Law Commons^™

Restoring Balance To The Debate Over Executive Privilege: A Response To Berger, Mark J. Rozell

William & Mary Bill of Rights Journal

In this Essay, Professor Rozell responds to Raoul Berger 's Executive Privilege: A Constitutional Myth. Berger's work claims that executive privilege does not have a constitutional basis. Addressing Berger's textual, historical, and structural arguments, Professor Rozell argues contrarily that executive privilege is a legitimate power when exercised properly and that to view executive privilege as a constitutional absolute is improper. As such, Professor Rozell recognizes the limits of executive privilege and suggests that it may be subject to a balancing test when weighed against demands for information. He argues that presidents should not use this power to protect information that …