Lilley on the Relative Advantages of Political and Judicial Resolution of Executive Privilege Disputes

Stephen Lilley has recently posted a working draft of his article entitled "Suboptimal Executive Privilege" on ssrn. 

 

Abstract:    

Calls for political, rather than judicial, resolution of executive privilege disputes between the political branches of the federal government have become routine. This preference, however, lacks a theoretical basis in the existing literature even though executive privilege disputes give practical definition to the interaction of presidential secrecy and congressional authority. This Article offers the first comprehensive theoretical account and comparison of political and judicial resolution of executive privilege disputes between the political branches. It explains that both methods for resolving these executive privilege disputes are likely to produce constitutionally acceptable, but suboptimal, outcomes. Political resolution of these disputes is constitutionally valid but leaves room for improvement. Judicial involvement in executive privilege disputes between the political branches threatens the legitimacy of courts and their judgments. This and other concerns deprive courts of a convincing argument that they provide outcomes to executive privilege disputes that are constitutionally preferable to those reached by the political process. Courts conceivably could address those legitimacy concerns by sitting as courts of constitutional equity or doctrinalizing their discretion to entertain executive privilege disputes between the political branches. Such dramatic changes appear unwise and highly unlikely. A nondoctrinalized prudential discretion to entertain select executive privilege disputes between the branches appears likely to endure. This does not preclude all improvement, however. Courts can change their doctrine to encourage more productive negotiations between the political branches and thus improve upon suboptimal outcomes.

KP