On April 1, 2026, the Department of Justice issued an opinion by the Office of Legal Counsel (OLC) concluding that the Presidential Records Act (PRA) is facially unconstitutional because it exceeds Congress’s constitutional powers and aggrandizes the Legislative Branch at the expense of the independence and autonomy of the Executive. To say the opinion is surprising is an understatement: Presidents have traditionally complied with the Act without serious objection, and there is essentially no scholarly or other commentary questioning the Act’s constitutionality. Nonetheless, I closely read the opinion, remembering that there are examples of seemingly long-settled legal doctrines being unexpectedly reconsidered for the better. But this isn’t such a case. Usually the obvious answer to a legal question is the right one.
I. The PRA: What It Is and Why Congress Enacted It
As the D.C. Circuit recognized decades ago, the PRA attempts to “balance two competing goals.” On the one hand, records of what happened in the White House are an important part of the nation’s history and potentially essential to the present functioning of all three branches of our government. The PRA thus ensures that persons in the White House, including but not limited to Presidents, do not destroy, abscond with, or otherwise fail to preserve, the government’s own records of what occurred in the Executive Office of the President. On the other hand, in crafting the PRA, Congress recognized that the President was the head of a co-equal branch of government with important interests in the proper functioning of the Executive Branch and the confidentiality of his deliberations and personal information. The PRA thus contains a number of provisions designed to “assiduously” protect these important presidential interests.
Specifically, the PRA accomplishes its primary objective—preserving records for the benefits of history and the ongoing functioning of the government—by requiring the President to “take all such steps as may be necessary to assure that the activities, deliberations, decisions, and policies that reflect the performance of the President’s constitutional, statutory, or other official or ceremonial duties are adequately documented” and “preserved.” The Act then establishes protocols for when and how the former President’s records may be accessed, with the public typically having access to most (but not all) presidential records no later than 12 years after the end of the President’s term in office.
At the same time, the PRA respects the President’s status as the head of the Executive Branch in a number of ways. First, the Act allows Presidents to exercise essentially unreviewable discretion to designate diaries, personal notes, and other documents created in the President’s personal capacity as personal records not subject to the PRA’s preservation and disclosure requirements.
Second, the Act makes clear that the President remains “exclusively responsible” for the “custody” and “control” of, and “access” to, presidential records while he remains in office, and then states that, after the President’s term in office ends, the Archivist of the United States, an Executive Branch official, “shall assume responsibility for the custody, control, and preservation of, and access to” the records. Thus, the PRA does not even require the President to transfer the records outside the control of the Executive Branch, but solely to transfer them to another Executive Branch official.
Third, the PRA does nothing to change a current President’s ability to resist congressional or other requests for access to information; the President remains able today to assert any privilege or other defense to disclosure he could have before the PRA’s enactment. The Act also makes clear that former Presidents can continue indefinitely to assert presidential privileges against the disclosure of any records covered by the Act even after they have left office.
II. All Three Branches Have Long Agreed That the PRA is Constitutional
Given the obvious legitimacy of Congress’s objectives in enacting the PRA, it is unsurprising that all three branches of our government have long agreed that the statute is constitutional:
Congress enacted the statute and did so against the backdrop of a record clearly stating it had the affirmative authority to do so and that the statute did not violate the separation of powers.
Likewise, in Nixon v. Administrator (1977), the Supreme Court considered the constitutionality of the Presidential Recordings and Materials Preservation Act (PRMPA), a statute Congress enacted to prevent President Nixon from destroying his presidential records after his resignation. The Court held that “Congress can legitimately act” to “protect” the “substantial interests” that the public and future Executive and Legislative Branch officials have in accessing the records “by entrusting [them] to expert handling by trusted and disinterested professionals.” And the Court further rejected President Nixon’s argument that “the disposition of Presidential materials within the Executive Branch” violates the “principle of separation of powers.”
Finally, the Executive Branch has also long agreed. Testifying before Congress in 1978 as it was considering legislation that ultimately became the PRA, a Deputy Assistant Attorney General from OLC—the Executive Branch office delegated the authority to issue definitive interpretations of the law—provided a lengthy statement for the record which concluded “that the subject matter of this bill is well within the province of Congress, that it deals with matters appropriate for congressional concern, and that the underlying purposes may constitutionally be achieved.” The statement further said that, “insofar as declaring the President’s official papers to be public property is concerned, Congress’ action is not subject to serious challenge,” and quoted Justice Powell’s concurrence in Nixon for the proposition that “Congress’ power in this area is ‘unquestionable.’” Consistent with this view, Presidents Carter, Reagan, George H.W. Bush, Clinton, George W. Bush, Obama, Trump (in his first term), and Biden never challenged the facial constitutionality of the PRA and all administrations took steps to comply with the act, even as some instances of noncompliance were documented.
This inter-branch consensus is unsurprising, given the numerous constitutional bases upon which Congress could have enacted the legislation, including at least the following three:
First and foremost, the Property Clause. Article IV of the Constitution expressly grants Congress the “Power to dispose of and make all needful Rules and Regulations respecting” U.S. property. Since the Constitution and Congress create and fund all of the offices in the White House, those offices are unquestionably government offices. As OLC recognized in the 1978 testimony concerning the constitutionality of the PRA, “[i]t is well established that the work product of government employees prepared at the direction of their employer or in the course of their duties is government property.” Thus, Congress may “extend this principle” to require the preservation of “records prepared or received by the President in the course of his duties” and “no substantial separation of powers problems would, in our view, be raised.” (As I discuss below, the April 1, 2026 OLC opinion includes no discussion of the Property Clause.)
Second, and closely related to the first, the Supreme Court’s decision in Nixon v. Administrator suggests that Congress has an inherent authority to require the preservation of the President’s historically valuable papers for the benefit of (as the preamble to the Constitution puts it) “our Posterity.” In upholding the PRMPA, the Court explained it this way:
An incumbent President should not be dependent on happenstance or the whim of a prior President when he seeks access to records of past decisions that define or channel current governmental obligations. Nor should the American people’s ability to reconstruct and come to terms with their history be truncated by an analysis of Presidential privilege that focuses only on the needs of the present.
In fact, it would be an odd Constitution indeed that precluded Congress from taking reasonable steps to protect the nation’s heritage—and its knowledge of how the government has governed. And consistent with this view, to the best of my knowledge, the Supreme Court has never held that a statute like the PRA regulating records of the Government’s inner workings exceeds Congress’s authority.
Third, the Constitution grants Congress the power to legislate on any topic within its enumerated powers and to enact legislation “necessary and proper for carrying into Execution” not only those powers, but also “all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.” And there are any number of reasons why Congress may deem the preservation of presidential records necessary and proper for carrying out the Executive’s, Legislature’s, and Judiciary’s constitutional powers. For example:
- Given the evergreen nature of policy issues, particularly in the national security and foreign policy context, where foreign regimes often operate on different political clocks than in the United States (e.g., Fidel Castro was the leader of Cuba for nearly half a century), Presidents will often have very good reasons to access their predecessors’ records in order to carry out their responsibilities as Commander-in-Chief and Chief Executive;
- As the numerous congressional investigations that sought White House records demonstrate, such records may be relevant to any number of topics on which Congress may legislate;
- As the nominations of James Baker, Ed Meese, Leon Panetta, Alberto Gonzales, John Roberts, Elena Kagan, Brett Kavanaugh, and many, many others demonstrate, White House officials are often nominated for positions requiring Senate confirmation, such that access to their records may be relevant to the Senate’s consideration of their nominations;
- Similarly, as Dick Cheney, Rahm Emanuel, and others demonstrate, White House officials may run for Congress, such that access to the records may be relevant to the Senate’s consideration of their qualifications and whether to expel them;
- Particularly given the Supreme Court’s recent decision on presidential immunity, impeachment may be the only means of accountability for former senior officials, and presidential records clearly could be relevant when the House exercises its sole power to impeach and the Senate tries an impeachment; and
- As United States v. Nixon (1973) demonstrates, courts may subpoena records of meetings occurring or decisions made at the White House because they are relevant to proceedings before them.
It thus seems plain that the PRA is within Congress’s Necessary and Proper authority. To paraphrase Chief Justice Marshall in McCulloch v. Maryland (1819), the landmark case concerning the scope of Congress’s power to enact legislation, the “end”—ensuring that future Presidents and current and future Congresses (and, ultimately, the American people) have access to important records needed to carry out any number of their constitutional functions—is “legitimate” and “within the scope of the Constitution.” As for the “means”—requiring Presidents to take steps to preserve records describing how they carried out their duties, while providing them with some flexibility in how they perform that obligation and allowing them the ability to protect records as private or privileged—those are “appropriate” and “plainly adapted” to the end and consistent with the “letter and spirit” of the Constitution.
III. So Why Has OLC Concluded to the Contrary?
Against this longstanding consensus as to the PRA’s constitutionality, OLC offers two arguments. Toward the end of its opinion, OLC argues that the PRA impermissibly violates the separation of powers—which requires it to essentially reject the governing Supreme Court precedent and OLC’s own 1978 analysis discussed above. Yet that’s not even the most surprising part of the opinion. In the lengthy analysis proceeding its separation of powers claim, OLC argues that Congress simply does not have any affirmative constitutional authority to enact the PRA. I’ll thus address this “no congressional power” argument first, before turning to the secondary, separation-of-powers argument.
A. The “No Congressional Power” Argument
It is difficult to capture how “astounding” OLC’s “no congressional power” claim is. Indeed, in Nixon v. Administrator, when President Nixon raised a slew of arguments for why the PRA’s predecessor was unconstitutional (each of which the Supreme Court rejected), he did not even claim that Congress lacked the affirmative constitutional authority to enact the statute. And there’s an obvious reason for that: as the analysis in Section II shows, Congress plainly has such authority.
The question thus becomes: how and why did OLC reach its conclusion to the contrary? To be candid, the answer is unclear. OLC spends a substantial portion of its analysis rejecting arguments that are by no means central or even relevant to Congress’s authority to enact the PRA,[1] and its opinion does little to grapple with the potential bases identified above. The opinion nowhere mentions the Property Clause. It nowhere addresses whether Congress might possess an inherent authority to preserve the government’s records in order to ensure “the American people’s ability to reconstruct and come to terms with their history.” And it nowhere addresses whether the PRA is necessary and proper to the U.S. Government carrying out the broad range of activities described above; indeed, the opinion nowhere cites McCulloch or analyzes its robust theory of the Necessary and Proper power.
Instead, the opinion focuses almost the entirety of its discussion of the Necessary and Proper Clause on addressing whether the PRA is necessary and proper to Congress’s funding of the presidency, rejecting “the fallacy that Congress’s power to appropriate funds for executive operations authorizes regulation of how the President exercises his constitutional duties.” Of course, one could object to this conclusion—it is surely far too broad as stated—but it is not even needed to do so to show that OLC’s argument is unavailing.
The opinion’s other discussion of the Necessary and Proper Clause dismisses in less than a page the idea that Congress can conclude that the PRA is “necessary and proper” to the Executive Branch carrying out its duties. The opinion supports this determination with what are, at bottom, two assertions, unsupported by citations or significant reasoning: first, that relying on the Necessary and Proper Clause here is “at odds with” the “presumption of regularity”; and, second, that the PRA “burdens rather than facilitates the exercise of executive power” and is thus “not ‘necessary and proper’ to carry that power into execution.”
These claims do not survive serious reflection. With respect to the first, even leaving aside that this is a very odd time for the Executive Branch to be emphasizing the presumption of regularity, the invocation is a category mistake. That presumption is a doctrine that courts apply so that litigants can’t derail litigation by second-guessing executive functioning without support for their assertions. The opinion nowhere addresses why such a judicial creation should apply to legislation, and, indeed, it is difficult to see why it would, as Congress could presumably supersede the presumption by statute.
The problems with the second claim are even more fundamental. The opinion points to not a single case that supports the view that legislation that “burdens rather than facilitates the exercise of executive power” exceeds Congress’s Necessary and Proper Clause; certainly, there is no basis for that claim in McCulloch and its progeny. And this lack of precedential support is unsurprising, for the line between “burdening” and “facilitating” turns out to be far more complicated than the opinion suggests.
For example, President Carter was “especially pleased to sign” the PRA because it “carrie[d] forward [his] commitment to making sure that our Government is not above the law, and merits the trust of the people from whom a President and his Government derive their power.” In other words, President Carter either did not see the PRA as a burden or, more likely, saw it as a “burden” that was eminently worth bearing for the broader benefits it would provide to the public’s trust in the Executive. Some might even say that he was of the view that the statute “facilitates” the exercise of Executive Power.
To be sure, other Presidents may disagree with President Carter’s assessment. But it can’t be that the Constitution grants any future President a veto over enacted legislation previously deemed “necessary and proper” to carry out the Executive Power. Rather, the Constitution is perfectly clear on the matter: it authorizes Congress to enact legislation that it deems necessary and proper to carrying out powers vested in the Executive Branch (and also provides Congress with the power to override a presidential veto if even the sitting President disagrees). Indeed, if accepted, this “burdens rather than facilitates” proposition would threaten to invalidate an enormous range of legislation regulating the Executive Branch.[2]
B. The Separation of Powers Argument
The opinion’s second argument—that the PRA violates separation of powers principles—fares no better. On this front, the opinion does not even discuss the relevant and on-point Supreme Court precedent it effectively overturns, Nixon v. Administrator, until page 41, and it relegates the discussion of OLC’s testimony defending the constitutionality of the PRA to a footnote on page 43. The opinion’s attempts to address these relevant precedents, moreover, are wholly unpersuasive.
To begin, the opinion attempts to distinguish Nixon on the ground that the PRMPA—which only covered President Nixon’s records, some of which he was expected to destroy, rather than the records of all Presidents—is a narrower statute than the PRA. This is arguably true, although the fact that the PRMPA targeted records known to be of particularly sensitivity and that, unlike President Nixon, future Presidents would have notice of the PRA cuts against the claim. But even if the PRMPA is narrower than the PRA, the implication of OLC’s logic is odd: Requiring Congress to wait for evidence that a President is destroying records seems exceedingly likely to frustrate their ability to stop him from doing so. More fundamentally, the PRMPA plausibly being narrower than the PRA does nothing to change the fact that the Court’s reasoning in Nixon, as discussed above, plainly applies more broadly than to the PRMPA and squarely to the question at hand.
Perhaps recognizing that its attempts to distinguish Nixon are unavailing, OLC turns to the gravamen of its argument: that the Supreme Court’s decision is simply “wrong” because it “reflects the ‘ancien regime’ of the Court’s ‘mid-twentieth century’ approach to separation of powers, not the more thoughtful approach appropriately required by subsequent developments in Supreme Court doctrine.” The opinion similarly rejects OLC’s prior testimony endorsing the constitutionality of the Act on the grounds that it “has not withstood the test of time” and that “intervening developments in the law appear to cast doubt” on its conclusions.
Even if one accepts that the Executive Branch has its own independent authority (and, indeed, responsibility) to interpret the Constitution, the opinion’s rejection of Supreme Court and its own prior precedent is surprisingly cavalier. The opinion nowhere notes that OLC has published at least three formal opinions on the PRA in recent years (in 2004, 2007, and 2021) without questioning the constitutionality of the statute in any of them. And even leaving that omission to the side, the precise intervening legal developments on which the opinion rests its willingness to depart from a half-century old Supreme Court holding and unbroken Executive Branch view of the statute are not precisely clear. The only Supreme Court case that the opinion cites in support of the notion that Nixon does not reflect the Court’s more recent and “thoughtful” approach to the separation of powers is an unrelated Bivens case (Ziglar v. Abbasi (2017)), leaving one with the inevitable conclusion that OLC believes the most important issue is “Congress’s pursuit of information from the President” and that the most important change is thus a recent Supreme Court decision that looms like a brooding omnipresence over the entire opinion and its separation of powers analysis, in particular: Mazars v. United States (2020).
The opinion’s reliance on Mazars reflects another category error, however. In Mazars, the Supreme Court concluded that, while Congress has broad authority to seek information that is “related to, and in furtherance of, a legitimate task of the Congress,” congressional “subpoenas for the President’s personal information implicate weighty concerns regarding the separation of powers” and must thus surmount a heightened burden. In DOJ’s view, this logic applies directly to the PRA, and the PRA does not surmount Mazars’ heightened burden, largely because it does not identify “any contemplated legislation” or other specific legislative activity that Congress “could better evaluate with access to the President’s papers” and because it burdens the presidency by potentially “chill[ing] the President’s advisers from offering candid or unpopular advice,” “risk[ing] [the] inadvertent disclosure of sensitive or privileged information,” and taking up bandwidth so as to potentially “preven[t]” White House personnel “from effectively advising and assisting the President in the performance of his constitutional duties.”
But this train of thought simply replicates the broader error mentioned above and endemic to the opinion: Focusing on Congress’s implied oversight authority as the basis for the Act to the exclusion of Congress’s other relevant powers. Mazars is an oversight opinion about Congress’s authority to issue a specific congressional subpoena, and it is thus a poor fit to the legislative context: For example, in passing framework legislation like the PRA, Congress would never be able to anticipate and articulate the specific legislative reasons it might need access to presidential records many years in the future. Nothing in Mazars even comes close to suggesting that it is addressing the scope of Congress’s legislative ability to ensure that the American people, future Presidents, courts, and Congresses have access to a record of Presidents’ performance of their constitutional duties. Indeed, Mazars does not even mention the PRA, and it is simply inconceivable that the seven Justices who joined that opinion thought that they were de facto disabling Congress from preventing Presidents (and other White House officials) from destroying presidential records.
Moreover, even if one were to assume that Mazars stands for some broader principle that legislation relevant to a President’s papers must show some solicitude for the presidency—which is, at best, a highly debatable proposition—the PRA would clearly surmount such a heightened standard. It grants the President significant discretion on how to meet his preservation obligations, including the ability to exempt personal papers from the Act; it makes an Executive Branch official, the Archivist (who is answerable to the President), the custodian of the records after the President leaves office; it postpones the public release of any records for many years; and, even then, it preserves for the President and the relevant former President the ability to assert relevant privileges over the records.
The parade of horribles the opinion unspools in this regard are singularly unpersuasive. Notwithstanding the fact that the PRA has been on the books for nearly half a century, the opinion cites essentially no evidence for its claims that presidential advisers may be chilled or that sensitive or privileged information may be released inadvertently. For the worry that White House advisers may not be able to effectively advise or assist the President, the opinion merely asserts its “understand[ing] that [the] White House Counsel’s Office spends a considerable amount of time ensuring the President’s compliance with the PRA, which detracts from its capacity to advise the President on sensitive questions of law and policy.” Not very persuasive, particularly since the increasing role Presidents have played in governance and control they have exercised over the Executive Branch in the years since the PRA was enacted would suggest that they and their staffs have been plenty effective. Put simply, these concerns are a shockingly weak basis on which to overturn a half-century old Supreme Court precedent and invalidate important framework legislation.
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Overall, then, OLC’s opinion, despite its length, does very little to address, much less cast doubt upon, the most obvious bases upon which Congress could enact the PRA or show that the longstanding Supreme Court and Executive Branch precedents upholding the Act are incorrect. This leaves the unmistakable impression that it is not that the law has changed since the PRA was enacted, but rather that this OLC would simply like the law to return to what it was before the PRA. And this reading of the opinion explains why it recounts at such length the pre-PRA regime regarding presidential records, when Presidents possessed greater control over the ultimate disposition of their files and were not subject to a preservation framework.
But the mere fact that the PRA changed the longstanding way in which Presidents handled presidential records falls far short of showing that Congress should be disabled from changing the pre-PRA equilibrium. To be sure, a so-called “constitutional gloss”—a “systematic, unbroken, executive practice, long pursued to the knowledge of the Congress”—can be an important interpretive tool, particularly in the separation of powers context. But there are a number of reasons why such a “gloss” does not work here.
First, there’s not just pre-PRA history. The PRA has been in place for nearly half a century, and, as noted above, until OLC’s opinion, Presidents had never challenged the facial constitutionality of the Act and always taken steps to comply with it. Given this, doesn’t “constitutional gloss” cut the other way?
Second, “gloss” is typically most important in the absence of legislative action. Here, President Nixon’s conduct during Watergate, when he threatened to destroy important records relevant to Congress’s and the President’s legitimate interests (and of great historical importance), showed the limits of the existing arrangement. Why should Congress, as a result, be precluded from taking action pursuant to its constitutional powers that would clearly authorize such action?
Third, there is significant reason to question the relevance of the history on which OLC places such weight. For example, the precedents OLC cites overwhelmingly concern presidential resistance to congressional demands for contemporaneous access to documents. But the PRA does not require such access—rather, it allows Presidents to continue to resist congressional requests for information when they are in office in much the same way, while merely requiring Presidents to take steps to preserve important documents, making clear that they have significant discretion on how they do so, and continuing to grant them numerous tools to preserve their confidentiality interests long into the future.
Additionally, throughout much of our nation’s history, the President’s staff was small, and the President largely managed the Executive Branch through the Cabinet. (Congress has preserved documents in agency records through other statutes, and OLC doesn’t claim that those laws are unconstitutional.) Over time, however, the White House’s staff has grown and started to assume more policymaking responsibility; indeed, it was not until FDR’s administration and then the immediate aftermath of World War II that many of the most prominent White House offices—the Chief of Staff, the National Security Advisor, White House Counsel, etc.—were created. It is thus far from clear that historical practice largely developed during the era of “Cabinet Government” is directly applicable during the era of “Presidential Administration.”
In any event, this latter point shows that, even if one somehow concludes that pre-PRA history is analogous to the current day, and that such history should be construed as “constitutional gloss” precluding Congress from exercising its constitutional powers to pass the PRA—two propositions that, as described above, appear to be incorrect—that “gloss” would likely only be relevant to a small subset of the records covered by the PRA, which covers not just the President but the broader White House. Thus, even on the most charitable reading of DOJ’s arguments, it is difficult to see how, on their own terms, they support the opinion’s conclusion that the entire statute is unconstitutional.[3]
IV. Conclusion
Which leads to a final point. It can be hard to be an Executive Branch lawyer, and I imagine that’s particularly the case when the President has decided to engage in an executive power “moonshot.” You are often asked difficult questions by clients who are under extreme pressure and feel aggrieved by what they perceive as unfair criticisms, restrictions, or obligations. You are typically over-burdened, with much more work than you have time to do it. There is often very little in the way of judicial precedent directly on point, such that you have to rely on less precise sources to address questions for which there is no single dispositive answer. And the advice you provide can have significant consequences, binding Executive Branch employees with your answers—in OLC’s case, binding everyone in the Executive Branch unless OLC itself, the Attorney General, or the President rejects OLC’s views.
This is why, over time, Executive Branch lawyers—and OLC, in particular—have developed a number of rules of thumb designed to make it more likely that they get things right and minimize the costs when they don’t. For example, proceed cautiously, placing significant weight on prior precedents. Be as “attentive to the particular facts and circumstances” implicated by the request as you can be, so that you avoid “issuing advice on abstract questions that lack the concrete grounding that can help focus legal analysis.” And when it is necessary to shift the law, particularly in areas of significant importance to our constitutional government, do so in a manner that allows other institutional actors to “respond appropriately” to—and, if necessary, challenge—the Executive Branch’s actions.
DOJ’s PRA opinion seems to depart from these best practices. Rather than proceeding cautiously, it is a bolt of lightning unanticipated by any Executive Branch or Supreme Court opinion or even contemporary legal scholarship. Rather than hewing to specific facts, it addresses a completely abstract question with no reference to the particular circumstances that led to the request. And rather than providing other actors, such as Congress, with an opportunity to respond to the opinion—for example, by proceeding incrementally—the opinion declares the entirety of an important framework statute unconstitutional.
This has real consequences, as OLC’s PRA opinion effectively frees Executive Branch officials to destroy presidential records. As one commentator has put it:
The documentary trail of executive branch decision-making—the planning documents, targeting analyses, deployment orders, and legal justifications that would ordinarily become the evidentiary record of how power was exercised—can now be destroyed under the legal rationale of the new OLC opinion—and those who destroy them will claim, with at least colorable authority, that they had every right to do so. . . .
If it seems astonishing that the Executive Branch has purported to free itself from the obligation to comply with an important framework statute merely because OLC has concluded that a seemingly binding Supreme Court precedent is “wrong,” that’s because it is. It is not unprecedented for OLC to conclude that a statute is unconstitutional. But it is rare, and I am unaware of any prior OLC opinion that has similarly reached such a broad constitutional conclusion that is contrary to binding Supreme Court and longstanding Executive Branch precedent. The opinion is thus, in many ways, emblematic of an administration that has sought to “so quickly chang[e] so much” with respect to the separation of powers. And like with many other facets of the administration’s executive power play, one is left hoping that the courts, Congress, or a future Executive Branch will be able to clean up the mess.
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Specifically, DOJ spends over 12 pages rejecting the notion that Congress could rely solely on its implied oversight or preservation authorities to enact the PRA and another 2 pages rejecting the claim that the PRA is a proper exercise of Congress’s authority to regulate federal agencies or offices. It is not obvious that these conclusions are correct—for example, the implied oversight and preservation authorities could be included as among the many constitutional powers the PRA is a necessary and proper means of carrying out—but, even if they are, the important point is that, as the prior section demonstrates, Congress need not rely on any of them alone to enact the PRA. ↑
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For example, as the Supreme Court noted in Nixon, “there is abundant statutory precedent”—the Court cited the Freedom of Information Act, the Privacy Act, the Government in the Sunshine Act, the Federal Records Act, statutes on census data, a statute on tax returns, and more—“for the regulation and mandatory disclosure of documents in the possession of the Executive Branch. Such regulation of material generated in the Executive Branch has never been considered invalid as an invasion of its autonomy.” And the proposition that a statute that “burdens rather than facilitates the exercise of executive power” is unconstitutional could sweep even more broadly, to include statutes like the Ethics in Government Act. ↑
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In multiple places, the opinion raises the specter of Congress regulating the Supreme Court’s records in order to suggest that the potential existence of such a “Judicial Records Act” must mean that the PRA is unconstitutional. But this passing and abstract reference to a hypothetical statute is more of a rhetorical move than an analytic one. Indeed, it is far from obvious that the same separation of powers principles would be at issue if Congress were to undertake such a purported regulation of Supreme Court records, and the opinion does little to analyze how or why such a hypothetical scenario might be different. Moreover, it is also far from obvious that, if Congress became aware that Supreme Court Justices were destroying important historical documents, it would be without power to require the Court to retain certain records, so long as any legislation appropriately took into account the Court’s status as a co-equal branch of government, just as the PRA appropriately takes into account the President’s. ↑
