Applicability of Executive Privilege to the

Recommendations of Independent Agencies Regarding

Presidential Approval or Veto of Legislation

In making recommendations to the [’resident to approve or disapprove legislation, an independent agency functions as part of th e President’s core of executive advisers.

W hen independent agencies render advice to the President concerning his approval or disapproval o f legislation, they are acting in an executive capacity, and such advice can be 

protected under the doctrine of executive privilege.

December 22, 1986

M e m o r a n d u m O p in io n f o r t h e A s s i s t a n t A t t o r n e y G e n e r a l ,

O f f ic e o f L e g i s l a t i v e A f f a i r s

As part of the internal executive branch process for presenting to the President recommendations for approval or disapproval of legislation, the Office of 

Management and Budget often solicits the views of the “independent agencies” 

with respect to legislation of particular concern to them. Their recommendations and comments are consolidated by OMB and communicated to the 

President along with those of the other concerned agencies and departments.

Because existing precedent separates the “independent agencies” somewhat 

from the President’s direct supervision and control, see, e.g., Humphrey’s

Executor v. United States, 295 U.S. 602 (1935), the question has arisen as to 

whether recommendations and comments made by an independent agency in 

this context, i.e., as advice to the President on his approval or disapproval of 

legislation, may be protected from disclosure to Congress by the doctrine of 

executive privilege.

A preliminary question, which does not depend on the status of an agency as 

“independent,” is whether Congress has authority to inquire into approval or 

veto recommendations made to the President. The Supreme Court has acknowledged that the investigative power of Congress, while broad, is not 

unlimited. There must be a subject matter for the inquiry, the investigation 

must be authorized by Congress, there must be a valid legislative purpose, the 

witness must be accorded certain constitutional protections, and the information demanded must be pertinent to the inquiry. See Gojack v. United States,

384 U.S. 702, 704-05, 714 (1966); Wilkinson v. United States, 365 U.S. 399, 

408-09 (1961); Barenblatt v. United States, 360 U.S. 109, 111, 117 (1959);

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Watkins v. United States, 354 U.S. 178, 187 (1957); United States v. Rumely,

345 U.S. 41, 44-46 (1953); McGrain v. Daugherty, 273 U.S. 135, 173, 176 

(1927); Kilboum v. Thompson, 103 U.S. 168, 190 (1881). The information 

sought by Congress must be “demonstrably critical to the responsible fulfillment of the Committee’s functions.” Senate Select Committee on Presidential

Campaign Activities v. Nixon, 498 F.2d 725, 731 (D.C. Cir. 1974) (en banc). 

Congress may of course appropriately request the views of the Executive 

Branch on pending legislation, as part of its inquiry into the wisdom of and 

need for the legislation. However, once that legislation has been passed by 

Congress, the President alone must determine whether it should be approved. 

The President’s authority to approve or disapprove legislation is absolute, 

unqualified (except insofar as Congress may override a veto through the 

legislative process), and unreviewable. Because the veto power is one vested 

exclusively in the President by the Constitution, it is therefore difficult to see 

how Congress has any legitimate legislative interest in reviewing the exercise 

of that power.1

Even if Congress can claim a legitimate legislative interest in recommendations made to the President with respect to the approval or disapproval of 

legislation, it is clear, at least with respect to “nonindependent” Executive 

Branch agencies, that the doctrine of executive privilege may be invoked to 

prevent disclosure of those recommendations. In United States v. Nixon, 418 

U.S. 683 (1974), the Supreme Court established in unequivocal terms that the 

privilege is of constitutional stature. The Court rested this ruling, first, on the 

need for protection of communications between high government officials and 

those who assist and advise them, and, second, on the constitutional separation 

of powers between the three branches:

Human experience teaches that those who expect public dissemination of their remarks may well temper candor with concern for appearances and for their own interests to the detriment 

of the decisionmaking process. Whatever the nature of the privilege of confidentiality of Presidential communications in the 

exercise of Article II powers, the privilege can be said to derive 

from the supremacy of each branch within its own assigned area

1 In a similar context — that of removal o f executive branch officers — the Executive Branch has 

consistently refused to comply with congressional requests to explore the reasons for dismissal, because 

under Article II the power to remove Executive Branch officers is exclusively the President’s. For example, 

President Andrew Jackson declined to give the Senate the reasons for dismissal of an executive officer, 

explaining that “the President in cases of this nature possesses the exclusive power of removal from office, 

and, under the sanction of his official oath and of his liability to impeachment, he is bound to exercise it 

whenever the public welfare shall require.” 3 J. Richardson, Messages and Papers o f the President 133 

(Gov’t Pnnting O ffice ed. 1896). President Cleveland similarly rejected “the right of the Senate to sit in 

judgment upon the exercise o f my exclusive discretion and Executive function.” 8 J. Richardson, Messages

and Papers of the President at 381. In the more recent past, General Omar Bradley refused in 1951 to testify 

before Senate committees concerning his discussions with President Truman regarding the firing of General 

MacArthur. General B radley's refusal was upheld by the Senate Committees on Armed Services and Foreign 

Relations Military Situation in the Far East: Hearings before the Sen. Comm, on Armed Services and Sen.

Comm, on Foreign Relations, 82d Cong., 1st Sess., Part 2, 832-72 (1951).

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of constitutional duties. Certain powers and privileges flow 

from the nature of enumerated powers; the protection of the 

confidentiality of Presidential communications has similar constitutional underpinnings.

Id. at 705-06. In determining whether to approve or disapprove legislation, the 

President needs the benefit of full and frank discussions within the Executive 

Branch of the merits of the legislation. Recommendations made to the President are therefore quintessentially deliberative type materials that can be 

protected under the doctrine of executive privilege.2

The rationale that justifies withholding this type of material under the 

doctrine of executive privilege is equally applicable to the “independent agencies.” In making recommendations to the President to approve or disapprove 

legislation, an independent agency is functioning as part of the President’s core 

of executive advisers, just as the other departments and agencies. The role 

played by the various agencies in the process is virtually indistinguishable, 

regardless of whether the agency is termed “independent” or not. It would be 

inconsistent with the underlying principle of executive privilege — the need to 

preserve the integrity of the President’s decisionmaking process — to conclude 

that recommendations made by a Cabinet agency may be protected, whereas 

recommendations on the same bill, made as part of the same inter-agency 

process, cannot be protected.

This functional analysis is consistent with the Supreme Court’s view in 

Humphrey’s Executor of the relationship between the President and the independent agencies. Even assuming, arguendo, the continuing validity of 

H umphrey’s Executor,3 it clearly does not divorce entirely the “independent 

agencies” from the executive branch. Under Humphrey’s Executor, the President may be limited, in certain questions of removal, from asserting direct 

supervision and control over the “quasi- legislative” or “quasi-judicial” functions of the agencies. Nothing in the decision suggests, however, that when an 

agency functions in a clearly executive capacity — such as rendering advice to 

the President — it is likewise insulated from direct Presidential supervision. A 

more detailed discussion of this question can be found in a 1957 opinion of this 

Office. Memorandum for the Attorney General from W. Wilson White, Assistant Attorney General, Office of Legal Counsel (Nov. 5, 1957). That opinion 

concludes, based on an analysis of Humphrey’s Executor, that, “[i]n many 

respects [the] functions and operations [of the independent agencies] are subject to executive control,” and “[i]n such cases the doctrine of executive 

privilege should apply to the independent regulatory commissions to the same 

extent that it applies to the executive departments and officers of the federal 

government.” A current example of application of this functional analysis is the

2 In order eo protect the confidentiality o f those recommendations, the privilege would extend as well to 

drafts and inter- or intra-agency deliberative communications preparatory to making the final recommendation. See generally NLRB v. Sears, Roebuck &. Co., 421 U.S. 132, 150 (1975); Coastal States Gas Corp. v. 

Dep t o f Energy, 617 F.2d 854, 866 (D.C. Cir. 1980).

3 See generally Bows her v. Synar, 478 U.S. 714, 761 n.3 (1986).

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Executive Order on classification and declassification of sensitive national 

security information. Executive Order No. 12356, 47 Fed. Reg. 14874 (1982). 

This order, which is based on the President’s supervisory authority over the 

disclosure, of information that may harm the national security — a longrecognized branch of executive privilege — applies equally to “independent 

agencies” and the other executive agencies.

D o u g l a s W . K m ie c

Deputy Assistant Attorney General

Office o f Legal Counsel

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