Issues in Democratic Theory Final Essay (Thaya Uthayophas)

7/29/2019 Issues in Democratic Theory Final Essay (Thaya Uthayophas)

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Thaya UthayophasIssues in Democratic Theory

16 December 2012

The Preservation Test: A Theory on the Constitutional Limits of President

Privileges and Immunities Powers

Constitutional scholars have often puzzled about the existence and limits of

presidential privileges and immunities powers. These two presidential powers are not

specifically addressed in the constitution, yet the Supreme Court has historically accepted

their general existence. The Court, however, has also placed case-by-case limits on the

presidents use of the powers. I argue that presidential privileges and immunities are

created for the sole purpose of allowing the executive office to preserve the livelihood of

members of society within the confines of a republican form of government. The

presidential powers are limited by the Presidents ability to prove that the exercise of his

powers is within these guidelines.

I will first argue how the presidential privileges and immunities powers are

derived from the common law of nature as well as the consent of the people. Then I will

argue against John Locke and Harvey Mansfields limits on such powers, advocating my

own theory on the limits of presidential privileges and immunities. Next, I will defend my

own theory against three counterarguments and develop a five-parts methodology guiding

how courts can test whether the President is using his or her power to preserve the

republic. Finally, I will address two counterarguments to the validity of my methodology

and test the practicality of my five-parts methodology on two real Supreme Court cases.

Origin of the Executive Power

John Locke argues in his Second Treatise of Governmentthat the executive has

the prerogative power to carry out action for the public good. The executives prerogative


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allows him or her to act according to discretion for the public good, without the

prescription of the law and sometimes even against it.1

This prerogative power to act

against the law for the public good serves as a precursor to the privileges and immunities

power American presidents have come to claim under the Constitution. Locke justifies

the executive privileges as a power the president possesses to execute the law of nature.

According to Locke, the law of nature states that no one should harm the life and liberty

of others2. Executing the law of nature, then, means punishing the transgressor of such

law of nature in order to hinder its violation.3

In the transition from the state of nature to

civil society, the people gave up the ability to execute the laws of nature to the executive.

From this, it follows that the people must also give the executive power the prerogative to

carry out the administration of the law of nature.

Harvey Mansfield sees the executive power to execute the law of nature in a

different form: energy. Mansfield believes that the executive provides the energy for

government to respond to urgent crises. Like Locke, he believes that the executive power

needs to do what it takes for the preservation of society. The executive should not be the

slave of the majority, but should be able to carry out actions that the people would want,

provided they were made aware of the social circumstances. The best presidents,

Mansfield argued, are presidents like Abraham Lincoln and Franklin Roosevelt who

undertake extensive and arduous enterprises necessary to the survival of the United

States of America.

1

John Locke, Second Treatise of Government (Indiana: Hackett Publishing, 1980), 842

Ibid., 123

Ibid., 10


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Natural and Civil Liberties

Both Locke and Mansfield see a formative difference between natural liberties

and civil liberties, one that places limits on presidential powers. Natural liberties are

unalienable rights retained by citizens even after their consent to governmental rule,

whereas civil liberties are alienable rights given to the dictate of the government after

citizens entered into the laws of society. Civil liberties, unlike natural liberties, are

subject to circumstances. For example, civil liberties can be taken away if the executive

deems it necessary to protect the country. In these cases, the existence of natural liberties

that could not be taken away in any circumstances, however, points to a limit on

presidential powers to invade citizens rights. Locke and Mansfield both suggest that the

inalienability of natural liberties acts as a limit to presidential powers.

Natural liberties, however, offers no actual limits. In his essay Was the Flag

Burning Amendment Unconstitutional?, Jeff Rosen notes the framers belief in two

natural liberties: the rights of religious conscience and the right of revolution.4

Both

rights would hardly protect the people from the executive transgressing of their rights in

other areas. For example, Rosen notes that the rights to defend life, liberty, and property

as well as the right to speech are not protected as natural liberties. Additionally, only one

of the natural liberties actually has the potential to have substantive effects. The right to

rebellion can be easily ignored. The government can simply choose to see the rebels as

enemies engaging in a state of war with them and not deserving of rights. Seen this way,

the right to rebel translated into practical terms, means the right to die under the superior

4

Jeff Rosen, Was the Flag Burning Amendment Unconstitutional, The Yale Law

Journal100 (1991): 1073-1092.


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military force of the state. The right to religious conscience could potentially have a

substantive effect by preventing the executive from transgressing on peoples right to

worship or carry out religious acts. It is hard to define what is religious, however, and

Supreme Court decisions like the one inEmployment Division v. Smith (in which Justice

Scalia famously argued that the court can no longer practically apply strict scrutiny

standard for religious rights cases) have also made it much more difficult to successfully

sue for violation of religious rights.

Preserving Society

If natural liberties cannot be the actual limits to presidential authority, then what

can serve as those limits? I argue that the President can only use his or her executive

privileges and immunities for the good of preserving members of the American republic.

The key role of the executive for the Framers, who were especially influenced by Lockes

political theory, is to preserve the members of society. The Framers, however, limited

Lockes broad role for the executive by only allowing the executive to preserve members

of society in a republican form of government. Evidence for this role of the executive can

be found in the presidential oath and the Guarantee Clause in Article Four, which bind

the president to preserve, protect, and defend the Constitution of the United States and

the United States to guarantee to every State in this Union a Republican Form of

Government respectively. The Presidents oath to defend the Constitution compels him

to also defend the people who are the supreme authority over the Constitution. The duties

of the president as the executive of the United States likewise requires him to provide a

Republican form of government for the people living under the many states. The


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presidents privileges and immunities, therefore, can only be derived from such power to

preserve the Constitution, the Republic, and its constituents.

One might wonder at this point about my use of the Guarantee Clause. Why limit

presidential privileges and immunities under the Guarantee Clause? Why is the

Presidents role not just preserving the members of a civil society as John Locke argues?

How does adding in a republican form of government to the presidents duty to

preserve society work in conjunction with Lockes theory? The requirement for the

President to preserve society under the form of a republican government essentially limits

the President to preserve society under a form of government explicitly chosen by the

people. The central idea of Lockes social contract is that the executive governed only by

the consent of the people. In this social contract framework, the President, therefore,

derives his powers from the people who expect him not only to secure their livelihood but

a livelihood in a specific type of society they want to live in (in this case, a republic).

Therefore, the President does not have the power to preserve society by transforming it

into another form of civil union the people did not assent to. This republican

government requirement, for example, would not be compatible with a president who

seeks to preserve society through an aristocratic government. Under such a transformed,

non-Republican society, the president no longer has the backing of the people and

therefore the constitutional rights to his privileges and immunities.

Counterargument #1: Executive Privileges for Executing the Law

Critics may question the validity of placing the authority of the presidential

powers under the presidents main role to defend the Constitution. They could argue that

the Presidents role of the executor of the law is the more direct and appropriate place to


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derive the President privileges and immunities powers. The President, after all, needs

certain privileges and immunities to be able to effectively carry out the law.

Placing the Presidents privileges and immunities powers under the presidents

role to execute the law would give the president too broad of a power. The President can

cling to any privileges or immunities under the pretense of needing such power to

effectively execute the law. For example, President X could argue that in order to

effectively carry out the law he needs to withhold certain classified information that

would implicate his son in a murder. Of course, such clear abuse of power by the

president for self-gain would warrant an impeachment by Congress. However, consider

another example: President X now argues that in order to effectively carry out the law,

the White House needs to be repainted green because such color would suit his aging

eyesight better. Is repainting the White House a misdemeanor considered to be an

impeachable offense under the Constitution? No constitutional theorist would argue so.

Therefore, such a ridiculous and historically damaging act would be wrongly available to

the president if he were to derive his powers simply from his role as executor of the law.

Counterargument #2: President, Protector or Executor?

Critics could additionally argue that the role I assigned to the President as

protector of the livelihood of people and the Republic would put him under so much

pressure that he would not be able execute the law. In assessing the fitness of a particular

president, Locke asserts that the President should see to it that as much as may be all the

members of the society are to be preserved. Locke here asks the President to put his or

her best effort towards preserving all the members of society. If this Lockean standard

were the standard that the President must pursue to protect the members of society, the


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President would have to devote all of his attention to helping the people. On this account,

the President with his or her Lockean duty would be too overwhelmed to execute the law.

This reading of Lockes quote paints the picture of the executive running around

the country and saving lives as the most efficient means of preserving society. This

picture is more than misleading; it is false. The fact that the President needs to protect the

livelihood of people does not exclude him from executing the laws created by Congress.

In fact, the most effective role the President can play, as the protector of members of

society and protector of the Republic, is to execute the law as efficiently as possible. By

executing the law, the President ensures the rule of law for the stability and survival of

the Republic. For instance, by effectively punishing transgressors of laws, the President

sends the signal for those who seek to destabilize society to yield from their plans. By

carrying out economic legislation, the President also creates stability in the financial

system that ensures the long-term survivability of society. In extreme circumstances,

when the rule of law no longer works as hindrance against crimes against society, the

President might have to focus more of his attention on directly protecting the people

rather than executing the rule of law. In general, though, the Presidents role of

protecting society is the basis for his role of executing the law.

Counterargument #3: Not in the Constitution

Finally, critics may claim that privileges and immunities are not constitutional at

all. The framers might have substituted Lockes broad executive prerogative with clearly

defined powers including the power to supersede the law through the pardon power. They

have, however, left any explicit reference to the executive privilege and immunities out

of the Constitution.


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I do not believe this lack of explicit reference indicates that the Framers think that

it is inappropriate for the president to possess privileges and immunities. I argue rather

that the Framers realize that presidential privileges and immunities cannot be listed out

because the appropriateness and extent of such powers are influenced so much by the

circumstances of the day. In peacetime, for example, the scale of presidential privileges

and immunities will be low. In wartime, however, the scale of presidential privileges and

immunities will be high in order for the President to have the appropriate means to

protect the country. Listing out the presidential privileges and immunities neutrally in the

Constitution would be disastrous on both ends of emergency and non-emergency time. In

non-emergency time, the President would have too broad of a power. In emergency time,

he would have too narrow of a power. Not writing down specifics privileges and

immunities is one method the Framers used to account for changes in circumstances.

Critics can, however, still argue further. Even if the framers cannot jot down the

specific privileges and immunities the president has, at least they could have mentioned

something about them.

The Framers did not mention how the president will have privileges and

immunities specifically. However, the Framers also gave the president The Executive

Power. Compared to Congress power herein granted, the executive power granted to

the president is uneunmerated. The executive power is left largely undefined much like

Lockes executive prerogative because the Framers realize that they cannot anticipate

everything necessary to give the executive branch energy. Nonetheless, executive

power includes the presidential privileges and immunities, which, as I have argued, allow

the President to carry out his primary role of executing the law of nature. Therefore, the


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Framers have already accounted for presidential privileges and immunities by giving the

President all the executive power there is.

Keeping the President in Check: the Preservation Test

Having established how the Presidents privileges and immunities powers are

limited as tools to only help the President preserve society, I now turn to a test the

Supreme Court could use to determine whether the President is following such limitations

in claiming his or her presidential privileges or immunities. The test is not simply

whether the President is using his or her privileges or immunities to preserve the

republic. Such a test would undoubtedly be too vague, as the Court must decide by itself

what counts as preserving the republic. I argue rather that the President, when challenged

by a suit regarding his or her privileges or immunities, must give the Court a rationale for

claiming such powers based on the ideal of preserving the Republic. The court will then

determine whether the Presidents rationale is valid. The big underlying question the

Court must ask itself is: Can the President rationally claim the necessity of X presidential

privileges and immunities to carry out his role in preserving the Republic? Five questions

can then be asked by the Justices to help them decide the validity of this question:

1) Is the president claiming his or her powers in a situation of emergency? 2) Are

the privileges or immunities involved in an area where the President would have more

discretion about the safety of the Republic than the Justices or Congress? 3) How does

the President claim to his or her powers fare under Justice Jacksons three-tier test for

evaluating claims of presidential power in his concurring opinion in Youngstown Sheet &

Tube Co. v. Sawyer?: 4) Is the use of X privilege or immunity necessary for the

preservation of society? Could the President have used another method to pursue the


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preservation of society instead? 5) Are the Presidents claims to his or her privileges or

immunities consistent with protecting a republican form of government?

The first three questions establish relevant background information to help answer

the other two questions. I term the first three questions the Background Questions. On

their own, the Background Questions do not provide the essential answers for the

Justices to decide the case. In contrast, the last two questions are the "Key Questions the

Justices must ask to decide the case. Any negative answer(s) to the Key Questions will

automatically disqualify the Executives claim (the two questions, therefore, stand apart

from each other). In contrast, if the answers to both of the questions are positive, the

Justices must rule in favor of the executive. The Key Questions ask two questions in

unique areas: the fourth question answers the question of necessity: whether the

Presidents claim to privileges and immunities is necessary for his preservation role. The

fifth question tests whether the Presidents claim is consist with the ideal of a republic.

Chart 1: The Categories of the Preservation Test

Background Questions

1. Is the President claiming his powers in a situation of emergency

2. Is the presidential exercise of privilege or immunities within

the field where presidents would have more knowledge?

3. How does the Presidents claim to his or her powers fare under

Justice Jacksons three-tier test?

Key

Questions

Question of

Necessity

4. Is the Presidents claim to privileges and immunities necessary

for him to preserve society? (Is there another method?)

Question of

Republicanism

5. Are the Presidents claims to his or her privileges or immunities

consistent with protecting a republican form of government


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I will now proceed to explain all five questions in detail:

Background Questions

1)Is the president claiming his powers in a situation of emergency? The first

questions ask the Justices to determine the circumstances surrounding the Presidents

claim to executive privileges or immunities. Because of the problematic nature of finding

an all-covering definition for every state of emergency, I neither offer my own concrete

guideline defining the state of emergency nor suggest the Supreme Court find one. Every

situation pertaining to the executive claim to privilege needs to be studied and judged by

the court case-by-case. I would think, however, that any attack or threat of attack by

foreign nations on US soils would constitute a state of emergency (for example, if Russia

were threatening to deploy a nuclear bomb against the United States). In contrast, as

tragic as it is, a suicide attack killing American tourists would count as less of an

emergency than a threat of a direct foreign attack on American soil, but still an

emergency. The difference between the two hypothetical cases I offered suggests to me

that the question of the state of emergency is not a yes or no but rather a question that

requires answers falling in a spectrum. In general, I think that any actions that threaten

the long-term survivability of the United States as a union of states should be placed on

the more extreme end of the emergency spectrum. Regardless, the Supreme Court should

determine how threatening the situation that prompts the president to use the executive

privileges or immunities is to the United States. The answer to such question has a

substantial barring on how the court answers the Key Questions.

In a situation of emergency, the executive powers must expand to accommodate

the need for energy to defend the country. The Supreme Court must give strong


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presumption for the rationale of the executives claim to his or her privileges or

immunities. In a non-emergency time, the President would not gain the presumption; the

President could still claim privilege or immunities but his or her case would be

substantially weaker than during times of emergencies. (For example, the President could

still claim secret documents privilege to monitor terrorist organizations even in non-

emergencies). The difference in how the case should be decided in the two circumstances

indicate that certain privileges or immunities are only active during time of emergency;

just because the court grants the President authority to have certain privileges now does

not mean that he or she retains them forever. The court must make note of this fact to the

President. For example, the Court might allow the President the privilege of suspending

Habeus Corpusbut strongly note that this only applies for use under the so and so crisis.

2)Is the presidential exercise of privilege or immunities within the field where

presidents would have more knowledge? The second question asks the Court to question

its own abilities to judge the Presidents rationale for claiming certain privileges or

immunities. By the nature of his executive office, the President has more knowledge in

certain political areas than the judges of the judiciary branch. For example, through his or

her duty to welcome ambassadors under Article II section 3 of the Constitution, the

President typically has broad knowledge about foreign affairs. When dealing with cases

that concern the use of presidential privileges and powers under areas of presidential

expertise such as foreign affairs (for instance, suppose the President claims the privilege

to withheld classified information on Syria), the Justices should strongly weigh the

Presidents rationale in his or favor. It is important to note here that the strong weigh

given to the Presidents rationale for use of privileges or immunities does not necessary


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mean that the Court will always rule in favor of the President. As we will shortly see in

United States v Nixon, the Supreme Court can still correctly rule against the President

despite his or her claim to expertise in the area under judicial scrutiny.

In contrast, in cases where the Presidents claim to privileges and immunities lies

in an area where he or she does not traditionally have a special expertise in, the Court

should look primarily to Congress to provide support for or against the validity of the

Presidents claim to the executive powers. (The Court can still look for guidance from

Congress even in cases where the President has a claim to knowledge, but strong

presumption will be given to the Presidents claim). The Supreme Court should look for

guidance in Congress to decide the case because the Court as a judicial body has

inadequate knowledge of legislative issues. The President, by claiming special executive

privileges and immunities, is, after all, overriding the rule of law created by Congress.

3)How does the president claim to his or her powers fare under Justice Jacksons

three-tier test? Justice Jackson, in his concurrence in Youngstown Sheet & Tube Co. v.

Sawyer, came up with a three-category test to determine the validity of presidential

actions in relation to congressional authority. If Congress gives authority to the

Presidents use of power, the Court will consider the case in question strongly in the

Presidents favor. If the President defies congressional will, however, the Court will

consider the case strongly against him or her. In cases where Congress does not give any

clear opinions on the validity of the Presidents action (what Jackson termed the

Twilight Zone), the court must use other means to decide the case in question.

Justice Jacksons three-category test is a useful tool to decide cases considering

presidential privileges and immunities. By their very nature, privileges and immunities


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stand in opposition to the rule of law voted to be in effect by Congress. This opposition to

the rule of law, however, does not automatically make presidential claims to privileges

and immunities against the will of Congress and therefore make the Court lean

unfavorably against the Presidents action. In order for the Court to actually determine

that the President is acting against the will of Congress, Congress must collectively

channel their views of the Presidential claims to his or her powers through some kind of

action that explicitly or implicitly shows that they are against the Presidents claims. For

example, Congress could pass legislation that, in effect, cancels, the Presidents privilege

to X. The opposite holds true if Congress wants to support the Presidents claim to his or

her privileges or immunities.

Key Questions

4) Is the use of X privilege or immunity necessary for the preservation of society?

Could the president have used another methodology to preserve the republic? The fourth

question is the first of the Key Question. It asks the Justices to use their own judgments

to determine whether the Presidents claim to privileges or immunities is the only action

available to preserve the Republic. Secondarily, since the question hinges on the

Presidents role in preserving the Republic, the question also asks whether the President

is using his claim to privileges or immunities to preserve the Republic at all. Because the

question asks the Justices to investigate into areas of law they might not be familiar with,

the question must be used carefully in conjunction with the Background Questions,

especially the questions about the Presidents expertise in the area and congressional

approval of the Presidents action. I would even claim that unless there is a clear and

equally (or more) effective option that the President could have used instead to pursue the


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desired action, the Court should almost always rule in favor of the executive for this

question. For example, if instead of simply using the pardon power assigned to him by

the Constitution the President personally breaks someone out of jail and claims

immunities against such criminal action, the Court would have adequate reason to rule

against him. However, if the President claims in an emergency that he needs Privilege X

to immediately help save the nation but the Court has some reason to believe that the

President could have instead used the slower but more legal power Y that was assigned to

him, the Court should not rule against the President for this question.

To recap, question four must be decided with all of the Background Questions

in mind. If the President is claiming privileges or immunities in an area where he has

expertise and also has the approval of Congress to back up his claim, the Court should

give the strongest presumption to the President. The opposite holds true if the resident

does not have the expertise or the approval of Congress. Additionally, in situation of

emergency (especially one with time constraint), the Court must give the President a

degree of leeway even if he or she, with the gift of hindsight, could have used another

methodology to preserve the Republic.

5)Are the presidents claims to his or her privileges or immunities consistent with

protecting a republican form of government? The previous question deal with question of

whether it was necessary for the President to exercise privileges or immunities to

preserve society in general. The final question, however, deals with a topic I have

touched on earlier in the essay: preserving society under the confines of a republican

form of government. This question ensures that the President through the exercise of his

or her privilege and immunities does not alter the republican form of government that the


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people choose to live in. By a republican form of government, I mean a government in

which the governmental officials carry out their constitutionally assigned powers as

direct representatives of the people. The key word here is representative.

Representative does not mean hereditary aristocrats or any other similarly elitist groups

who exercise their governing power without the consent of the people. Rather,

representatives mean government officials who derive their power to govern through

the votes of the people and remain accountable to the people during their time in office.

The Supreme Court should explicitly rule against a president who the Court

suspects to be claiming privileges or immunities in ways that would fundamentally

change the composition of the American Republic. For example, a president who seeks to

use his or her privileges or immunities to promote slavery in the name of preserving

society (think back to the Civil War) would not actually have such powers granted to him

or her by the Constitution. Even if the President was acting under the situation of

emergency with the support of Congress, promoting slavery means promoting the

subjection of a certain group of people to bondage withouta form of political

representation in the government, incompatible with the ideal of a republic. Promoting

slavery by itself, therefore, violates the presidential duty of guaranteeing a republican

form of government for the citizens, canceling the Presidents claim to any privilege or

immunities in the area.

Unlike question four, question five should only be decided with one of the

Background Questions in mind: the question of congressional approval. Congressional

approval of the Presidents claim makes the Presidents claim more in tune with the ideal

of a republic; his or her claim is now more representative to the people who also voted in


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members of Congress. In the case of Congressional approval, the Court should therefore

give the President a presumption that he or she is acting in line with the presidential duty

under the Guarantee Clause. However, if Congress does not approve of the Presidents

action, the opposite holds true; the Presidents claim would be less in line with the ideal

of a republic. Therefore, the Court should place an additional burden on the President to

actually prove that he or she is actually acting in line with the ideal of a republic.

Chart 2: Background Questions that have bearing on each Key Questions

Question of Necessity (Q4)

Situation of Emergency (Q1)

Presidential Expertise (Q2)

Congressional Approval (Q3)

Question of Republicanism (Q5) Congressional Approval (Q3)

Having now explained the five questions the Court should be asking to determine

whether the President could rationally claim the necessity of certain privileges and

immunities to carry out the presidential role in preserving the republic, I will now move

to address two counterarguments to the test arising under the political question doctrine.

Counterargument #1: Political Question and the Guarantee Clause

The Court has historically ruled the Guarantee Clause to be a non-judiciable

clause under the political question doctrine. InLuther v. Borden, the Supreme Court

found that only Congress can decide whether a government is republican in its form or

not: it rests with Congress to decide what government is the established one in a State ...


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as well as its republican character.5

Additionally, inBaker v. Carr, the Court ruled that

the Guarantee Clause is not a source of "judicially manageable standards, which a court

could utilize independently in order to identify a State's lawful government."6

Given the

courts historical deference of the clause to Congress and this lack of judicially

discoverable and manageable standards for resolving a case, critics could argue that the

Guarantee Clause should not have been the basis for the fifth question of my testand, to

a greater extent, even as a part of my argument for the presidents role to preserve a

republican form of government.

I disagree with the Courts ruling in bothLuther v. Borden andBaker v. Carr.

First, Congress is not the sole interpreter of the Guarantee Clause as the Court claimed in

Luther v. Borden. The Guarantee Clause does not state that Congress shall guarantee to

every State in this Union a Republican Form of Government ; it states that the United

States shall guarantee. The United States refers to the federal government, which not

only includes Congress but the Supreme Court. Therefore, the Supreme Court also has a

role in interpreting what the Guarantee Clause means. Secondly, the Guarantee Clause

presents a judicially manageable standard for resolving constitutional law cases unlike

what was said by the Court inBaker v. Carr. As I have previously shown, the Guarantee

Clause asks the United States to provide a republican form of government to the people.

The Supreme Court, therefore, should establish the standard of the guarantee clause as

the standard of what constitutes a republic. As I have mentioned, a republic is a

government in which the governmental officials carry out their constitutionally assigned

powers as direct representatives of the people. The Court should therefore set up a

5Lutherv.Borden48U.S.1(1849)6Bakerv.Carr,369U.S.186,223(1962).


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standard questioning whether the president is carrying out his or her constitutionally

assigned powers as a direct representative of the people. Under such a test, presidential

privileges or immunities that significantly prevent the people from voicing their opinions

through their representatives are unconstitutional. For example, the President could not

claim a privilege that permanently prevents a certain group from having voting rights.

Counterargument #2: Lack of respect for the Executive Branch

Critics could additionally argue that question four (Question of Necessity) of my

test also falls under the political question doctrine. InBaker v. Carr, the court lists one

characteristic of a political question as the impossibility for a court's independent

resolution without expressing a lack of respect for a coordinate branch of the

government.7By second-guessing how the President could have used another

methodology aside from the claim to privilege and immunities to carry out the role of

preserving the republic, the fourth question of my test might be said to disrespect the

political judgment of the executive branch and falls under the non-judiciable category of

a political question.

As I mentioned in my analysis of question four, the Court should be very hesitant

to find a case against the Presidents claim of executive privileges and immunities

through this question. There needs to be a clear and equally (or more) effective means the

President could have used instead of the presidential privileges in order for the Court to

rule against him or her. Essentially, the clear and effective means test must provide

evidence that the President could rationally be presumed to have knowledge about a

certain means to X power but chose instead to claim such power through presidential

7Bakerv.Carr,369U.S.186,217(1962).


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privileges. Additionally, question four should not be taken out of the context of a five-

question test. By asking question one, two, and three (emergency, executive expertise,

congressional approval) in order come to conclusion with the additional support of

question four, the Court would have already acted with due respect to the different

branches of the government. We can see how this five-question process works as I now

move on to my next section: analyzing how my preservation test would be used in real

law cases.

United States v Nixon

In United States v Nixon, President Nixon claims an executive privilege of

safeguarding audiotapes of conversation he recorded in the Oval Office from judicial

review by the Court. The Court rules against Nixon, arguing that Nixon must hand over

the tapes for the due process of law to be preserved. I agree with their decision, but offer

my own reasoning for how the Court should have decided the case. The fundamental

question under my preservation test for this case is: Can president Nixon rationally

claim the necessity of withholding the tapes as a presidential privilege to carry out his

role in preserving the Republic? Nixon could claim that the tapes contain important

foreign affairs information that when handed out to the public would pose grave dangers

to national security. With the help of the five questions checks, I conclude that Nixon

does not have any rational basis under the preservation test to withhold the tapes.

The Background Questions: 1) The United States was not in a heightened state of

emergency when Nixon claimed his privilege. 2) The information Nixon safeguards falls


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under the key presidential area of military and foreign affairs. 3) Congress has expressed

strong disapproval for Nixons action by opening an impeachment hearing against him.8

Question of Necessity: 4a) Is the President withholding information from the

Court to preserve the Republic? It could be rationally assumed so; the information

withheld by Nixon could contain matters of grave national security. 4b) Is there another

methodology for the president to preserve society without withholding information from

the Court? The Background Questions could help illuminate the Courts decision. 1.

Nixon is not acting in a situation of emergency, but the nature of Nixons claim does not

require the situation to be an emergency for him to claim the privilege to withhold the

information. The information released could be a catalystfor an actual emergency. 2. The

President is acting in his presidential area of foreign affairs. Therefore strong

presumption must be given to the President; if there is another method to pursue the

Presidents role of preserving society within the area of foreign affairs, the President must

have known about it. 3. Finally, by setting up a committee to impeach him, Congress

does not approve of the Presidents action in general. This general disapproval, therefore,

has less bearing on the Necessity Question than the Presidents specific claim of

knowledge in his area of foreign affairs. Given the strong presumption the Court offers to

the President who is working in his area of foreign affairs and the general lack of any

clear second methodology for the situation, the Court should find the Question of

Necessity in the Presidents favor.

Question of Republicanism: 5) Does the Presidents ability to protect himself

against investigation by the Court violate the guarantee of a republican form of

8

The House Judiciary Committee, opened impeachment hearings against the President on May 9,

1974, prior to the Courts actual decision on the case.


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government? The question of congressional approval in the Background Questions has

a strong bearing in answering this question. The House of Representatives clearly

disapproves of the Presidents action by setting up a committee to impeach him. Congress

believes that Nixon is guilty of a high crime and is using claiming presidential privileges

to withhold information from the court to protect himself. Congresss claim is valid.

Nixon, by blocking the Court from information that could be used in a lawsuit against

him, not only obstructs justice but also acts as an elitist figure, against the ideal of

accountability as a representative to the people in a republican form of government. By

claiming presidential privilege to withhold information against a judicial review from

which he himself will benefits, Nixon betrays accountability to the people and betrays the

republican form of government. Even if Nixons claim that withholding the information

is necessary for the preservation of society is true, he is not preserving the required form

of government: a republic. Therefore, the Court should rule against Nixon in this

question and in this case.

Nixon v. Fizgerald

InNixon v Fitzgerald, an ex-officer filed suit against Nixon claiming that the

President was responsible for unfairly firing him. The Court rules against the officer,

holding that the President, due to the unique nature of his office, is entitled to immunity

from civil damages based on his official actions. The Court reason that the immunity

would not leave the President unaccountable for his actions: there are formal and

informal checks on the Presidents actions based on the separation of powers structure in

the Constitution and the nature of the office to be scrutinized. I agree with the Courts

decision, but believe that their reasoning is entirely inadequate. I offer my own reasoning


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for how the Court should have decided the case in the following paragraphs. The

fundamental question under my preservation test for this case is: Can Nixon rationally

claim the necessity of presidential immunity from civil damages for the preservation of

the republic? Nixon could claim that he needs to be able to fire officers who threaten the

stability of the republic (Fitzgerald testified negatively against the United States Air

Force) without the risk of a civil suit. With the help of the five questions checks I

conclude under the preservation test that Nixon has immunity from civil suit in this

case. Therefore, I would rule against the Plaintiff.

The Background Questions: 1) The United States was not in a state of emergency

when Nixon took responsibility to fire Fitzgerald. 2) Nixons claim of immunity has

direct link to one of his key presidential area of knowledge: the military. (Fitzgerald

previously worked for the United States Air Force). 3) Congress expresses an indirect

disapproval of the Presidents action. Through the Pendleton Civil Service Reform Act,

Congress created the United States Civil Service Commission, an independent agency

that found Nixons dismissal of Fitzgerald to be unjust.

Question of Necessity: 4a) Is the President claiming immunity from civil suits for

his role in preserving the republic? Yes; the President could rationally claim that he needs

to be able to fire officers who he deemed to threaten the stability of the republic. 4b) Is

there another methodology for the President to preserve society without claiming

immunity? The Background Questions helps the court decide. 1. Nixon is not acting in

a situation of emergency, but Nixons claim to immunity still applies to help preserve the

Republic even in non-emergency time. 2. The President is acting in his presidential area

of the military. Hence, the Court must give strong presumption to the President claiming


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the necessity of the immunities. 3. Through the decision of an independent agency,

Congress indirectly disapproves of the Presidents action. Because it is indirect,

congressional disapproval has weak bearing on the Necessity Question. Because the

President claims immunity in his presidential area of the military and the fact that there is

again no clear second methodology that can be used to address the situation, the Court

should find the Necessity Question in the Presidents favor.

Question of Republicanism: 5) Does the Presidents claim to immunity against

civil suits violate the ideal of a republican form of government? Again, the question of

congressional approval in the Background Questions has a strong bearing in answering

this question. Congress indirectly disapproves of the Presidents action through the action

of an independent agency. The Civil Service Commission, which Congress created under

the Pendleton Civil Service Reform Act, concludes that Fitzgerald dismissal was unjust.

The indirect nature of Congresss claim puts the Court in a peculiar position. On one

hand, the Court could be tempted to discount Congresss claim through the Civil Service

Commission, as independent agencies are by their autonomous nature contrary to the

ideals of a republic. On the other hand, however, the Court could not simply dismiss the

fact that Congress is expressing its disapproval of the executive action. Ultimately, I

would argue for a compromise: the Court should keep Congresss disapproval in mind

but only with a critical eye when making its decision for the case in question.

What finally swings the case in favor of the President is not the indirect nature of

Congresss disapproval but the fact that the President is not actually violating the ideal of

republicanism by firing executive officers assigned by the government to do work. In

fact, the President is acting in parallel with the ideals of a republic by firing the executive


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officer who acts contrary to his will. Let me explain: The President by nature of his

executive office is tasked by the people to carry out the law as an indirect representative

of the people. As a representative of the people, the President, while in office, must

execute the laws with regards to how those who voted for the President during the

election campaign expected him or her to do so. In order to execute the laws with regards

to the voters, the President must be able to arbitrarily fire any executive officers he or she

deems to incompatible with how the President wants to govern society. Therefore,

President Nixon actually acts in congruence with the ideals of a republic by claiming

immunity against suit that targets his ability to subjectively fire executive officers.

Another way to look at this issue of republicanism in this case is to compare the

current case to United States v. Nixon. In United States v. Nixon, Nixon claims privilege

against a law that targets him as a person, which is against the ideal of a republic. In this

case, however, Nixon defend himself against a suit that targets the execute offices ability

to execute the law, a defense in favor of republicanism. Considering the fact that

Congress, contrary to the ideals of a republic, issues its disapproval of the Presidents

action through an independent agency and the fact that the President acts in favor of

republicanism by defending the Oval office right to arbitrarily fire executive officers, the

Court should rule in favor of the Plaintiff.

Society, Government, and Rights

Before I end this essay, I want to touch back on the main conflict underlying

presidential claim to privileges and immunity: the conflict of rights and authority. In the

last example (Nixon v. Fitzgerald), the President claims an immunity against civil suits

that infringes on the defendants right to fair employment and right to file suit. This


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immunity stems from the presidents special authority to preserve the republic. Often

times (as is the case in Nixon v. Fitzgerald), the authority of the president wins over the

right of the citizen. Constitutional theorist in the liberal tradition would squirm at this

presidential "authority to violate rights. To them, a rights-based approach is needed for

questions about presidential privileges. I hope I have shown in this essay how this

approach would be flawed. The approach places great importance on civil rights, almost

assuming that they are inviolable. On the contrary, given the circumstances, rights can

and should be violated. The survivability of society, for example, provides a legitimate

claim to violation of rights. I have, additionally, put in the republican question to keep

the President in line with the knowledge that the citizen are the supreme authors of the

Constitution and of his officea principle in the tradition of the social contract theory

which I think should be preserved even when civil rights in general can be violated.

Nonetheless, in times of anarchy, preserving any form of society in general should be

held over rights and the republican principle. Such preservation would of course be

unconstitutional under the guise of the current constitution, but, by then, the President

would be preserving a new society no longer governed by the same rule of law.

To sum up, I have argued in this essay for the origin and limitations of the

presidential privileges and immunities as tools to only be used to preserve the republic. I

have also detailed and defended a Preservation Test with five questions to help the

Justices determined the constitutionality of the Presidents claim to privileges and

immunities. Finally, as an argument for practicality, I have shown how the Preservation

Test would work in two real law cases.

Documents

Issues in Democratic Theory Final Essay (Thaya Uthayophas)