Nixon v. Administrator of General Services/Concurrence-dissent Blackmun

MR. JUSTICE BLACKMUN, concurring in part and concurring in the judgment.

My posture in this case is essentially that of MR. JUSTICE POWELL, post, p. [433 U.S. 425#492 433 U.S. 492]. I refrain from joining his opinion, however, because I fall somewhat short of sharing his view, post at [433 U.S. 425#490 433 U.S. 498] and [433 U.S. 425#501 433 U.S. 501]-502, that the incumbent President's submission, made through the Solicitor General, that the Act serves, rather than hinders, the Chief Executive's Art. II functions, is dispositive of the separation of powers issue. I would be willing to agree that it is significant and that it is entitled to serious consideration, but I am not convinced that it is dispositive. The fact that President Ford signed the Act does not mean that he necessarily approved of its every detail. Political realities often guide a President to a decision not to veto.

One must remind oneself that our Nation's history reveals a number of instances where Presidential transition has not been particularly friendly or easy. On occasion, it has been openly hostile. It is my hope and anticipation — as it obviously is of the others who have written in this case — that this Act, concerned as it is with what the Court describes, ante at [433 U.S. 425#472 433 U.S. 472], as "a legitimate class of one," will not become a model for the disposition of the papers of each President who leaves office at a time when his successor or the Congress is not of his political persuasion.

I agree fully with my Brother POWELL when he observes, post at [433 U.S. 425#503 433 U.S. 503], that the "difficult constitutional questions lie ahead" for resolution in the future. Reserving judgment on

those issues for a more appropriate time — certainly not now — I, too, join the judgment of the Court, and agree with much of its opinion. I specifically join Part VII of the Court's opinion.