Law Commons^™

The Political Safeguards Of Executive Privilege, David A. O'Neil

Vanderbilt Law Review

To an unprecedented degree, the nation's welfare now depends on constitutionally sound outcomes to disputes between Congress and the President over executive branch information. Yet we still lack a satisfying theoretical account of the optimal method for achieving those outcomes. In the years since Watergate, courts and scholars have embraced a theory premised on an unexamined faith that the Constitution's structure embeds in the political process the tools and incentives necessary for each branch to vindicate its interests. Judicial interference, this conventional model further assumes, is both unnecessary and unwise; left to their own devices, the political branches will pursue …