Nixon v. Administrator of General Services

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Questions

1. 1. Was the Presidential Recordings and Materials Preservation Act unconstitutional on its face as a violation of the separation of powers?

   2. Was the act unconstitutional on its face as a violation of presidential privilege doctrines?

   3. Was the act unconstitutional on its face as a violation of Nixon’s privacy interests?

   4. Was the act unconstitutional on its face as a violation of Nixon’s First Amendment right to free association?

   5. Was the act unconstitutional on its face as a violation of the Bill of Attainder Clause?

Conclusions

1. "

   No, no, no, no, and no. In a 7-2 decision written by Justice William Brennan, the Court held that the act did not violate any of Nixon’s relevant constitutional rights. Justice Brennan first determined that the district court correctly limited the scope of its review to the constitutional consequences of the archival screenings because the Administrator had not yet promulgated any regulations.

   Justice Brennan rejected Nixon’s claim that the act violated the constitutional separation of powers, focusing on whether the act prevented the executive branch from accomplishing its constitutionally assigned functions. He noted that the act placed custody of the materials in officials also of the executive branch, and that the materials could only be released if that action was not barred by some applicable executive privilege.

   Justice Brennan rejected Nixon’s claim that presidential privilege barred archival scrutiny of the materials. He noted that presidential immunity was generally qualified, and that the screening constituted a very limited intrusion by executive branch personnel into executive matters. Moreover, the intrusion was justified by a clear public interest in preserving materials for legitimate historical and governmental purposes.

   Justice Brennan held that the act did not violate Nixon’s right to privacy. He weighed the potential intrusion into Nixon’s privacy against the public interest in subjecting the materials to archival screening. He noted that only a small fraction of the materials in question related to personal matters, and that the act provided procedures for the expressed purpose of minimizing intrusions into Nixon’s private and personal matters.

   Justice Brennan held that the act did not violate Nixon’s right to associational privacy under the First Amendment. He acknowledged that Nixon as President was the head of the national Republican Party and that the First Amendment closely protects involvement in partisan polities. Here, however, archival screening was apparently the least restrictive means of meeting the compelling government interests promoted by the act.

   Finally, Justice Brennan rejected Nixon’s argument that the act was a bill of attainder that legislatively determined guilt and inflicted punishment on Nixon without provision of the protections of a judicial trial. He concluded that the act did not impose any punishment traditionally judged to be prohibited by the bill of attainder clause, that the act was justified by Nixon’s plan to eventually destroy some of the materials, and that the legislative history did not indicate an intent to punish Nixon.

   Justice Byron White concurred in part and in the judgment. With respect to the bill of attainder issue, Justice White argued that it was sufficient to demonstrate that the act did not impose any punishment on Nixon. He questioned the majority’s assumption that the government’s interest in historical preservation could be important enough in itself to entitle it to Nixon’s private communications.

   Justice John Paul Stevens concurred. He outlined the history of bill of attainders, pointing out that they were generally directed at formerly powerful political actors. Here, however, the facts provided a legitimate justification for the specificity of the act.

   Justice Harry Blackmun concurred in part and concurred in the judgment. He described his posture as essentially similar to that of Justice Louis Powell, but did not share his view that the President Carter’s agreement with the position of the Administrator was dispositive of the separation-of-powers issue.

   Justice Louis Powell concurred in part and concurred in the judgment. Justice Powell emphasized the uniqueness of the situation leading to the act’s signing, and the importance of safeguarding the materials. Regarding the separation of powers issue, Justice Powell considered it dispositive that President Carter represented through his Solicitor General that the act serves the executive.

   Chief Justice Warren Burger dissented. He argued that the act was an unconstitutional congressional violation of separation of powers. He highlighted the historical importance of presidential freedom from control or coercion by Congress, and characterized the act as an attempt by Congress to exercise the executive power to control executive materials, some of which were confidential.

   Justice William Rehnquist dissented, characterizing the question as whether congress has the right to seize the official papers of an outgoing president as he is leaving the inaugural stand. He emphasized the importance of candid and open discourse in the executive branch and the potential effect of the act on the free flow of information to and from the President. He rejected the majority’s balancing of the violation of separation of powers against the public interests allegedly furthered by the act.