EXECUTIVE PRIVILEGE V. CONGRESSIONAL Raoul Berger Reprinted from UCLA LAW REVIEW VOL. 12, NO. 5, AUGUST 1965 The Regents of the University of California, 1965. 2067 EXECUTIVE PRIVILEGE V. Raoul Berger* PART I For more than a century Congress and the President have been stubbornly engaged in a boundary dispute bottomed on irreconcilable claims to constitutional power. Pitted against a claimed absolute executive discretion to withhold information is a claimed plenary congressional power to demand it. Although boundary disputants are notoriously unwilling to relinquish their claims it is yet remarkable that the issue has never been submitted to the courts, for ours is a land, as de Tocqueville early observed, where "scarcely any political question arises... that is not resolved, sooner or later, into a judicial question.' The preference of the disputants for the recurrent skirmishing of a Cold War, some suggest, may be attributable to uncertainty as to their respective rights, or to an expression of the American genius for political compromise, an outgrowth of the "system of checks and balances." There is little if any historical warrant, I propose to show, for the notion that executive privilege was ever intended to be among the checks on the legislative power of inquiry. And in evaluating the "compromise," one should consider not only the historical validity of the respective positions but also the cost of the dispute in terms of impaired governmental efficiency. As one watches the legislative process grind to a halt for long-drawn bickering about the congressional right to often innocuous information, one is led to ask with Senator Neely whether the time has not come to submit the "intolerably prolonged controversy" to the courts.3 * Visiting Professor, University of California Law School, Berkeley; former General Counsel to the Alien Property Custodian; former Chairman, Section of Administrative Law, ABA. The related question of what information the public, as distinguished from the Congress, is entitled to obtain, is not discussed in this article. The writer is indebted to Dean Edward L. Barrett and Professor Albert Ehrenzweig for criticism. The volume of citations makes it necessary to employ abbreviations for frequently cited authorities. See Appendix for key. 1 1 DE TOCQUEVILLE 280. See also Frankfurter, Chief Justices I Have Known, 39 VA. L. REV. 883, 895 (1953) ("By the very nature of our Constitution, practically every political question eventually, with us, turns into a judicial question"). 2 Bishop 477, 491; Kramer & Marcuse 916; Younger 784. 8 Kramer & Marcuse 867. Republican Senator Carlson agreed with Senator |