Key words: Separated Powers, Checks and Balances
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Over the past week, the president’s statements and the executive branch’s actions in response to congressional oversight requests suggest that the executive branch may have decided to adopt a strategy of maximal resistance to oversight across the board. If so, this would be a dramatic break from the executive branch’s approach to responding to congressional requests for at least the past half-century. Implementing a strategy designed to stonewall meaningful oversight across the board would also be a form of constitutional hardball that significantly increases the stakes in this contest of will between the branches.
At least since Watergate, if not for longer, the executive branch has recognized the important role congressional oversight plays in the constitutional system and has understood itself to have a constitutional obligation to accommodate legitimate oversight requests from Congress. This long-standing executive branch perspective is embodied in a 1982 memorandum to all agency heads regarding how to respond to congressional requests, often referred to as the Reagan memo. This memorandum, which remains in force, explicitly states that it is executive branch policy “to comply with congressional requests for information to the fullest extent consistent with the constitutional and statutory obligations of the Executive Branch.”
While the Reagan memo recognizes there may be times when it is necessary to withhold information to protect important executive branch confidentiality interests, it emphasizes the expectation that such impasses should be rare and limited to “compelling circumstances.” Instead, the Reagan memo underscores the importance of engaging in a good faith negotiation to accommodate the interests of both branches: “Historically, good faith negotiations between Congress and the Executive Branch have minimized the need for invoking executive privilege, and this tradition of accommodation should continue as the primary means of resolving conflicts between the Branches.” This process of good faith negotiation has become known as the accommodation process.
- United States v. American Telephone & Telegraph Company.
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