. The President is also head of state and Commander-in-Chief of the United States Armed Forces. (For more details, visit whitehouse.gov. Wikipedia gets some of this shamefully wrong.)

It shouldn’t be too hard to realize that “executive authority” refers to the jurisdiction or rights of the President (with the aid of his underlings) to perform the various duties of the Executive Branch. It does not include creating or interpreting laws or performing any other duties reserved by the Constitution for the Legislative and Judiciary Branches or for the individual States and/or the citizens themselves. (See Article II of the Constitution.) These would be examples of “executive overreach”. Of course, this works both ways, since the other branches and the States should not be allowed to assume or usurp duties that belong to the Executive Branch or one another, either. (Unfortunately, the Supreme Court seems to be effectively (re-)writing laws, these days.) This function of the separate branches of government with their respective domains and responsibility of keeping an eye on each other is called “checks and balances” and is designed to prevent any one branch from getting too powerful.

“Executive privilege”, on the other hand, is a totally different sort of thing. As per Dictionary.com, a “privilege” is “a right, immunity, or benefit enjoyed only by a person beyond the advantages of most,” or, more specifically, “a special right, immunity, or exemption granted to persons in authority or office to free them from certain obligations or liabilities.” In this context, “executive privilege” has a very particular application. Here is the legal definition (from Nolo’s Plain-English Law Dictionary):

“The privilege that allows the president and other high officials of the executive branch to keep certain communications private if disclosing those communications would disrupt the functions or decision-making processes of the executive branch. As demonstrated by the Watergate hearings, this privilege does not extend to information germane to a criminal investigation.”

frabz-holderironyHistorically, a president will invoke executive privilege in an effort to resist a subpoena or other means by which Congress or the courts demand access to information and/or personnel from the Executive Branch. Sometimes, the administration will then volunteer limited or partial access to what was requested. If challenged, the “executive privilege” invocation may be denied, if SCOTUS determines the reasoning for it was insufficient and that the larger public interest is served by full(er) disclosure. An example of the George W. Bush administration invoking executive privilege was during the investigation into former presidential counsel Harriet Miers. An example from the Obama administration can be found in the infamous “Fast and Furious” investigation.

It must be very tempting to abuse this privilege and, to be fair, it isn’t entirely clear what its limits are. The concept is not explicitly found in the Constitution but has been inferred by SCOTUS as either inherent in “separation of powers” or rooted within “the supremacy of each branch within its own assigned area of constitutional duties.” But, it is not meant to be simply a CYA maneuver for the President, nor does it appear to be the presidential version of “pleading the 5th”.

In the near future, I hope to also address executive actions, orders, and memoranda, which are often the means by which Obama (as with others before him) attempts to overreach his constitutionally granted executive authority.

‘Til next week….

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