Opposing Congress: Alternative Ways to Benefit from Executive Privilege Protections

Abstract In the U.S. constitutional system, Congress and the executive branch balance each other in exercising power from appointments to vetoes. That balance is never perfect nor is it consistent, with both Congress and the president, at times, trying to dominate. At no time is this truer than when Congress seeks executive branch information to conduct investigations. Presidents occasionally employ executive privilege to shield information from Congress and the public. Determining where the balance should rest is complicated because each side has legitimate interests. However, in recent decades presidential administrations increasingly have used alternative ways to frustrate the balance of powers, making a proper assessment in any one case difficult, if not impossible. This study details these alternative ways that modern presidential administrations delay or block information in their attempts to assert greater presidential power. These alternative ways have done much to shape the parameters of the relationship between the branches while expanding presidential powers. The more expansive presidential power becomes—by finding new ways to counter congressional inquiries—the avenues available for Congress to exercise checks and balances become more difficult.