Off the Record? The Constitutionality of the Presidential Records Act
For nearly fifty years, the Presidential Records Act has governed the preservation, ownership, and eventual disclosure of presidential records. But in April, the Department of Justice’s Office of Legal Counsel concluded that the Act is unconstitutional and that “the President need not further comply with its dictates.” OLC argued that the statute exceeds Congress’s powers and intrudes on the Executive's independence.
That conclusion has now moved from the realm of executive-branch legal interpretation to active litigation. In May, U.S. District Judge John D. Bates concluded that the Presidential Records Act is likely constitutional and preliminarily ordered numerous Executive Branch offices and officials—though not the President and Vice President themselves—to comply with it. The government has appealed that ruling to the D.C. Circuit.
What constitutional authority, if any, does Congress have to regulate the creation, preservation, ownership, and disclosure of presidential records? Join us as our panel examines this question, the ongoing litigation, and the broader implications for congressional power, executive privilege, and the separation of powers.
Featuring:
- Michael Edney, Partner, Morgan, Lewis & Bockius LLP
- Christopher Fonzone, Non-Resident Senior Fellow, Reiss Center on Law and Security, NYU School of Law
- (Moderator) Zack Smith, Senior Legal Fellow, Courts and the Constitution, Legal Policy Center, The Heritage Foundation
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As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker.
