Last week was a big week for separation of powers. Focus on the President's immigration order has (at least on this blog) overshadowed two other major separation-of-powers debates: the President's claim of executive privilege in response to the House's demand for documents in the "fast and furious" investigation, and a new lawsuit challenging core aspects of the Dodd-Frank financial regulation bill. So to start this week I'll begin some discussion of these two controversies.
On executive privilege, there has not been much in the way of originalist analysis in the recent debates that I've seen. (For modern doctrinal analysis critical of the President, see here from John Hinderaker at Powerline). The question, of course, is whether the President can assert executive privilege to shield Attorney General Eric Holder from a House committee's demand for documents related to executive branch decision making.
Here's my initial intuition: the Constitution's text has nothing to say on this matter. Any constitutional rule (in an originalist sense) is going to have to come from historical practice of the ratification era and before that was so deeply entrenched as to be necessarily understood as part of the Constitution's basic grants of executive and legislative power.
That formulation puts a heavy burden on Congress. Where does Congress get the power to order the Attorney General to deliver internal executive branch documents? (I mean, in a legally significant way). Of course the House can "order" the Attorney General to deliver the documents, and can "hold him in contempt" if he refuses, to the same extent that the House can "declare" tomorrow "Eric Holder Appreciation Day" (and to the same extent I can do all of those things). For those pronouncements to have any more legal significance than if I made them, the House must have some constitutional power behind them.
By Article I, Section 7 and the venerable textualist/originalist opinion INS v. Chadha, Congress can change individuals' legal rights only by passing a bill through both Houses and obtaining the President's signature (or, lacking the President's signature, by then obtaining a supermajority vote in Congress). Unless there is another way for Congress to act in this specific area, not immediately obvious from the Constitution's text, I don't see how a committee of Congress has any legal power to order Mr. Holder to do anything. And if that is so, focus on the existence-or-not of "executive privilege," as a legal matter, misses the point.
That's not the end of the story, because Congress may have a power that's not textually explicit. By Article I, Section 1, it has the "legislative Power herein granted." Could that include the power to order Mr. Holder to deliver documents? Maybe, if it were well established at the time of ratification that legislative bodies (notably, the British parliament) had such a power. But that is a historical burden Congress would have to carry. I'm not expressing an opinion here on whether it could -- only framing the issue. And it's not obvious to me it can be carried.
One further note: it's not clear that cases on the judicial power to order the delivery of executive branch documents (which the post noted above relies on) are on point. The federal courts' power comes from Article III, Section 1's grant of "the judicial Power." Although the basic analysis is the same as in respect of Congress, the historical record may be different. In particular, it seems likely that eighteenth-century courts had power to order the production of documents in connection with judicial proceedings and to hold in contempt those who refused to deliver. Whether and to what extent eighteenth-century legislatures had a similar power is, at minimum, a different question.
As a result, I start off on the President's side here. Maybe Congress has a historical basis for a (non-textual) power, but I would need a good bit of evidence in support. And if Congress lacks power to demand a response in the first place, the President is of course entitled to decline to respond.
On the second issue, the core claim of the suit, filed as State National Bank of Big Springs v. Geithner, is that Dodd-Frank creates an agency (the Consumer Financial Protection Bureau) that does not comport with the Constitution's allocations of executive, legislative and judicial power. (Powerline's sympathetic analysis is here). That's probably right as an originalist matter, but this is an area where non-originalist precedent is strong, so the real question (in terms of judicial outcomes) is whether there's a path to begin re-establishing something like the original understanding incrementally, as for example the Court did in the Free Enterprise Fund case from 2010.