# Nixon v. Administrator of General Services/Dissent Rehnquist

* Court Documents
* Case Syllabus
* Opinion of the Court
* Concurring Opinion Stevens
* Concurrence/Dissents White Blackmun Powell
* Dissenting Opinions Berger Rehnquist
MR. JUSTICE REHNQUIST, dissenting.
Appellant resigned the Office of the Presidency nearly three years ago, and if the issue here were limited to the right of Congress to dispose of his particular Presidential papers, this case would not be of major constitutional significance. Unfortunately, however, today's decision countenances the power of any future Congress to seize the official papers of an outgoing President as he leaves the inaugural stand. In so doing, it poses a real threat to the ability of future Presidents to receive candid advice and to give candid instructions. This result, so at odds with our previous case law on the separation of powers, will daily stand as a veritable sword of Damocles over every succeeding President and his advisers. Believing as I do that the Act is a clear violation of the constitutional principle of separation of powers, I need not address the other issues considered by the Court. #F5/1 Footnote 5/1
​ My conclusion that the Act violates the principle of separation of powers is based upon three fundamental propositions. First, candid and open discourse among the President, his ​ advisers, foreign heads of state and ambassadors, Members of Congress, and the others who deal with the White House on a sensitive basis is an absolute prerequisite to the effective discharge of the duties of that high office. Second, the effect of the Act, and of this Court's decision upholding its constitutionality, will undoubtedly restrain the necessary free flow of information to and from the present President and future Presidents. Third, any substantial intrusion upon the effective discharge of the duties of the President is sufficient to violate the principle of separation of powers, and our prior cases do not permit the sustaining of an Act such as this by "balancing" an intrusion of substantial magnitude against the interests assertedly fostered by the Act.
​ With respect to the second point, it is, of course, true that the Act is directed solely at the papers of former President Nixon. #F5/2 Footnote 5/2 Although the terms of the Act, therefore, have no direct application to the present occupant or future occupants of the Office, the effect upon candid communication to and from these future Presidents depends, in the long run, not upon the limited nature of the present Act, but upon the precedential effect of today's decision. Unless the authority of Congress to seize the papers of this appellant is limited only to him in some principled way, future Presidents and their advisers will be wary of a similar Act directed at their papers out of pure political hostility.
We are dealing with a privilege, albeit a qualified one, that both the Court and the Solicitor General concede may be asserted by an ex-President. It is a privilege which has been relied upon by Chief Executives since the time of George Washington. See, e.g., the dissenting opinion of THE CHIEF JUSTICE, ante at [433 U.S. 425#509 433 U.S. 509]-510. Unfortunately, the Court's opinion upholding the constitutionality of this Act is obscure, to say the least, as to the circumstances that will justify Congress in seizing the papers of an ex-President. #F5/3 Footnote 5/3 A potpourri of reasons is advanced as to why the Act is not an unconstitutional ​ infringement upon the principle of separation of powers, #F5/4 Footnote 5/4 but the weight to be attached to any of the factors is left wholly unclear.
The Court speaks of the need to establish procedures to preserve Presidential materials, to allow a successor President access to the papers of the prior President, to grant the American public historical access, and to rectify the present "hit-or-miss" approach by entrusting the materials to the expert handling of the archivists. Ante at [433 U.S. 425#452 433 U.S. 452]-453. These justifications are equally applicable to each and every future President, and, other than one cryptic paragraph, ante at [433 U.S. 425#453 433 U.S. 453]-454, the Court's treatment contains no suggestion that Congress might not permissibly seize the papers of any outgoing future President. The unclear scope of today's opinion will cause future Presidents and their advisers to be uneasy over ​ the confidentiality of their communications, thereby restraining those communications.
The position of my Brothers POWELL and BLACKMUN is that today's opinion will not result in an impediment to future Presidential communications, since this case is "unique" #F5/5 Footnote 5/5 — appellant resigned in disgrace from the Presidency during events unique in the history of our Nation. MR. JUSTICE POWELL recognizes that this position is quite different from that of the Court. Ante at [433 U.S. 425#492 433 U.S. 492]-498. Unfortunately his concurring view that the authority of Congress is limited to the situation he describes does not itself change the expansive scope of the Court's opinion, and will serve as scant consolation to future Presidential advisers. For so long as the Court's opinion represents a threat to confidential communications, the concurrences of MR. JUSTICE POWELL and MR. JUSTICE BLACKMUN, I fear, are based on no more than wishful thinking.
Were the Court to advance a principled justification for affirming the judgment solely on the facts surrounding appellant's fall from office, the effect of its decision upon future Presidential communications would be far less serious. But the Court does not advance any such justification.
A
It would require far more of a discourse than could profitably be included in an opinion such as this to fully describe the preeminent position that the President of the United States occupies with respect to our Republic. Suffice it to say that the President is made the sole repository of the executive powers of the United States, and the powers entrusted to him as well as the duties imposed upon him ​ are awesome indeed. #F5/6 Footnote 5/6 Given the vast spectrum of the decisions that confront him — domestic affairs, relationships with foreign powers, direction of the military as Commander in ​
Chief — it is by no means an overstatement to conclude that current, accurate, and absolutely candid information is essential to the proper performance of his office. Nor is it an overstatement to conclude that the President must be free to give frank and candid instructions to his subordinates. It cannot be denied that one of the principal determinants of the quality of the information furnished to the President will be the degree of trust placed in him by those who confide in him. The Court itself, ante at [433 U.S. 425#448 433 U.S. 448]-449, cites approvingly the following language of the Solicitor General:
"'Unless he can give his advisers some assurance of confidentiality, a President could not expect to receive the full and frank submission of facts and opinions upon which effective discharge of his duties depends.'"
See Brief for Federal Appellees 33.
The public papers of Dwight D. Eisenhower, who had the advantage of discharging executive responsibilities first as the Commander in Chief of the United States forces in Europe during the Second World War and then as President of the United States for two terms, attest to the critical importance of this trust in the President's discretion:
"And if any commander is going to get the free, unprejudiced opinions of his subordinates, he had better protect what they have to say to him on a confidential basis."
Public Papers of the Presidents of the United States: Dwight D. Eisenhower, 1955, p. 674 (1959). The effect of a contrary course likewise impressed President Eisenhower:
"But when it comes to the conversations that take place ​ between any responsible official and his advisers or exchange of little, mere slips of this or that, expressing personal opinions on the most confidential basis, those are not subject to investigation by anybody, and, if they are, will wreck the Government."
Ibid. (Emphasis added.) There simply can be no doubt that it is of the utmost importance for sensitive communications to the President to be viewed as confidential, and generally unreachable without the President's consent.
B
In order to fully understand the impact of this Act upon the confidential communications in the White House, it must be understood that the Act will affect not merely former President Nixon, but the present President and future Presidents. As discussed above, while this Act itself addresses only the papers of former President Nixon, today's decision upholding its constitutionality renders uncertain the constitutionality of future congressional action directed at any ex-President. Thus, Presidential confidants will assume, correctly, that any records of communications to the President could be subject to "appropriation" in much the same manner as the present Act seized the records of confidential communications to and from President Nixon. When advice is sought by future Presidents, no one will be unmindful of the fact that, as a result of the uncertainty engendered by today's decision, all confidential communications of any ex-President could be subject to seizure over his objection, as he leaves the inaugural stand on January 20.
And Presidential communications will undoubtedly be impeded by the recognition that there is a substantial probability of public disclosure of material seized under this Act, which, by today's decision, is a constitutional blueprint for future Acts. First, the Act, on its face, requires that 100-odd Government archivists study and review Presidential papers ​ heretofore accessible only with the specific consent of the President. Second, the Act requires that public access is to be granted by future regulations consistent with "the need to provide public access to those materials which have general historical significance. . . ." ? 104(a)(6). Either of these provisions is sufficient to detract markedly from the candor of communications to and from the President.
In brushing aside the fact that the archivists are empowered to review the papers, the Court concludes that the archivists will be discreet. Ante at [433 U.S. 425#451 433 U.S. 451]-452. But there is no foundation for the Court's assumption that there will be no leaks. Any reviews that the archivists have made of Presidential papers in the past have been done only after authorization by the President, and after the President has had an opportunity to cull the most sensitive documents. It strikes me as extremely naive, and I daresay that this view will be shared by a large number of potential confidants of future Presidents, to suppose that each and every one of the archivists who might participate in a similar screening by virtue of a future Act would remain completely silent with respect to those portions of the Presidential papers which are extremely newsworthy. The Solicitor General, supporting the constitutionality of the Act, candidly conceded as much in oral argument:
"Question: . . . I now ask you a question that may sound frivolous, but do you think if a hundred people know anything of great interest in the City of Washington, it will remain a secret?"
"[Laughter.]"
"Mr. McCree: MR. JUSTICE POWELL, I have heard that, if two people have heard it, it will not."
Tr. of Oral Arg. 46.
It borders on the absurd for the Court to cite our recent decision in Whalen v. Roe, [/us/429/589/case.html 429 U.S. 589] (1977), as a precedent for the proposition that Government officials will invariably ​ honor provisions in a law dedicated to the preservation of privacy. It is quite doubtful, at least to my mind, that columnists or investigative reporters will be avidly searching for what doctor prescribed what drug for what patient in the State of New York, which was the information required to be furnished in Whalen v. Roe. But with respect to the advice received by a President, or the instructions given by him, on highly sensitive matters of great historical significance, the case is quite the opposite. Hence, at the minimum, today's decision upholding the constitutionality of this Act, mandating review by archivists, will engender the expectation that future confidential communications to the President may be subject to leaks or public disclosure without his consent.
In addition to this review by archivists, Presidential papers may now be seized and shown to the public if they are of "general historical significance." The Court attempts to avoid this problem with the wishful expectation that the regulations regarding public access, when promulgated, will be narrowly drawn. However, this assumes that a Presidential adviser will speak candidly based upon this same wishful assumption that the regulations, when ultimately issued and interpreted, will protect his confidences. But the current Act is over two and one-half years old, and no binding regulations have yet been promulgated. And it is anyone's guess as to how long it will take before such ambiguous terms as "historical significance" are definitively interpreted, and as to whether some future Administrator as yet unknown might issue a broader definition. Thus, the public access required by this Act will, at the very least, engender substantial uncertainty regarding whether future confidential communications will, in fact, remain confidential.
The critical factor in all of this is not that confidential material might be disclosed, since the President himself might choose to "go public" with it. The critical factor is that the determination as to whether to disclose is wrested by the ​ Act from the President. When one speaks in confidence to a President, he necessarily relies upon the President's discretion not to disclose the sensitive. The President similarly relies on the discretion of a subordinate when instructing him. Thus it is no answer to suggest, as does the Court, ante at [433 U.S. 425#450 433 U.S. 450]-451, that the expectation of confidentiality has always been limited because Presidential papers have in the past been turned over to Presidential libraries or otherwise subsequently disclosed. In those cases, ultimate reliance was upon the discretion of the President to cull the sensitive ones before disclosure. But when, as is the case under this Act, the decision whether to disclose no longer resides in the President, communication will inevitably be restrained.
The Court, as does MR. JUSTICE POWELL, seeks to diminish the impact of this Act on the Office of the President by virtue of the fact that neither President Ford nor President Carter supports appellant's claim. Ante at [433 U.S. 425#442 433 U.S. 441], [433 U.S. 425#502 433 U.S. 502] n. 5. It is quite true that President Ford signed the Act into law, and that the Solicitor General, representing President Carter, supports its constitutionality. While we must give due regard to the fact that these President have not opposed the Act, we must also give due regard to the unusual political forces that have contributed to making this situation "unique." Ante at [433 U.S. 425#494 433 U.S. 494] (POWELL, J., concurring). MR. JUSTICE POWELL refers to the stance of the current Executive as "dispositive," ante at [433 U.S. 425#498 433 U.S. 498], and the Court places great emphasis upon it. I think this analysis is mistaken.
The current occupant of the Presidency cannot, by signing into law a bill passed by Congress, waive the claim of a successor President that the Act violates the principle of separation of powers. We so held in Myers v. United States, [/us/272/52/case.html 272 U.S. 52] (1926). And only last Term we unanimously held in Buckley v. Valeo, [/us/424/1/case.html 424 U.S. 1] (1976), that persons with no connection with the Executive Branch of the Government may attack the constitutionality of a law signed by the President on the ​ ground that it invaded authority reserved for the Executive Branch under the principle of separation of powers. This principle, perhaps the most fundamental in our constitutional framework, may not be signed away by the temporary incumbent of the office which it was designed to protect.
MR. JUSTICE POWELL's view that the incumbent President must join the challenge of the ex-President places Presidential communications in limbo, since advisers, at the time of the communication, cannot know who the successor will be or what his stance will be regarding seizure by Congress of his predecessor's papers. Since the advisers cannot be sure that the President to whom they are communicating can protect their confidences, communication will be inhibited. MR. JUSTICE POWELL's view, requiring an ex-President to depend upon his successor, blinks at political and historical reality. The tripartite system of Government established by the Constitution has on more than one occasion bred political hostility not merely between Congress and a lame-duck President, but between the latter and his successor. To substantiate this view, one need only recall the relationship at the time of the transfer to the reins of power from John Adams to Thomas Jefferson, from James Buchanan to Abraham Lincoln, from Herbert Hoover to Franklin Roosevelt, and from Harry Truman to Dwight Eisenhower. Thus, while the Court's decision is an invitation for a hostile Congress to legislate against an unpopular lame-duck President, MR. JUSTICE POWELL's position places the ultimate disposition of a challenge to such legislation in the hands of what history has shown may be a hostile incoming President. I cannot believe that the Constitution countenances this result. One may ascribe no such motives to Congress and the successor Presidents in this case without nevertheless harboring a fear that they may play a part in some succeeding case.
The shadow that today's decision casts upon the daily operation of the Office of the President during his entire ​ four-year term sharply differentiates it from our previous separation of powers decisions, which have dealt with much more specific and limited intrusions. These cases have focused upon unique aspects of the operation of a particular branch of government, rather than upon an intrusion, such as the present one, that permeates the entire decisionmaking process of the Office of the President. For example, in Youngstown Sheet & Tube Co. v. Sawyer, [/us/343/579/case.html 343 U.S. 579] (1952) (Steel Seizure Cases), this Court held that the President could not, by Executive Order, seize steel mills in order to prevent a work stoppage when Congress had provided other methods for dealing with such an eventuality. In Myers v. United States, supra, the Court struck down an 1876 statute which had attempted to restrict the President's power to remove postmasters without congressional approval. In Buckley v. Valeo, supra, the Court struck down Congress' attempt to vest the power to appoint members of the Federal Election Commission in persons other than the President.
To say that these cases dealt with discrete instances of governmental action is by no means to disparage their importance in the development of our constitutional law. But it does contrast them quite sharply with the issue involved in the present case. To uphold the Presidential Recordings and Materials Preservation Act is not simply to sustain or invalidate a particular instance of the exercise of governmental power by Congress or by the President; it has the much more far-reaching effect of significantly hampering the President, during his entire term of office, in his ability to gather the necessary information to perform the countless discrete acts which are the prerogative of his office under Art. II of the Constitution.
C
It thus appears to me indisputable that this Act is a significant intrusion into the operations of the Presidency. I do not think that this severe dampening of free communication ​ to and from the President may be discounted by the Court's adoption of a novel "balancing" test for determining whether it is constitutional. #F5/7 Footnote 5/7 I agree with the Court that the three branches of Government need not be airtight, ante at [433 U.S. 425#443 433 U.S. 443], and that the separate branches are not intended to operate ​ with absolute independence, United States v. Nixon, [/us/418/683/case.html 418 U.S. 683], [/us/418/683/case.html#707 418 U.S. 707] (1974). But I find no support in the Constitution or in our cases for the Court's pronouncement that the operations of the Office of the President may be severely impeded by Congress simply because Congress had a good reason for doing so.
Surely if ever there were a case for "balancing," and giving weight to the asserted "national interest" to sustain governmental action, it was in the Steel Seizure Cases, supra. There the challenged Presidential Executive Order recited, without contradiction by its challengers, that
"American fighting men and fighting men of other nations of the United Nations are now engaged in deadly combat with the forces of aggression in Korea'"
that
"the weapons and other materials needed by our armed forces and by those joined with us in the defense of the free world are produced to a great extent in this country, and steel is an indispensable component of substantially all of such weapons and materials;"
and that a work stoppage in the steel industry
"would immediately jeopardize and imperil our national defense and the defense of those joined with us in resisting aggression, and would add to the continuing danger of our soldiers, sailors, and airmen engaged in combat in the field."
343 U.S. at [/us/343/579/case.html#590 343 U.S. 590]-591 (App. to opinion). Although the "legislative" actions by the President could have been quickly overridden by an Act of Congress, id. at [/us/343/579/case.html#677 343 U.S. 677] (Vinson, C.J., dissenting), this Court struck down the Executive Order as violative of the separation of powers principle with nary a mention of the national interest to be fostered by what could have been characterized as a relatively minimal and temporary intrusion upon the role of Congress. The analysis was simple and straightforward: Congress had exclusive authority to legislate; the President's Executive Order was an exercise of legislative power that impinged upon that authority of Congress, and was therefore unconstitutional. Id. at [/us/343/579/case.html#588 343 U.S. 588]-589. See also Buckley v. Valeo. #F5/8 Footnote 5/8 ​
I think that not only the Executive Branch of the Federal Government, but the Legislative and Judicial Branches as well, will come to regret this day when the Court has upheld an Act of Congress that trenches so significantly on the functioning of the Office of the President. I dissent.
#T5/1 Footnote 5/1
While the entire substance of this dissent is devoted to the constitutional principle of separation of powers, and not to the other issues that the Court addresses separately, it seems to me that the Court is too facile in separating appellant's "privacy" claims from his "separation of powers" claims, as if they were two separate and wholly unrelated attacks on the statute. The concept of "privacy" can be a coat of many colors, and quite differing kinds of rights to "privacy" have been recognized in the law. Property may be "private," in the sense that the Fifth Amendment prohibits the Government from seizing it without paying just compensation. A dictabelt tape or diary may be "private" in that sense, but may also be "private" in the sense that the Fourth Amendment would prohibit an unreasonable seizure of it even though in making such a seizure the Government agreed to pay for the fair value of the diary so as not to run afoul of the Eminent Domain Clause of the Fifth Amendment. Many states have recognized a common law "right of privacy" first publicized in the famous Warren and Brandeis article, The Right to Privacy, 4 Harv.L.Rev.193 (1890). Privileges, such as the executive privilege embodied in the Constitution as a result of the separation of powers, United States v. Nixon, [/us/418/683/case.html 418 U.S. 683] (1974), and the attorney-client privilege, recognized under case and statutory law in most jurisdictions, protect still a different form of privacy. The invocation of such privileges has the effect of protecting the privacy of a communication made confidentially to the President or by a client to an attorney; the purpose of the privilege, in each case, is to assure free communication on the part of the confidant and of the client, respectively.
The Court states, ante at [433 U.S. 425#459 433 U.S. 459], that
"it is logical to assume that the tape recordings made in the Presidential offices primarily relate to the conduct and business of the Presidency."
Whatever the merits of this argument may be against a claim based on other types of privacy, it makes crystal clear that the Act is a serious intrusion upon the type of "privacy" that is protected by the principle of executive privilege. The Court's complete separation of its discussion of the executive privilege claim from the privacy claim thus enables it to take inconsistent positions in the different sections of its opinion.
The Court's position with respect to the appellant's individual privacy heightens my concern regarding the privacy interest served by executive privilege. In attempting to minimize the Act's impact upon appellant's privacy, the Court concludes that "purely private papers and recordings will be returned to appellant under § 104(a)(7) of the Act." Ibid. However, this conclusion raises more questions than answers. Under § 104(a)(7), the return of papers to the appellant is conditioned on their being "not otherwise of general historical significance." Given the expansive nature of this phrase, see Tr. of Oral Arg. 39, it is quite conceivable that virtually none of the papers will be returned, and the Court's representation is an empty gesture. See also § 104(a)(6). What is meant by "purely private papers"? Is a personal letter to or from the President, but concerning the duties of the President considered "private," or is a document replete with personal communications, but containing some reference to the affairs of state, "purely private"? The dictabelts of the President's personal recollections, dictated in diary form at the end of each day, are assumedly private, and are to be returned. See Tr. of Oral Arg. 59. But the dictabelt dictation is also recorded on the voice-activated White House taping system, and those tapes will be retained and reviewed. Hence, appellant's privacy interest will not be served by the return of the dictabelts, and the retention of the tapes will seriously erode Presidential communications, as discussed infra at [433 U.S. 425#553 433 U.S. 553]-558. By approaching these issues in compartmentalized fashion the Court obscures the fallacy of its result.
I fully subscribe to most of what is said respecting the separation of powers in the dissent of THE CHIEF JUSTICE. Indeed, it is because I so thoroughly agree with his observation that the Court's holding today is a "grave repudiation of nearly 200 years of judicial precedent and historical practice" that I take this opportunity to write separately on the subject, thinking that its importance justifies such an opinion.
#T5/2 Footnote 5/2
I am not unmindful of the excesses of Watergate, and of the impetus it gave to this legislation. However, the Court's opinion does not set forth a principled distinction that would limit the constitutionality of an Act such as this to President Nixon's papers. Absent such a distinction:
"The emotional aspects of the case make it difficult to decide dispassionately, but do not qualify our obligation to apply the law with an eye to the future as well as with concern for the result in the particular case before us."
Brewer v. Williams, [/us/430/387/case.html 430 U.S. 387], [/us/430/387/case.html#415 430 U.S. 415] (1977) (STEVENS, J., concurring).
#T5/3 Footnote 5/3
Indeed, there is nothing in the Court's logic which would invalidate such an Act if it applied to an incumbent President during his term of office. It is, of course, not likely that an incumbent would sign such a measure, but a sufficiently determined Congress could pass it over his veto nonetheless.
#T5/4 Footnote 5/4
In my view, the Court's decision itself, by not offering any principled basis for distinguishing appellant's case from that of any future President, has a present and future impact on the functioning of the Office of the Presidency. Hence, the validity of the reasons asserted by the Court for upholding this particular Act is a subject which I find it unnecessary to address in detail. I feel bound to observe, however, that the Court, in emphasizing, e.g., ante at [433 U.S. 425#443 433 U.S. 443]-444, the fact that the seized papers are to be lodged with the General Services Administration, an agency created by Congress but housed in the Executive Branch of the Government, relies upon a thin reed indeed.
Control and management of an agency such as the General Services Administration is shared between the incumbent President, by virtue of his authority to nominate its officials, and Congress, by virtue of its authority to enact substantive legislation defining the functions of the agency. But the physical placement of the seized Presidential papers with such an agency does not solve the separation of powers problem. The principle of separation of powers is infringed when, by Act of Congress, Presidential communications are impeded because the President no longer has exclusive control over the release of his confidential papers. The fact that this Act places physical custody in the hands of the General Services Administration, rather than a congressional committee, makes little difference so far as divestiture of Presidential control is concerned.
#T5/5 Footnote 5/5
My Brother STEVENS, ante at [433 U.S. 425#486 433 U.S. 486]-487, seeks to attribute a similar uniqueness to the precedential value of this case, but his observations are directed to appellant's bill of attainder claim, rather than to the separation of powers claim.
#T5/6 Footnote 5/6
Article II empowers him, "by and with the Advice and Consent of the Senate," to make treaties, to appoint numerous other high officials of the Federal Government, to receive ambassadors and other public ministers, and to commission all the officers of the United States. That Article enjoins him to "take Care that the Laws be faithfully executed," and authorizes him to
"give to the Congress Information of the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient."
It is difficult to imagine a public office whose occupant would be more dependent upon the confidentiality of the advice which he received, and the confidentiality of the instructions which he gave, for the successful execution of his duties. This is particularly true in the area of foreign affairs and international relations; in United States v. Courtiss-Wright Corp., [/us/299/304/case.html 299 U.S. 304], [/us/299/304/case.html#319 299 U.S. 319] (1936), this Court stated:
"Not only, as we have shown, is the federal power over external affairs in origin and essential character different from that over internal affairs, but participation in the exercise of the power is significantly limited. In this vast external realm, with its important, complicated, delicate and manifold problems, the President alone has the power to speak or listen as a representative of the nation. He makes treaties with the advice and consent of the Senate, but he alone negotiates. Into the field of negotiation the Senate cannot intrude; and Congress itself is powerless to invade it. As Marshall said in his great argument of March 7, 1800, in the House of Representatives, 'The President is the sole organ of the nation in its external relations, and its sole representative with foreign nations.' Annals, 6th Cong., col. 613. The Senate Committee on Foreign Relations, at a very early day in our history (February 15, 1816), reported to the Senate, among other things, as follows:"
"'The President is the constitutional representative of the United States with regard to foreign nations. He manages our concerns with foreign nations, and must necessarily be most competent to determine when, how, and upon what subjects negotiation may be urged with the greatest prospect of success. For his conduct he is responsible to the Constitution. The committee consider this responsibility the surest pledge for the faithful discharge of his duty. They think the interference of the Senate in the direction of foreign negotiations calculated to diminish that responsibility, and thereby to impair the best security for the national safety. The nature of transactions with foreign nations, moreover, requires caution and unity of design, and their success frequently depends on secrecy and dispatch.' U.S. Senate, Reports, Committee on Foreign Relations, vol. 8, p. 24."
#T5/7 Footnote 5/7
As a matter of original inquiry, it might plausibly be claimed that the concerns expressed by the Framers of the Constitution during their debates, and similar expressions found in the Federalist Papers, by no means require the conclusion that the Judicial Branch is the ultimate arbiter of whether one branch has transgressed upon powers constitutionally reserved to another. It could have been plausibly maintained that the Framers thought that the Constitution itself had armed each branch with sufficient political weapons to fend off intrusions by another which would violate the principle of separation of powers, and that therefore there was neither warrant nor necessity for judicial invalidation of such intrusion. But that is not the way the law has developed in this Court.
[/us/5/137/case.html Marbury v. Madison,] 1 Cranch 137 (1803), not only established the authority of this Court to hold an Act of Congress unconstitutional, but the particular constitutional question which it decided was essentially a "separation of powers" issue: whether Congress was empowered under the Constitution to expand the original jurisdiction conferred upon this Court by Art. III of the Constitution.
Any argument that Marbury is limited to cases involving the powers of the Judicial Branch and that the Court had no power to intervene in any dispute relating to separation of powers between the other two branches has been rejected in Myers v. United States, [/us/272/52/case.html 272 U.S. 52] (1926); Humphrey's Executor v. United States, [/us/295/602/case.html 295 U.S. 602] (1935); and Buckley v. Valeo, [/us/424/1/case.html 424 U.S. 1] (1976). In so doing, these cases are entirely consistent with the following language from United States v. Nixon, [/us/418/683/case.html 418 U.S. 683] (1974):
"In the performance of assigned constitutional duties, each branch of the Government must initially interpret the Constitution, and the interpretation of its powers by any branch is due great respect from the others. The President's counsel, as we have noted, reads the Constitution as providing an absolute privilege of confidentiality for all Presidential communications. Many decisions of this Court, however, have unequivocally reaffirmed the holding of @ [/us/5/137/case.html 5 U.S. 177]."
Id. at [/us/418/683/case.html#703 418 U.S. 703].
#T5/8 Footnote 5/8
For the reasons set forth by THE CHIEF JUSTICE, ante at [433 U.S. 425#512 433 U.S. 512], it is clear that the circumstances in United States v. Nixon, involving a narrow request for specified documents in connection with a criminal prosecution, provide no support for the Court's use of a balancing test in a case such as this where the seizure is a broad and undifferentiated intrusion into the daily operations of the Office of the President.