Executive Privilege in the States: Judicial Construction, Gubernatorial Power, and Transparency

This article examines the emergence of gubernatorial communications privilege in the American states, an underexplored form of executive power that bears directly on transparency and democratic accountability. Drawing on gubernatorial communications privilege claims and state court decisions, the analysis shows that formal judicial recognition is rare, appearing in only eleven states, and does not map neatly onto conventional political or institutional explanations such as divided government or gubernatorial strength. Instead, the study advances a judicial entrepreneurship framework arguing that state courts, as opposed to governors, initially served as the primary architects of executive privilege by introducing and legitimizing the doctrine in the absence of sustained executive action. The findings recast executive privilege in the states as a judicially constructed and weakly institutionalized power with important implications for the balance between transparency and executive authority.