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

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

I join the judgment of the Court and all but Parts [433 U.S. 425#439 433 U.S. 455]V of its opinion. For substantially the reasons stated by the Court, I agree that the Presidential Recordings and Materials Preservation Act (Act), on its face, does not violate appellant's rights under the First, Fourth, and Fifth Amendments and the Bill of Attainder Clause. For reasons quite different from those stated by the Court, I also would hold that the Act is consistent, on its face, with the principle of separation of powers.

I
The Court begins its analysis of the issues by limiting its inquiry to those constitutional claims that are addressed to

"the facial validity of the provisions of the Act requiring the Administrator to take the recordings and materials into the Government's custody subject to screening by Government archivists."

Ante at [433 U.S. 425#439 433 U.S. 439]. I agree that the inquiry must be limited in this manner, but I would add two qualifications that, in my view, further restrict the reach of today's decision.

First, Title I of Pub.L. 93-526 (the Act) does not purport to be a generalized provision addressed to the complex problem of disposition of the accumulated papers of Presidents or other federal officers. Unlike Title II of Pub.L. 93-526 (the Public Documents Act), which authorizes a study of that problem,

Title I is addressed specifically and narrowly to the need to preserve the papers of former President Nixon after his resignation under threat of impeachment. It is legislation, as the Court properly observes, directed against "a legitimate class of one." Ante at [433 U.S. 425#472 433 U.S. 472].

President Nixon resigned on August 9, 1974. Less than two weeks earlier, the House Judiciary Committee had voted to recommend his impeachment, H.R.Rep. No. 93-1305, pp. 10-11 (1974), including among the charges of impeachable offenses allegations that the President had obstructed investigation of the Watergate break-in and had engaged in other unlawful activities during his administration. Id. at 1-4. One month after President Nixon's resignation, on September 8, 1974, President Ford granted him a general pardon for all offenses against the United States that he might have committed in his term of office.

On the same day, the Nixon-Sampson agreement was made public. The agreement provided for the materials to be deposited temporarily with the General Services Administration in a California facility, but gave the former President the right to withdraw or direct the destruction of any materials after an initial period of three years or, in the case of tape recordings, five years. During this initial period, access would be limited to President Nixon and persons authorized by him, subject only to legal process ordering materials to be produced. Upon President Nixon's death, the tapes were to be destroyed immediately. 10 Weekly Comp. of Pres. Doc. 1104-1105 (1974).

Those who drafted and sponsored Title I in Congress uniformly viewed its provisions as emergency legislation, necessitated by the extraordinary events that led to the resignation and pardon and to the former President's arrangement for the disposition of his papers. Senator Nelson, for example, referred to the bill as "an emergency measure" whose principal

purpose was to assure "protective custody" of the materials. 120 Cong.Rec. 33848, 33850-33851 (1974).

"[T]here is an urgency in the situation now before us. Under the existing agreement between the GSA and Mr. Nixon, if Mr. Nixon died tomorrow, those tapes — if I read the agreement correctly — are to be destroyed immediately; it is also possible that the Nixon papers could be destroyed by 1977. This would be a catastroph[e] from an historical standpoint."

Id. at 33857.

Senator Erving similarly remarked:

"This bill really deals with an emergency situation, because some of these documents are needed in the courts and by the general public in order that they might know the full story of what is known collectively as the Watergate affair."

Id. at 33855. Efforts to apply the legislation more generally to all Presidents or to other federal officers were resisted on the Senate floor. Thus, speaking again of the unique needs created by the Nixon-Sampson agreement and the Watergate scandals, Senator Javits stressed that "we seek to deal in this particular legislation, only with this particular set of papers of this particular ex-President." Id. at 33860. See generally S.Rep. No. 93-1181 (1974).

It is essential in addressing the constitutional issues before us not to lose sight of the limited justification for and objectives of this legislation. The extraordinary events that led to the resignation and pardon, and the agreement providing that the record of those events might be destroyed by President Nixon, created an impetus for congressional action that may — without overstatement — be termed unique. I therefore do not share my Brother REHNQUIST's foreboding that this Act "will daily stand as a veritable sword of Damocles over every succeeding President and his advisers." Post at [433 U.S. 425#545 433 U.S. 545]. If the study authorized by Title II should lead to

more general legislation, there will be time enough to consider its validity if a proper case comes before us.

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

"The Act, in terms, merely directs GSA to take custody of the materials that fall within the scope of section 101, and to promulgate regulations after taking into consideration the seven factors listed in section 104(a). Those factors provide broad latitude to the Administrator in establishing the processes and standards under which the materials will be reviewed and public access to them afforded. . . ."

408 F.Supp. 321, 335 (1976) (footnote omitted). In view of the latitude that the Act gives to GSA in framing regulations, I agree with the District Court that the question to be resolved in this case is a narrow one:

"Is the regulatory scheme enacted by Congress unconstitutional without reference to the content of any conceivable set of regulations falling within the scope of the Administrator's authority under section 104(a)?"

Id. at 334-335.

No regulations have yet taken effect under &sect; 104(a). Ante at [433 U.S. 425#437 433 U.S. 437]. In these circumstances, I believe it is appropriate to address appellant's constitutional claims, as did the District Court, with an eye toward the kind of regulations and screening practices that would be consistent with the Act and yet that would afford protection to the important

constitutional interests asserted. Section 104(a)(5) of the Act directs the Administrator to take into account

"the need to protect any party's opportunity to assert any legally or constitutionally based right or privilege which would prevent or otherwise limit access to such recordings and materials."

The District Court observed that, in considering this factor, the Administrator might well provide for meaningful participation by appellant in the screening process and in the selection of the archivists who would review the materials. The court also observed that procedures might be adopted that would minimize any intrusion into private materials and that would permit appellant an opportunity to obtain administrative and judicial review of all proposed classifications of the materials. 408 F.Supp. at 339-340. Finally,

the court noted that substantive restrictions on access might be adopted, consistent with traditional restrictions placed on access to Presidential papers, and that such restrictions could forbid public disclosure of any confidential communications between appellant and his advisors "for a fixed period of years, or until the death of Mr. Nixon and others participating in or the subject of communications." Id. at 338. 

I have no doubt that procedural safeguards and substantive restrictions such as these are within the authority of the Administrator to adopt under the broad mandate of &sect; 104(a). While there can be no positive assurance that such protections will, in fact, be afforded, we nonetheless may assume, in reviewing the facial validity of the Act, that all constitutional and legal rights will be given full protection. Indeed, that assumption is the basis on which I join today's judgment

upholding the facial validity of the Act. As the Court makes clear in its opinion, the Act plainly requires the Administrator, in designing the regulations, to

"consider the need to protect the constitutional rights of appellant and other individuals against infringement by the processing itself or, ultimately, by public access to the materials retained."

Ante at [433 U.S. 425#436 433 U.S. 436].

II
I agree that the Act cannot be held unconstitutional on its face as a violation of the principle of separation of powers or of the Presidential privilege that derives from that principle. This is not a case in which the Legislative Branch has exceeded its enumerated powers by assuming a function reserved to the Executive under Art. II. E.g., Buckley v. Valeo, [/us/424/1/case.html 424 U.S. 1] (1976); Myers v. United States, [/us/272/52/case.html 272 U.S. 52] (1926). The question of governmental power in this case is whether the Act, by mandating seizure and eventual public access to the papers of the Nixon Presidency, impermissibly interferes with the President's power to carry out his Art. II obligations. In concluding that the Act is not facially invalid on this ground, I consider it dispositive, in the circumstances of this case, that the incumbent President has represented to this Court, through the Solicitor General, that the Act serves, rather than hinders, the Art. II functions of the Chief Executive.

I would begin by asking whether, putting to one side other limiting provisions of the Constitution, Congress has acted beyond the scope of its enumerated powers. ''Cf. Reid v. Covert,'' [/us/354/1/case.html 354 U.S. 1], [/us/354/1/case.html#70 354 U.S. 70] (1957) (Harlan, J., concurring). Apart from the legislative concerns mentioned by the Court, ante at [433 U.S. 425#476 433 U.S. 476]-478, I believe that Congress unquestionably has acted within the ambit of its broad authority to investigate, to inform the public, and, ultimately, to legislate against suspected corruption and abuse of power in the Executive Branch.

This Court has recognized inherent power in Congress to pass appropriate legislation to

"preserve the departments and institutions of the general government from impairment or destruction, whether threatened by force or by corruption."

Burroughs v. United States, [/us/290/534/case.html 290 U.S. 534], [/us/290/534/case.html#545 290 U.S. 545] (1934). Congress has the power, for example, to restrict the political activities of civil servants, e.g., CSC v. Letter Carriers, [/us/413/548/case.html 413 U.S. 548] (1973); to punish bribery and conflicts of interest, e.g., Burton v. United States, [/us/202/344/case.html 202 U.S. 344] (1906); to punish obstructions of lawful governmental functions, Haas v. Henkel, [/us/216/462/case.html 216 U.S. 462] (1910); and — with important exceptions — to make executive documents available to the public, EPA v. Mink, [/us/410/73/case.html 410 U.S. 73] (1973). The Court also has recognized that, in aid of such legislation, Congress has a broad power "to inquire into and publicize corruption, maladministration or inefficiency in agencies of the Government." Watkins v. United States, [/us/354/178/case.html 354 U.S. 178], [/us/354/178/case.html#200 354 U.S. 200] n. 33 (1957). See also Buckley v. Valeo, supra at [/us/424/1/case.html#137 424 U.S. 137]-138; Eastland v. United States Servicemen's Fund, [/us/421/491/case.html 421 U.S. 491] (1975).

The legislation before us rationally serves these investigative and informative powers. Congress legitimately could conclude that the Nixon-Sampson agreement, following the recommendation of impeachment and the resignation of President Nixon, might lead to destruction of those of the former President's papers that would be most likely to assure public understanding of the unprecedented events that led to the premature termination of the Nixon administration. Congress similarly could conclude that preservation of the papers was important to its own eventual understanding of whether that administration had been characterized by deficiencies susceptible of legislative correction. Providing for retention of the materials by the Administrator and for the selection of appropriate materials for eventual disclosure to the public was a rational means of serving these legitimate congressional objectives.

Congress still might be said to have exceeded its enumerated powers, however, if the Act could be viewed as an assumption by the Legislative Branch of functions reserved exclusively to the Executive by Art. II. In Youngstown Sheet &amp; Tube Co. v. Sawyer, [/us/343/579/case.html 343 U.S. 579] (1952), for example, the Court buttressed its conclusion that the President had acted beyond his power under Art. II by characterizing his seizure of the steel mills as an exercise of a "legislative" function reserved exclusively to Congress by Art. I. 343 U.S. at [/us/343/579/case.html#588 343 U.S. 588]-589. And last Term we reaffirmed the fundamental principle that the appointment of executive officers is an "Executive" function that Congress is without power to vest in itself. Buckley v. Valeo, supra at [/us/424/1/case.html#124 424 U.S. 124]-141. But the Act before us presumptively avoids these difficulties by entrusting the task of ensuring that its provisions are faithfully executed to an officer of the Executive Branch. 

I therefore conclude that the Act cannot be held invalid on the ground that Congress has exceeded its affirmative grant of power under the Constitution. But it is further argued that Congress nonetheless has contravened the limitations on legislative power implicitly imposed by the creation of a coequal Executive Branch in Art. II. It is said that, by opening up the operations of a past administration to eventual public scrutiny, the Act impairs the ability of present and future Presidents to obtain unfettered information and candid advice, and thereby limits executive power in contravention of Art. II and the principle of separation of powers. I see no material distinction between such an argument and the collateral claim that the Act violates the residential privilege in confidential communications.

In United States v. Nixon, [/us/418/683/case.html 418 U.S. 683] (1974) (Nixon I),

we recognized a presumptive, yet qualified, privilege for confidential communications between the President and his advisors. Observing that

"those who expect public dissemination of their remarks may well temper candor with a concern for appearances and for their own interests to the detriment of the decisionmaking process,"

id. at [/us/418/683/case.html#705 418 U.S. 705], we recognized that a President's generalized interest in confidentiality is "constitutionally based" to the extent that it relates to "the effective discharge of a President's powers." Id. at [/us/418/683/case.html#711 418 U.S. 711]. We held nonetheless that "[t]he generalized assertion of privilege must yield to the demonstrated, specified need for evidence in a pending criminal trial." Id. at [/us/418/683/case.html#713 418 U.S. 713].

Appellant understandably relies on Nixon I. Comparing the narrow scope of the judicial subpoenas considered there with the comprehensive reach of this Act — encompassing all of the communications of his administration — appellant argues that there is no "demonstrated, specific need" here that can outweigh the extraordinary intrusion worked by this legislation. On the ground that the result will be to destroy "the effective discharge of the President's powers," appellant urges that the Act be held unconstitutional on its face.

These arguments undoubtedly have considerable force, but I do not think they can support a decision invalidating this Act on its face. Section 1 of Art. II vests all of the executive power in the sitting President, and limits his term of office to four years. It is his sole responsibility to "take Care that the Laws be faithfully executed." Art. II, &sect; 3. Here, as previously noted, President Carter has represented to this Court through the Solicitor General that the Act is consistent with "the effective discharge of the President's powers:"

"Far from constituting a breach of executive autonomy, the Act . . . is an appropriate means of ensuring that the Executive Branch will have access to the materials necessary to the performance of its duties."

Brief for Federal Appellees 29.

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

This is not to say that a former President lacks standing to assert a claim of Presidential privilege. I agree with the Court that the former President may raise such a claim, whether before a court or a congressional committee. In some circumstances, the intervention of the incumbent President will be impractical, or his views unknown, and, in such a case, I assume that the former President's views on the effective operation of the Executive Branch would be entitled to the greatest deference. It is uncontroverted, I believe, that the privilege in confidential Presidential communications survives a change in administrations. I would only hold that, in the circumstances here presented, the incumbent, having made clear in the appropriate forum his opposition to the former President's claim, alone can speak for the Executive Branch. 

I am not unmindful that "[i]t is emphatically the province and duty of the judicial department to say what the law is." '' [/us/5/137/case.html 5 U.S. 177] (180). As we reiterated in ''Nixon I:@

"'Deciding whether a matter has, in any measure, been committed by the Constitution to another branch of government . . . is itself a delicate exercise in constitutional interpretation, and is a responsibility of this Court as ultimate interpreter of the Constitution.'"

418 U.S. at [/us/418/683/case.html#704 418 U.S. 704], quoting Baker v. Carr, [/us/369/186/case.html 369 U.S. 186], [/us/369/186/case.html#211 369 U.S. 211] (1962). My position is simply that a decision to waive the privileges inhering in the Office of the President with respect to an otherwise valid Act of Congress is the President's alone to make under the Constitution. 

III
The difficult constitutional questions lie ahead. The President no doubt will see to it that the interests in confidentiality so forcefully urged by THE CHIEF JUSTICE and MR. JUSTICE REHNQUIST in their dissenting opinions are taken into account in the final regulations that are promulgated under

&sect; 104(a). While the incumbent President has supported the constitutionality of the Act as it is written, there is no indication that he will oppose appellant's assertions of Presidential privilege as they relate to the rules that will govern the screening process and the timing of disclosure, and particularly the restrictions that may be placed on certain documents and recordings. I emphasize that the validity of such assertions of Presidential privilege is not properly before us at this time.

Similarly, difficult and important questions concerning individual rights remain to be resolved. At stake are not only the rights of appellant, but also those of other individuals whose First, Fourth, and Fifth Amendment interests may be implicated by disclosure of communications as to which a legitimate expectation of privacy existed. I agree with the Court that, even in the councils of Government, an individual "has a legitimate expectation of privacy in his personal communications," ante at [433 U.S. 425#465 433 U.S. 465], and also that compelled disclosure of an individual's political associations, in and out of Government, can be justified only by "a compelling public need that cannot be met in a less restrictive way," ante at [433 U.S. 425#467 433 U.S. 467]. Today's decision is limited to the facial validity of the Act's provisions for retention and screening of the materials. The Court's discussion of the interests served by those provisions should not foreclose in any way the search that must yet be undertaken for means of assuring eventual access to important historical records without infringing individual rights protected by the First, Fourth, and Fifth Amendments.



Although I agree with much of Parts IV and V, I am unable to join those parts of the Court's opinion because of my uncertainty as to the reach of its extended discussion of the competing constitutional interests implicated by the Act.



By way of illustration, the District Court observed that the following archival practices might be adopted to limit invasion of appellant's constitutionally protected interests:

"1. A practice of requiring archivists to make the minimal intrusion necessary to classify material. Identification by signature, the file within which material is found, general nature (as with diaries, or dictabelts serving the same function), a cursory glance at the contents, or other means could significantly limit infringement of plaintiff's interests without undermining the effectiveness of screening by governmental personnel. Participation by Mr. Nixon in preliminary identification of material that might be processed without word-by-word review would facilitate such a procedure."

"2. A practice of giving Mr. Nixon some voice in the designation of the personnel who will review the materials, perhaps by selecting from a body of archivists approved by the government."

"3. A practice of giving Mr. Nixon notice of all proposed classifications of materials and an opportunity to obtain administrative and judicial review of them, on constitutional or other grounds, before they are effectuated."

408 F.Supp. at 339-340 (footnotes omitted).

I agree with the views expressed by MR. JUSTICE WHITE, ante at [433 U.S. 425#487 433 U.S. 487]-491, on the need to return private materials to appellant.



The District Court noted the existence of:

"a basic set of donor-imposed access restrictions that was first formulated by Herbert Hoover [and] followed by Presidents Eisenhower, Kennedy, and Johnson. Under this scheme, the following materials would be restricted:"

"1) materials that are security-classified;"

"2) materials whose disclosure would be prejudicial to foreign affairs;"

"3) materials containing statements made by or to a President in confidence;"

"4) materials relating to the President's family, personal, or business affairs or to such affairs of individuals corresponding with the President;"

"5) materials containing statements about individuals that might be used to embarrass or harass them or members of their families;"

"6) such other materials as the President or his representative might designate as appropriate for restriction."

"President Franklin Roosevelt imposed restrictions very similar to numbers 1, 2, 4, and 5, and in addition restricted (a) investigative reports on individuals, (b) applications and recommendations for positions, and (c) documents containing derogatory remarks about an individual. President Truman's restrictions were like those of Hoover, Eisenhower, Kennedy, and Johnson, except that he made no provision, like number 6 above, for restriction merely at his own instance."

408 F.Supp. at 338-339 n.19 (citations omitted).



The validity of the provision of &sect; 104(b) for possible disapproval of the Administrator's regulations by either House of Congress is not before us at this time. See 408 F.Supp. at 338 n. 17; Brief for Federal Appellees 26, and n. 11.



There is at least some risk that political, and even personal, antagonisms could motivate Congress and the President to join in a legislative seizure and public exposure of a former President's papers without due regard to the long-range implications of such action for the Art. II functions of the Chief Executive. Even if such legislation did not violate the principle of separation of powers, it might well infringe individual liberties protected by the Bill of Attainder Clause or the Bill of Rights. But this is not the case before us. In passing this legislation, Congress acted to further legitimate objectives in circumstances that were wholly unique in the history of our country. The legislation was approved by President Ford, personally chosen by President Nixon as his successor, and is now also supported by President Carter. In view of the circumstances leading to its passage and the protection it provides for "any . . . constitutionally based right or privilege,'" supra'' at [433 U.S. 425#496 433 U.S. 496], this Act, on its face, does not violate the personal constitutional rights asserted by appellant. ''



''Cf. Youngstown Sheet &amp; Tube Co. v. Sawyer,'' [/us/343/579/case.html 343 U.S. 579], [/us/343/579/case.html#635 343 U.S. 635]-637 (1952) (Jackson, J., concurring):

"When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate. In these circumstances, and in these only, may he be said (for what it may be worth) to personify the federal sovereignty. If his act is held unconstitutional under these circumstances, it usually means that the Federal Government, as an undivided whole, lacks power. . . ."

(Footnote omitted.) @See also [/us/38/415/case.html 38 U.S. 420] (1839):

"[T]his Court ha[s] laid down the rule that the action of the political branches of the government, in a matter that belongs to them, is conclusive."