73 Am. U. L. Rev. 217 (2023).

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Abstract

This Article addresses the dramatic collapse in effective congressional oversight that took place during the Trump Administration. For decades, persistent congressional committees had been able to pry documents and testimony from a recalcitrant executive branch despite the absence of legally enforceable remedies. The media typically regarded executive-privilege claims as attempts to cover up executive wrongdoing, which prompted voter suspicion that damaged the President’s approval ratings. Eventually, the political cost of asserting executive privilege would become so high that the Department of Justice would work out a negotiated settlement, which allowed Congress to obtain most of the documents and testimony it was seeking.

Congress’s political edge in executive-privilege disputes seemingly vanished at the beginning of the Trump Administration when President Trump successfully resisted congressional requests for executive branch documents and testimony, first in response to minority requests in the 115th Congress and then in response to congressional subpoenas when Democrats took control of the House in 2019. Polarized national media served a polarized electorate, which negated the traditional role that the media had played in promoting voter suspicion of executive-privilege claims. As a result, President Trump’s approval ratings did not suffer because he stonewalled congressional oversight.

This Article offers a novel approach that would allow Congress to utilize civil enforcement actions to obtain the documents and testimony necessary for effective oversight of the executive branch now that Congress has lost the political edge necessary to achieve effective oversight of the executive branch. First, Congress must pursue a civil enforcement action all the way to the Supreme Court to resolve the preliminary procedural issues (such as standing and the right of Congress to file a civil enforcement action) that should be easily resolved, but wind up delaying civil litigation so much that civil enforcement actions are not effective mechanisms for supporting Congress’s legitimate oversight of the executive branch.

Second, Congress must address the more difficult problem to solve, whether civil enforcement actions create a nonjusticiable political question because a federal court has no way of assessing how to create an appropriate remedy given the infinite variety of terms and conditions that might accommodate both branches’ legitimate needs. The difficulty of fashioning a remedy makes for a compelling reason to avoid judicial resolution because of the absence of judicially manageable standards to develop an appropriate remedy. District courts have the power to resolve this justiciability problem by adopting an arbitration approach to resolving executive-privilege disputes. Specifically, courts should adopt an arbitration format known as “high-low arbitration” or “final offer arbitration.” Using this format, most famously used in baseball salary arbitration, a district court could require the parties to submit detailed proposals for how to resolve the dispute and then would select whichever proposal more fairly balances the competing interests of the executive and legislative branches, without the option of creating a different, compromise remedy. 

* Professor of Law and Carville Dickinson Benson Research Professor, The George Washington University Law School.