Nixon v. Administrator of General Services

NIXON ADMINISTRATOR OF GENERAL

SERVICES et al. Argued April No. 20, 1977 75-1605. 28, 1977 June Decided Stewaet, BrenNAN, J., opinion Court, delivered the in which MaRshall, Stevens, JJ., joined; and in all but Part VII of which Powell, J., White, joined; J., joined; but Parts IV and V of which all Blackmun, J., joined. Stevens, J., in Part filed a and VII which J., post, White, J., post, p. 487, Blackmun, concurring opinion, p. 484. Powell, J., post, 492, post, p. 491, p. opinions concurring part and filed Burger, post, 504, concurring judgment. J., p. and and C. Rehn- quist, J., post, dissenting opinions. p. filed Jr., Miller,

Herbert J. and Nathan Lewin argued the cause appellant. them for With on the briefs were Stan Morten- R. son, Raymond Larroca, G. Minsker, Martin D. William H. and Jefjress, Jr.

Solicitor General argued McCree for cause the federal appellees. On the brief Acting were former Solicitor General Friedman, Acting Attorney Babcock, Assistant General Dep- uty Assistant Attorney Goldbloom, General Robert E. Kopp, Anthony and J. Steinmeyer. Robert E. Herzstein argued the for appellees Reporters cause Committee for Freedom of the Krulwich, Press al. et With him on the brief Andrew were S. Mark Spooner, Grossi, Jr., J. Peter T. Leonard B. and Simon. Friedman, Leon John Shattuck, H. F. and Joel M. Gora filed brief for appellees Heilman et al. William Dobrovir and A.

Andra N. Oakes filed appellee brief for Anderson. opinion delivered the of the Court.

Mr. Justice Brennan I Title of Pub. 93-526, L. following note Stat. (1970 § U. S. C. 2107 ed., Supp. V), the Presidential Record- ings and Materials Act (hereafter Preservation directs Act), the Administrator of General Services, an official the Execu- Branch, tive to take custody of the papers Presidential tape recordings appellant, former President Richard M. Nixon, promulgate regulations (1) for provide orderly processing and screening Executive Branch archi- vists of such purpose materials for the returning appel- lant those personal that are private in nature, and (2) determine the upon terms and public conditions which may eventually access be had to those that are materials question retained. The decision is whether Title is un- constitutional on its (1) face as a violation of separation powers; (2) privilege doctrines; (3) appellant’s privacy interests; (4) appellant’s First Amendment associa- Bill rights; (5) tional of Attainder Clause. On four 19, 1974, appellant resigned December months after President of the United States, successor, President R. Ford, signed Pub. L. 93-526 into Gerald law. The next appellant filed action in 1974, 20, December day, Columbia, which under for the District District Court to entertain jurisdiction the Act exclusive (a) has § or constitutional valid- challenging legal the Act’s complaints Administrator. regulation promulgated or that of ity, constitutionality Act’s challenged the Appellant’s complaint declaratory injunctive of grounds sought a number A District Court three-judge its against relief enforcement. 2284.1 pursuant to 28 C. Because 2282, §§ was convened U. S. public Act required by governing 104 of the regulations § Court yet effective, the District access to the materials were not public of future questions possibility held that to the going for ripe published were regulations yet release under to be justification no It “no need and review. found there was claims directed at the this court now to reach constitutional might eliminate, regulations promulgation . . the . [which] light.” in a different limit, cast constitutional [the claims] the District Supp. (1976). Accordingly, 321, 408 F. propriety limited “to Court review consideration unconstitutionality injunctive against alleged relief facial challenges id., statute,” 335, at and held Act were without merit. constitutionality of the the facial Id., 374-375. We complaint. It dismissed the therefore (1976). affirm. We probable 429 U. S. jurisdiction, noted Background pages of 42 million The materials at issue consist some recordings of conversations. tape and some 880 documents archivists Government Upon appellant directed resignation, This him California. the materials to ship pack three-judge court, see proceedings prior convention of 1For Richey, 2d on recon App. C. 513 F. Nixon v. U. S. D. 2d See also 172, 513 F. sideration, App. D. C. 168 U. S. 1975). Sampson, (DC Supp. 107 Nixon 389 F.

431 shipment delayed was when the Watergate Special Prosecutor advised President Ford his continuing need for the mate- At rials. the same time, President Ford requested that Attorney his give opinion General respecting ownership of the Attorney materials. The General advised that the historical practice of former Presidents any governing and the absence of supported statute the contrary ownership appellant, in the possible exception.2 Op. Atty. a limited 1No, Gen. App. Attorney opinion 220-230. The em- (1974), General’s phasized, however:

“Historically, there has been acknowledgement consistent that Presidential peculiarly materials are affected public interest which may subjecting the absolute justify rights ownership of the ex-President certain limitations directly related to the character of documents Id., of government records activity.” at 226. September On after Attorney issuance of the Gen eral’s opinion, the Administrator of General Arthur Services, F. Sampson, signed announced he had a depository agree appellant ment with authority under the S. 2107. §C. U. Weekly Comp, of Pres. 1104 (1974). Doc. We shall also refer to the agreement as the Nixon-Sampson agreement. See Nixon Sampson, Supp. 107, 160-162 1975) (App. F. (DC A). The agreement appellant legal recited that retained “all and equitable literary title to the all Materials, including property and that the be rights,” accordingly materials were to “deposited temporarily” appellant’s near California an home in Id., facility “existing belonging the United States.” at 160. The appellant’s purpose further agreement stated was “to donate” the appropriate materials the United States “with given opinion respecting permanent ownership No was of certain files retained the Chief Executive Clerk the White from House Attorney administration to administration. General was unable definitively to determine their status on the basis of then-available Atty. (1974), Op. App. information. 43 No. 1 228. Gen. Ibid. of the materials provided It all was

restrictions.” to which access areas placed storage within secure “shall be appellant’s keys,” of two one in use gained can Archivist possession of the possession and the other in the exceptions staff. With or members the United States from agreed “not to withdraw appellant material here, three period deposit originals materials” and to reproductions” years, right but reserved the to “make prescribed persons to access on conditions authorize other have “right might exercise years, appellant him. three by After or deposit formality any without all withdraw from . any . purpose . .” . . and to retain . Materials . [them] . Id., 161. determined him. at recordings tape Nixon-Sampson agreement

The treated the “effec- They United States separately. were donated to the remain on 1, 1979,” and meanwhile “shall September tive “[subsequent It deposit.” provided was however that tapes destroy shall such September 1, 1979 the Administrator tapes “shall may direct” and event [Mr. Nixon] September 1, destroyed on be at the time of death or [his] first occur.” Ibid. Otherwise 1984, event whichever shall reproductions would tapes withdrawn, were not to be Id., until only by 162. Access agreement.” made “mutual except September 1, 1979, expressly appellant, was reserved prescribed terms might as he others on authorize access by by him. agreement was followed

Public announcement of the days introduction of S. later, September 18, which bill, United States Senators Senate. alia, inter to abro- designed, became L. 93-526 and was Pub. on passed the Senate gate Nixon-Sampson agreement, awaiting in the House It was action October 1974. 4, appellant filed 17, 1974, on October Representatives when seeking enforcement of the specific Court suit the District That action was consolidated Nixon-Sampson agreement. pur- seeking to Presidential materials access with other suits suant to the Freedom of Information Act, 5 S. C. § 552 U. (1970 ed. and Supp. V), seeking and also injunctive relief against enforcement of the agreement. Nixon Sampson, supra.3 The passed House its version of bill the Senate on December 1974. 3, The final version of passed S. 4016 was December 1974, and President Ford signed it into law on December 19.

II The Act Public Law 93-526 has Titles. Title the challenged I, two Recordings Materials-Preservation con- Act, sists of §§ 101 through II, Title the Public 106. Documents Act, amends Chapter 33 of Title United Code, States add §§ 3315 through 3324 thereto, and establish the National Study Commission on and Documents of Federal Records Officials. (a)

Section 101 Title directs that the Administrator of General Services, notwithstanding any agreement other law or (e. g., understanding the Nixon-Sampson “shall agreement), receive, or obtain, complete retain, possession and control of all original tape recordings of which were re- conversations corded or caused to by any employee be recorded or officer the Federal Government and which—

“(1) former involve President Richard M. Nixon or other who, individuals at the time conversation, of the were employed by the Government; Federal 3 Appeals stayed The Court of for the District of Columbia Circuit any effectuating Sampson pending order the decision in Nixon v. decision three-judge (a) of the court whether under the instant case was to §105 priority cases,” “have on the docket of court over other [the District] Richey, 173, 177, 188-190, 2d, Nixon App. C., 168 U. S. D. at 513 F. 431, 435, three-judge at 446-448. The court of the that “the was view purpose Congress, pending litigation, central in relation to all is to early prior constitutionality” have an and determination of Act’s and request stay entry judgment. therefore did not dissolution of the until Supp., 333-334, 408 F. n. 10. in in the House or the office were recorded White

“(2) in located Buildings Executive Office the President Columbia; Camp David, in District Washington, or Cal- Florida; Clemente, Maryland; Key Biscayne, San ifornia; and January during period beginning were recorded

“(3) ending August 9,1974.” and 20,1969, notwithstanding any such provides (b) Section “shall agreement understanding, or the Administrator also complete obtain, make efforts to retain, or reasonable receive, documents, memoran- possession papers, and control of all con- objects which and other and materials dums, transcripts, by 44 defined materials stitute the historical [as covering period Nixon, § U. M. S. C. Richard 2101] 9, 1974.” beginning January ending August and 20, 1969, tapes mate- or prohibits Section 102 destruction (a) makes provided law, (b) except may by § rials Office of the them to the (giving priority access available subpoena court Watergate Special Prosecutor) response This proceedings. or legal process, judicial other or for use privi- or rights, was “to subject, however, any defenses, made may person leges any or which the Government Federal any per- . or (c) appellant, invoke . . .” Section affords recordings son him designated writing, access “subsequent Act any purpose materials for with the consistent Administrator subject regulations” to the issued (d) provides under 103. n. § Section See infra. agency according regulations access 103§ Government department in the for lawful Executive Branch recordings and requires custody tape use. Section except may Washington in materials to be maintained necessary carry Act, and directs otherwise out to necessary regulations to promulgate the Administrator prevent and protection assure their from loss or destruction to persons. access to them unauthorized pertinent Section in part, directs the Administrator to promulgate regulations governing public access tape to the recordings and 104 (a) materials. Section requires submis- sion of proposed regulations to each House Congress, the regulations to § take effect under 104 (b)(1) at end of 90 legislative days unless either the House or the adopts Senate resolution disapproving regulations them. The must take into account specified seven factors in § 104 namely: (a),

“(1) provide the need to public with the full truth, at the earliest reasonable date, govern- the abuses power popularly mental under the generic identified term 'Watergate’;

“(2) recordings need to make such and materials judicial available for use' proceedings; “(3) prevent need to general except accord- access, ance appropriate procedures with for established use judicial proceedings relating information the Nation’s security;

“(4) protect every right need to individual’s fair impartial and trial;

"(5) protect any the need to party’s opportunity assert any legally constitutionally right privilege or based or which prevent or would otherwise limit access to such recordings and materials;

“(6) provide the need to public access to those materials which have which are general significance, historical likely to be in para- related to the need described graph (1); and

"(7) give the need to to Richard Nixon, heirs, M. his custody sole tape recordings and other use, likely materials which are not to be related the need paragraph described in (1) are not otherwise general significance.” historical (a) vests the District Section Court for the District jurisdiction exclusive of Columbia not only to hear 436 chal- hear Act, but also to challenges to the

constitutional actions decide validity any regulation, of and to lenges or title, custody, possession, ownership, of involving questions any payment of any tape involving or materials, control when a (c) compensation required § just award of de- been has any holds that individual decision of that court just compen- without private property prived the Act provision providing severability (b) is a sation. Section Act or provision of the any invalidating a decision' validity or enforcement regulation not affect the shall 106 authorizes regulation. provision or Section other carry out may necessary appropriation of sums as such provisions of the Title. Ill Inquiry Scope require Act’s on the correctly focused The District Court administer of General Services ment the Administrator custody only in his placed tape recordings materials orderly for the providing himby regulations promulgated under returning purpose processing such materials private personal and are appellant such of them as conditions the terms and nature, determining and of those may eventually be had public access upon which The District possession. Government’s remaining in the regulations, designing noted that Court also con protect the need to must consider Administrator against individuals other appellant and rights of stitutional public ultimately, by or, itself infringement by processing 334-340. Supp., at 408 F. materials retained. to the access wording of §§ required plainly This construction and 104.4 history legislative support in the abundant interpretation has This sponsors of Javits, one of the S. stated: Senator the Act. protect process for individ- (a)] endeavor to due criteria §

“[The which did not Regulations implementing §§102 regulate submission and which access require to Congress, by promul- archivists, Government have been screening (1976). 41 gated, regulations § CFR 105-63 Public-access (a) must be under 104 have § submitted not, however, proposed become effective. initial set by disapproved (b) the Administrator was 104 pursuant § (1) by 1st Senate Resolution. S. 94th 244, Cong., Sess. Res. 121 (1975); Cong. (1975)., Rec. 28609-28614 The Senate disapproved also provisions proposed set, seven a second although that set been Res. 94th 428, had withdrawn. S. (1976). Cong., (1976); Cong. 2d Sess. 10159-10160 Rec. R. disapproved set. H. provisions The House six of a third is (1976). 94th The Administrator 1505, Res. 2d Cong., Sess. regulations except as the view that cannot become effective for fourth set sub- package consequently preparing is 4. Congress. Appellees 8-9, Brief for Federal n. mission to may any privilege which may papers named well as be in the as uals who necessary the access of former papers, the in the and of course involved himself. President argument unrestricted short, bill absolute

“In the authorizes require- up criteria and public does not stand in the face of the access today.” regulations the bill we have inserted in ment for the which Cong. Rec. 33860 purpose Nelson, draftsman, agreed primary the bill’s

Senator Watergate of the people for the a historical record provide American regard rights of the individual all for the events “should override Id., Ervin, spon- also a privacy and a fair at 33851. trial.” Senator bill, manager of stated: sor and floor bill, provides, far

“Nobody’s right as is affected because regulations concerned, Administrator shall privacy is any legally or con- opportunity . . to assert into account . take [the] prevent limit stitutionally right access based which would or otherwise Id., tape recordings at 33969. to the and other materials.” (re- Ervin); id., id., (remarks at 37902-37903 at 33960 of Sen. See also Brademas). Rep. marks of

The District Court therefore regula- concluded that as no yet under 104 had § effect, regula- tions taken and as such explicitly subject tions once effective were judicial made review under injury § could consider court to appellant’s allegedly constitutionally protected interests worked taking of his Presidential materials into cus- tody screening for Supp., Government archivists. F. at 339-340. Court, District Judge McGowan, writing quoted the Buck, from Watson following U. S.

(1941):

“No one varying can foresee of these applications A separate provisions might conceivably which be made. may law which applied in one manner constitutional as still in applied contravene the Constitution as another. all attempted Since cannot contingencies of enforcement be have applications, envisioned in advance of courts those in the delay upon main to the passing found it wiser compre- of constitutionality separate phases of all the particular hensive until involving statute faced with cases provisions to specifically persons to who applied claim injured. Passing upon possible significance of provisions manifold of a in of efforts broad statute advance apply rendering to the separate provisions analogous is to advisory upon an opinion judg- a statute or a declaratory upon ment F. hypothetical Supp., case.” 408 at 336. Only analogous this Term applied principle we this an declining constitutionality adjudicate situation of regulations of of the Protec- the Administrator Environmental process tion Agency revision, were of “For stating: [the yet review final regulations promulgated, Court] form which been only wholly has hinted would be at, Brown, EPA (1977). novel.” 431 104 also 99, v. U. S. See Housing Authority, Thorpe (1969); v. U. S. 283-284 268, Fleuti, Rosenberg United States v. 451 (1963); S. U. Raines, Brucker, (1960); Harmon v. 20-22 U. S. our too, We limit consideration therefore, U. S. appellant’s claims to of the merits of several constitutional of the validity provisions those the facial of the addressing and requiring recordings Act the Administrator take the screening custody subject materials into the Government’s by Government archivists. course, questions are,

The constitutional be decided importance. relationship They touch the considerable between two the three coordinate branches of the Federal and the the rela- Government, Legislative, Executive in a tionship appellant to his arise They Government. unique present context in the history Presidency issues that ad- Court has had no occasion heretofore to Judge speaking Court, dress. for the District McGowan, thorough comprehensively in a canvassed all the claims, independent concluded that none had Our opinion, merit. conclusion, brings examination us to the same issues questions. although analysis our differs on some somewhat IV Branch Concerning the Executive Autonomy Claims product joint action The Act was It who bill into law. Ford, signed and President circum- in this urged intervenor-appellees that, therefore present controversy concern- stance, truly case does not a the the controversy concerning or ing separation the a powers, is confidentiality, because, argued, Presidential privilege who are may only such claims be asserted incumbents people American for their action. presently responsible the President reject argument the that an incumbent We former hold as a may appellant, assert such claims and that further be heard to assert them. We may also President, separation-of-powers neither his claim that hold, however, has merit. privilege breach of constitutional nor claim of broadly upon that Act encroaches the argues the Appellant operations control internal the prerogative to Presidential autonomy therefore offends the office and Presidential separate is divided into argument Executive Branch. parts. but interrelated power that is without

First, appellant contends of the Executive Branch delegate to a subordinate officer decision whether Presidential materials to disclose so, To do prescribe govern any the terms that disclosure. appellant more, impermis- an constitutes, contends, without Branch into matters Legislative sible interference solely inherently business Branch. the Executive narrowly, more Second, appellant somewhat contends, of all custody to take authorizing Administrator manner, Presidential materials in “broad, a undifferentiated’' authorizing publication except privilege future where affirmatively presumptive the Act offends the established, in recognized confidentiality Presidential communications Nixon, United States argues U. He S. respects rejecting the District in Court erred two Court contention. he contends that the District Initially, Presidents distinguishing erred in incumbent from former confidentiality. Appellant evaluating appellant’s claim of very specific privilege protecting that, asserts unlike the information against disclosure of state secrets and sensitive appellant military diplomatic which concerning matters, may only by President, incumbent concedes be asserted an the termi- generalized privilege survives a more much as the relationship nation of President-adviser cre- relationship attorney-client privilege survives Court argues further the District Appellant ates it. Presi- balancing test to his claim of applying erred in notwithstanding concluding that, privilege and dential legitimately might fact that some of materials sub- confidentiality, within a claim of Presidential included limited outweighed justified public interests stantial confidentiality on Presidential necessitated the inroads custody for of provision Act’s Government and the screening Finally, appellant materials. contends the authori- Act’s of the of the itself violates process screening zation materials privilege and will chill the future of constitu- the exercise thereby tionally protected functions, impairing the executive ability of future Presidents to obtain the candid neces- advice sary constitutionally imposed the conduct of their duties.

A Separation Powers of Act’s reject appellant’s We the outset argument within materials regulation disposition of the of Presidential Branch without violation constitutes, more, the Executive Neither President separation powers. principle Execu- supports this claim. The Ford nor President Carter when party regulation the Act’s tive Branch became and the adminis- signed law, Ford the Act into President through the acting Solicitor Carter, tration President Court’s affirmance of District vigorously supports General, con- constitutionality. Moreover, the its judgment sustaining Branch. Executive the materials remains trol over and must promulgate who Services, Administrator General keystone of the statu- regulations that administer the are Branch, Executive an official tory scheme, is himself appointed President. The career archivists by the appointed out purpose selecting screening initial do the papers private personal appellant returning employees. similarly are Executive Branch interpre- based on an argument is in event Appellant’s doctrine inconsistent separation-of-powers tation of the Court, decisions origins doctrine, of that recent system. political True, our realities of contemporary general departments that “each of three said has been entirely from the control or free government remain] [must 442

coercive of either of influence, indirect, direct States, United 295 Humphrey’s others . . . Executor v. (1935), application U. S. 629 and that sound a “[t]he principle precludes that makes master in his own house one him from imposing his control in the house of another who is Id., master O’Donoghue there.” 630. v. United at See also States, Islands, Springer Philippine U. S. 516 v. (1933); 201 (1928). U. S. 189,

But the more of Madison in pragmatic, approach flexible Papers Story5 Federalist and later of Mr. Justice was expressly in years ago affirmed this Court three Nixon, United States supra. argu- There the same broad ment concerning separation powers was made appellant opposition subpoena the context of duces a tecum of the Watergate Special Prosecutor for certain Presi- tapes dential and documents of value to a criminal pending investigation. Although acknowledging that each branch of duty Government has the initially interpret the Consti- tution for itself, interpretation and that its powers its is due 47, reviewing origin Madison in The separa Federalist No. tion-of-powers doctrine, Montesquieu, always remarked that the “oracle” subject, consulted on the departments ought partial

“did mean agency these to have no in, or no controul meaning, over the each acts of other. His his own import this, words . . . can no amount to more than that where the power department whole of one is .exercised the same hands which possess power department, prin- the whole of another the fundamental ciples constitution, of a free 47, pp. are subverted.” The Federalist No. (J. 1961) 325-326 (emphasis original). Cooke ed.

Similarly, Story Mr. Justice wrote: speak separation we great departments of the three

“[W]hen government, and separation indispensable maintain that public liberty, we are to understand this maxim in a limited sense. It is they wholly kept entirely not meant to affirm that separate must be distinct, and have link dependence, no common of connection or upon other, slightest degree.” one in the Story, 1 J. Commentaries on (M. Bigelow, 1905). the Constitution 525 5th ed. § S., 703,'the branches, other from the U. great respect Constitution argument rejected the squarely Court authority between division of complete contemplates essentially Court the unanimous Rather, three branches. concur- in his expressed view, Mr. Justice Jackson’s embraced Sawyer, 343 S. Tube Co. v. U. Youngstown Sheet & rence our Government “In the structure designing power among three sovereign allocating and the dividing sought Constitution of the co-equal branches, the Framers separate the but comprehensive system, provide inde- with absolute operate were not intended to powers supplied). (emphasis S., 418 U. at 707 pendence.” appellant’s find we that the District therefore Court, Like separation of the upon rests an “archaic view argument government,” departments of requiring airtight three powers as determining whether at 342.6 Supp., Rather, 408 F. coordinate between disrupts proper balance Act extent to which on the proper inquiry focuses branches, its accomplishing from Branch the Executive prevents Nixon, United States v. assigned functions. constitutionally disrup for potential Only 711-712. where atS.,U. is impact that whether must we then determine present tion objectives within promote overriding need justified by an Ibid. authority Congress. the constitutional provides Act relevant highly is therefore It Branch the Executive officials of materials in custody to the materials access of that branch have employees subject to the use, [Adminis- “for lawful Government (1958); Davis, Law Treatise 1.09 g., 1 Administrative also, e. K. § See 1975) ; (9th ed. Law Materials on Constitutional Gunther, Gases and G. Cox, (1965); Action 28-30 Jaffe, Administrative Control of L. Judicial Ratner, (1974); 1383, 1387-1391 Privilege, 122 L. Rev. U. Pa. Executive Separation Incrimination, of Powers Privilege, Self Executive Illusion, 22 92-93 UCLA L. Rev. regulations.” 102 (d);

trator’s] § 41 CFR §§ 105-63.205, 105-63.206, and 105-63.302 (1976). For it is clearly less intrusive place custody and screening of the materials within the Executive Branch itself than to have or some agency outside perform the screening function. While the materials may also made available for judicial use in proceedings, provision is expressly qualified by any rights, defense, or privileges any person may in- invoke cluding, of course, a valid claim of privilege. executive United States Nixon, supra. although Similarly, some of may materials eventually be made public available for access, the expressly Act recognizes the need “to pro- both tect party’s opportunity to any legally assert or con- stitutionally right based or privilege,” (a) (5), § purely to return private (a)(7). materials to appellant, § provisions These plainly guard against-disclosures barred any defenses or privileges available Ex- appellant ecutive Branch.7 appellant And himself concedes Act “does presidential not make the materials available the Congress except Congressmen insofar as members are — public of the and has public entitled to access when the it.” Appellant Brief for 119. The in Executive Branch remains full facially control of the Presidential and the Act materials, designed is to ensure that materials can be released the applicable privilege when release is not barred some inherent in that branch. possibilities whatever are the for constitutional

Thus, future 7 correctly interpreted require meaningful The District Court the Act to appellant might bring rights play notice to of archival decisions that into (a) (5). Supp., secured 104 408 F. at 340 n. 23. Such notice is re § quired by regulations, (1976), the 41 Administrator’s CFR 105-63.205 § provide: designated which “The Administrator of General Services or his agent provide designated attorney former President will Nixon or his or of, present agent prior during, notice and him to be allow each authorized access.”

445 in of promulgation regulations respecting public conflict the particular documents, access to in the Act nothing contained disruptive of the unduly and, renders it Executive Branch therefore, course, there And, unconstitutional on its face. statutory precedent for regulation is abundant the manda tory possession disclosure of in the Executive documents g., e. Branch. 5 Information U. C. See, Freedom S. Act, (1970 Supp. § 552 5 V); Privacy 1974, ed. Act (1970 U. (a) Supp. § S. C. 552 in the V); Government ed., (1976 Sunshine 5 U. S. 552b the Federal Act, ed.); §C. seq.; variety 44 et Act, Records U. S. §2101 C. g., e. other statutes, (census data); 13 8-9 §§ S. C. U. 26 (tax 6103 returns). regulation § U. S. C. Such material generated never been Executive Branch has EPA considered invalid an Cf. autonomy. invasion its Mink, FAA Administrator v. (1973); S. U. v. Robertson, S. 255 (1975).8 power U. congressional Similar engage see no appellant We reason the debate has whether legal Appellant inquiry title to the materials. See Brief for an 90. Such (c) is present purposes appellant irrelevant for because assures § just compensation legal and, if his if invaded, economic interests are even his, regulation. title thereby the materials are immune from accepted Story’s It has been opinion at least since Mr. in Folsom Justice Marsh, (No. 4, 901) (CC 9 F. 1841), regard Cas. Mass. lies, legal public less of where title service, “from nature of the or the documents, embracing historical, character of the military, diplomatic information, may right, duty, and even government, give publicity, them against Appellant’s even the will of the writers.” suggestion beyond Folsom principle go does not materials con security cerning negated by national and current Government business is emphasis Story’s “embracing Mr. Justice that it also extended materials (Emphasis added.) Significantly, . . . information.” Ibid. historical suggested Attorney opinion such limitation was General’s no Although indicating a that President Ford. view the materials be acknowledged longed appellant, opinion the that “Presidential mate peculiarly by qualification public “are affected rials” without a interest” subjecting ownership may justify rights” “the absolute which to certain instance, in documents exists Executive Branch to regulate the that important interests by is power augmented that infra, attain. at 452-454. Act seeks to See

B Privilege is principle separation-of-powers concluded that the Having custody taking Administrator’s necessarily by the not violated appel- consider we next appellant’s papers, screening of and the Presidential claim that narrowly defined lant’s more scrutiny. We from archival these records privilege shields Nixon, v. in United States was established start with what had Appellant qualified one.9 privilege supra —that the District inspection in camera argued in that case subpoenaed and materials Presidential documents Court of with- privilege violate the would itself Special Prosecutor from protected were documents out to whether the regard “neither stating that disagreed, disclosure. The Court public for confi- nor need powers, separation the doctrine can communications, more, without dentiality high-level .”10 . privilege . . unqualified Presidential absolute, sustain an as records directly of the documents related to the character “limitations Atty. (1974), App. 220-230. activity.” Op. No. 1 government Gen. Government, appellant legal if rests in the hand, even title On the other (a) a claim for thereby asserting from is not foreclosed under § Administrator contraven- private materials retained return of specified (a) (5). privileges appellant’s rights and tion § distinguish qualified Court, between the District we do not Like the Nixon in United States v. privilege recognized “executive” refers, except appellant note that privilege which “Presidential” beyond appellant argue privilege claims extends does he recognized Supp., 408 F. at 343 n. 24. privilege in that case. See legitimate govern recognized States Nixon there is a United confidentiality high of communications between mental interest g., President, e. officials, and that those who advise Government expect public experience those who dissemination teaches “[h]uman privilege that the recognized 418 U. at 706. Court S., from derives of Presidential communications confidentiality assigned its of the Executive Branch within supremacy distinguished but responsibilities,11 area of constitutional in public interest “broad, President’s undifferentiated claim the more confidentiality from of such [communications]” need to the particularized relating less qualified privilege security national protect “to or sensitive military, diplomatic, of the . Ibid. in the case secrets . . The Court held that communi- general privilege confidentiality of Presidential against the inroads importance its be balanced cations, must the Judicial functioning the effective privilege upon privi- against the claim This balance struck Branch. was lege case because Court determined communica- confidentiality of Presidential intrusion into the District by the inspection from in camera resulting tions court will be that a district protection “with all the Court, and therefore that would be minimal obliged provide,” an impediment outweighed was the claim “[t]he way of the in the place would unqualified privilege absolute, . .” Branch . . duty of the Judicial constitutional primary Id., 706-707. as- Nixon, appellant in which States United

Unlike in- against privilege of absolute Presidential serted a claim initially this case Branch, coordinate Judicial by the quiry very privilege against of a assertion appellant’s involves appearances temper candor with a concern may remarks well their decisionmaking detriment of interests to the their own and for S., at 705. process.” 418 U. noted, id., at 705 n. Government opinion Indeed, Constitutional the time of the from confidentiality been concern has private, were conducted meetings of which 1787, the Convention 1787, pp. xi-xxv Convention of the Federal Farrand, The Records of 1 M. years after than 30 for more were sealed of which (1911), and the records (1818). Sess., Cong., 1st Res. 15th 3 Stat. See Convention. Making 13U139 the Constitution generally Warren, The C. See privilege Branch in name the Executive whose invoked. appellees rely apparent anomaly The nonfederal on this con- privilege tend that an incumbent President can assert would, Presidency. proposition Acceptance that United inquiry. end this The contention draws course, it was Reynolds, States where 7-8 1, (1953), v. U. S. Government privilege “belongs said that the to the nor waived by it: it can neither be claimed must be asserted private Court believed that party.” a The District but found strong support contention, for the statement was at 343- unnecessary. Supp., 408 F. of the issue resolution privilege, the 345. It said the that sufficed, Court, District that one was at least President, if available to a former by the asserted weight much less than a claim “carries Id., himself.” at 345. incumbent per- charged with incumbent is

It is true that the And duty under the Constitution. formance of the executive disclosing confidences may an incumbent be inhibited may be to effect that the predecessor when he believes by his contem- of views presentation candid discourage privilege extent porary 'Moreover, advisers. burdensome against officials serves as a shield executive proper might interfere with for information which requests Nixon, United States v. duties, of their see performance Servicemen’s States Eastland United S., 714; v. U. cf. Eastland, Dombrowski v. Fund, (1975); 501-503 U. S. President (1967) (per curiam), a former 8A-85 U. S. there addition, an incumbent. need of it than is less incumbent's abuse an against checks political are obvious privilege. states General the Solicitor we think Nevertheless, it: adopt and we view, the sounder . Nixon . . that States in United held “This Court confidentiality re- provide the necessary to privilege he Unless conduct of office. for the President’s quired can give his advisers some assurance confidentiality, expect President could not full to receive the and frank opinions submissions of facts upon which effective discharge confidentiality of his depends. duties to this' necessary exchange cannot be measured the few years months or between the submission of the informa- tion and privilege the end of the President’s tenure; is not for the benefit of the President but individual, as an for the Republic. benefit of the privilege Therefore survives the individual Brief for President’s tenure.” Appellees Federal 33.

At the same time, neither President however, fact Ford nor President supports appellant’s Carter claim detracts from the weight of his impermissibly contention the Act intrudes into executive function and the needs Executive Branch. necessarily This for follows, must presumed that the vitally incumbent concerned President position with and the best future present to assess the needs of the Executive Branch, support and to invocation privilege accordingly. the may appellant legitimately

The assert the Presidential only privilege, course, materials whose contents as to those in United scope privilege fall within the recognized Nixon, supra. States that case Court held that the the performance is limited to “in privilege communications “of at responsibilities,” S., U. [a President’s] id., shaping process and made “in office,” the id., Of estimated making decisions,” at 708. policies recordings pages tape 42 million and 880 whose documents Court concluded that custody stake, is at District apply privilege claim of Presidential could at most appellant’s personally appellant with which was 200,000 items to the familiar. privilege his claim of appellant bases

The potential disclosure case on assertion given appellant to the would communications confidence adversely ability affect the of future Presidents to obtain necessary decisionmaking. for effective the candid advice adjudicate however, called upon claim, We are will be respect process by with to the which the materials any For by professional screened and archivists. catalogued public governed by guidelines access will be eventual into account 104, which direct the Administrator to take § . . protect any party’s opportunity need to to assert . “the (a) constitutionally privilege,” (5), based or right § private appellant, need to return to the materials purely (a)(7). §104

In view of is no reason specific directions, these there ultimately to believe on public the restriction access by regulation adequate preserve established will not be An all outside confidentiality. executive absolute barrier to necessary. As constitutionally practically disclosure is clearly demon- careful research the District Court con- expectation been an strates, there has never unyielding. Office are absolute and fidences of the Executive to President from President Hoover All former Presidents papers in Presidential libraries deposited have their Johnson follow) example appellant has said he intended (an eventual disclosure.12 preservation and governmental Library are no Court found that in the Hoover there The District although papers, on Presidential some restrictions exist restrictions Library, respect personal private materials, and in the Roosevelt less There is no evidence in the record than of the materials is restricted. 0.5% n as currently in the Truman percentage to the of materials under restriction Kennedy Library, of Libraries, but in the the materials or Eisenhower 85% materials, only processed is under processed, and of the has been 0.6% security-related) (as distinguished In the Johnson from restriction. donor virtually Library, complete, is and more of nonclassified materials review nonsecurity is unrestricted. In each of all classified materials than 99% libraries, provision has been made for the removal the of Presidential passage Supp., of time. 408 F. at 346 n. 31. of the restrictions with the processes for for screening sorting lodgment in these materials comprehensive libraries also by archivists, involved review often involving upon materials which restrictions ulti- access mately imposed. have Supp., been 408 F. at 347. The expectation of confidentiality the of communications executive thus has always limited and subject been erosion over time after an administration leaves office.

We are thus left the claim mere bare that screening by of the materials will impermissibly the archivists interfere with candid communication views Presiden- tial agree advisers.13 We with the thus that, District Court framed, question readily screening con- resolved. very stitutes a personnél limited intrusion the Executive Branch very personnel sensitive to These executive concerns. performed have the identical task in each public eventually provided Aside from the access to be under § the Act First, mandates under two other access routes materials. to the 102(b), process upon access is available in accordance with lawful served § noted, supra, appellant Administrator. As we have is to see n. prior any materials, advised access free to the and he is thereafter specific issue, (c); review the at materials see 102 CFR 105-63.301 § § (1976), any rights, privileges, in order or to determine whether to assert (b) expressly by way defenses. Section 102 ultimate access conditions process upon right appellant any rights, defenses, lawful or to invoke privileges.

Second, “Any (d) agency department of the Act or states: § in the executive branch the Federal Government shall at all times have recordings tape access to lawful and other materials ... Govern- reading ment use broad sec- . . . .” The District Court eschewed a by any any permitting tion as official for wholesale access executive con- purpose. Instead, (d) light ceivable executive construed § Congress’ presumed operate within constitutional intent Act throughout statute, Supp., at bounds —an manifested see 408 intent F. interpreted 102(d), particular 337 n. 15. The Court District thus § phrase use,” appellant requiring “lawful once is notified 7, supra, requested official, access an he executive see n. be allowed right privilege assert in his view constitutional would bar Supp., agree access. interpretation. See 408 F. 18. with that n. We 452 any suggestion without activity

libraries that such has in any way interfered with confidentiality. executive Indeed, in light of this past consistent historical practice, present executive possibility officials must be well of the that, aware at some future, may time in the their communications reviewed on archivists. professional confidential basis Appellant suggested has why no reason review under Act, instant Act, rather than the Presidential Libraries has significantly likely confidentiality, more nor impair finding he question called into the District Court’s mate- handling archivists’ “record for in confidential discretion rial is 408 F. Supp., unblemished.” at 347. limited for this justifications are shown

Moreover, adequate those confidentiality comparable intrusion into executive Court District justify inspection camera held to pur- Congress’ Nixon, supra. in United States sustained exhaustively treated are enacting the Act poses history legislative District Court. opinion purposes, that, among other clearly Act reveals per- with the to deal regular procedures acted establish legitimate historical preserve the materials ceived need President An incumbent purposes.14 governmental the whim dependent happenstance not be should past records access to when he seeks prior President obliga- governmental current channel define or decisions that recon- ability to people’s American should the Nor tions.15 history, District legislative survey of the From its exhaustive Act could be public served interests concluded Court complete an accurate preservation of merged “the rubric of under Id., at 348-349. historical record.” 93-1507, p. 3 (1974); Rep. R. No. 93-1181, pp. 3-5 Rep. No. H. S. (remarks Rep. Abzug). also See (1974); Cong. Rec. (d) of the Act. § apply libraries to the Presidential past have had in the Presidents govern- past to examine records of permission predecessors for of their struct and come to history their be terms truncated by analysis an privilege Presidential focuses on the present.16 needs Congress legitimately can act rectify to approach hit-or-miss that has characterized past attempts protect to by these substantial en- interests trusting the materials to expert handling by trusted and professionals. disinterested

Other public substantial interests that led seek preserve appellant's materials were the restore desire to public confidence our political processes by preserving the materials as a source for facilitating airing a full of the events leading appellant’s resignation, Congress’ and- need to political understand how processes operated those had in fact gauge order to the necessity for remedial legislation. Thus preserving these materials, may thought the Act legislative process aid the scope and thus to be within the Congress’ broad g., Eastland see, e. investigative power, United Fund, States Servicemen’s 421 (1975). And, U. S. 491 of course, the Congress repeatedly importance referred to the Judiciary they the materials to the in the event that shed light upon issues in civil or criminal a social litigation, relating governmental mental problems. actions to current F. See 408 Supp., Although appears at 351-352. requests that most such have granted, Congress legitimately been could conclude the situation ripe was change. unstable and for It is clear from the face of the Act making the materials ongoing available for conduct of Presi- policy objectives dential was at least one (d). of the Act. See 102 § 16 Rep. 93-1181, S. pp. 1, (1974); No. 3 Rep. 93-1507, pp. H. R. No. 2-3, (1974); 8 on Hearing Regulations Implementing GSA Recordings Materials Preservation Act before the Senate Committee Operations, Government Cong., Sess., (1975); 94th 1st 256 120 Cong. (remarks id., (1974) Rec. Nelson); 31549-31550 of Sen. at 33850- id., id., 33851; (remarks at Ervin); (remarks at Sen. 33874-33875 id., id., Huddleston); (remarks of Sen. at Ribieoff); 33875-33876 of Sen. (remarks id., Muskie); (remarks of Sen. at 33964-33965 of Sen. id., Nelson); (remarks Brademas). at 37900-37901 Rep. See also (b) (1), (a) (7) of the Act. §§ Nixon, that cannot United States v.

interest doubted. See .be supra.17 by Congress

In light adopted the scheme objectives, these preservation appellant’s Presidential materials among the cannot be said to be overbroad. It is true that to be are some voluminous materials screened archivists any of objectives materials bear no these relationship man- (and whose return to is therefore prompt appellant commingled dated are (a) (7)). § these materials But requires, other Act preservation with materials whose the systematic for the like made no appellant, his predecessors, materials. attempt segregate private official, personal, and tapes and 408 355. Even documents Supp., P. at individual relating governmental intermingle often communications policy- of or future great to historians duties, interest Ibid. private and confidential communications. makers, intermingled the Thus, libraries, as the Presidential review requires comprehensive of the state materials the impor- Congress’ if the Act contemplated clássification that In the course of be furthered. objectives tant are to the small required will be to view the process, archivists con- Presidential implicate of fraction the materials private materials to personal and as well fidentiality, safeguards built into given But the appellant. returned to the materials and disclosure of such prevent the Act confidentiality of intrusion into the minimal nature Presidential the claims Presidency, we believe that the congressional important the clearly yield to must privilege maintaining access materials and preserving purposes purposes. historical governmental for lawful to them 17 Rep. legislature, objectives see No. S. these several As to (1974) ; 93-1507, 2-3, 8 Rep. pp. (1974); H. R. No. 1, 3-4, 6 93-1181, pp. id., (remarks Nelson); (1974) at Sen. Cong. 31549-31550 Rec. id., (remarks Brademas); at Rep. id., 33849-33851; 37900-37901 at (a) (b), McKinney). See also (remarks Rep. §§ Act.

In short, we conclude that the screening process contem- plated by will Act not constitute a more severe intrusion into Presidential confidentiality than camera inspection by the District Court approved in United Nixon, States v. S.,U. 706. must, We presume course, Administrator and the career carry concerned archivists will out the duties assigned to them the Act. Thus, there is no for appellant’s basis claim that Act “reverses” pre- sumption in favor of confidentiality of papers Presidential recognized in United States Nixon. Appellant’s right assert the privilege specifically preserved by the Act. The guideline provisions on their face are as broad as privilege If itself. broadly protections written of the Act should prove nevertheless inadequate to safeguard appellant’s rights prevent usurpation of powers, executive will be there enough time to consider problem specific in a factual context. For the present, agreement we hold, with the District Court, the Act on its face does not violate the privilege.

V Privacy Appellant that when public concedes entered he he life voluntarily surrendered privacy by the secured law for those who elect place not public themselves in the spotlight. g., e. New York Sullivan, Times See, v. Co. 376 U. S. (1964). He argues, thereby he was not however, stripped of all legal protection of his and privacy, contends Act violates rights expression fundamental and privacy guaranteed to him by the First, and Fifth Fourth, Amendments.18 argues as appellant privacy upon Insofar a claim based the First Amendment, VI, joining part see Part opinion, of the Mr. infra. Justice privacy expressed Stewart adheres to his views on in his con Roe,

curring opinion Whalen in S. U. as ad- argument appellant’s Court treated The District screening of the which process to the dressed by [appellant] any claim performed. “Since will be materials private public access invaded will privacy be actually when it must premature be considered must materials we effective, become they once regulations directed be they be treated after will consider how materials not need denomi- Although Supp., 408 F. 358. at are reviewed.” challenge most troublesome claim nating privacy “[t]he Court id., District . . plaintiff . ,” raises The court merit. the claim was without concluded that 42 million of docu- pages proportion reasoned that the privacy tape implicating appellant’s recordings ments and 880 bulk of the materials quite great interests small since the was President, appellant’s related to conduct his duties as interest public great were therefore materials to which archival The touchstone of the legality attached. view, was its reasonableness. processing, the District Court’s the materials Balancing public preserving interest appellant’s against duties touching performance his official privacy that archival screen- appellant’s the invasion of concluded that ing necessarily the District Court entails, facially hence not the Act was unreasonable unconstitutional: which a scheme

“Here, processing have without we importance cannot overriding national interests of Id., . . .” at 364. served . difficult response Act to the reasonable

Thus, “is problem private mingling personal caused vastly greater documents and conversations the midst nonprivate number of related to documents and materials by government objectives. contemplated processing The by carefully least as narrowed tailored regulations— Act—at represents provide the least intrusive manner in which to an promotion of adequate government level of interests over- Id., riding importance.” agree at 367. with We the District Court that not unconstitutionally appel- Act does invade right lant’s of privacy.

One privacy element of has been “the characterized as individual interest in avoiding personal disclosure of mat- . . Roe, ters . .” Whalen v. 589, 429 U. S. 599 (1977). We may agree appellant with that, at least when Government is at stake, public intervention officials, including the Presi- dent, are wholly without constitutionally protected privacy rights personal matters of life any unrelated to done acts by them in public their capacity. Presidents have who established usually Presidential libraries have mat- withheld family ters concerned with personal or or have finances, deposited such materials with screening. restrictions on their 408 F. Supp., may 360.19 We assume with the District Court, Supp., 54, District surveyed 408 F. at 360 n. evidence respecting depository in the record restrictions for all Presidents since President actually Hoover. It is unclear whether President Hoover personal private excluded his scope materials from the gift, although deposit his library his offer to in a materials right reserved the to do so. President Franklin D. Roosevelt indi also cated his intention to select certain papers materials from be retained his by family. his death, Because of performed by his this function was designated by secretary. Again individuals and his the record is unclear many to how personal materials were A removed. number of documents family personal correspondence deemed to be were turned over to the family library Roosevelt library later returned to the official 1954^1955, family and have been on loan since then. It unclear what by library extent these materials were reviewed personnel. President Truman deposit personal withheld from file maintained personal in the secretary. White House his deposited This file was library upon his although death in the terms his will excluded a small number of items determined the executors of his will to pertain personal or business family. affairs the Truman President deposit Eisenhower’s offer to his Presidential materials excluded materials representative determined him personal or to be private. Kennedy’s deposited President materials with GSA did not include certain 458 pattern this case, purposes for the this

Court, acquiescence congressional control and jacto de expectation privacy- legitimate appellant’s rise gives States, 389 S. v. United U. in such Katz materials. of the (1967).20 expectation independent This 351-353 we do ownership materials, of the an issue question claim appellant’s But the merit of 8, supra. n. reach. See in the ab privacy of his cannot be considered of invasion light of the stract; claim be considered rather, must must intrusion specific provisions Act, Presi public subjecting weighed against interest archival appellant’s materials of administration to dential Court, 523, 534— Municipal 387 U. S. screening. Camara v. Under Terry Ohio, (1968).21 S. (1967); v. U. is weaker appellant privacy interest asserted test, of Whalen wanting in recent decision found than by New utilized precautions Roe, Emphasizing the supra. private unwarranted disclosure prevent York State sys bank computer in a state information retained medical York’s objection to New a constitutional rejected Whalen tem, Act chal Not does privacy grounds. program preventing similarly aimed lenged regulations here mandate Whalen, unlike but, private materials undue dissemination control over long-term retain will not even the Government meetings recordings affairs, relating private and some materials Kennedy although physically in the involving Kennedy, stored President library yet Library, turned to the or reviewed have not been over deposit offer to materials President Johnson’s archivists. Govemmént special private interest or which he determined to be of excluded items family personal affairs. pertaining privacy their interests prior if Presidents had declined to assert Even necessarily bind materials, failure do so would not such their solely dependent privacy their con appellant, interests are not for practice governmental protection toleration. upon established stitutional agree Amendment’s with the District Court the Fourth We Supp., at requirement is not involved. 408 F. 361-362. warrant information; private such purely private papers rather, will recordings appellant be returned to § under 104 (a) (7) of the Act. overwhelming bulk of the 42

The million pages documents tape and 880 recordings pertain, not to appellant’s private communications, but to the official conduct of his Presidency. Most of the 42 pages million prepared were and seen others and were circulated widely within the Appel- Government. lant concedes that he saw no 200,000 more than and items, we do not understand him to that his suggest privacy claim extends to items he never Miller, saw. See United States v. 425 U. 435 S. is Further, logical assume that the tape recordings in the made Presidential offices primarily relate to the conduct and business of Presidency. And, course, appellant any privacy cannot assert claim as to the documents tape and recordings he already has disclosed Dionisio, United States public. to the U. S. States, Katz v. United (1973); supra, at 351. Therefore, appellant’s privacy claim embracing, for “extremely example, private communications him and, among between others, his wife, his his daughters, physician, lawyer, and and clergyman, his close friends, as well personal diary as and his dictabelts wife’s personal files,” 408 F. Supp., relates to a very small fraction the massive volume of official materials they with which are presently commingled.22 appellant’s Some materials possession, are still as the Adminis yet trator attempted has not authority his (b) (1) act on under 101§ custody to take of them. See Appellees Brief for Federal 4 n. 1. Moreover, argument the Solicitor General conceded at oral there purely private are certain materials which [appel “should be returned to once . . Arg. identified.” Tr. of lant] Oral 58-59. The Court District enjoined the “processing, Government from disclosing, inspecting, trans ferring, disposing any or otherwise materials . might . . which fall coverage within the . . . . the . . Act. Supp., . . .” 408 F. at 375. As the stay longer District effect, Court’s is no the Government should now promptly disclaim interest in materials appellant’s conceded to be purely private communications and deliver them to him. may privacy his claim as to assert appellant fact that Presidency of his materials fraction of the only a small screening the reasonableness plainly judging relevant not, Act, but this of course does process contemplated by Id., rejection privacy argument. of his more, require without pro- regulations Act requires that Although at 359. into take (a) under mulgated by § the Administrator constitutionally rights based appellant’s legally account and privacy rights, § his privileges, presumably including return need to also take into account (a)(5), identity private 104(a)(7),23 the appellant materials, § achieved, can separation matters purely private of these materials. parties concede, only screening all of all ato Act is tantamount Appellant contends therefore that his all of authorizing and seizure of general warrant search authority,” “blanket and effects.” “papers Such abuse that kind of precisely is appellant contends, “ for 'the real evil intended to prevent, was Fourth Amendment that itself, is the search by aimed at the Fourth Amendment rummaging which consists privacy of a man’s [in] invasion ” him.’ against his effects secure evidence among about Poller, 43 v. States Appellant 148, quoting for United Brief continues, 1930). his brief (CA2 Thus, F. 914 2d 911, 150-151: thoughts and communica- private

“[Appellant’s] most to and exposed and will be spoken, both written tions, persons does not know and by host of whom he reviewed argument requirement implied that the The at oral Solicitor 'General directing guidelines need return to consider the Administrator custody appellant which are not “for sole and use . . . materials his general [Watergate . historical . . and are otherwise related] significance,” (a) (7), qualified requirement under is further § (b) by the 104(a)(5), regulations promulgated and §§ protect rights, appellant’s take into account the need to Administrator defenses, Arg. privileges. Tr. of Oral 37-38.

did not and whom select, has no place he reason to his confidence. This group will personal, decide what is [him], returned to and is opened what to be historical, public for review.” Texas, Appellant principally relies on 379 U. S. Stanford 476 (1965), but misplaced. reliance in- Stanford validated search obtaining aimed at evidence that an in- dividual had violated a “sweeping many-faceted and law among which, other things, outlaws the Party Communist and creates individual criminal punish- various each offenses, Id., by imprisonment able for up years.” to 20 at 477. The search warrant authorized a private search home for books, records, concerning illegal other Com- materials spending munist activities. After more than four hours house, police Stanford’s officers half books of his which seized included works Sartre, Pope John Mr. Marx, XXIII, Hugo Justice Black, Draper, Browder, Theodore and Earl private well as including documents a marriage certificate, policies, personal insurance household bills receipts, Id., at 479M80. correspondence. held this to be Stanford general an unconstitutional search. Court District concluded provisions Act’s argues Appellant screening under the Act with the contrasts

screening donating procedures who, followed earlier “in Presidents libraries, participate materials Presidential have been able ... persons in the selection of who would review the materials for classifica purposes.” Appellant say tion Brief for 151 n. 68. We unable are that the record substantiates this is most assertion. The record com respect plete Johnson, appears with to President who to have recommended the individual was Library, who later selected as' Director of the Johnson played any seems but have role in the selection the of archivists actually performing day-to-day processing. Supp., the at F. 365 n. 60. Moreover, agree we with the District difficult Court to see professional performing screening how archivists proper a task under meaningfully standards performance would in affected the of their by loyalty duties to individuals or institutions. Ibid.

custody screening general and not be analogized could to a Stanford, search and that did not the Act’s therefore, require agree. invalidation. F. at 63. We Supp., 366-367, n. documents Only among quantity a few the vast of materials were remotely any legitimate seized related to even Stanford government presents oppo- interest. precisely This case site proportion appellant’s situation: Presidential vast appellant official materials are or records in which documents public recognized Moreover, concedes has a interest. regu- provides procedures Act promulgation and orders the expressly minimizing for the intrusion purpose lations private personal Finally, appellant’s into and materials. intrusion individual’s search was an an into Stanford papers furtherance personal home to seize search in a investigation designed exposure a for criminal any by intrusion archivists into criminal trial. contrast, appellant’s private papers and effects is undertaken returned purpose separating private to be sole materials from materials to be retained appellant nonprivate appellant’s preserved record Government Presidency. by Government

Moreover, screening will be undertaken unblemished as the Court “an with, noted, District archivists That review Supp., 365. discretion,” for F. record by ap- from that hardly materially contemplated differ can library, pellant’s intention to establish a found have such have who established libraries Presidents Al- screening professional archivists was essential. contemplation recognized that this the District Court though appellant’s expectation defeat review would not of archival “in the court held it does indicate privacy, by a President accumulated documents special situation by professional government and reviewed tenure during employed past Presidents, to process personnel, pursuant than it is less privacy interests substantial into intrusion Ibid, omitted). (citation at first.” might appear The District analogized Court screening process con templated by the Act to electronic surveillance conducted pursuant III to Title of the Omnibus Crime Control and Safe Streets ofAct 1968, 18 C. seq. §§ U. 2510 et F. S. at Supp., 363. think We analogy apt. There ob is are vious similarities between the procedures. two Both involve problem of separating intermingled communications, (1) some of which expected are to be to legitimate related Government (2) some of objectives, which not, are (3) for which there is no segregate means to the one from except other by reviewing them screening all. Thus the process under the like Act, electronic requires surveillance, some private intrusion into communications unconnected with any legitimate governmental objectives. Yet this fact has not been thought to render surveillance under the Omnibus Act g., Donovan, unconstitutional. e. Cf., United States v. Berger York, (1977); U. S. v. New 41 (1967).. 388 U S. See also F. Supp., 363-364.

Appellant argues that analogy inappropriate this is because procedure electronic surveillance carefully designed was meet the requirements Berger constitutional enumerated York, New supra, including prior judicial (1) authorization, (2) specification particular justify offenses said the in- (3) specification trusion, particularity” “with of the conver- sought sations seized, (4) minimization of the duration (5) termination wiretap, sought once the conversation seized, (6) showing exigent justify- circumstances ing wiretap procedure. Appellant use of the Brief for 157. agree Although parallel perfect, is far from we many con- supporting District Court that considerations stitutionality for the consti- argue of the Omnibus Act also screening For ex- tutionality process. Act’s materials only permits the Omnibus Act surveillance ample, electronic designated nature, crimes are serious in investigate techniques investigative C. when normal § U. S. Similarly, likely so, (3)(c).' to do §2518 have failed are to designed here is procedure involved review the archival by Congress, interests asserted important national serve necessarily follows unavailability of less means restrictive the just as Similarly, documents.25 the the commingling from of non- interception that requires Act expressly Omnibus the Act's minimized, (5), §2518 communications be relevant intru- any privacy screening process designed is to minimize which by regulations is further reinforced sions, goal a that appar- The fact take interests into account.26 must those implicates only portion of the materials ently a minute any conclusion that negates privacy interests27 also appellant’s that, surveillance, where Appellant argues success unlike electronic appellant upon subject’s ignorance existence, depends its could separate But personal from official materials. have been to his allowed part Nixon-Sampson agree displace in enacted the Act to tape provided expressly ment automatic destruction of the for recordings appellant’s appellant in event death that allowed complete the initial three- discretion in the of materials after destruction year storage period.

Moreover, appellant’s distinguished view as of what constitutes official might personal private differ from view of from materials may Congress, Branch, reviewing the Executive or a court. Not application the use of lead uniform standards disinterested archivists separating private nonprivate communications, in from but Act provides judicial review of This their determinations. would not appellant’s as to the case determinations. found, Supp., agree, The District Court 408 F. at 364 n. and we III, Act, requires is irrelevant that Title unlike this adherence requirement, require a That detailed warrant 18 U. S. 2518. C. § inapplicable Act, gov ment is to this we deal since not with standards erning generalized right a law search enforcement officials particularized personnel legislative judg other Government but with ment, supplemented by judicial review, similar to condemnation under the domain, power of eminent that certain materials are of value to the public. overwhelming majority The fact the materials relevant Congress’ objectives experience lawful is in contrast under Omnibus report Crime Control A recent Act. on surveillance con year under ducted the Omnibus indicates that Act for the calendar intercepts by judicial more than one-half of all wire authorized order the screening process is an unreasonable solution to the problem of separating commingled communications. appellant sum, legitimate has a expectation privacy personal communications. But constitutionality of the Act must be viewed the context of the limited intrusion of the screening process, appellant’s status public figure, his lack of any expectation of privacy overwhelming in the majority of the materials, important public interest preservation of materials, and of the impossibility virtual of segregating the small quantity private materials without comprehensive screening. When this is combined with the Act’s sensitivity to appellant’s legitimate privacy interests, see 104 § (a) (7), the unblemished record of the archivists discretion, for and the likelihood regulations by that the promulgated to be the Administrator will appellant’s further his moot fears that materials will be reviewed “a Brief persons,” host Appellant for compelled agree we are with the District Court appellant’s privacy that claim is without merit.

VI First Amendment During Presidency his appellant served also as head of political his national party spent portion and a substantial yielded only nonincriminating Office of communications. Administrative Courts, Report Applications Authorizing the U. S. Orders Approving Interception Communications, 1, 1976, or Oral Jan. Wire 31, 1976, p. (Table 4). to Dec. XII 28Throughout litigation appellant privacy that his has claimed necessarily unconstitutionally screening requires will be because the invaded accompanied by a staff archivists, lawyers, of “over one hundred tech right word-by-word nicians and secretaries will have a to review [who] years Arg. five and one-half of a man’s life . . . .” Tr. of Oral 16. The is, course, necessarily size of the staff a function of the enormous quantity clearly engaged of materials involved. But not all in the screen ing initially proposed will examine each document. The Administrator Supp., one archivist examine most documents. See 408 F. at 365 n. 59. partisan political Records aris- working

his time on matters. private personal and ing political activities, from his like his great from of materials. records, segregated are not mass argues screening therefore process He Act’s archival necessarily constitutionally protected entails invasion rights of As sum- privacy political speech. associational Act alleged marized the District Court: “It private thought invades critical political formulation of speech upon past free imposing sanctions association, limiting expressive activity, more significantly, the future because individuals who learn the substance private [appellant] especially certain communications — him. with those critical of themselves —will refuse associate because expression The Act to chill is furthermore said [his] positions pri- communicated in prior he will 'saddled’ in the vate, leaving positions him unable to take inconsistent future.” 408 F. at 367-368. Supp., Court, viewing arguments essence District these appellant’s

claim that disclosure of the materials violated significantly dif- privacy, associational and therefore as not again appellant’s privacy claim, in ferent structure from constitutionality of arguments as limited to the treated the Id., true with screening process. 368. was the Act’s at As only a fraction general privacy challenge, to the more respect First Amendment claim. can be said to raise a the materials acknowledged appellant Court the District that Nevertheless, he expectation that legitimate ... to have a “appear would opportunity to some of the sensitive remove would have an any screening took political government documents before however, that concluded, Ibid. The District Court place.” regulations believe the mandated there was no reason to that protect against public promulgated adequately would when appellant’s privacy in implicating access materials solely from “any arising burden association, and political not signifi- and discreet is archivists professional review held not signifi- the Act does court therefore cant.” The

467 First Amendment appellant’s or chill cantly interfere with Id., District Court’s agree with the at 369. We rights. conclusion. politics is partisan

It true that involvement course, is, Valeo, Buckley v. Amendment, the First closely protected disclosure, itself, 1 “compelled 424 and that (1976), U. S. belief seriously infringe privacy on of association and can Id., com 64. But a by the First at guaranteed Amendment.” way met in less restrictive public need that cannot be pelling Pontikes, 51, Kusper v. 414 U. S. interests, override those will O’Brien, 376-377 (1973); United States v. 367, 391 U. S. 58-59 Tucker, “par (1968); Shelton v. 479, (1960), 488 364 U. S. institu of our ticularly functioning when 'free national Valeo, supra, 66. Since Buckley tions’ is involved.” v. sug been screening has way than archival no less restrictive be returned of materials to means for identification gested as a presently screening is burden of that appellant, Id., The ex at 84. claim. of his First Amendment measure light speculative burden, however, such any tent of public improper from appellant protecting Act’s terms before review judicial him full guaranteeing disclosures and 105 (a) (7), (a) (5), 104 §§ public permitted. access is Amendment the First concluded, Court (a).29 As the District 147, Birmingham, 394 U. S. argues v. Shuttlesworth Appellant Baxley, (1965); Louisiana, Staub v. v. 379 U. S. (1969); Cox 150-151 516, Collins, 538- (1958); S. Thomas U. 319-321 355 U. S. (1938), Griffin, 452-453 U. S. (1945); and Lovell v. authority such broad which vests statute support his contention “[a] face, its rights] is unconstitutional respect First Amendment [with nullity its actual may even subjected it as a treat party and the if would, Appellant 169. him.” Brief for not harm implementation per regulations that cases involved merit. Those argument is without impose prior re arbitrary discretion to public officials their mitted is contrast, the Act expressional activities. or associational straints on with a past activities and that record with materials concerned longstanding screening guided by archival screening process standards. by governmental clearly outweighed important is claim promoted the Act. interests appellant’s argu- find no merit in reasons,

For the same we screening custody ment that Act’s scheme for and archival “necessarily political of materials inhibits freedom of [the] ‘quan- thereby future and activity reduces Presidents] [of that tity diversity’ political speech and association of Appel- receiving the Nation will be from its leaders.” Brief It this concern has significant, moreover, lant 168. is that or signing law, deterred President Ford from the Act into from urging President Carter this Court’s affirmance of the District judgment Court.

YII Bill Attainder Clause

A Act Finally, appellant’s argument we address constitutes a bill of proscribed I, § attainder Art. argument the Constitution.30 His acted is that ” “ premise ‘misconduct,’ that he had was an engaged “ ” documents, generally ‘unreliable custodian’ of his own “legislative judgment blameworthiness,” was deserving of a Appellant Brief for Act is Thus, argues, 132-133. he pervaded with the bill key features a law attainder: legislatively punishment determines guilt inflicts upon identifiable provision pro- an individual without judicial Brown, tections of a trial. See United States v. I, §9, applicable Congress, Article provides Bill “[n]o post Attainder ex passed,” I, 10, applica facto Law shall be and Art. § provides pass any ble to the State shall . Bill of States, . . “[n]o post Attainder, linking . ex facto Law . . of bills of attainder post explained and ex legislative laws the fact that a denuncia facto tion and condemnation of an impose individual often acted to retroactive Chafee, Jr., punishment. Rights See Z. Three Human in the Constitution pp. 92-93

469 445, S. 437, United States v. Lovett, U. 328 U. (1965); S. 303, (1946); Ex Garland, 315-316 parte 333, Wall. (1867); Cummings Missouri, v. 277, Wall.

Appellant’s argument relies entirely upon almost United Brown, States v. supra, the Court’s most recent decision addressing scope of the Bill of It is Attainder Clause. instructive, therefore, to sketch the case. broad outline of that Brown invalidated 504 of § the Labor-Management Reporting Disclosure Act 29 U. it a § S. C. that made crime for Party a Communist member as officer to serve an aof labor history union. After detailing the infamous bills of attainder, Bill Court found that the of Attainder Clause important was an “sepa- ingredient the doctrine of ration of one of powers,” organizing of our principles system of government. 381 U. 442-443. Just as Art. S., at Ill Judiciary confines the to the task concrete adjudicating “cases or controversies,” so too the Bill of Clause Attainder was found Legisla- to “reflect. . . the Framers’ belief that the tive Branch is not politically so well suited as independent juries judges and to the ruling task of blame- upon the of, and levying appropriate punishment worthiness upon, specific persons.” 381 S., at Brown U. 445. thus held that worked by focusing § 504 a bill attainder upon easily members of identifiable a class—members of the Communist Party on imposing them the sanction of mandatory —and job forfeiture a or long deemed office, punishment to be within contemplation of the Bill of Attainder See, Clause. g., e. United Lovett, Cummings States supra, 316; v. at Missouri, supra, at 320. Lovett,

Brown, and earlier unquestionably gave cases generous broad and meaning to the protection constitutional against bills of attainder. But appellant’s proposed reading argues far essence, is broader still. he Brown estab- lishes that the Constitution offended im- whenever a law consequences on poses undesired an individual class The Act generality. level of proper defined is not appellant, singling out is faulted for therefore question Government, of the or members Presidents to all other opposed treatment. for disfavored of bill of meaning of a the characterization

Appellant’s that an By obviously arguing too much. proves far attainder or it is whenever he is attainted group or defined individual group or which individual to bear burdens the compelled the bill of ties dislikes, appellant removes the anchor that of classification and conceptions guarantee to realistic attainder very of process legis cripple His view would the punishment. subject that is made group individual or lating, for the lawmakers complain can that legislation of adverse affected relevant have defined and should could every Furthermore, greater generality.31 of at a level class it which he or finds subject legislation person group or made that complain, he subjectively and can may feel, burdensome United punishment. being subjected or unwarranted it Lovett, supra, concurring).32 States (Frankfurter, J., at 324 custody taking case, Act example, appellant faults the for In this Appellant Brief for 130. papers of other Presidents. of his but not those consisting congressional of all Presi of the class even a definition But being overly specific, claim been vulnerable to of dents would have generally might of the more include all members since definition Government, possession Branch, all members or all in Executive or of possession papers. all of papers, of Presidential or Government appellant’s dispose that focuses This does not contention Act attainder, requisite specificity upon degree him with the for a bill simple infra, 471-472, but it reference see at demonstrates reach of breadth of the Act’s focus cannot be determinative of the upon legislative the Bill of Attainder Clause as limitation action disadvantages See, Brown, person group. g., States v. or e. United 34, (1965) (White, J., dissenting); n. U. S. 474-475 infra. by governmental authority “The does not fact that harm is inflicted discomforting Figuratively speaking may punishment. it all make action deprives punishment be deemed because it what otherwise would be enjoyed. may punitive But than there reasons other for such deprivation.” expansive prohibition

However bills against attainder, surely not equal was intended to serve as a variant protection doctrine,33 invalidating every or Act or legislatively persons groups the States burdens some plausible but other short, not all individuals.34 In while the Bill of important Attainder Clause serves as an “bulwark against Brown, tyranny,” S., United 381 U. States v. it does not do so limiting Congress to choice for the or legislating universe, legislating benefits, at all. legislating present in the Act’s

Thus, case, specificity fact that —the appellant originally argued We observe that “for similar reasons” equal protection the Act violates both the Bill of Attainder Clause and the laws. Jurisdictional Statement 27-28. He since abandoned has equal upon protection argument, apparently recognizing reliance validity mere a law underinclusiveness not fatal to the under the of equal Amendment, protection component the Fifth New Orleans of Dukes, (1976); Morgan, 641, 427 S. 297 Katzenbach 384 v. U. v. U. S. disadvantages (1966), even if the 657 law an or individual identifiable group, see, g., Co., Optical members of a e. Williamson v. Lee 348 U. S. Family (1955) (opticians); Co., (1949) Daniel Ins. 220 336 U. S. (insurance agents). specificity “For similar reasons” the mere of a law play into Comment, does not call the Bill of Attainder Clause. The Cf. Supreme Clarification, Bill of A Court’s Attainder Doctrine: Need for 212, (1966); Comment, Rev. L. 234-236 but see Calif. Bounds Legislative Specification: Suggested Approach of A the Bill of Attainder Clause, 72 Yale L. J. 330 recognized by making Brown this clear laws, that conflict-of-interest inevitably prohibit part designated which conduct on the of individuals individuals, guarantee. or classes of do not contravene the bill of attainder specifically validity Brown noted Banking of 32 of the Act of § disqualified §78, U. S. C. which identifiable members of a group employees underwriting organizations and of serving —officers —from banks, S., as officers Federal of Reserve U. 453. Other valid federal single conflict-of-interest statutes which also out identifiable members groups disqualifications bear burdens collected, id., are at 467- 2 (White, J., dissenting). Regional n. See Reorganization also Rail Cases, Act (1974) (upholding 419 U. S. 102 properties transfer rail eight companies Government-organized railroad corporation). automatically offend appellant name —does not it refers context, Bill viewed Indeed, of Attainder Clause. rationally under- fairly focus the enactment can be exclusively appel- with It is true that Title stood. deals by establishing II wider papers. lant’s But Title casts a net study appropriate special commission to and recommend future records of legislation regarding preservation of the In Con- light, this Presidents and all other federal officials. easily records is ex- gress’ preserve only appellant’s action to passage, Act’s plained by the fact at the time The Presiden- his materials immediate attention. demanded Johnson Hoover to papers tial of all former from Presidents libraries. already functioning were housed in solely preservation with the had reason for concern into a de- appellant’s for had entered he alone materials, agreement, which pository Nixon-Sampson agreement, the materials. its for of certain of terms called the destruction depository “appellant’s Indeed, appellees as the federal argue, tape agreement danger created an . . . imminent had con- if who recordings destroyed appellant, would be 41. Appellees for Federal phlebitis, tracted were die.” Brief one, class of appellant legitimate short, constituted with proceed Congress’ decision to provides a basis accepting while dispatch respect to his materials ordering further predecessors’ papers status govern his successors. standards to generalized consideration deemed to be specificity if element were even Moreover, would not auto- here, the Bill of Attainder Clause satisfied is legislative punishment implicated. Forbidden matically be imposes Act burdensome merely because involved further whether inquire we must consequences. Rather, custody appellant’s materials by lodging Congress, screen- pending Administration their the General Services of promulgation and of further by archivists Government ing punishment” “inflict within the constitu- regulations, [ed] proscription tional United States v. against of bills attainder. Lovett, Brown, S., 328 U. at 315; see also United States v. supra, at Cummings Missouri, 456-460; 320. Wall.,

B The history infamous of bills of a useful attainder is start- ing point in the inquiry whether the Act can be fairly charac- terized as a form punishment of leveled against appellant. For the experience substantial of both England and the United with such States parliamentary legislative abuses of and power a ready offers of deprivations checklist and disabilities so disproportionately so inappropriate nonpuni- severe and they tive ends unquestionably have held to fall been within A proscription statutory of Art. I; § 9. enactment imposes of sanctions named or identifiable those immediately constitutionally suspect. individuals would be In England par a bill of originally attainder connoted a Act liamentary named sentencing a individual identifiable a group members Article also 9, however, of death.35 I, § example, See, James, Monmouth, for the 1685 attainder of Duke high treason: duke of has in an hostile “WHEREAS James Monmouth levying kingdom, open rebellion, manner invaded and now in against Idng, contrary duty allegiance; war to the Be King’s majesty, by enacted most excellent and with the advice spiritual temporal,, and and consent of lords commons in this and authority parliament assembled, same, and That the said high James duke of Monmouth stand attainted convicted and treason, pains death, that he suffer all and incur forfeitures as high (1685) a traitor convicted attainted of treason.” 1 Jac. c. omitted). (emphasis usually accompanied attainder death was forfeiture of person’s property King corruption to the the condemned and the of his whereby right blood, his heirs were denied the inherit his estate. “corruption practice traced the blood” to the Blackstone Norman conquest practice “oppressive an He considered the mark feudal 474 pains bills of characterized originally enactments

proscribes inflicting punishment Acts is, legislative penalties, Lovett, 323- supra, United States v. execution. than other Missouri, Cummings v. concurring); (Frankfurter, J., 324 in Con Rights Three Human Jr., supra, Chafee, at 323; Z. persons Generally (1956). addressed 1787, p. 97 stitution of penal “pains and State, Crown or disloyal considered to the array punishments: of of a wide historically ties” consisted banishment,37 and commonly imprisonment,36 included were Our sovereign.38 of punitive confiscation property in resulted country’s own with bills of attainder experience impermissible list of the addition of another sanction to the barring legislative legislative enactment punishments: speci groups participation from designated individuals or punishment employments vocations, a mode fied branded as commonly against legislatively those employed Missouri, supra (barring g., Cummings disloyal. See, e. v. “may process act hoped be abolished tenure” and of time parliament.” *388. The Framers 4 Blackstone Commentaries W. Art. responded the United Constitution to this recommendation. States HI, §3. 36 g., 10 (1701): continuing the e. See, 11 “An Act for & c. 13 Will. Conspiracy of Counter others, horrid Imprisonment for the late Majesty.” of his sacred to assassinate the Person (“‘all every the g., Cooper Telfair, e. 37See, (1800) 4 Dali. 14 v. [declaring persons guilty persons, in the act named and included said ”’); 2 [Georgia] from the said state R. Woodde- are banished treason] (1792) (banish son, Systematical England 638-639 A of the Laws View Kennedy Atterbury). Bishop v. See ment Clarendon and of Lord 144, 168, n. 23 Martinez, Mendoza- 372 U. S. Revolutionary property Following War, seized the States often g., Claim, e. James’s See, (1780) Tory sympathizers. Dali. alleged High Treason, and his estate seized and (“John Parrock attainted of was Respublica Gordon, (1788) (“at- sale”); Dall. advertised for Britain, Great adhering king to the con tainted treason for sequence his estate was confiscated to the use of of which .”). . . commonwealth from

clergymen ministry the absence subscribing loyalty oath); Lovett, United States supra (barring v. named individuals from Government United States v. employment); Brown, supra (barring Communist Party members from of unions). fices labor to say, appellant

Needless claim to have suffered cannot any of forbidden deprivations these at of the hands Congress. While it is true that ordered the General Services Administration to retain control over records appellant claims as his property,39 § 105 of the Act makes provision for an award the District “just Court of com- pensation.” This undercuts even a colorable contention that the Government punitively has appellant’s prop- confiscated erty, [thereby] the “owner is to be put position in the same monetarily as would occupied he have property if his had not been taken.” United Reynolds, States v. 397 16 14, U. S. United Miller, States v. (1970); accord, 317 U. 373 369, S. (1943). Thus, no feature the challenged Act falls within the historical meaning legislative punishment. inquiry

But our is not ended the determination that imposes punishment the Act no traditionally judged to be prohibited by the Bill of Attainder Clause. Our treatment scope the Clause precluded has possibility never that new burdens and deprivations might legislatively fashioned are inconsistent with bill of attainder guarantee. Court, often therefore, beyond has looked experience historical applied mere and has a functional test of the existence of punishment, analyzing whether the law under challenge, viewed in terms of type severity imposed, reasonably burdens can be said to further nonpunitive fact, it remains unsettled whether the question materials in are property appellant or of the 8, swpra. Government. See n. Cummings Missouri, Wall., purposes.40 legislative v. York, Hawker New

319-320; (1898) ; 189, 170 U. S. 193-194 v. Virginia, Dent West (1889); Trop 114, v. 129 U. v. S. Dulles, (1958) opinion); 356 U. S. 96-97 (plurality Kennedy Mendoza-Martines, 168-169 U. S. purposes such do not legitimate legislative Where appear, it punishment reasonable to conclude that of indi- viduals purpose of disadvantaged the enactment was the the decisionmakers.

Application of approach functional to this case leads rejection appellant’s of argument upon the Act rests a congressional of his determination blameworthiness a supra, punish desire to him. For, previously, as noted see legitimate at 452-454, justifications passage of the Act are readily apparent. in First, Nixon-Sampson the face of the agreement expressly contemplated which of the destruction appellant’s some of Congress stressed the need to materials, “[ijnformation preserve included in former the materials of President Nixon is needed complete prosecutions [that]

40 determining punitive nonpunitive objectives underlie whether law, punishment a re United States v. Brown established that is not inflicting purely past may events, stricted to retribution for but include deprivations blameworthy in order to some or tainted individual prevent S., his future This view misconduct. 381 U. at 458-459. purposes punishment, consistent which with the traditional of criminal preventive aspect. See, g., Packer, include a Limits of also e. H. The (1968). punish the Criminal In Brown the element Sanction 48-61 of purpose ment was found in the fact that “the of the statute before purge governing us is to of labor unions of those whom boards Congress regards guilty and there of subversive acts and associations S., Thus, positions unfit fill 460. fore . . . .” 381 U. at [union] complains being requirement Brown left undisturbed the that one who of legislature’s punish attainted must establish that action constituted Indeed, merely legitimate regulation just ment and not of conduct. later, O’Brien, three Terms United States v. U. S. 383 n. which, Brown, Warren, (1968), like was also written Mr. Chief Justice purposes purported reconfirmed the need to examine the served bill represents punitive determining attainder in whether it in fact law. 93-1507, p. No. Rep. R. crimes.” Watergate-related H. Nixon-Sampson agree- to the referring again Second, “public expressed safeguard its desire to ment, Congress the Nixon to materials appropriate in access gaining interest significance. Presidency general historical which are great be value information these materials will Ibid41 political vitality health and of the United States.” Act text of the Indeed, objectives stated these same are (1970 ed., following § note 44 U. C. itself, (a), S. § Services the General Supp. V), where instructs these further promulgate regulations Administration to legal protect ends and at the same time constitutional Adminis- by the adversely affected rights individual materials. appellant’s trator’s retention of the law purposes, Evaluated terms of these asserted legislative nonpunitive plainly must be held to an act of the avail- guarantee Legislation designed policymaking. is a fair exercise at criminal trials ability of evidence for use in the fair of law process to the “due responsibility Congress’ Nixon, States United justice,” criminal administration of adversary legal our functioning S., 418 U. and to evi- availability of relevant upon the system depends which play and both to fair its commitments carrying in out dence by law. set discovery truth within the bounds of to the Blackmer v. Hayes, (1972); 688 Branzburg v. 665, 408 S. U. United (1932); Blair v. States, 438 United 284 S. U. in- Congress’ States, (1919). Similarly, 281 250 U. S. Sampson they stand accused. full access to Congress, the executive recurrence of the The Senate courts defendants’ innocence agreement: probably all facts about pointed Watergate would ^[2] “[1] branch, and to these Moreover, To guilt begin with, deprived affair same the American Watergate affair, and the efforts others objectives may Watergate prosecutors, to be inhibited.” S. crucial evidence take measures in people nullifying crimes for would defendants, and bearing on the Nixon- to be denied Rep. prevent which No. 93-1181, p. 4

terest in and expansive authority act in preservation to monuments and records of historical value to our national heritage fully are Gettysburg established. United States v. Co., Electric R. Kansas, Roe 160 U. 668 (1896); S. v. (1929).42 U. S. 191 A legislature responsibly thus acts in seeking accomplish objectives. either of these Neither supports implication an legislative of a policy designed punishment inflict on an individual.

A recognized third punishment strictly test a motiva tional one: inquiring whether legislative record evinces a congressional g., United punish. intent See, e. States v. Lovett, Mendoza-Martinez, 328 U. S., at 308-314; Kennedy supra, at 169-170. The unequivocally District Court found: “There is no presented evidence nor is there us, in be found legislative Con to indicate that record, gress’ design impose, was to penalty upon Nixon ... Mr. punishment alleged past for wrongdoings.. legislative . . The history leads to one Act conclusion, namely, regulatory before us is punitive and not in character.” F. at 373 Supp., (emphasis omitted). cogent find no We reason for disagreeing with this conclusion. both Reports, Senate and House Committee for-

First, mally explaining urging passage Act, their reasons for expressed penalizing appellant. no interest punishing or Reports justified objectives Rather, Act reference to fairly properly Congress’ legislative lie within com- petence: preserving availability judicial evidence upheld power These cases exercises of the eminent domain preserving public historical monuments facilities use. like domain, however, power tangible eminent is not restricted to realty property intangibles personal but extends both to and to effects Co., as v. Louisville involved here. See Cincinnati & Nashville R. 223 (1912); States, (CA5 U. S. 400 Porter v. United 473 F. 2d 1329 1973).

479 Supra, historically materials. at 476-478. More relevant of clear the of Houses of it seems actions both specifically, predominantly precipitated by a resolve to undo Congress were Nixon-Sampson the terms recently negotiated agreement, the former Presidents departed practice which from the of certain that.they contemplated the expressly destruction Rep. No. lines, Along Presidential materials.43 these H. R. public 93-1507, supra, “Despite overriding the 2, stated: . . Administrator preserving interest these materials . [the] which, . . if . agreement General entered into an Services to these records could limit seriously access implemented, portion . . . result in destruction of substantial (1974). Rep. p. also 93-1181, them.” See S. No. appel- on aspersions cast Reports relevant no Committee thus of his personal condemnation lant's conduct contain no Rather, infliction of punishment. behavior meriting of an exclusively meaning and effect they focus almost on the Admin- recently Services agreement announced the General perceived to be which of Congress istration most Members public inconsistent with the interest. Con- suggest

Nor do the floor debates on the measure function of judicial on gress encroaching intent was one blameworthy When an individual for offenses. punishing mischaracterizing the opponents legislation, of the safe- par- it is “one which bill,44 embodied in the stated that guards ,”. a bill of attainder . characteristics of . takes provision agreement Particularly re was the troublesome recordings appellant’s tape upon destruction of quiring the automatic death. condemning attainder, bill Hruska as a Senator In the enactment appellant’s papers them to argued bill and distributes seizes judicially opportunity litigants affording appellant “to assert without Cong. production privilege papers.” Rec. a defense or right expressly recognizes appellant’s fact, Act through judicial expedited an present privileges all such defenses infra, proceeding. at 481-482. See

Cong. Rec. 33872 (1974) (Sen. key sponsor Hruska), responded by expressly measure denying any intention of de- termining appellant’s imposing blameworthiness punitive or sanctions: bill

“This does not contain a word to the effect that guilty Nixon any Mr. is of violation of law. It does any not inflict punishment on him. So it has no more relation to a bill my style of attainder .... than pulchritude is compared Queen to be to that Id., Sheba.” (Sen. Ervin). at 33959-33960 In this respect, Act stands marked contrast to that Lovett, invalidated in United States v. S., 312, U. at where a House Report expressly characterized individuals “subver- sive . . . and . . . unfit to continue in employ- Government ... ment.” Rep. Cong., H. No. 78th 1st Sess., (1943). R. We, course, suggest do not legislative that such a formal announcement of moral punishment blameworthiness or is necessary to an unlawful bill of attainder. United States v. Lovett, supra, at 316. legis- But decided absence from the history any congressional expressive lative sentiments purpose probative nonpunitive is intentions largely major prompted undercuts a concern the bill that prohibition: seeking attainder the fear that the legislature, popular to an find it pander constituency, inflamed will expedient openly judge or, to assume the mantle of worse — supra, lynch mob. at 161.45 No such still, Chafee, Cf. Z. legislative overreaching involved here. Brown, S., in United U. at referred to The Court States legislatures might cater Hamilton’s concern that “momen

Alexander tary passions” people, in of heat and violence of a “'free times steadfastly supporters case, it of this Act In this is obvious any community. inflaming appealing “passions” in the avoided impose punishment expediently Indeed, than seek rather Congress expressly provided courts, access to the circumvent for legal rights appellant Judiciary constitutional and for resolution of 93-1181, might Rep. pp. 2-6 assert. No. S. “specific with Court agree also the District as-

We pects just square of the Act . . do claim . punitive Act 408 F. was a measure.” Supp., appellant complains 373. Whereas has Act years deprived him of materials some two control over the for Appellant placed Brief the the question, Congress auspices under the Admin- materials the General Services ed., istration, (1970 note U. S. C. following § §2107 Nixon-Sampson Supp. designated the in the V), agency same depository for a minimum agreement the documents three-year complains that period, App. appellant 40. Whereas deprives materials, the Act him of Brief “ready access” to the Nixon, M. Appellant 140, provides for the Act that “Richard any person or at all may designate writing, whom he shall tape times have access to and other materi- recordings the construed ,” (c).46 correctly als .. . The District Court § use safeguarding appellant’s right inspect, this as and copy, the issue, paralleling the materials in 408 F. at 375, Supp., Nixon-Sampson right reproductions” to “make contained in the is App. 40. And if we there agreement, even assume complaint in appellant’s property merit that his has been Brief for Act confiscated, Appellant 140, expressly provides payment just compensation for the 105 (c); § under see supra, at 475. any punitive

Other features the Act further belie inter- pretation. promulgating regulations Act, under the by expressly General Administration is directed Services protect appellant’s “any party’s opportunity or Congress any legally constitutionally right priv- or based or assert (a)(5). More the Act ilege importantly, pre- § .” . . . appellant protections for all of the inhere in a serves (a) not district judicial proceeding, § assures 46Regulations guaranteeing appellant’s unrestricted access to the ma promulgated have Administrator and have not been terials been 105-63.3 challenged. 41 CFR See § legal jurisdiction judicial claims,

court and review over all his challenge by appellant but asserted commands that such “shall on the docket of such court other priority have over sponsor A leading emphasized cases.” bill expedited expressly designed protect treatment is “to Mr. property, Nixon’s or other . Rec. legal rights Cong. . . .” 120 (1974) (Sen. Ervin). has or- Finally, dered reg- the General Services Administration to establish recognize Nixon, ulations that “the need to give to Richard M. custody for his heirs, tape sole use, recordings other which' not likely materials are to be to” related objectives articulated Act, § 104 (a)(7). appel- While lant not obviously precautions set at ease these safeguards, they confirm opinion the soundness of given the Senate the law division of Congressional Research “[Bjecause Service: proposed impose bill crim- does penalties inal punishment, other appear it would not violate the Bill of Attainder Clause.” 120 Cong. Rec. (1974).47

One final consideration should be in light mentioned unique posture controversy. of this In determining whether legislature sought to punishment inflict on an individual, is often useful inquire into the existence of less burdensome alternatives which that legislature could Congress) (here have achieved its legitimate nonpunitive objectives. Today, framing challenge to Act, appellant the contends that such an alternative was readily available:

“If Congress provided had that the Attorney General or the Administrator of General Services could institute a civil suit in an appropriate enjoin disposi- federal court to brief, legislative history the paradigm of the Act offers a aof Congress aware of constitutional power carefully constraints on its and seeking to act within generally those Brest, limitations. See The Con Legislator’s scientious Guide to Interpretation, Constitutional 27 Stan. L. Rev. 685 presidential by any historical materials ...

tion ... who to be person could be shown an 'unreliable custodian’ 'would or who had in misconduct’ or who violate 'engaged have left a criminal the statute would prohibition/ judicial proceeding, after a fair factual determination, blameworthiness.” allegations regarding Mr. Nixon’s Appellant Brief for 137. no selected Congress might

We have doubt that have very It well chose may be, however, course. full-fledged judicial inquiry not to do so the view that a reliability no appellant’s puni- into conduct would be less adopted. tive and intrusive than the For actually solution Congress doubtless well aware three just was months himself appellant subject resisted efforts earlier, had United scrutiny to the Judicial Branch, his records Nixon, States apparently (1974), position 418 U. S. 683 A day.48 to this fairminded Con- maintained rational and therefore, carefully well decided that gress, might have objectionable law it enacted would be less tailored today appears than the to en- appellant alternative he unambiguously to To be if record were sure, dorse. represents legislative that the Act infliction of demonstrate judicial poses its own punishment, fact that the alternative would be significance. of no constitutional But difficulties choice that Con- suggests contrary, unique record Act our conclusion that cannot gress faced buttresses punishment read to as forbidden fairly legislative inflict the Constitution. plea we

We, appellant’s not blind to course, are example, case, appellant in deposition in taken this refused his For accuracy reliability pertaining prior questions to the of his to answer concerning tape public statements as President the contents privilege recordings He a claim of and other issue. invoked materials judicial questions inquiry. and asserted were irrelevant g., App. See, 586-590. e. 1974. was a political realities of It the social and

recognize history. unprecedented our political turbulence period based Congress free to Acts of But Court is not invalidate our we be asked to draw from upon may inferences that recent personalized contemporary of the scene or reading the constitutionality Act, may of the we history. judging terms, expressed look its the intent Members of who and to non- voted its the existence or passage, explanations of legitimate apparent existence for its effect. persuaded suggestive areWe that none of these factors is punitive facially is a bill Act or otherwise attainder, judgment The unconstitutional. District Court

Affirmed. Mr. Stevens, Justice concurring. apply

The statute does not all Presidents before the Court singles special former Presidents. It out one, name, treatment. in our history, Unlike all other former Presidents he he is custody papers; is denied of his own Presidential subjected to litigation the burden of over prolonged administration of his private papers and most the statute; conversations are to be scrutinized Government archivists. implicitly statute him condemns as an unreliable cus- todian his papers. subjects Legislation which a named individual to this humiliating raise treatment serious must questions under the Bill of Attainder Clause.

Bills of attainder typically were directed at powerful once government. By leaders of special legislative Acts, Parliament deprived one statesman after another of his his reputation, potential property, leadership. for future The moti- vation for such bills political was as much punitive— it was and often victims were those who had been the most their attacking political relentless enemies height at the legislation like light history, of this power.1 own their with great care. before must be scrutinized us no proposition legislative acts, for the Our cases “stand either to named individuals form, what their matter apply way of in such a group members a easily or to ascertainable are judicial a trial punishment inflict on them without as United by the Constitution.” prohibited of attainder bills Lovett, of concept States v. 303, 315-316. S.U. depriva- only the character of involves not punishment im- deprivation is in which but also the manner tion, deprive for posed. permissible It has been held security bene- social group, a their deportees, Communist as surely Nestor, but it would Flemming 363 U. S. fits, single, named deprive a Congress to bill of attainder be a id., at 614. The very benefit. Cf. of the same individual Danby, Earl impeachment Earl of the debate on the 1 At history: recounted Carnarvon English, good Lords, Latin, deal “My I understand but little of but English history, the mis- which I have learnt from and not little of prosecu- prosecutions these, ill fate of the kind and the such chiefs Queen go Elizabeth’s no back than the latter end of shall farther tors. by Sir Walter time the Earl of Essex was run down reign: At which very Raleigh, your Lordships of Sir Walter and well know what became Raleigh, your My Bacon, and Raleigh. down Sir Lord he ran Walter Bucking- my Lordships Lord Bacon. The Duke of know what became of hap- Bacon, your ham, my Lordships know what he ran down Lord and Wentworth, Buckingham. afterwards pened Duke Sir Thomas to the you Strafford, Buckingham, all know ran the Duke of Earl of down Harry Vane, Earl of him. Sir he ran down the Straf- what became of Harry your Chan- ford, Lordships became Vane. know what of Sir Harry your Lordships know Hyde, Vane, he ran down Sir cellor Osborne, Earl of of the Chancellor. Sir Thomas now what became Danby, Hyde; but what will become of the Earl of ran down Chancellor your Lordships tell. But me that man that dare Danby, best can let see Danby down, and we shall soon see what will become of run the Earl (Footnote omitted.) quoted Chafee, Jr., Three him.” As Z. Human p. Rights in the Constitution punishment, it as of the statute would mark

specificity legislation; reason for such narrow rarely any there is valid normally Congress proceed to requires the Constitution rather individual general rulemaking deciding than Brown, United 442-446. 437, cases. States v. 381 U. S. I “appellant Like the that Court, persuaded am however, 472. The Ante, a legitimate constituted class one ....” which opinion the Court leaves unmentioned two facts I Appellant in his regard. resigned consider decisive this 2 for accepted pardon office under unique circumstances and By placed in he doing, offenses committed while office. so Cf. in a class other himself different from all Presidents. Willoughby, though 90-91. 83, v. Even U. S. Orloff unmentioned, historic it would be unrealistic that to assume this consequence legislative did not affect facts decision.3 for the provide justification a legitimate these facts

Since they statute, also avoid conclusion specificity by its punitive nonpunitive otherwise statute made judi- If appropriate I not it take specificity. did consider I unwilling uphold notice of would be facts, cial those only at special legislation to enact directed power at its popularity a time was former President at when one (cid:127) former For even when deals Presidents nadir. upon calling” be “the Presidents, legislative focus should Cummings Missouri, v. Wall. person.” rather than Cf. “the prece- will not be a my view, this case short, 320. 277, which not to the Office for future legislation relates, dent just occupants. one of but its President, States, v. S. 94. Burdick United U. See Bull, 3 Dall. 390: Colder Cf. England, beheaded; king Cromwell was that Oliver Charles 1st. “That France, England; 16th, King was Louis late Protecter was facts, happened; have but it guillotined; are all would nonsense prohibited making any were law after suppose, that the States from events, with reference thereto.” these either of I imputing join Without a similar reservation to the Court, opinion its qualification with the these unmentioned facts have a critical my had influence on vote to affirm.

Mr. Justice White, concurring part concurring the judgment.

I concur in the judgment and, except in the VII, for Part opinion. respect Court’s With bill of attainder issue, concur in the result reached in VII; Part the statute does impose “punishment” and is bill of attainder. therefore, not, Brown, United States See 381 (1965) (White., S. U. I J., append also dissenting). observations with following respect many to one of the issues this case. all very

It conceded that a small portion concerned the vast collection of possession Presidential materials now in of the Administrator of purely private materials, consists such diaries, recordings family private as corre- conversations, spondence “personal property any kind not involving the — government actual transaction of Tr. of Oral Arg. business.” It appellees 55. is also conceded other federal and private materials, that these once must be returned identified, Id., to Mr. Nixon. 38-40, at 57-59. The Court now declares that “the Government court should awaiting a [without order] promptly now disclaim conceded to interest materials appellant’s purely private be communications and deliver them Ante, I agree separation to him.” n. 22. return of materials should proceed and these without delay. if the Act this Furthermore, process even under can occur subject issuance under 104 that regulations § after the are surely regulations congressional approval, covering to long need not take subject matter effectuate. narrow (a) (7) suggests private that the materials to be Also, § Nixon limited to those to Mr. are that “are not returned significance.” But, it, historical see general otherwise validity questionable Act would if of the be historical mere private letters or purely to withhold sufficed significance Act, provisions of the other diaries; in view Purely so construed. (a) it need be (5), particularly § interest, of historical are whether or not materials, private appellees federal and other Mr. Nixon. The delivered to be argument.* much at oral conceded as diary prepared a now, suppose has *“QUESTION: Mr. Nixon Well did, suppose that what, exactly and let’s day what he every put down just Now, I can purely personal thought account. that was someone general his- is of imagine might think that nevertheless that someone significance. torical ‘The need to May need No. 5?

“MR. I refer Court to McCREE: constitutionally any legally protect any party’s opportunity assert or prevent limit access to right privilege based which would or otherwise recordings such and materials.’ opportunity M. Nixon the

“And I Act affords Richard submit that this not the diary personal and that this of his is assert the contention has deprivation; general significance permit kind of that will historical adjudicated would then in a have to court. “QUESTION: Well, do— ultimately question.

“MR. McCREE: And this Court will answer that “QUESTION: Well, you you agree, then, how do would —so must Mr. be construed —must be construed sooner or later return to might purely private Nixon papers? what we call “MR. McCREE: I Indeed do. “QUESTION: you imagine any diary thinking Can of Mr. Truman’s —

diary, which, reported, being every evening, it is was a result of dictated day’s you after the work—can conceive such material that would general not be of historical interest? concede, being acquainted “MR. McCREE: I must his- with some torians, that it’s might difficult to anything conceive of that not be his- torical interest. But—

“[Laughter.] “QUESTION: Yes. historians, journalists,— Archivists and like they “MR. McCREE: Indeed are. “QUESTION: —think everything that is. “[Laughter.] “MR. legislation McCREE: recognizes But this privacy, a claim that the Court relies to some extent on the although,

Similarly, compensa- statutory right of the constitutional recognition has in it is determined tion the event Government regulations privilege protected, must be and if the are insuffi- a claim of again that, opportunity cient to do- a court will have an to address itself diary particular to a item such as the before it can be turned over. reason, suggest pre- “And for we the attack at this time is statute, facially recognizing right privacy, mature because the in adequate. day And the attack after it effec- that was made became brought opportunity speculate tive to this Court a marvelous about might happen, regulations what promulgated but haven’t even been acquiesced they Arg. so that have become effective.^’ Tr. of Oral 38-40. HERZSTEIN, private appellees:] for the

“[Mr. question just personal diaries, “But there’s no about the return of Dic- tabelts, long they so as are not the materials involved the transaction government business.

“Now, statute, agree, I clearly, could have been drafted little more but think points we there are quite several make it his which clear that personal materials are to be returned to him.

“One is presidential the fact statute refers to the historical ma- Nixon, terials of Richard person not to the private materials. [al] that, “The Judge mentioned, second is McCree criterion 7 calls for a you return of him, conjunction materials to and if read those two legislative history, there are statements Senate, on the Floor of the the I House, loor of the indicating and in Reports, the Committee expectation personal that Nixon’s records would be returned to him.

“QUESTION: you give capsule Could summary us a of the difference you between just what have personal referred to as records, Nixon’s which will returned, and the matter which will not be returned?

“MR. Well, yes. Certainly HERZSTEIN: any personal among letters, family or friends, certainly diary day, made at the end of the as it were, after the event— “QUESTION: though Even paid Dictabelt was for out of White appropriations? House “MR. right. HERZSTEIN: That’s That doesn’t bother us. think it’s incidental now. But we do have a tapes, different view on the which actually government recorded the by transaction of government business I whether a question Nixon’s property, Mr. would confiscated communications private purely historical interest mere use. public for them taking for predicate sufficient a would be for normally grounds sufficient considerations Historical are Electric Gettysburg States v. United property, condemning Kansas, 278 U. S. Roe v. Co., (1896); S. R. 160 U. tapes that we’ve The normal government so on. time and employees on heard much about. so diary. Instead said, personal Dictabelts, are his Nixon has

“The Mr. day. the end of words, it at writing down, in he dictated other it we think that’s— And this concession, because

“QUESTION: I want to be sure about certainly interest. is of historical covered is, it’s right, it we do not feel That’s but

“MR. HERZSTEIN: acknowledged from the start. We have the statute. you General, do “QUESTION: the Solicitor concession shared Is this think? it is. HERZSTEIN: We believe

“MR. “QUESTION: about that? What gov- belongs paper “MR. McCREE: About the fact that govern- forth, makes a document believe that ernment and so we don’t certainly agree with that. ment We documen[t]. that, please— “Beyond if the Court diary? daily

“QUESTION: representing the Dictabelts What about that would personal matter McCREE: I would think that’s “MR. be—should be returned him once it was identified. minute, very about, right “QUESTION: Well, problem this is there giving picking up Mr. Nixon? those them back to problem. Whether would have to I of no it

“MR. McCREE: know stymied Mr. adoption regulation, which has been await the of the delayed years,— lawsuit, three Nixon’s which has been for “QUESTION: regulations, Mr. stymied the How has that issuance Solicitor General? dispositions One the district court was

“MR. McCREE: stay regulations. up principally Now, I think held the effectiveness regulations public part regulations are not access. The other record, any knowledge speak cannot to the Court with about Id., them.” at 57-59.

(1929); but may whatever true of great be bulk of the they materials in the event are be declared to Mr. Nixon’s I doubt property, that is to his Government entitled purely private merely communications it because wants to preserve them compensation. offers and

Mr. Justice Blackmun, concurring part concurring and in the judgment.

My posture in essentially case is this of Mr. that Justice I post, p. from Powell, joining opinion, 492. refrain his I however, sharing view, because fall short somewhat post, at 501-502, 498 and that sub- the incumbent President's mission, made Act through General, Solicitor that serves than II func- rather hinders the Chief Executive’s Art. I separation-of-powers is tions, dispositive of the issue. would willing agree it is entitled significant that it is and that I it is but that consideration, serious am not convinced Act signed the dispositive. The Ford fact President every necessarily its approved does mean that he not decision a President to a guide detail. Political often realities not to veto. history reveals our Nation’s

One remind must oneself not has transition where Presidential number of instances been On it has friendly easy. or occasion particularly been ob- my anticipation hope is openly hostile. It —as case— in this written who have viously others is de- the Court with as it what concerned is Act, not will one,” class ante, legitimate “a scribes, each papers disposition for the model become a his successor when time office at a leaves who President persuasion. political of his not observes, he Powell when my Brother fully agree I lie questions constitutional “difficult post, at Reserving judgment future. in the for resolution ahead” now-— n certainly those issues for more appropriate time — too, join I, judgment the Court with much of agree opinion. specifically join opinion. its VII Part of the Court’s Powell, concurring concurring Justice part Mr. judgment. in the

I join judgment the of all IV the Court and but Parts opinion. substantially and V of its For the stated reasons I by Recordings the Court, the Presidential and agree (Act) Materials Act on face not violate Preservation its does Fifth appellant’s rights First, under Amend- Fourth, the quite ments the Bill of For reasons Attainder Clause.1 hold I by Court, different from also would those stated of principle Act is consistent on its face with the separation powers. of

I limiting analysis its of issues begins Court addressed inquiry claims that are its to those constitutional requiring of of Act validity provisions “the facial into recordings and materials the Administrator to take the custody subject screening Govern- the Government’s Ante, I agree inquiry 439. ment archivists.” qualifi- I two in but would add manner, must be limited today’s further restrict the reach my view cations decision. purport (the I L. does not Act)

First, Title 93-526 Pub. problem complex to the addressed provision be a generalized other papers Presidents disposition of accumulated Public (the II L. 93-526 federal Unlike Title Pub. officers. problem, study of that Act), authorizes a Documents which join V, I unable to agree much Parts am Although I IV my uncertainty as to opinion because of parts the Court’s those competing interests constitutional extended discussion reach of its implicated the Act.

Title is addressed specifically and narrowly to the need to preserve the papers of former President Nixon resig- after his nation under impeachment. threat of It is legislation, Court properly observes, directed legitimate “a class against Ante, of one.” at 472. Nixon resigned

President on August 1974. Less than two weeks earlier, Judiciary the House Committee had voted to recommend his Rep. H. impeachment, 93-1305, R. No. pp. 10-11 (1974), including among charges impeachable offenses allegations that the President had obstructed investi- gation of the Watergate break-in and had engaged other unlawful activities during his Id., administration. at 1-4. One month after President Nixon’s resignation, Septem- ber 1974, President granted Ford him general pardon all offenses against the United States that might he have committed term of office.

On the same Nixon-Sampson the day, agreement was made public. agreement provided for the materials to be deposited temporarily with the General Services Administra- in tion facility, California but gave the former President right the to withdraw or direct the destruction of mate- rials period after an initial years three in the or, case tape five recordings, years. period During this initial access would limited to and persons be President Nixon by authorized subject only to him, legal process ordering produced. Upon materials be President Nixon’s death, tapes destroyed the immediately. Weekly were to be Comp, of Pres. Doc. (1974). 1104^1105 I sponsored

Those who drafted in uni- and Title formly provisions emergency viewed its neces- legislation, by extraordinary the resignation sitated events that led to the pardon arrangement and and the former President’s for disposition papers. example, Nelson, Senator prin- emergency to the “an measure” referred bill as whose cipal purpose “protective to assure custody” was of the Cong. (1974). materials. Rec. 33850-33851 urgency is an in before the situation now us. “[T]here existing agreement Under and between GSA Mr. if Nixon, tapes— Nixon died those tomorrow, Mr. agreement if correctly destroyed read the be to—are immediately; possible Nixon papers is also destroyed could This 1977. would be a catas- Id., troph[e] standpoint.” from an historical at 33857. similarly Senator Ervin remarked: really emergency situation,

“This bill deals with an needed because some of these documents are they in order that general public courts and collectively might story full is known know the what Id., Watergate as the affair.” at 33855. all apply legislation generally more Presi-

Efforts on the Senate resisted other federal officers were dents or to created needs unique speaking again Thus, floor. scan- Watergate Nixon-Sampson agreement deal this seek to “we stressed that dals, Senator Javits papers set particular this particular legislation, Id., generally See at 33860. ex-President.” particular of this Rep. 93-1181 No. S. issues be- constitutional addressing the

It essential for and justification of the limited sight us not to fore lose extraordinary events legislation. The objectives of pro- agreement pardon, resignation to the led destroyed be might events record of those viding that action congressional impetus created an Nixon, President I unique. termed may overstatement —be —without foreboding Rehnquist's my Brother do share therefore Damo- sword as a veritable daily stand “will Act Post, and his advisers.” succeeding President every over cles to II lead should Title study authorized 545. If at general more legislation, there will be time enough to consider validity its if a proper case comes before us.

My second reservation follows from the first. Because acted what perceived to be an emergency, it concentrated on the problem immediate of establishing governmental custody for the purpose of safeguarding the materials. It deliberately left to the rulemaking process, subsequent judicial review, the difficult and sensitive of reconciling task the long-range interests of Nixon, President advisors, three branches of Government, and the American public, custody once was established. As the Dis- trict Court observed:

“The Act in merely terms directs custody GSA take materials within scope fall of section 101, and to' promulgate after taking into regulations consideration the (a). seven factors listed in section provide Those factors broad latitude the Administrator in establishing processes under which and standards the materials be to them public will reviewed and access afforded. . . .” (footnote 408 P. Supp. 321, (1976) omitted).

In view of the latitude gives framing that the Act to GSA I agree with regulations, question Court that District in this regulatory resolved case is a narrow one: “Is the by Congress scheme enacted without refer- unconstitutional the content regulations ence to conceivable set falling scope authority within of the Administrator’s Id., (a)?” under section at 334-335. regulations yet

No have taken (a). §104 effect under Ante, 437. these appro- believe it is circumstances, appellant’s address constitutional priate claims, as did the Court, eye regulations an toward the kind of District practices screening that would be consistent with yet protection would afford Act and to the important (a) (5) interests asserted. Section constitutional account Administrator to take into Act directs the assert any party’s opportunity protect “the need to privilege constitutionally right or any legally or based such limit prevent access which would or otherwise recordings and materials.” considering factor,

The District Court observed that par- meaningful provide well might the Administrator and in screening process by appellant ticipation the materials. review who would archivists selection adopted be might procedures The court also observed that materials private any intrusion into that would minimize to obtain opportunity an permit appellant would classifica- proposed of all judicial review administrative Finally, at 339-340.2 Supp., materials. tions of the F. follow By way illustration, Court observed the District appellant’s adopted invasion of might be to limit ing practices archival constitutionally protected interests: nec- intrusion requiring make the minimal practice

“1. A archivists to signature, within by the file essary classify Identification material. diaries, or serv- found, general (as dictabelts nature which material contents, means function), cursory glance or other ing at the the same under- plaintiff’s without significantly infringement of interests limit could personnel. screening by governmental Par- mining effectiveness preliminary of material ticipation Mr. Nixon in identification word-by-word might processed facilitate such a without review would procedure. giving designation A practice

“2. Nixon some Mr. voice selecting materials, perhaps by from a personnel will who review the body government. approved of archivists practice giving proposed A“3. Mr. of all Nixon notice classifications opportunity judicial an of materials and to obtain administrative and re- them, grounds, they view of on constitutional or other before effec- are (footnotes omitted). Supp., F. tuated.” 408 339-340 ante, agree expressed with the views MR. at 487- White, Justice private appellant. on the need to return materials to the court noted that might substantive restrictions on access adopted, be consistent with traditional placed restrictions on access and papers, that such restrictions could public forbid disclosure of confidential communica- tions appellant between and his period advisors “for fixed or years, until the par- death Nixon Mr. and others in or ticipating subject Id., the of communications.” at 338.3 I have no procedural doubt that safeguards and substan- tive authority restrictions such as these are within the adopt (a). Administrator to of § under the broad mandate positive While there can be no protections assurance that such will in afforded, may fact be we assume, nonetheless review- ing validity facial constitutional Act, that all rights will legal given and be full protection. Indeed, assumption today’s is the basis which I join judgment on

3The District Court noted the existence of: donor-imposed “a basic set of that was first access restrictions formulated by Eisenho-wer, Kennedy, Herbert Hoover Presidents followed [and] following and Johnson. Under this scheme the be materials would restricted:

“1) security-classified; materials are “2) prejudicial foreign affairs; materials whose disclosure would be “3) containing materials statements made or to President confidence;

“4) relating family, personal, materials to the President’s or business corresponding or such President; affairs affairs individuals with the “5) containing might materials statements individuals that about used to families; embarrass or harass them or members their “6) such representative might other materials as the President designate appropriate for restriction. imposed very Franklin “President Roosevelt similar to restrictions 1, 2, numbers and and in (a) investigative reports addition restricted individuals, (b) applications on positions, and recommendations for (c) containing derogatory documents remarks about an individual. President Truman’s Hoover, restrictions Eisenhower, were like those of Kennedy, Johnson, except he provision, made no like number 6 above, merely for restriction at his own instance.” 408 F. Supp., 338- (citations omitted). 339 n. 19 Court Act. As the validity upholding facial requires plainly Act clear in its opinion, makes “consider the regulations, designing Administrator, appellant rights protect need to constitutional it- processing against infringement other individuals retained.” the materials or, by public self access to ultimately, Ante, at 436.

II unconstitutional be held agree the Act cannot separation principle of its face as a violation derives from that powers privilege or Legislative in a case which principle. This is not assuming powers has exceeded its Branch enumerated g., under Art. II. E. Executive function reserved to the States, United Buckley Valeo, (1976); Myers 1 424 v. v. U. S. power governmental .of (1926). question 272 U. 62 The S. by mandating seizure in this Act, case whether the Presidency, papers of the Nixon public eventual access to carry to President’s impermissibly power interferes with the concluding the Act is obligations. his Art. II out in facially dispositive I consider it ground, invalid President of this the incumbent the circumstances case General, through represented Court, has to this Solicitor II functions Act hinders the Art. that the serves rather than the Chief Executive. one to side asking putting

I begin by whether, would Congress has Constitution, limiting provisions of the other Reid powers. Cf. of its enumerated beyond scope acted concurring). Covert, (Harlan, J., 701, (1957) v. 354 U. S. Court, legislative concerns mentioned from the Apart has unquestionably ante, Congress believe that 476^178, at authority investigate, to ambit of its broad within the acted against legislate public, and, ultimately, inform the power in the Executive abuse of corruption and suspected Branch.

499 This recognized Court has power Congress inherent pass appropriate legislation “preserve the departments and general institutions of the government from impairment destruction, whether threatened or by corruption.” force Burroughs States, v. United (1934). U. S. Congress has the power, for example, political to restrict activities g., Carriers, e. CSC civil v. Letter servants, S. 548 (1973); punish U. bribery and conflicts of g., interest, e. Burton States, United v. (1906); 202 U. S. 344 to punish obstructions governmental of lawful functions, v. Henkel, Haas 216 U. important S. (1910); and —with exceptions make executive documents to the available —to Mink, EPA public, v. 410 U. 73 (1973). S. The Court also recognized has aid such legislation has power a broad “to inquire publicize into and corruption, or inefficiency maladministration agencies Gov ernment.” Watkins States, v. United 354 U. 200 n. 33 S. (1957). See Buckley Valeo, supra, East also 137-138; v. land United States Fund, Servicemen’s U. S. legislation rationally before investiga- us serves these tive powers. and informative Congress legitimately could conclude that Nixon-Sampson following the the agreement, recommendation impeachment of resignation and the of Presi- dent Nixon, might lead to the former destruction of of those President's papers that likely public would be most to assure understanding unprecedented of the the events that led to premature termination the Nixon Con- of administration. gress similarly could preservation papers conclude that of the important was its own understanding to eventual of whether that administration had been by characterized deficiencies susceptible legislative of Providing retention correction. for by of the materials Administrator for the selection appropriate public of materials for eventual disclosure to serving legitimate rational means congres- was a of these objectives. sional enumerated

Congress might still be said have exceeded its assumption if as an powers, however, the Act could viewed exclusively Legislative Branch functions reserved Tube Youngstown Sheet & II. In to the Executive Art. Sawyer, Court Co. v. U. for (1952), example, S. beyond buttressed its conclusion that had acted the President of the power II his by characterizing under seizure Art. reserved an of a function “legislative” steel mills as exercise And exclusively U. 588-589. Congress by S., Art. I. 343 at principle that last Term we reaffirmed the fundamental function “Executive” appointment of officers is an executive Buckley v. itself. Congress power that vest in without Valeo, presump supra, us the Act before 124 — 141. But of en tively task by entrusting the avoids these difficulties to an officer suring faithfully provisions its are executed of the Executive Branch.4

I held invalid cannot be therefore conclude that the Act affirmative has its ground Congress on the exceeded is further But grant power under Constitution. limita- argued contravened nonetheless has by the creation legislative imposed power implicitly tions on II. It is said coequal Branch in Art. Executive past administration by opening up operations ability of impairs the Act public scrutiny, eventual infor- obtain unfettered present and future Presidents power thereby limits executive mation and candid advice separation principle II Art. and the contravention of an between such distinction see no material powers. the Act violates collateral claim that and the argument in confidential communications. privilege I), Nixon, (Nixon (1974) States 418 U. S. United (b) possible disapproval provision validity § Congress is before regulations either House of the Administrator’s 17; Appel- Supp., Brief for Federal 408 F. at n. See us at this time. n. 11. lees con- recognized privilege for presumptive, yet qualified,

we and his communications between the President fidential public Observing expect that who advisors. “those dissemina- may tion of concern their well candor with a temper remarks appearances for detriment and for their interests the own to id., that recognized the we decisionmaking at process,” “con- confidentiality is a President’s generalized interest “the stitutionally to based” to extent that relates Id., 711. effective discharge powers.” of a President’s We held nonetheless that assertion generalized “[t]he for need privilege yield specified demonstrated, must to Id., evidence a pending trial.” at 713. criminal Nixon Comparing I. Appellant understandably relies on there scope judicial subpoenas narrow considered encompassing comprehensive of this reach Act— appellant all of the communications of his administration — here argues specific no need” “demonstrated, there is by this that can outweigh extraordinary intrusion worked destroy legislation. ground On the result will be appellant discharge “the effective powers,” the President’s held its face. urges that the Act be unconstitutional on force, but arguments undoubtedly considerable These have invalidating they support do not think can a decision II the ex- all of its face. Section Art. vests Act term sitting President and limits power ecutive responsibility to .“take years. It is his sole of office four § 3. faithfully II, Care the Laws executed.” Art. previously noted, represented President Carter has Here, as con- Act is through the Solicitor General this Court discharge powers”: with “the effective the President’s sistent constituting autonomy, from a breach executive “Far ensuring that means appropriate Act is an ... access the materials Branch will have the Executive performance of its duties.” Brief necessary 29. Appellees Federal representation

This is similar to one made on earlier behalf of President who Ford, signed the Act. Motion Federal Appellees Affirm to 15. I representa- would hold that these tions given precedence must appellant’s be over claim Presidential privilege. views Since the incumbent President Act furthering hindering this rather than execu- effective tion I of the laws, province do not the believe it is within of this Court to hold otherwise. standing is say

This not to a lacks former President I the agree to privilege. assert a claim of Presidential may claim, the raise a Court former President such In congressional whether before court a committee. or Presi- incumbent some the intervention circumstances in such impractical and unknown, dent will be his views I views a case assume that the former President’s would entitled of the Executive Branch operation effective believe, I greatest uncontroverted, to the deference. It is communications privilege in that the confidential hold change in administrations. would survives having incumbent, presented the in the circumstances here opposition appropriate forum made clear speak for the Executive can alone claim, former President’s Branch.5 antag personal, political, even and some risk that There least is legisla join in a the President and could motivate onisms papers without public exposure of a former President’s tive seizure II the Art. action for implications of such long-range regard due legislation such did not violate Even if Executive. of the Chief functions infringe might individual separation powers, it well principle Rights. Bill of Attainder Clause or the the Bill of protected liberties legislation, Congress passing In this before us. is not the case But wholly objectives circumstances that were legitimate further acted to country. approved history legislation our was

unique in the successor, and as his President Nixon Ford, personally chosen President circumstances Carter. view by President supported also is now “ ‘any . provides . . consti- protection leading passage its province I am not emphatically unmindful that “[i]t duty department law judicial say what the is.” Madison, Marbury As we re- Cranch in Nixon I: iterated

“ been ‘Deciding whether a in measure matter has of to branch committed Constitution another in government is itself a delicate exercise constitu- ... of Court responsibility tional and is a interpretation, ” S., 418 U. interpreter as ultimate of the Constitution.’ Carr, 704, quoting 186, at Baker v. S.U. privileges My simply a to waive the position is that decision to respect an in the of the President with inhering Office to the President’s alone Congress Act otherwise valid is under make Constitution.6

Ill Presi- The lie ahead. questions difficult constitutional in confiden- it the interests will see to that dent no doubt Mr. by The Chief Justice forcefully tiality urged so Rehnquist into opinions taken dissenting are in their Justice under promulgated that are regulations in account the final ” does supra, its face this Act on right privilege/ tutionally or based by appellant. rights asserted personal constitutional violate the not Sawyer, 579, 635-637 v. S. Co. 343 U. Youngstown & Tube Sheet Cf. J., concurring): (1952) (Jackson, express implied an authoriza- pursuant President acts

“When the it that authority maximum, includes all Congress, is at its his tion of delegate. right plus possesses his all that can in own he may may (for it circumstances, only, what in these he be said these sovereignty. If his act is held unconsti- worth) personify the federal be circumstances, usually that means the Federal Gov- tutional under these it power. (Footnote omitted.) . . .” as an undivided whole lacks ernment (1839): Co., Insurance 13 Pet. Williams also See Suffolk rule, political that the action of the Court laid down “[T]his ha[s] belongs them, government matter is branches conclusive.” supported has (a).

§ 104 While the incumbent President indica- is constitutionality written, of the Act as is there no Presidential oppose tion he will assertions of appellant’s the screen- privilege they govern relate the rules will ing timing disclosure, particularly and the process may documents and placed restrictions that be on certain validity I emphasize recordings. of such assertions time. privilege properly us at this before concerning in- important questions Similarly, difficult and are not rights remain to be resolved. At stake dividual rights appellant but those of individuals also other may First, Fourth, and Fifth Amendment interests whose which implicated by disclosure of communications as legitimate expectation privacy agree existed. indi- an Court that even the councils Government personal legitimate expectation privacy vidual “has a ante, disclo- communications,” compelled and also that out of political sure of an in and associations, individual’s by public justified only compelling can be Government, “a ante, at 467. way,” need that cannot met in a less restrictive validity the Act’s Today’s decision is limited to the facial of provisions of screening for retention and the materials. The of provisions the interests served those discussion Court’s way yet be any should not foreclose in the search must important assuring for means of eventual undertaken access pro- rights records infringing historical without individual Fifth Fourth, Amendments. First, tected Burger, dissenting. Chief Justice Mr. repudiation my view, holding grave Court’s a prac- nearly years judicial precedent

of of and historical repudiation Congress passed That arises out an Act of tice. great in of a national crisis culminated in the aftermath which I The Act resignation (Title of a President. L. Pub. firmly principles in 93-526) violates established constitutional respects. several very find it disturbing principles fundamental

constitutional law are to what seem the needs subordinated particular of a situation. That of great moments national give passions distress rise to why reminds us the three branches Government were created separate coequal, as each intended a check, turn, possible one excesses or both of the others. The joined now however, has Court, Congress, haste to “do something,” and his- has invaded toric, principles fundamental of the separate powers coequal branches of “punish” Government. To one Congress— person, and now the Court —tears into fabric of our constitutional framework.

Any case this Court calling upon principles separation rights of powers, privacy, prohibitions and the against bills of attainder, urged whether by a former President —or citizen —is inevitably major constitutional Mr. holding. Holmes, Justice speaking the tendency of “[g]reat cases like hard cases bad [to law,” went on to make] observe the dangers inherent when

“some accident of immediate overwhelming . interest . . appeals to feelings judgment. distorts the These immediate interests hydraulic exercise a kind of pressure which makes what previously was clear seem doubtful, and before which even well settled principles of law will bend.” Northern Securities States, Co. v. United U. 197, 400-401 S. (1904) (dissenting opinion). Well-settled principles of law are bent by the Court today under that “hydraulic kind of pressure.”

I Separation Powers of Appellant I urges that Title is an unconstitutional intrusion by Congress into the internal workings of the Office of the in violation of President, the principles sepa- constitutional of powers. ration of Three support reasons that conclusion. of principles separation powers, The well-established of of violated if Con- developed Court, the decisions are relating gress compels President, or coerces matters the operation of his office.1 the Act an Next, and conduct is legislative power by Legisla- exercise of executive —not — I sweeping Title works a modification Finally, tive Branch. confi- privilege practice of the historical of constitutional dentiality every of Chief Executive 1789. since

A first matter, As a threshold we should establish standard of judged. review which Title is to be constitutional in this Court course, legislation challenged usual case, presumption constitutionality. benefits from To survive a only judicial a statutory enactment need have scrutiny objective of an which relationship promotion reasonable independently forbid, Constitution unless the does rights. on fundamental legislation trenches constitutional challenged implicates But where fundamental legislation scrutiny a far more is guarantees, demanding constitutional presump- For has held required. Court that the example, this constitutionality apply equal tion of does not force where composition representative very legitimacy Sims, Reynolds is institutions at stake. U. S. presumption constitutionality Similarly, legislation endangering lessened when the Court reviews rights, speech, fundamental constitutional such as freedom denying persons rights or benefits because governmental substantially Legislation touching race. areas these heavy bearing proponents comes here burden which must its carry. con-

Long ago, ordinary presumption this Court found the inappropriate directly measuring legislation stitutionality tripartite our impinging on the basic structure of Government. 1Later, importance legislation’s applicability I will discuss one ex-President.

507 Mr. (1881), 192 Thompson, In Kilbourn v. S.U. for the Court that encroachments Justice Miller observed independ- to the continued posed greatest threat he cautioned Accordingly, ence of the other branches.2 directly affecting branch power one the exercise of another “should be potential independence watched tri- other question when called in before vigilance, and Ibid. scrutiny.” . . . receive most bunal should careful Valeo, 424 Buckley U. S. (Emphasis supplied.) also v. See (1976). which touches on legislation role in reviewing

Our therefore akin of our Government fundamental structure on touching reviewing legislation that which obtains when sepa- Because constitutional guarantees. other fundamental 'governmental of our powers is the framework ration base depend, which all our liberties system means some necessary if it is secure upheld Title can be if is no reason- objective, and overriding governmental there heavily separation- which will trench less able alternative of-powers principles. B It is the

Separation powers is in no a formalism. sense others system from distinguished all characteristic our federal up to the of our Constitution. conceived time With structural great “one of the two separation powers is ism, . . .” E. . system of the American constitutional principles Griswold Con See also Corwin, President concurring in necticut, J., 501 (1965) (Harlan, U. S. judgment). opinion of expressing but the earlier this, Mr. Justice Miller was ed., (J. 48, p. 334 Cooke

Madison, declared in The Federalist No. who 1961): governments department superiority in our legislative derives “The being powers at once more Its constitutional other

from circumstances. limits, greater precise it can with susceptible of extensive and less measures, the encroachments facility, complicated mask under and indirect departments.” which it makes on the co-ordinate pursuit of that principle, power executive was vested the President; Branch, no other offices in the Executive other than Presidency were man- Presidency, Vice Only dated Branch Constitution. two Executive offices, therefore, Constitution; are creatures of the all other departments and from agencies, Department the State General are of the Con- Administration, Services creatures gress very Legislative and owe their existence to the Branch.3 very

The in contrast, on a different foot Presidency, stands ing. array Unlike departments the vast which the Presi Presidency dent oversees, the is in no sense a creature of the Legislature. powers originate not President’s stat from from the ute, but constitutional command Care that “take . faithfully independent, the Laws be executed . . .” These origins Presidency important constitutional of the an have bearing determining appropriate congressional extent power over the or workpapers. Chief Executive his records and For, although the not obviously branches of Government are “watertight Springer Philip divided into v. compartments,” Islands, 277 pine 211 (1928) (Holmes, J., U. S. dissent 189, the office of the ing), Presidency, equal as a constitutional must Congress, general proposition as a be free from Congress’ powers.4 simply coercive This proposition an abstract 3 relating by Congress departments agencies Statutes created frequently phrased mandatory example, are For in the 1949 terms. legislation creating Administration, Congress pro the General Services vided as follows:

“The provide Administrator is authorized and directed to coordinate purchase, . equipment . efficient . lease maintenance of . . . agencies.” (a). Federal 40 U. S. C. 759§ respect relations, Congress affirmatively Even with to international has imposed requirements Secretary certain on the of State: Secretary “The of State shall to the Public Printer correct furnish every copy treaty any foreign govern- between United States and _” 22 ment S. C. 2660. U. § 4 Mr. Brewster, Cf. Justice White’s discussion in United States v. 501, (1972) 408 U. S. (dissenting opinion), spoke where he political philosophy; prohibition is a fundamental plainly established the decisions of this Court.

A unanimous Court, Mr. including Chief Taft, Justice Mr. Justice Holmes, and Mr. Justice Brandéis stated:

“The general rule is neither department Govern- {of may .. . direct or control, ment] restrain the action of the other/’ Mellon, Massachusetts v. U. S. Similarly, O’Donoghue States, United S. U. (1933), emphasized Court the need for each branch of to Government be free from the coercive influence of other branches: department kept completely

“[E]ach inde- should pendent of the independent in the sense that others — they shall not cooperate to the common of carrying end into purposes effect the of the but in the Constitution, sense that the acts of each shall never by, be controlled or directly subjected, indirectly, or to, the influ- coercive ence of of either departments.” the other Humphrey’s In Executor States, v. United 629- 295 U. S. 602, 630 Court again held: (1935), the

“The fundamental necessity of of maintaining each three general departments government entirely free from control indirect, or coercive or influence, direct (cid:127) of either of the has often others, been stressed is hardly open to serious question. much implied So very separation fact . powers . .” . (Emphasis supplied.) principle

Consistent with the the unbroken noncoercion, practice since George Washington with respect congres- to papers sional demands for White been, House has in Mr. Chief Taft’s words, Justice “while either house Congress] [of “evil” of “executive control legislative (Emphasis behavior supplied.) . information, . W.

may request compel Taft, it cannot . Presidency Washington President estab- by declining produce papers lished the tradition requested Representatives the House foreign relating matters policy: right Representatives

“To House of admit, then, of course all the demand and to have as a matter foreign power papers respecting negotiation with a 1 Mes- dangerous precedent.” would be to establish a Richardson sages Papers (J. the Presidents comp., 1899). Court stated noting practice, first President’s Curtiss-Wright Corp.,

United States U. S. refusal was “a (1936), Washington’s precedent historic itself and recognized by the House the wisdom which was since been doubted.” has never from beginning fabric, then, our Part of constitutional from control coercion has been the President’s freedom that, including procure documents attempts Congress, important govern clearly pertaining matters of though This pertain to the President. interests, belong mental of in the words Congress’ influence, from coercive freedom Executor, of the very in the fact Humphrey’s implied “is at 629-630. . .” S., of the . . 295 U. separation powers constitutionally significant it Moreover, is be turned over to papers has not directed that of Separation to GSA. or rather than retention, examination what mandating simply by Congress’ powers fully implicated is of another branch. papers is of the disposition to be made Government, branches of independence of the three This of lies at the heart each, of papers over the including control affairs, foreign been limited to prerogative has not This confidentiality may impor of course, secrecy the utmost where, of (1975); Taft, Morality The Bickel, of Consent W. A. The tance. See Presidency 110

this Court’s holdings concerning broad of con- immunity gressional papers scrutiny. from outside Constitution, The expressly course, grants immunity to Members of Congress any “Speech or Debate in either House . yet . Court has refused to confine literally that Clause “to words spoken in McCormack, debate.” Powell v. 395 U. S. (1969). Congressional papers, including congressional “ have reports, protected been held by the Clause in order To prevent intimidation legislators] by the [of executive and ” a accountability possibly before judiciary.’ hostile Ibid. In preserve constitutionally word, independence rooted of each branch of each Government, branch must be able to papers. control its own I

Title unprecedented an departure from the constitu- tional tradition of noncompulsion. The statute commands legislatively the head department created to take and custody maintain appellant’s including Presidential papers, many purely personal papers wholly opera- unrelated tions of the Government. Title does not concern itself in any way with departments materials belonging of the Executive Branch created and Congress. controlled

The Court brushes aside the principle fundamental noncompulsion, abandoning outright previously the careful, unchallenged holdings Mellon, O’Donoghue this Court in Humphrey’s Executor. place firmly established doctrine,6 Court without substitutes, an analysis, ill-defined

6The Court’s understanding references to historical separation-of- powers principles part omit history. a crucial of that Madison’s statements The department’s Federalist No. 47 as exercising to one “whole power” department purport another do not to be his total treatment subject. days later, Federalist No. two states the central theme of Madison’s view: equally evident, [department] ought “It is possess directly neither indirectly, overruling an influence over the others the administration respective powers.” their p. (J. The Federalist No. Cooke ed. 1961). (Emphasis supplied.)

Indeed, expressly Madison warned at in length No. 48 of the inevitable for Ante, at 442. Recasting, approach.” flexible “pragmatic, in holding our narrow case, of this purposes immediate the Nixon, infra, at 515- (1974), see United States v. 418 U. S. into a principles separation-of-powers 516, the distills Court or disruption” for requires “potential simplistic rule which a will a measure disruptive” intrusion, before “unduly an powers.7 held to trench Valeo, Buckley v. ignores approach patently The Court’s unanimously found a separation- year ago, we where, only one a much less show- of-powers any allegation, without violation Congress that we held disruption.” There, of “undue ing, appoint- of six modest extent could not to the impinge, even appointing on the Commission, ments to Election Federal the in conclusion powers of the President. We reached this into signed had bill that President Ford face of the fact law.8

dangers Legislative upon Branch the coordinate of “encroachments” departments Government. o.f Framers’ highly discussion But aside from the Court’s selective never understanding, the obscure the that this Court has Court cannot fact violation, required, separation-of-powers a order to show requirement rejected Any power. such was usurped whole of executive Valeo, (1976). There, Buckley held 424 U. S. we the Court constitutionally appoint- exercise the President’s Congress could not power though the President had the ing powers, that statute even under members, and appoint of the Federal Election Commission one-fourth signed “approved” the he though had statute when even the President bill into law. majority’s opinion. are standard clarified in We Nowhere is the required “potential disruption” is guess whether left required. may be, is disruption,” “undue whatever whether styled Buckley. parties brief, The main filed three briefs The federal Attorney Appellee the United as and for States the “Brief for General explicitly appointment the method of Curiae,” Amicus stated 6-7, pp. was unconstitutional. See Commission four of the members Attorney signed portion party of the brief as General 110-120. that, 65). it (see The Executive Branch therefore made clear pp. 103 n. view, reposed was unconstitutional to the extent in its the statute Congress. brief, styled The second appointing powers in “Brief for But taking disruption” even “undue test as postulated, engages the Court analysis, facile as Justice Mr. Rehnquist told, so well demonstrates. We are under the Court’s view, disruption” that no because “undue arises GSA officials have taken custody appellant’s papers, Presidential for the since, time being, only GSA and other Executive Branch officials will have Ante, access to them. at 443-444. analysis

This superficial Separation-of- the extreme. powers principles are no Congress less simply eroded because goes through a “minuet” of directing Department Executive Secretary rather than employees, or the Senate Doorkeeper of possess the House, to and control Presidential papers. Whether there separation-of- has been a violation of powers principles depends, on the custo- identity dians, upon but which branch has commanded the custodians Here, Congress act. given has the command.

If separation-of-powers principles can be easily evaded, so separation then constitutional ais sham.

Congress’ power regulate Department Executive docu- ments, as with contrasted papers, Presidential under such measures the Freedom Information Act, 5 U. § S. C. 552 (1970 Supp. V), ed. and does not bear question. on the No challenges Congress’ power one provide for access to records Departments Congress Executive which itself created. But the Freedom of Act, Privacy Information Act of 1974, and similar contemplated measures never produc- mandatory tion of papers. Presidential is instructive, by What contrast, is the nonmandatory, noncoercive manner which has previously legislated respect to Presidential papers, providing the option every libraries Attorney General and the generally Federal Election Commission/’ position the Act no concerning defended but took appointing the method of p. the Commission. See 1 n. 1. brief third was filed the Commis- only; its appointment sion on own behalf it defended the procedures, but joined by Attorney it was not General did not express the view portion the President or of other of the Executive Branch. nonmanda- I, however, Title breaches former President. of separation long has been a vital incident tory tradition powers. C prin- separation-of-powers statute, therefore, violates The by another influence it exercises a coercive ciples because on invalid Presidency. is also legislation The branch over an it is powers; of ground pertaining separation another exclusively powers vested attempt by Congress to exercise files, records, control power in the President —the internal to the comparable which papers office, are workpapers Members of House and Senate. separation aspect this general principle as to Thompson: in Kilbourn v.

powers was stated be of its law creation shall “[E]ach [branch] to its appropriate powers of the limited the exercise own no department and other. by the . . confided powers rule . general

“[A]s exer- departments cannot be to one of these Constitution S., 103 TJ. at 191. cised another.” expressed this: Madison also the ordi- passed which that Convention

“For this reason basis, its foundation government, laid nance of departments judiciary executive and legislative, person no should distinct, so separate should be same than one of them the more powers exercise p. (J. 1961) Cooke ed. No. Federalist time.” The Jefferson). (quoting by Court of holding in the face of a Term, challenge merit- was separation-of-powers

Appeals that attempt Congress to an unanimously invalidated less, we constitutionally in the vested powers appointing exercise Valeo, 424 109-143. S., at U. Executive. Buckley Chief The Constitution speak does not of Presidential papers, just as it not speak does of workpapers of Members of Congress or of judges.9 But there can no room for doubt that, up it has been the now, implied prerogative of Congress judges President —as Members and of —to memorialize matters, establish provide filing systems, unilaterally disposition workpapers. Control of papers Presidential is, obviously, necessary a natural and incident the broad discretion vested the President for him order to discharge his duties.10 To be sure, recognized exception we a narrowly limited Presidential control of papers United States v. Nixon, 418 683 (1974). permits U. S. But that case com- pulsory judicial intrusions when a vital constitutional e., function, i. the conduct of criminal would be proceedings, impaired and when the no President makes more “than a of generalized id., claim . . public . interest . . . in ,” maintaining complete of in papers preserving control and con- fidentiality. That in a case, short, essentially was conflict between the Judicial Branch and President, where the functioning effective both branches demanded accom- an and prosecutorial judicial modation where the demands upon very narrowly President were with great restricted congressional papers, supra, Despite As to at 510-511. see the Consti papers Legislative Branch, tution’s silence as of the this Court difficulty holding papers protected had no those from control be dissenting opinion also Mr. other branches. See Justice Brennan’s Brewster, States (1972), United 408 U. 532-533 where he v. S. quotes approvingly Thompson, (1881), from Kilbourn v. 103 U. S. Coffin, cases, v. written Mass. both those Coffin by legislators protected by legislative materials were deemed to be immu nity from intrusion or seizure. seen, by exercised, This discretion as we was have President Wash ington congressional production in the face demand for of his work- papers. Obviously, entirely category into an different documents fall official

are not involved in this case. “to a limited number conversations. . .More- specificity was over, request production for there limited mate- might contain evidence of criminal themselves rials investigation persons then under indictment. activity camera, limited to an carefully intrusion was Finally, single under strict United States examination, limits, proposition for Judge. That case does not stand District papers that the Judiciary liberty is at order all a President into custody of United Marshals.11 States authority Nixon, therefore, provides

United States no v. mandatory papers of Presidential Congress’ regulation course, “to simply promote general which, Welfare” showing made, been nor generalized purpose. is a No has impaired by Congress’ will it, could functions control his own Presidential being allowed to former President’s pap func own to its threat whatever Without ers.12 Valeo, Buckley statute, as Congress has tions, to the Executive Branch.13 authority entrusted exercised as an intra- course, that sort of intrusion 11Appellees, of would view are States Marshals officials confrontation, since United branch Judge simply ordered Branch, long as the District at least so Executive without custody review the documents of and to to take Marshals is, course, sophistry. sheer This turning over to the them court. setting of pertained only to the course, Nixon United States v. 12Of suggests that, even Nothing holding in our Judicial-Executive conflict. legis its in connection with Presidential documents if needed over control of Presidential functions, tradition lative the constitutional legislative demands could the face of in Presidential documents con are not here abrogated. expressly in Nixon stated “[w]e We confidentiality con interest and . . the the between . cerned with balance S.,U. at 712 19. . .” 418 n. information . . gressional demands for Title I concludes concurring opinion, Mr. 13In his Justice Powell in the of “emergency” situation wake essentially to an was addressed analysis present opinion does resignation. But his appellant’s legislation, is legislation, not some other particular to whether this Title I commands confiscation necessary end. Since to achieve that D my the Act view, in violates Finally, principles separation by intruding into powers confidentiality the of Presidential protected by communications constitutionally the based doc- trine Presidential privilege. A unanimous Court in United States v. Nixon could not have been clearer in holding that privilege guaranteeing confidentiality of such communications derives from the Constitution, subject compelled disclosure narrowly limited circumstances:

“A President and those who assist him must be free to explore alternatives process of shaping policies and making way decisions and many to do so in a would be unwilling express except privately. These are considerations justifying presumptive privilege Presidential privilege funda- communications. operation mental inextricably of Government and separation rooted in the powers under Constitu- tion.” 418 U. S., at 708. Lyndon

President Johnson expressed historic view confidentiality Presidential in even letter stronger terms to the GSA Administrator: the President . . is the . “[S]ince many recipient others, confidences from and since inviolability of such confidence is functioning essential to the of the constitutional office of it will be Presidency, neces- public withhold from sary scrutiny papers certain an administration, all materials of entire Title was simply not specific emergency drafted to meet the purports to address. omitting any justifying I, Besides discussion the need for Title Mr. opinion entirely regula- Justice Powell’s possibly limiting relies on the promulgated to be point Administrator, tions some future GSA protect legal rights Ante, which will “all . constitutional . . .” at 497. begs conclusion, course, precise question This us, before which congressionally is whether the act of mandated seizure of all Presidential of one President violates the materials Constitution. varying periods time. Therefore . papers for . .

classes to restrict use and hereby right availability reserve the for sole I, my discretion, ... such time materials may specify Hearing .” before . a Subcommittee . . . . . the House on Committee on Government J. Operations, H. 1st Sess., (1965). Res. 89th Cong., constitutionally prerogative, privilege As a based Presidential personal inures himself; to the it is sense President the same against compelled as the self-incrimination. Presi- privilege illusory dential would be unless privilege largely therefore interposed by against the countless it could be the President persons Branch, thousands of in the Executive and most certainly acting, if are as this statute the executive officials branch of at the command of a different contemplates, Government.14 designated ap- requires persons

This not statute Presidential by will review all proved the former President through in culling if papers. agents, Even the Government offered “advisory” suggestions materials, follow function their District the fact Court, remains privilege. Congress has, es- abrogates Presidential catalog thousands commanded them to review sence, undoubtedly recordings privileged. that are papers privilege Presidential it is clear that fact, Given that nullity.15 will have been rendered a occupant of that office one that an official aside, know now executive Civil service statutes we system. patronage underlings of a basis replace all of his cannot law, not Executive would Thus, matter of constitutional as a Chief persons officials liberty replace all Executive Branch be reasons, enjoy the President’s trust and confidence. who, political Burns, Elrod U. S. 347 argument pressed by appellees that accept review is 15 1 cannot may many fact that the documents harmless rendered justifies privilege. How “harmless” review

protected manifestly escapes me. “harmful” review

E There inquiry another under remains the issue of separation powers. Does the fact that the Act applies only to a former ante, President, as legitimate described “a one,” class of at after he left justify has office, what would otherwise be un- if applicable constitutional to an incumbent President? On the of it, congressional regulation face of the papers of a former obviously President less disruptive will have impact operations on the of an incumbent President than an effort regulation at or control papers over same an President. But incumbent this “remoteness” not does eliminate the separation-of-powers First, princi- defects. ple that President be a must free from coercion should apply Congress to a former long inquiring so as is President, or acting respect with to operations the Government while the former President was in office.16

To Congress empowered the extent is coerce a to former President, every large President is at risk of denial of future contemplated measure of the autonomy independence confidentiality the Constitution and of the it. attending Myers States, United v. U. S. 52 Indeed, President, autonomy office, if he to in needs have while immediately assurance that be to will free him open give coerce all files and an his records account of Presidential his actions the instant successor expectation is sworn in.17 Absent validity Truman, one, objected Congress’ President for efforts to coerce longer pertaining him no after was office connection with matters he infra, See administration. at 522. height impertinence, all, legislative It would be after to serve a subpoena outgoing departing inaugura on an President he is from the rightly too, people offended, So tion of his successor. would be important, Constitution, so and more would a congressional resolution, functioning designed to ensure smooth the Executive President, upon Branch, requiring leaving office, a former remain under United subpoena (save papers of such privacy they those consult will future Presidents States Nixon), their possibility into account the advised to take well may diaries workpapers, and correspondence, most confidential no time review, mandated open congressionally well be interbranch give rise to an political issue should some limit, conflict. Confidentiality

The Need for President development on what a consequences of this incalculable; orally are writing in and expresses others impact on those inhibiting perhaps even more crucial is counsel, for for information and the President turns whom or business labor Government, in the they are officials whether I have little foreign diplomats statesmen. leaders, be the sub- opinion- doubt that Title Court's I—and —will analysis foreign in offices scrutiny ject careful President on representatives speak to a other countries whose may be they in but which prefer put writing, not to matters I Title Similarly, memorialized a President or an aide. conferences, House may “ghost” be a at future White well cautiously because more choosing conferees their words A others. compelled prospect disclosure enlarged of the in United into carefully took this account unanimous Court States Nixon: confidentiality to the expectation

“The of a President claim of like the correspondence, conversations for example, has confidentiality judicial deliberations, deference for the to which we accord all the values values, added those is of all citizens privacy and, candid, public interest necessity protection for in Presiden- opinions blunt or harsh and even objective, decisionmaking.” S., 418 U. at 708. tial with his C., to be available for consultations Washington, in order D. period of time. prescribed for a successor

In this same vein, Mr. argues that Pres- Justice Powell ident representation Carter’s to the through Court the Solicitor General I that Title efficiency enhances the Executive dispositive Branch is of appellant’s separation-of-powers claim. This deference to the views of one administration, expressed approximately days after its perma- as to the inception, nent structure of our by prece- Government is not supported dent of, and conflicts with years history. there First, is no principled for basis If limiting unique deference. and when the one-House veto before issue, example, comes us, are we to accept opinion of Department Justice as to the effects legislative of that device on the operations? Executive if Second, Branch’s Title is thus why efficacious, did the signed President who this bill into law decide to establish in Ann library Arbor, Mich., rather than turn all of his Presidential materials over to GSA for screening and retention Washington, C., D. readily where the materials would be accessible officials of the Executive Branch? And Congress’ why, suddenly, acquiescence President Ford’s actions consistent with I? supposed foundation Title ante,

Third, pointed as out at Justice Blackmun, Mr. 491: “Political realities often guide to a President a decision or, indeed, not to veto” a to challenge decision not the court of Congress. actions See n. it Finally, perhaps is infra. inappropriate that, to note on not Presidents dis- occasion, their predecessors policy. with on agree issues of Some “Congressional believed in have others adhered Government”; expansive to of It I power. respect- notions Presidential is, unique a idea fully submit, that Court as accept controlling this representations of any the administration on a constitutional going permanent to question the structure of Government. I objectionable is Title also separation-of-powers grounds, applicability its despite only to a former President, because disposition the of compelling papers all a former President’s regarded been legislative what historically is a exercise have not, all, after papers powers. executive Presidential do noon on high quadrennially their nature at instantly lose Congress, is now under Title it the January Moreover, 20. do what to President,18 that has decided not the incumbent all the papers one entire administration. with privi- appellees that Finally, federal concede system, does separation-of-powers vital incident our lege, departure from instantly upon not terminate a President’s “the survives They acknowledge privilege office. that candidly Appellees President’s Brief Federal tenure,” the individual underlying public interests 33, because vital explicit finds privilege. principle, parties concede, This as all refused Truman history; former President support occurring to the on matters provide information administration, Congress: during advising if doctrine you be obvious to “It must Presi- powers independence separation of and the ap- equally it must any dency validity all, is have expired his term has plicable to a President after of office respect sought he be examined when Cong. he President.” occurring while acts [was] (Emphasis supplied.) Rec. 33419 law, and signs into thereafter The fact President bill mean, course, policy does not it, without more, defends President, nor even legislation is does in the embodied approves personally of the measure. When mean that President expressed actually Presidents have signing law, into numerous a bill variety of for a legislation but felt constrained disagreement with D. President Franklin Roosevelt permit the bill to become law. reasons in United this Court repudiated the “Lovett Rider” later struck down J., (1946) (Frankfurter, concurring). Lovett, 328 U. States S. request legislation in order to assure effec Ford did President functioning Branch. the Executive tive Presidents, I is with former see no the concern by definition Since testimony seeking compel appearance Congress’ to distinction

To integrity ensure institutional Presi- confidentiality, dents and their advisers must judges assurance, as do have and Members of Congress, their internal communications will subject not become mandating legislation retroactive intrusions into matters as to which there was a well-founded expectation of privacy place. when the communications took Just rejected Truman Mr. congressional inquire efforts him, after he left office, President, as to while his activities this Court always has immunity assumed that conferred Speech or Debate Clause is to Member of available Brewster, after he leaves office. States United v. 408 U. 501 (1972). S. It would illogical therefore be to con- clude that the President loses immunity all from legislative coercion as to his Presidential papers from the moment he leaves office. correctly

The Court concedes that a former President retains ante, the Presidential privilege leaving 448-449; after office, but it then concludes against that several considerations cut recognition of privilege Pirst, as to one former President. places great emphasis Court on the fact that neither President Ford nor “supports appellant’s President Carter Ante, . . claim . .” at 449. The relevance of that fact is not immediately validity person’s clear. one constitu- privilege depend tional does not other on whether some holder of the privilege supports same fact claim.20 The that an incumbent President signed par- or supports has ticular measure defeat a President’s claim of cannot former If privilege. wrong the Court is correct one today, it was Valeo, Buckley year when we held ago unanimously approval of the Federal Election Cam- in, alternatively, seeking compel of a former President papers objection. the former President’s production of Presidential over attorney-client privilege not, now, asserting up have Clients interposing privilege similarly unless a been foreclosed from situated willing support particular claim. client is invasion unconstitutional could validate an paign Act not authority. appointing un- papers are many the Court that Second, suggests estimated appellant pages, Of privileged. great volume President. while he was 200,000 he items that saw about not know do regard. in this We points Several are relevant critical represent; items many 200,000 how pages the Regard- privileged. papers presumptively factor all is that are 200,000 the fact remains pages, less the number of prepared reviewed personally items that the President than historical value obviously greater have while in office House. the White coming to papers the mass of routine in Presidential away tucked reports Mountains Government or his- the interest of archivists likely engage files will not impor- not torians, reports historically since most such are Rather, elsewhere. are, event, tant and available preserve find and archivists and historians will want decisionmaking reflect President’s internal materials that which will papers processes. precisely Those are always which have subjected the most intensive review analytically The Court’s protection. absolute been afforded the fact that cannot mask of sheer numbers void invocation diaries, and privileged papers, targets the review are conversations. Nixon, the Presidential

I under United States v. agree that, Court however, the premise, From privilege qualified. regulations governing future conclusion that leaps to the protect the materials are sufficient public access to num- provide for a The Act does indeed privilege. qualified obtains access to public large before the safeguards ber of cannot have Court (a). § See But the materials. again and recognizes opinion expressly ways. The both consti- now issue. The access is not again public validity presumed cannot rest on the tutionality of a statute regulations gov- issued; no yet moreover, regulations remedy basic flaw can public access statute’s erning permitting Congress to seize papers the confidential of a President.

P concluding that Title prin- on its face violates the ciple separation I do powers, not address the issue whether some might justify circumstances legislation for the disposition of Presidential papers the without President’s consent. nothing remotely particularised like Here, need found in United we States v. Nixon has been shown with respect papers. these Presidential No suggested one has that Congress find its own impaired by will "core” functioning impounded lack of the papers, as we expressly found judicial function would be impaired by lack the material subpoenaed in United States v. Nixon.

I day question leave another exigent under whether, circumstances, congressional demand for narrowly defined Presidential materials I might justified. But Title fails satisfy required either the narrowness United demanded Nixon States v. requirement coequal powers that the Presidency injured not be by congressional legislation.

II Privacy separation The discussion of powers concerns, course, the structure of rights not the government, of the sole individ- ostensibly ual affected this legislation. But Title touches not upon independence of a coordinate branch government, affects, also in the most direct the basic way, rights of one named individual. The statute provides, we seen, governmental custody have over—and review of—all of the former President’s written and recorded materials at the time he left office, including diary recordings and conversations private in his residences outside D. Washington, §C. (a)(2). deeply District was Court troubled admittedly this acknowledged candidly

unprecedented opinion intrusion. Its the “most troublesome” personal-privacy claim was com- point by statute.21 addition unique raised con- reflecting the President's munications and memoranda District Court admitted deliberations, fidential highly personal subject review included materials GSA communications. tape recordings falling

“Among papers all and materials papers are some Act, however, within the between containing extremely private communications daughters, his his and, among others,, wife, Nixon] [Mr. clergyman, friends, his close physician, his lawyer, personal personal diary as well as dictabelts and wife’s from Segregating private . . . those that are those files. screen- private comprehensive rather requires that are duty will be and archivists entrusted ing, private to read or listen to communications.” required 1976). Supp. 321, (DC 408 F. 359

A before legislation the us intrusion, Given admitted this judicial searching kind of subjected must be the most liberties, on like scrutiny.22 that trench fundamental Statutes privacy challenge District Court its discussion of the concluded than candid were to state we as would less we follows: “We easy dispose privacy as his claim find it Mr. Nixon’s claims as of presidential Supp., 367. privilege.” of 408 F. at expressly the Although District concluded that former the Court “legitimate expectation” Presidential materials President had subject personnel government review “comprehensive would not be id., com consent,” 361, at the nonetheless deemed the without his Court pulsory constitutionality permissible given of the federal wire intrusion the permits tap statute, 2510-2520, C. of substantial 18 U. S. which course §§ governmental is this privacy intrusions into the of individuals. Not admitted, Supp., analogy imperfect, itself 408 F. District Court “exacting 364, analysis apply scrutiny” for fails to called but all, present provide statute our decisions. Above fails to affecting significantly of our government, those structure presumption constitutionality are to the not entitled same Cleveland, normally we Moore legislation. accord East v. reversed; justification U. S. The burden of upon the burden not on the individual government, rests Abood justify whose liberties are the measure. v. affected, Education, (1977) Detroit Board 263-264 U. S. recently reaffirmed J., concurring judgment). We (Powell, “exacting standard of review in cases as one such scrutiny.” encroach- long recognized significant

“We have com- rights Amendment sort that ments First by a mere pelled imposes justified disclosure cannot be interest .... showing legitimate governmental of some required subordinating have interests [W]e Buckley exacting scrutiny.” must survive State Valeo, 424 U. at 64. S.,

B into analysis course, fully take must, Constitutional underlying nature of interests account the the Government’s identified, we challenged legislation. Once those interests are af- the individual interests must then focus on the nature of Id., we must Finally, de- fected the statute. at 14r-15. sufficient interests are cide whether Government’s if interests, and, so, weight to subordinate the individual’s unneces- employed has nonetheless whether the Government purposes. Lamont v. achieving its sarily broad means General, (1965) (Brennan, 310 301, 381 U. S. Postmaster J., concurring). justification are asserted as the governmental

Two interests efficiency of Execu- general to ensure the for this statute: III of the including warrant, a mandated Title safeguards, stringent Indeed, Act of 1968. the Dis- and Safe Streets Crime Control Omnibus flatly as much. Ibid. admitted trict Court 528 operations23 preserve historically signifi- and to Branch’s

tive papers tape recordings posterity.24 for Both these cant no legitimate important. are there was purposes Yet, of the by Congress operations suggestion serious contrary actually impaired unless, Branch would be Executive papers years’ past 200 all nearly practice, to Presidential im- law required by were the one named incumbent The stat- agents. in the control of pounded sole Government partic- moreover, address a face, purport ute its does not papers need, such as the need to secure ularized problems in talks, Middle concerning the SALT East, is a perceived “need” Indeed, congressionally Panama.25 23 See, g., obviously goal. e. highly efficiency Administrative is desirable 424 Love, (1977); S. 105, Eldridge, Dixon 114 Mathews v. U. v. U. S. 319, However, “adminis I am recall that 347-349 constrained to “overriding efficiency” uniformly regarded as of trative has not been efficiency been importance.” have Indeed, claims of administrative v. Richardson times mere assertion swiftly dismissed “bald [s].” dissenting). Wright, (1972) (BrenNAN, J., Numerous U. S. including right opinions interests, held that other have individual government payments, “clearly outweigh” promoting interests in welfare (1970) Goldberg Kelly, efficiency,” S. 254 “administrative v. 397 U. Shapiro J.). (opinion And, Mr. in BreNNAN, Justice Marshall (1969), Thompson, 394 U. that when “fundamental” S. stated stake, “right travel,” government demon rights are at as the must such “compelling” interest, merely relationship between a “rational strate admittedly permissible state underlying . . . statute] [the] [the objectives .” . . . preserving judicial purposes The interest for initial materials substantially. Special has disclaimed has diminished Prosecutor Since purposes possible criminal interest in the materials for further judicial preserve only conceivably remaining need investigations, private parties. possible litigation use in civil between the materials admittedly criminal important interests the enforcement Nixon, law, recognized longer pressed are no United States v. Government. greater particularized need, If suffers there were a the statute from than others we have overbreadth invalidated.

529 in “generalized rejected United more need” than that far Nixon States a unanimous Court. v. preserving materials,

As to the there interest historical suggest nothing experience is whatever in our national to existing mechanisms, 20-year-old such as the Presidential Act, purpose.26 were Libraries insufficient achieve that event, preserving interest “historical materials” justify private papers cannot without notice or seizing, hearing, to a Government preliminary line-by-line examination agents.

In contrast Congress’ purposes underlying statute, significantly this Act intrudes on of traditional two areas of privacy interests Presidents. Presidential embraces One relating ap- papers decisions, development policies, leader pointments, and communications his role as political party; encompasses purely private matters the other con- family, property, investments, diaries, and intimate highest order, Both are of with versations. interests family Moore East perhaps papers.27 some Cf. v. primacy Cleveland, supra, at 499. directly thus I

Title touches what Mr. Justice Powell individual’s referred as the “intimate areas of an once Shultz, personal Bankers v. 416 U. S. affairs,” Assn. California appellant passed, At the time Title I was had made tentative ar rangements University Angeles in Los of Southern California terms library, establishment a Presidential under the for the ripened App. Libraries 167-168. That has now into a Act. invalidated, appellant’s so agreement formal in the event Title campus facility materials will be housed in a on the USC under historical past applicable to other Presidential Presidents. terms libraries protection The Court’s refusal to afford constitutional to such com California, records, Shultz, as bank Bankers Assn. v. mercial matters Roe, (1974), drug prescription records, or Whalen 429 U. S. U. S. emphasize (1977), importance truly private serves family personal diary communications, correspond as a papers or such private papers lie at the core First and Fourth Amend ence. These ment interests. in both of papers The (concurring opinion). 78

21, (1974) decisionmaking family political these —are areas — our the under law. status private nature, enjoying highest most recently way: “Personal put it this Brennan Justice Mr. private integral person’s an a aspect of letters constitute States, (1976) 427 391, U. Fisher v. United 425 S. enclave.” said, he An judgment). papers, individual’s (concurring Id., person.” of his at 420. Mr. Justice “an extension are let- point: personal “Diaries Marshall made the same thoughts lie at personal ters that record their author’s States, United privacy.” our sense Couch the heart v. discussing opinion). 322, (1973) (dissenting 409 350 U. S. to the emphatically even more private he referred papers, of this Court “deeply part held belief on the Members no throughout its certain documents history there are ought Government’s person compelled produce at the request.” States, supra, (empha- Fisher v. at 431-432 United Lord (concurring judgment). sis This echoes supplied) description a oft-quoted personal papers Camden’s as man’s States, property.” Boyd “dearest United 116 U. S. v.

(1886). point emerges papers

One involve the clearly: The here most interests. fundamental First and Fourth Amendment custody Act asserts exclusive over Since the Government papers all of a former Amendment’s President, the Fourth surely is prohibition against searches and unreasonable seizures implicated.28 papers subject where or books are the Indeed, initially possession secured fact that GSA agreement change papers through President does not former agency fact to take was commanded exclusive custody Moreover, retain of and all Presidential historical materials. everyone screening process contemplates Act admits careful agents. governmental The fact that the intrusion non Government course, not, does criminal nature render Fourth Amendment’s Opperman, inapplicable. South Dakota v. prohibitions See S.U. (1976). government uniformly our cases intrusion, of a hold that prohibition against Fourth general Amendment search re- quires descriptions contain “the most reflecting warrants Texas, scrupulous exactitude . ,” . . 379 U. S. Stanford proscribe Those in a general language cases Id., sweep warrant —or a statute —of “indiscriminate .” . . . by permanent at 486. Title I, commanding seizure followed or commemora- having control of all materials “historical long sweep” tive we have value,” evidences “indiscriminate virtually provides This denounced. “broad broom” statute combing agents no all to the guide standard at Government through large left to roam at papers; agents are confidential to which no other through materials, something no or of the Judicial President and Member of Congress subjected. Branch has been will agents Court, recognizing

The while that Government communica- kinds of necessarily reviewing private the most tells us one-half period years, a of five and covering tions given. The reasons are inapposite. is Several Stanford in case, unlike instant the seizure suggests that, Court unrelated to quantities included vast materials Stanford objective; addition, in legitimate government Stanford in connection of the home an invasion intrusion constituted relied investigation. That last consideration criminal with a terms, for by disposed quickly, can be on Court its by the I commands Stanford, Title and review seizure just as in residences private and outside within appellant’s from papers others, among purpose, C., (a), § D. Washington, Prosecutor, Special brought proceedings of criminal broadly more materials available to make the (b), § I not is (a) § Title proceedings.” in judicial “for use narrowly subpoena defined can a purpose, since needed for Nixon. under United States purposes accomplish those reminiscent “legislative warrant” I in effect a Title is of the colonial era. warrants general odious consideration, “quantity” Court’s its test As first not unlawful The was is fallacious. intrusion Stanford only part many had an items because the State interest but because the warrant failed Stanford’s rather home, scrupulous objects with the “most describe the seizure protection test, “numbers” exactitude.” is Stanford pro- unprotected of which if materials outnumber vanishes materials; is, designed test to ensure rather, tected protected all. its face materials are not seized at Title commands be seized found— protected materials wherever including private reviewed, residences mentioned — agents returned if the decide that certain Government protected Act significance. materials historical lack forbids. accomplishes exactly expressly what plainly Stanford highly Fourth considerations, addition to Amendment important pervade First interests all Presidential Amendment they privately held views expressions include papers, since life, about of all within politics, diplomacy, people walks country. of association Appellant’s and outside this freedom likely will implicated, recordings papers also since his relationships much with both individuals and reveal about his organizations. Alabama, 449, In NAACP 357 U. S. v. the Court said: (1958), relationship has the vital between recognized

“This Court in privacy one’s associations.” freedom to associate and passing in disclosure Accordingly, compelling a statute Valeo, political imposed contributions, Court, Buckley v. sig- scrutiny” because of the “exacting strict standard impact rights. on First Amendment nificant was na- important the former President an The fact that obviously diminish political figure tional does not and world in his privacy papers. Forced dis- traditional interest officials, even to Government private information, closure of except for by by sanctioned Court’s decisions, no means the most compelling reasons. Cf. Roe, Whalen v. 429 U. S. 589 I do not think, for example, this Court would readily sustain, as a condition to holding public office, a requirement that a candidate publicly reveal membership in every organization whether religious, political. or social, After all, our decision in NAACP Alabama, v. supra, was presumably intended to protect from compelled disclosure members of organization who were actively involved in public or affairs who public held office in Alabama.

The Court’s reliance on Roe, Whalen supra, in rejecting appellant’s privacy claim is surprising. That case dealt with the State’s police power undoubted regulate dispensing dangerous drugs, very use possession or of which the State could S., forbid. 429 U. 597 n. 20. Hence, we difficulty had no in reaching whatever a unanimous hold- public ing dangerous drugs interest regulating outweighed any privacy reporting interest to the State all prescriptions, reports being those made confidential statute. No private personal, political confidences were business, involved.

C essentially former had up President now has short, papers expectation privacy respect to his the same every expectation is person. and records as other This our constitutional soundly based on two factors: under first, papers Presidential for more than traditions, been, have Congress belong to the President. deemed years, specific (a) congres- Acts: ratified this tradition purchase appropriations following sional authorization non- enactment of a papers; (b) congressional Presidential libraries; (c) statutes mandatory system of until a charitable-contribution deduction permitting, or to donated to the United States papers of Presidents nonprofit institutions. any legislation contrary, in to the the absence of

Second, time for President to take no reason whatever there was “commin- no from that there was his official duties ensure Indeed, the fact “public” “private” papers. and gling” Presidential, private commingled the former President and contrary, family any then-existing laws to the papers, absent an he in have did fact points strongly to the conclusion that categories respect both expectation privacy papers. I cannot under holdings,

On the of this Court’s basis not do interests why stand the former President’s privacy be sought to goals undifferentiated outweigh generalized, carefully focus, defined achieved Title I. Without a more Govern represent “paramount do legislative goals these not legislation nor particular piece ment interests,” arguendo, we assume, to achieve those even if goals, needed But they “compelling” “overriding” nature. are aof balance if of the Court strike the even other Members choose has failed differently, the Government nonetheless as carrying purposes out so narrowly tailored means of its important First Fourth to invade and unnecessarily no less Court demanded Amendment liberties. The Hynes v. Valeo, less do here. Cf. Buckley nothing will Oradell, Mayor 425 U. S. mitigating as point to two factors appellees federal view, most their first, of this admitted intrusion:

effects to the papers conversations relate of the President’s family, or Government, personal, rather than business limited the intrusion is political matters; second, is said that out much will carried as since review possible, agents. Government by specially trained identifying interest accepting Even the Government’s in order govemmentally papers related preserving interest cannot purposes, preserve them historical of dll the taken here. papers and search seizure justify a compulsory Since review personal and family papers and tape recordings is an admittedly improper invasion of privacy, no constitutional principle justifies an intrusion into indis- protected putably carry order “generalized” areas out the statutory objectives.

Second, the intrusion be credentials, cannot saved however impeccable, agents. initial Government The problem with justification no one whether that knows these agents are, uniformly as the appellees federal contend, Despite lip discreet. paid service the District Court appellees and to the record of there is generally, archivists nothing before us to justify the conclusion that each of more than 100 persons who apparently will access to, have and will monitor reliably and examine, the materials is indeed discreet. Act, provides furthermore, meaningful GSA no

standards to upon appel- minimize extent of intrusions privacy. lant’s precisely We are thus faced with the same standardless discretion vested in governmental officials which unhesitatingly this Court has struck down First other g., Oradell, e. See, Mayor Amendment areas. Hynes v. supra. of any meaningful statutory absence stand- might secure I ards, help privacy which stake, interests at question whether can we assume, law, as matter of be agents Government will able to formulate for themselves constitutionally valid standards of review in examining, and segregating, cataloging papers President. former possibility that, Nor does had Title passed, not been appellant perhaps would use specialists help Government classify catalog papers eliminate objections his to this appellant, Had like all his intrusion. predecessors, recent papers permitted deposit been library, would archivists have been working directly Government under guidance not appellant’s solely direction, He, Congress, would GSA. have established standards pro- would his privacy preservation, ensure participate able to he would have been tected. Similarly, assure could thus personally process in the reviewing was papers purely personal any governmental review of would entirely Congress, He, minimized eliminated. would any, experts, which if have controlled the of selection important, most papers. Finally, have access eliminating any to, would have been consented “intrusion” consent a possibility of question. constitutional But justify a nonconsensual law, intrusion under cannot, our Schneckloth v. is cf. required, invasion. Actual consent Bustamonte, possibility mere (1973), not the U. S. drastically under different circumstances. consent dis- completely are even if the Government Finally, agents review- charged with they are still Government officials creet, Unless we are ing highly private tape recordings. papers and papers police private say that a and examination seizure justified by police “impeccable” is record of discreet understanding I how a difficulty have considerable officer, in which compulsory admittedly private papers, review of interest, there is no Government governmental conceivable agents constitutionally permissible. is

Ill Bill Attainder

A 9, applied by Under cl. this I, § Art. as construed I Court since the time of Chief Marshall, Mr. Justice Title Title II the Bill of Clause. violates Attainder contrast to L. 93-526, Act, Pub. the Public Documents estab- which Study study questions lishes a National Commission to con- cerning preservation officials, records all federal Title I commands the Administrator all tape recordings seize “involving] former President Nixon” Richard M. and all “Presidential historical materials of M. . . . Richard Nixon .” 101 (a)(1), (b)(1).

§§ By contrast with Title II, which is general legislation, Title is special legislation out one singling individual as the target.

Although prohibition against bills of attainder has been addressed infrequently by now Court, beyond dispute settled that a bill of attainder, within the meaning of Art. I, is no means the same as a bill attainder at common departed law. The definition from the concept very common-law early in our history, in most way. fundamental common At bill law, the was a death imposed by sentence legislative Act. death Anything less than bill of was not a attainder, pains but “a bill was, rather, penalties.” This recognized restrictive definition was tangentially Marbury Madison, Cranch (1803),29 but the Court soon rejected conclusively thereafter notion any legislative that death sentence or even imposed incarceration fell named individuals within Mr. prohibition. firmly Chief Justice Marshall settled 1810, in holding punishment matter legislative of deprivation prohibited by form a of Bill property was of Attainder Clause: may

“A individual, attainder affect the of an bill life or may property, may or do both.” confiscate Peck, Fletcher 6 Cranch 87, 138. (Emphasis supplied.) v. point Saunders, was 17 years Ogden made same later in v. 12 where Court stated: 213,286, Wheat. ex

“By classing attainder, post bills laws, and facto impairing obligation laws together, contracts 29 post “The declares that 'no bill of constitution attainder ex ox facto passed.’ be law shall “If, however, passed person such a bill should be and a be should it; court prosecuted under must condemn to death those victims Marbury preserve?” Madison, endeavors to whom constitution Cranch, at 179. 1 general very apparent; is a becomes intent

general legislation tyrannical over against arbitrary and provision (Em- person property.” whether existing rights, phasis supplied.) down statutes years ago this Court struck than 100

More categories of defined preventing which had the effect Cummings v. Mis- professions. from their practicing persons Garland, 4 Wall. parte Ex (a souri, (1867) priest); Wall. more cases established Those two (1867) (a lawyer). attainder of bills of purposes "punishment” broadly deprivation sanctions; rather, limited to criminal “[t]he is not may be previously enjoyed, rights, political, civil or Cummings, at 320. supra, . . .” punishment . Constitution, out that the pointed Warren Chief Justice

Mr. narrow, “a not envision attainder, bills of did prohibiting outmoded) prohibition....” (and therefore soon to technical To the Brown, States v. U. S. United legislatively imposed deprivation was a the evil contrary, at named directed property rights, existing rights, including Lovett, Black, United States v. Justice individuals. Mr. (1946), 315-316 stated: 328 U. S. legislative proposition for the stand

“[The cases] apply form, no what their either matter acts, members easily or to ascertainable individuals named on them punishment inflict way in such a group prohibited bills of judicial trial are attainder without a supplied.) (Emphasis Constitution.” Lovett, deprivation fact, in was the only “punishment” indirect salary employee as a Government Lovett’s —an for his “bad” associations. punishment require of attainder two cases, therefore, bills our Under as persons specific designation groups first, elements: Garland-Cummings- legislation, second, a and, subjects arbitrary depriva own-type deprivation, including Lovett-Br tion property rights, trial, without or other notice, hearing.30 disputes No one I infirmity, that Title suffers from first applies since it former The issue one President. remains legislatively whether there has been a mandated deprivation of an existing right.

B George Since Washington’s our Presidency, constitutional tradition, without single exception, has treated Presidential papers as personal President’s property. This view has been congressionally judicially both ratified, ownership of Marsh, Folsom 9 F. papers, Cas. (No. 4,901) (CC 1841) Mass. (Story, J., sitting as Circuit Justice), and, by practice of Justices ownership as to judicial papers. their

Congress itself assump- has consistently legislated on this I tion. have noted earlier appropriation legislation has been on enacted various occasions providing Congress’ purchase papers. of Presidential See Hearing Special before a Subcommittee the House on Opera- Committee Government tions J. Res. 84th Cong., H. 1st Sess., 28 led hearings Those nonmandatory sys- establish a provide any procedural process Title fails safeguards, due either provision before or after seizure of the Presidential materials. There is no permitting whatever appellant to be decisionmaking process heard in the employees determine, which statutory GSA will no standards guide them, particular “general whether materials have historical value.” No placed upon time restraints are decisionmaking process, GSA’s even though consistently that, recognized this Court has dealing when with First interests, timing governmental Amendment decisionmaking is cru g, Maryland, cial. E. Freedman v. (1965); 380 U. S. 51 Marcus v. Warrant, (1961,) Search S. 717 holdings, U. Under those statute separates against individual, will, an which from First Amendment strictly protected must be I, materials limited within a time frame. Title contrast, places respect custody no limits with to GSA’s retention years appellant’s papers; already elapsed over three have since seizure papers question. 540 explicitly libraries, again recognizing Presidential

tem of property of the Chief personal were papers Presidential the Congressman on that measure, In the floor debate Executive. “Finally, stated: supporter legislation, of the Moss, John to the papers belong should be remembered Indeed, Cong. . . . Rec. (1955). President proposed legislation, pertaining testimony confirmed: Archivist of United States always been considered papers “The the Presidents have in- both their personal property, during their This has the sanction law cumbency afterward. authoritatively been chal- and custom and has never supra, Res. at 32. Hearing on H. J. lenged.” testified: Similarly, the GSA Administrator practice, the President has ordinary “As a matter of end papers from White House at the removed keeping This been in the tradition of his term. has papers personal property and the are fact Id., (Emphasis 14. retiring Presidents.” supplied.) surprising with this was not keeping background, it September Attorney opinion stated in General an

1974: prop-

“To conclude that such materials are erty of former Nixon would be to reverse what President apparently understanding has been the almost unvaried begin- of all three branches of the since the Government question into ning Republic, and to call practices of our Presidents since the earliest times.” Op. Atty. pp. No. 1-2 Gen. escape, therefore, that, no from the conclusion on the see years’ history, appellant has been

basis more than property enjoyed by all other Presidents deprived right of leaving office, namely, after control his Presidential papers. I deprives

Even more Title former Presi- starkly, only one right dent of the in Presi- by vested statute other former dents the 1955 Presidential right Act—the have a library deposit at a of his facility own for the choosing of such papers unilaterally Presidential Title he selects. I not purport repeal did Act; Libraries Presidential effect, statute remains in present available to future and Presidents, already has been of former Presi- availed dent operative Ford. The effect of Title is to I, therefore, him exclude, deprive one former name, President and predecessors of already what his successor—have —and been allowed. This invokes what Justice said Mr. Black Lovett, could not be done: constitutionally

“Those who knew the wrote our Constitution well danger special legislative inherent acts which take away liberty, or of life, property particular named persons because the legislature guilty thinks them of punishment. conduct which They deserves intended safeguard people of this from country punishment by duly without trial S., constituted courts.” 328 U. (Emphasis at 317. supplied.) apart But from I papers on generally, Title contemplates its face even former President’s purely family papers tape likewise recordings are personal custody period to be taken into for whatever of time re- quired originals review. such as the items, Some tape recordings of the former conversations, President’s will him never be returned to under Act. not, not, inquire need and do into the motives Con-

gress deprivation imposing person. on one named plainly Our hold cases that retribution and vindictiveness are requisite a bill of elements attainder. The Court Warren in United Chief Justice to overlook Mr. appears motives Brown, concluded that retributive supra, States v. analy to bill-of-attainder Congress were irrelevant part flatly: archaic to he “It would be contrary, said sis. To ” Indeed, to ‘retribution.’ punishment limit the definition historically been of attainder had bills expressly he noted that purposes: preventive regulatory enacted for compel restric- by no means considerations “Historical of retribu- ban to instances tion of the attainder bill were English A bills attainder number tion. is, legislature the purposes preventive for enacted —that past undoubtedly acts judgment, largely based made a person group or was given . . that a and associations . depriva- inflicted to cause trouble . and therefore likely . . from keep in order it upon person group that or to tions at 458-459. S., about event.” 381 U. bringing the feared decisions, therefore, Under the of the Court long line our that which heavy demonstrating legislation has the burden of any for singles deprivation out one named individual —without procedural nearly years been safeguards what had —of treated by private prop- all three branches of as Government erty, prohibition can the of the Bill of Attainder survive In deciding provides Clause. this the basis case, Court yet I, for a future Title directed enact another future Member of the House President, at some former or a public incurred because the individual has or Senate McCormack, that Powell Congress. disfavor and of Cf. v. Brown, U. As in United v. Title I, States S. applica- does “not set forth II, generally contrast Title beyond is S., special 381 U. at doubt rule,” 450; legisla- ble against precisely evil which the of doing prohibitions tion post ex attainder, laws, impairing the “bills laws facto contracts . .” Ogden . obligation were aimed. at 286. Saunders, Wheat., opinions concurring explicit implicit

The make what is e., I would throughout (a) the Court’s i. opinion, Title separation-of-powers principles be unconstitutional under if it applied holding other the Court’s President; (b) ante, appellant’s rests on being “legitimate one,” class of 472; and (c) holding precedent.” Court’s “will not be a Ante, at 486. analysis our

Nothing supports cases of Mr. Justice appellant’s resignation ibid. Under his view, Stevens, “ subsequent acceptance pardon apart 'legit- of a set him as a ” imate upon relies, class one.’ The two events which he are beside however, point. analysis Correct under the Bill of Attainder Clause solely upon focuses the nature adopted the measure Congress, upon not the actions target legislation. approach analyt- Even if were ically two sound, singled events out are relevant two possible appellant culpably theories: deserv- first, that ing punishment by resignation pardon; virtue of his appellant’s second, justify actions unique so were legislation confiscating but materials of any point disposed those other President. first can the Bill of quickly, course, since Attainder Clause was, prevent intended to legislatively imposed deprivations of rights upon persons whom Legislature thought the to be culpably punishment. deserving of remaining appellant’s is whether question, then,

“uniqueness” permits individualized legislation the sort passed here. It point does not. The not Congress is is powerless to as to exigencies arising during act or in the particular immediate aftermath administration; rather, point Congress punish the is that a particular cannot individ- ual on account of If “uniqueness.” had declared his appellant’s pay forfeited which retirement to he otherwise would entitled, be his confiscating Presidential instead would materials, prohibition it not avoid bill-of-attainder the say appellant unprecedented guilty was actions predecessors short, from in office. apart him his setting deprivations not uniqueness justify does serious appellant’s the rights, including statutory right abrogated by existing library. I to a Presidential Title establish concurring The novel several arguments advanced the opinions emphasize clearly violates the how Title serve although find- Clause; Bill of Attainder Mr. Justice Stevens admirably no the case ing violation Clause, states the I: unconstitutionality for of Title which, demonstrates me, apply “The not to all statute Court before does It out singles one, Presidents or former Presidents. former Presidents name, special treatment. Unlike all custody he own history, our is denied his subjected litiga- papers; prolonged he is burden of statute; tion over the administration of most scrutinized private papers conversations are archivists. The condemns implicitly Government statute him his papers. Legislation as custodian of an unreliable subjects a individual this humiliating which named questions treatment must serious under Bill raise Ante, Attainder Clause.” at 484.

IV may be holding Court’s consequences of the The immediate justified by ground discounted some on jus- end short, that the circumstances —in uniqueness of holding is all, that, after Court’s the means —and tifies reported Yet precedent. really regarded not to be unique in which instances of this Court reflect other decisions example, the Branch —for confronted the Judicial situations United Fathers. Founding treason of one alleged 1807). (CC Burr, 14,694) Va. (No. States 25 F. Cas. Cummings blameless; Father been may Burr have may of thousands with hundreds in common Lawyer Garland, technically guilty “carrying of may been others, of have against rebellion” the United States. But this Court did not weigh the culpability of or Cummings, of or Garland, Lovett Brown in according to each of them the full measure of the protection guaranteed by the literal language of Constitu- tion. For 200 years this nearly Court has not viewed either a “class” a “class of one” “legitimate” as under the Bill of Attainder Clause.

It may as three be, Justices intimate their concurring opinions, today’s holding will confined to par- ticular “class of one”; so, if it may not great do harm to our constitutional jurisprudence but neither will it enhance Court’s credit in terms of Only adherence to stare decisis. with future analysis, in perspective, “hy- from free pressure” draulic spoke Holmes will we be able to render of, judgment on whether the Court today has enforced Constitution or eroded it.

Mr. Justice Rehnquist, dissenting.

Appellant resigned the Presidency nearly Office of the three years and if ago, right issue here were limited to the Congress of dispose particular of Presidential papers, this case would major not be of significance. constitutional today’s Unfortunately, however, decision countenances the power future to seize papers the official an outgoing President as he leaves the inaugural stand. doing, poses ability so a real threat to the future Presidents candid give to receive advice and candid in- structions. result, previous This so at odds our case separation daily law on the will stand as a veritable powers, every sword of succeeding Damocles over and his President I Believing advisers. do that is clear violation Act principle separation of the constitutional powers, need not address the other issues considered the Court.1 1While the entire substance of this dissent devoted to the constitu principle separation powers, tional and not other issues that separa- of principle the Act violates that the My conclusion propositions. fundamental upon three is based powers of tion his President, among the discourse open and candid First, facile is too Court separately, seems to me the addresses the Court powers” “separation of “privacy” claims from separating appellant’s in the wholly unrelated attacks on they separate and claims, if were two many colors, and "privacy” of concept can be coat The of statute. recognized “privacy” have been quite differing rights to lands of Amendment may “private,” in the sense that the Fifth Property law. be compensa just seizing paying prohibits from it without the Government may sense, diary may “private” in that but tape be tion. A dietabelt prohibit would “private” in the sense that the Fourth Amendment also be making though such a seizure even an unreasonable seizure of it diary to ran of the so as not agreed pay for the fair value Government Many Amendment. of the Fifth of the Eminent Domain Clause afoul publicized recognized “right privacy” of first have a common-law states Privacy, 4 Harv. article, Right and Brandéis the famous Warren privilege (1890). Privileges, embodied Rev. such as the executive L. powers, separation United States v. a result of the in the Constitution as attorney-client recognized (1974), privilege, Nixon, and the 418 U. S. 683 statutory jurisdictions, protect still a different under case and law in most pro privileges has the effect privacy. form The invocation of such confidentially Presi to the tecting privacy of a communication made attorney; privilege, in each purpose of the dent or a client to an part and of case, on the of the confidant is to assure free communication client, respectively. tape logical that the ante, “it is to assume states, The Court primarily relate to the conduct recordings in the Presidential offices made Presidency.” argument the merits of this Whatever and business crystal may against types privacy, it makes other a claim based on upon type “privacy” that clear that the Act is a serious intrusion complete principle privilege. protected executive The Court’s separation executive-privilege claim from the of its discussion of the positions privacy in the different claim thus enables it to take inconsistent opinion. sections of its position respect appellant’s privacy

The Court’s individual heightens my regarding privacy concern interest served executive privilege. attempting impact upon appellant’s minimize the Act’s “purely private papers recordings privacy, the Court concludes that (a) (7) appellant will be returned to under 104 of the Act.” Ibid. How- § Members of foreign heads state and advisers, ambassadors, on a who deal House Congress, the others with the White sensitive basis is an the effective dis- prerequisite absolute the effect charge high of the duties of that office. Second, Act, con- upholding of this Court’s decision its necessary free stitutionality, undoubtedly will restrain the flow of and and present information from the President upon future the Third, any Presidents. intrusion substantial discharge effective of sufficient the duties of President is the the our principle separation powers, violate of of and prior cases do not Act such permit sustaining the of an by magnitude an of “balancing” this substantial intrusion against assertedly by the Act. fostered the interests (a) ever, questions this conclusion more raises than answers. Under § (7), being papers appellant return of to the is their the conditioned on general expansive significance.” “not otherwise of historical the Given quite nature Tr. phrase, Arg. of this of it conceivable see Oral is virtually repre- papers returned, none of the will be and the Court’s empty gesture. an (a) by sentation is See is meant also 104 What § “'purely private papers”? personal President, Is a letter the to or from concerning but the of “private,” duties the or is a President considered replete personal containing communications, document but some ref- state, “purely the private”? erence to affairs of of the dictabelts personal recollections, diary President’s end of dictated form at the each day, assumedly private, and Arg. are are to of Oral be returned. See Tr. 59. But the dictabelt is dictation also recorded on the voice-activated taping system, and tapes White House those be retained and reviewed. will Hence, appellant’s privacy interest will be served return not the of dictabelts, the tapes seriously and of will the retention the erode Presi- communications, infra, dential By approaching as discussed at 553-558. compartmentalized these fallacy issues fashion the Court obscures the of its result. fully

I respecting separation subscribe of to most what is said powers in the dissent Indeed, of The Chief I it is because so Justice. thoroughly agree holding today with his observation that Court’s is “grave repudiation nearly years judicial precedent his- practice” opportunity torical separately take to write on the subject, thinking importance justifies opinion. its such an true that the point, second course respect is With Nixon.2 of former President papers directed solely Act is direct no therefore, Act, terms of the have Although occupants or future occupant the present application from communication to candid upon the effect Office, upon long in the depends, run, future Presidents these precedential upon the present Act, nature of but limited authority today's decision. Unless the effect himto appellant is limited papers of this seize advisers will Presidents and their principled way, future some pure papers their out wary of a similar Act directed at be hostility. political one, that privilege, qualified albeit a dealing with a

We are concede General may both Court the Solicitor which has been privilege It an ex-President. asserted George Executives the time upon Chief since relied g., See, dissenting opinion of e. The Chief Washington. ante, opinion Unfortunately, Court’s at 509-510. the Justice, say Act to constitutionality obscure, of this is upholding the justify Congress will to the circumstances that least, the as A reasons potpourri the of of papers an ex-President.3 seizing Act not an unconstitutional why to the is is advanced as Watergate, impetus it not unmindful the excesses of and of the 2 1 am of opinion gave legislation. However, the set forth Court’s does not to this constitutionality limit an Act principled that would the of a distinction papers. President Nixon’s Absent .such a distinction: such as this to aspects dispassion- of the case make it difficult to decide “The emotional eye qualify to the an to ately, obligation apply do not law with the but our particular before for the result in the case future as well with concern (1977) (SteveNS, J., Williams, Brewer v. U. S. us.” concurring). logic Indeed, nothing is in the which would invalidate there Court’s during applied an term an Act if to incumbent President of such likely sign that an incumbent such a It course not would office. of sufficiently pass measure, determined could it over his but a nonetheless. veto

infringement upon principle the of separation of powers,4 but weight the to be any attached to the factors is left wholly unclear. speaks

The Court of the procedures need to establish preserve Presidential to allow materials, a successor President papers access to the prior grant President, public access, rectify present American historical approach by “hit-or-miss” entrusting materials to the Ante, expert handling archivists. at 452-453. These justifications equally applicable every are to each future ante, President, cryptic and other than one at 453- paragraph, 454, the Court’s treatment contains no that Con- suggestion gress permissibly not might papers any outgoing seize the today’s future scope opinion President. The unclear will uneasy cause future and their over Presidents advisers to be view, my itself, offering any principled the Court’s decision President, distinguishing appellant’s basis case from future present impact functioning has and future on the Office of the Presidency. validity Hence the of the reasons asserted the Court for upholding particular subject unnecessary is a which I find it Act observe, however, Court, address in detail. I feel bound to g., ante, 443-444, papers emphasizing, e. are the fact that seized Administration, lodged agency to be an created General Services by Congress Government, but housed in the Branch of Executive upon relies thin reed indeed. management agency an

Control and such as Services General President, by Administration is shared between the incumbent of his virtue authority officials, Congress, by authority nominate its virtue its agency. legislation defining the But to enact functions of the substantive physical placement papers of the seized with such an Presidential agency separation-of-powers problem. principle not solve the The of does infringed when, by Congress, separation powers is Act of Presidential impeded longer the President no communications are because has exclusive papers. confidential this Act over release his fact that control The physical custody places in the hands of the Services Administra- General committee, congressional tion, rather than a difference so far makes little as of Presidential control is concerned. divestiture communications, thereby restrain- confidentiality their communications. ing those Blackmxjn my is position Brothers Powell to future impediment an today’s will not result in opinion 5— “unique” is since this case communications Presidential Presidency during from the

appellant disgrace resigned Nation. Mr. unique in the our history events Justice from position quite different is recognizes this Powell Unfortunately con- Ante, at 492-498. that of the Court. limited to the authority curring view expansive change not itself he describes does situation scant consola- and will as scope the Court’s serve opinion, long For as to Presidential advisers. so tion future to communi- represents a confidential opinion Court’s threat cations, the concurrences Powell Justice Mr. Mr. on no more than wishful fear, are based Blackmun, Justice thinking. justification for principled to a the Court advance

Were surrounding appel- solely facts judgment affirming upon future office, from effect of its decision lant’s fall But would be far less serious. communications justification. such not advance the Court does

A could than require far more of discourse It would fully opinion as be included in an such profitably the President of position that pre-eminent describe the Republic. respect our Suf- occupies with United States repository the sole say the President is made fice powers and the States, United powers of the of the executive upon him imposed the duties him as well entrusted attribute similar 486-487, seeks to ante, My SteveNS, Brother case, are of this but his observations precedential value uniqueness to the claim, separation- rather than to the appellant’s bill-of-attainder directed of-powers claim. awesome indeed.6 Given of the spectrum

are the vast deci- sions that affairs, relationships confront him —domestic with powers, direction in foreign of the as Commander military empowers “by Article II Mm and with the Advice and Consent treaties, appoint high Senate” to make to numerous other officials of Government, public ministers, Federal to receive ambassadors and other and to all commission the officers of the en United States. That Article joins him “take faithfully executed,” to Care the Laws be and au “give Congress him to thorizes to Information of the State of the Union, and recommend to their Consideration such as he shall Measures judge necessary expedient.” imagine public It is difficult to office occupant dependent whose upon confidentiality would be more received, the advice he confidentiality which and the of the instructions gave, he which for the successful par execution of his is duties. This ticularly foreign true in the area of relations; affairs and in international Curtiss-Wright United States v. Corp., 304, (1936), 299 U. S. this Court stated: only, “Not shown, power as we have is the federal external affairs over origin

in and essential affairs, character from different internal over participation but power in the significantly exercise of the limited. realm, this vast external important, with its complicated, delicate and problems, manifold power speak President alone has the or listen representative aas of the nation. He makes treaties with the advice and Senate; negotiates. consent of the but he negotia- alone Into the field of tion intrude; the Senate cannot powerless itself is invade great argument it. As Marshall said of March in the Representatives, House of ‘The organ President is the sole of the nation relations, its external representative and its sole foreign with nations.' Annals, Cong., 6th 613. Foreign col. The Senate Committee on Relations very early day history at a (February in our 15, 1816), reported Senate, among things, other as follows: “ ‘The President is representative the constitutional of the United States regard foreign manages nations. He foreign our concerns with necessarily nations and must competent be most how, when, determine upon subjects negotiation may urged what greatest with the prospect of success. For responsible his conduct he is to the Constitution. The committee responsibility consider pledge the surest for the faith- discharge duty. ful They of his think the interference of the Senate foreign negotiations direction of calculated to respon- diminish that conclude to overstatement is an Chief —it no means is essen- information absolutely candid accurate, and current, Nor is it an office. of his proper performance tial to free must be to the President conclude that overstatement to his subordinates. give frank and candid instructions to determinants principal of the be denied It that one cannot President to the furnished quality of the information of confide those who him degree placed of trust will be ante, approvingly 448-449, cites in him. The Court itself, General: the Solicitor following language “ some assurance give can his advisers 'Unless he to receive expect could not confidentiality, a President opinions and of facts the full and frank submission ” depends.’ duties of his upon discharge which effective Appellees for 33. Brief Federal See had Eisenhower, who public papers Dwight D. first responsibilities advantage discharging executive Europe forces Chief of the United States the Commander in of the President and then as War during the Second World importance for the critical terms, two attest to United States trust in President’s discretion: un- any get free, going if to “And commander he had better subordinates, opinions of his prejudiced con- say him on a they to protect what have Papers of the Presidents fidential basis.” Public 1955, p. Eisenhower, D. Dwight United States: President contrary impressed likewise The effect course Eisenhower: place take when it comes the conversations

“But safety. security thereby impair the best national sibility and nations, moreover, requires foreign cau- of transactions The nature secrecy design, frequently depends unity and their on success tion Senate, Relations, Reports, Foreign dispatch.’ U. Committee S. 8, p. 24.” vol.

between responsible official and his or ex- advisers change of slips mere little, of this or expressing that, personal opinions on the most basis, confidential those not subject are to investigation by they anybody; and if are, will wreck the Government.” (Emphasis Ibid. added.) simply

There can be no doubt that impor- it is the utmost tance for sensitive communications President viewed as generally confidential, unreachable without President’s consent.

B In fully order to impact upon understand the of this Act the confidential House, communications in the White it must merely be understood that Act will former the affect not present President Nixon, but the President future Presi- above, only dents. As Act discussed while this itself addresses papers the of today’s uphold- President Nixon, former decision ing its renders uncertain the constitutionality constitutionality of future congressional any action directed at ex-President. assume, Presidential confidants will that Thus correctly, records of subject communications to the could be President “appropriation” much the Act present same manner seized from the records of confidential communications to and President Nixon. sought by Presidents, When advice is future will no be of one unmindful that, fact as a result uncertainty by today’s engendered decision, all confidential communications of any subject ex-President could be to sei- zure over as he objection, inaugural stand on leaves 20. January undoubtedly

And Presidential will be im- communications recognition peded proba- there is a substantial public bility disclosure material seized under this Act, by today’s is a decision, blueprint constitutional which, requires Acts. the Act on its First, future face that 100-odd study and archivists review papers, Government consent specific only with heretofore accessible is to access public requires the Act Second, President. need “the with regulations consistent by future granted be general which have to those materials public access provide Either of these . . . 104 (a)(6). § significance historical candor from the markedly detract provisions sufficient from the President. communications to em- are the archivists brushing the fact aside concludes that papers, the Court powered to review the Ante, is no But there at 451-452. will discreet. archivists be no assumption that there will for the Court’s foundation Presi- made of Any have reviews that the archivists leaks. au- after past been done papers have dential has had the President and after President, thorization It documents. cull opportunity to the most sensitive an daresay extremely naive, strikes me as confidants potential large will be number view shared every one that each and Presidents, suppose future screening in a similar might participate who the archivists silent completely a future Act would remain by virtue of which papers of the Presidential portions to those respect General, supporting newsworthy. extremely The Solicitor are much as candidly conceded constitutionality the Act, argument: in oral may you that question I now ask

“Question: ... people if a hundred you think but do frivolous, sound City of in the Wash- great interest anything know a secret? will remain ington, it “[Laughter.] heard that have McCree: Mr. Justice

“Mr. Powell, not.” Oral it will Tr. it, heard people have if two 46. Arg. recent for the to cite our Court the absurd on

It borders Roe, precedent (1977), 429 U. S. 589 as a in Whalen decision invariably officials will that Government proposition for provisions honor in a law dedicated to the preservation of privacy. It quite is doubtful, my least mind, columnists or investigative reporters avidly will be searching for what prescribed doctor drug patient what what the State of New York, required which was the information to be furnished in respect Whalen v. Roe. But with to the advice received given by or the President, instructions highly signifi- him, great sensitive matters of historical cance, quite opposite. minimum, case is at the Hence, today’s constitutionality Act, of this upholding decision expectation mandating engender archivists, review will may the President future confidential communications his consent. without subject public be disclosure leaks papers by archivists, In addition to this review they if are of public may now be seized and shown to attempts The Court “general significance.” historical expectation that problem this with the wishful avoid will promulgated, when regulations regarding public access, a Presiden- narrowly this assumes However, drawn. wishful upon this same candidly speak tial adviser will based ultimately issued when assumption regulations, Act current But the confidences. protect will interpreted, binding regula- no years one-half is over two and old anyone’s guess it And yet promulgated. have been tions ambiguous terms such will take before long how as to definitively interpreted, are significance” as “historical unknown as yet future Administrator to whether some (cid:127) re- public access Thus, the a broader definition. might issue very engender least substan- Act will at the quired com- future confidential whether uncertainty regarding tial confidential. remain fact, inwill, munications confidential this is not that in all of critical factor might himself the President since disclosed, might be material factor is that the The critical with it. public” “go choose by the disclose is wrested to whether as determination in confidence to speaks one President. When Act from the discre- necessarily upon the President’s he relies President, similarly The President the sensitive. tion to disclose instructing when of a subordinate discretion relies the Court, the suggest, as does it is no answer him. Thus has confidentiality ante, expectation the 450-451, at the have always papers been limited because or otherwise past been turned to Presidential libraries over was ultimate reliance subsequently cases, those disclosed. ones the sensitive of the President to cull upon the discretion Act, under case when, But the before disclosure. in the longer resides to disclose no the decision whether inevitably restrained. communication will President, diminish seeks to The as does Court, Powell, Me. Justice by virtue Act President impact of this on the the Office Carter nor President President of the fact that neither Ford Ante, It is quite at 502 n. 5. appellant’s claim. supports into and that law, the Act signed President Ford true that supports its representing Carter, President General, Solicitor fact give regard due constitutionality. While we must also we must opposed Act, Presidents have not that these con- have forces that political to the unusual give regard due Ante, at “unique.” this situation making tributed to refers J., concurring). Powell (Powell, Justice Mr. ante, “dispositive,” current Executive as stance I think this upon it. emphasis places great Court analysis is mistaken. Presidency signing cannot occupant of the current of a succes claim passed law bill

into waive separation principle the Act violates the President sor States, United 272 U. Myers S. so held in v. powers. We Buckley unanimously held in Term we And last no connection Valeo, persons (1976), 424 U. S. may attack Government Executive Branch of the with the on the President constitutionality signed by a law ground it authority invaded reserved for the Executive Branch under principle separation the powers. This perhaps principle, the most in fundamental our constitutional may away by not be framework, signed temporary incum- bent of the officewhich it designed protect. was view that the incumbent President Justice Powell's

Mr. must join challenge places ex-President Presiden- tial communications in limbo, since at the time advisers, the communication, cannot know who the successor will be what his stance be regarding will seizure of his Congress predecessor's papers. Since the advisers cannot be sure that to whom they President are communicating protect can their communication confidences, will be inhibited. Mr. view, requiring an depend ex-President Justice Powell’s upon political his successor, reality. blinks at and historical tripartite system The Government established the Con- stitution has more than one occasion political hostility bred merely Congress between and a President, lameduck but between latter and his successor. To substantiate this view one need relationship recall the time of the power transfer to reins of from John Adams Thomas from Jefferson, Buchanan to Lincoln, Abraham from James Herbert Hoover Franklin from Harry Roosevelt, Dwight Truman to Eisenhower. Thus while the Court’s deci- sion is an invitation for a Congress legislate hostile against an lameduck unpopular President, Mr. Justice Powell's position places disposition the ultimate of a challenge to such legislation history hands of what may has shown be a incoming hostile cannot President. believe the Con- stitution this result. One no may countenances ascribe such motives to and the successor Presidents this case, harboring a they may without nevertheless fear that play a part succeeding case. some today’s upon decision daily shadow casts

operation the Office during President his entire previous four-year sharply from our term differentiates much separation-of-powers which have dealt with decisions, cases have specific limited intrusions. These more operation particular of a upon unique aspects focused intrusion, an such as Government, upon branch of rather than decisionmaking present the that the entire permeates one, process the Office of President. For example, of the Sawyer, & Tube 343 U. S. Youngstown Sheet Co. v. the Pres- this (1952) (Steel Seizure Court held Cases), mills in order ident could not Executive Order seize steel by provided had other prevent a work when stoppage Myers In v. eventuality. methods for an dealing with such States, an 1876 statute United Court struck down supra, the power President’s attempted which had to restrict the postmasters approval. remove without congressional Buckley Valeo, supra, Congress’ struck down the Court of the Federal attempt power appoint to vest the members President. persons Election other the Commission than of say instances To these dealt with discrete cases im- governmental by disparage their action is means no But portance our constitutional law. development in the of sharply it does contrast with the involved quite them issue Recordings present uphold case. To simply Act not to sustain and Materials is Preservation govern- of or a the exercise particular invalidate instance of by President; it has power by Congress mental significantly hampering far-reaching much more effect ability in his during office, term President, his entire countless necessary perform the information to gather under his office prerogative which are the discrete acts II of the Constitution. Art.

C Act indisputable to me appears It thus Presidency. operations of into the significant intrusion communi- dampening free this severe I do think that

' may cation to and from the President be discounted adoption “balancing” determining Court’s a novel for test agree it whether is constitutional.7 that the the Court airtight, ante, three branches of Government need not be separate operate 443, and that the branches are not intended to original inquiry, might plausibly As matter be claimed that the expressed by debates, concerns during Framers of the Constitution their expressions similar found in Papers, the Federalist no means require the conclusion that the Judicial Branch is the arbiter of ultimate transgressed constitutionally whether one branch upon powers has reserved plausibly to another. It could have been the Framers maintained thought that the Constitution itself each had armed branch -withsufficient political weapons to fend off intrusions another which would violate principle of separation powers, and that therefore there was necessity judicial neither warrant nor invalidation such intrusion. way But that developed is not the the in law has this Court. Marbury Madison, (1803), 1 v. Cranch 137 established the authority Congress unconstitutional, of this to an Court Act of but hold particular question essentially the constitutional which decided was a “separation powers” Congress empowered of issue: whether the was under expand jurisdiction Constitution original upon to the conferred this Court by Ill Art. of the Constitution.

Any argument Marbury involving powers that is of limited to cases the the power Judicial Branch and that the had Court no to intervene in dispute relating separation powers of between the other two branches Myers rejected States, (1926) ; has been v. in United 272 U. S. 52 Humphrey’s Executor States, (1935); v. United 295 S. 602 Buck- U. and ley Valeo, entirely doing, v. 424 U. so S. these cases are following language consistent with the Nixon, from United States v. (1974): U. S. 683 performance assigned

“In duties each constitutional branch initially Constitution, must interpret Government the inter- and pretation powers by any great respect its branch due is from the others. counsel, noted, President's as reads we have Constitution providing an privilege of absolute for confidentiality all Presidential com- Many Court, however, unequivocally munications. decisions of this have Marbury holding reaffirmed the Madison, (1803), Cranch 137 emphatically province duty judicial is and department '[i]t say Id., Id., what the is.’ at law 177.” at 703. Nixon, States v. United independence,

with absolute in the Consti- support find no (1974). But U. S. pronouncement in for Court’s tution our cases severely may be President operations of the Office of the good a had by Congress simply because impeded doing reason for so. “balancing,” and

Surely if were a case ever there sustain “national interest” giving weight to the asserted Cases, supra. in Seizure was the Steel governmental action, it recited, Order Executive challenged There fight “American challengers, its without contradiction by the United nations of men men other ing fighting and forces of deadly with the in Nations are now combat engaged other materials weapons “the and Korea”; in aggression us joined with and those needed our armed forces great produced world free are the defense compo indispensable and an country, extent steel weapons materials”; substantially such nent of all of im industry in the “would stoppage steel and that work our defense and imperil national mediately jeopardize and resisting aggression, with us joined the defense those of our continuing danger soldiers, sailors, to the would add 590-591 S., field.” 343 in combat in the engaged airmen U. by the actions opinion). Although “legislative” (App. Act quickly overridden an could have been President id., this Court (Vinson, J., dissenting), at 677 C. Congress, of the separation- as violative down the Executive Order struck of the national inter principle nary a mention of-powers been as a fostered what could have characterized est to be upon the role temporary minimal and intrusion relatively analysis simple straightforward: was Congress. legislate; the President’s authority had exclusive Congress legislative power Order was an exercise Executive was upon authority therefore impinged Congress, Id., See v. Valeo.8 Buckley at 588-589. also unconstitutional. ante, Justice, The Chief set forth it is reasons For the I think that not the Executive Branch of the Federal Government, Legislative but and Judicial Branches as well, will day come regret when Court upheld has an Act of significantly trenches so func- tioning of the Office of the President. dissent.

clear Nixon, circumstances in United States involving a request specified narrow documents in connection awith criminal provide prosecution, support balancing no for the Court’s use of a test case such this where the seizure is broad and undifferentiated daily intrusion into the operations of the Office of the President.

Case Details

Case Name: Nixon v. Administrator of General Services

Court Name: Supreme Court of the United States

Date Published: Jun 28, 1977

Citation: 433 U.S. 425

Docket Number: 75-1605

Court Abbreviation: SCOTUS