Thaya Uthayophas Issues in Democratic Theory 16 December 2012 The Preservation Test: A Theory on the Constitutional Limits of President

Privileges and Immunities Powers Constitutional scholars have often puzzled about the existence and limits of presidential privileges and immunities powers. These two presidential powers are not specifically addressed in the constitution, yet the Supreme Court has historically accepted their general existence. The Court, however, has also placed case-by-case limits on the presidents use of the powers. I argue that presidential privileges and immunities are created for the sole purpose of allowing the executive office to preserve the livelihood of members of society within the confines of a republican form of government. The presidential powers are limited by the Presidents ability to prove that the exercise of his powers is within these guidelines. I will first argue how the presidential privileges and immunities powers are derived from the common law of nature as well as the consent of the people. Then I will argue against John Locke and Harvey Mansfields limits on such powers, advocating my own theory on the limits of presidential privileges and immunities. Next, I will defend my own theory against three counterarguments and develop a five-parts methodology guiding how courts can test whether the President is using his or her power to preserve the republic. Finally, I will address two counterarguments to the validity of my methodology and test the practicality of my five-parts methodology on two real Supreme Court cases. Origin of the Executive Power John Locke argues in his Second Treatise of Government that the executive has the prerogative power to carry out action for the public good. The executives prerogative 1

allows him or her to act according to discretion for the public good, without the prescription of the law and sometimes even against it.1 This prerogative power to act against the law for the public good serves as a precursor to the privileges and immunities power American presidents have come to claim under the Constitution. Locke justifies the executive privileges as a power the president possesses to execute the law of nature. According to Locke, the law of nature states that no one should harm the life and liberty of others2. Executing the law of nature, then, means punishing the transgressor of such law of nature in order to hinder its violation.3 In the transition from the state of nature to civil society, the people gave up the ability to execute the laws of nature to the executive. From this, it follows that the people must also give the executive power the prerogative to carry out the administration of the law of nature. Harvey Mansfield sees the executive power to execute the law of nature in a different form: energy. Mansfield believes that the executive provides the energy for government to respond to urgent crises. Like Locke, he believes that the executive power needs to do what it takes for the preservation of society. The executive should not be the slave of the majority, but should be able to carry out actions that the people would want, provided they were made aware of the social circumstances. The best presidents, Mansfield argued, are presidents like Abraham Lincoln and Franklin Roosevelt who undertake extensive and arduous enterprises necessary to the survival of the United States of America.

1 John Locke, Second Treatise of Government (Indiana: Hackett Publishing, 1980), 84 2 Ibid., 12 3 Ibid., 10 2

Natural and Civil Liberties Both Locke and Mansfield see a formative difference between natural liberties and civil liberties, one that places limits on presidential powers. Natural liberties are unalienable rights retained by citizens even after their consent to governmental rule, whereas civil liberties are alienable rights given to the dictate of the government after citizens entered into the laws of society. Civil liberties, unlike natural liberties, are subject to circumstances. For example, civil liberties can be taken away if the executive deems it necessary to protect the country. In these cases, the existence of natural liberties that could not be taken away in any circumstances, however, points to a limit on presidential powers to invade citizens rights. Locke and Mansfield both suggest that the inalienability of natural liberties acts as a limit to presidential powers. Natural liberties, however, offers no actual limits. In his essay Was the Flag Burning Amendment Unconstitutional?, Jeff Rosen notes the framers belief in two natural liberties: the rights of religious conscience and the right of revolution.4 Both rights would hardly protect the people from the executive transgressing of their rights in other areas. For example, Rosen notes that the rights to defend life, liberty, and property as well as the right to speech are not protected as natural liberties. Additionally, only one of the natural liberties actually has the potential to have substantive effects. The right to rebellion can be easily ignored. The government can simply choose to see the rebels as enemies engaging in a state of war with them and not deserving of rights. Seen this way, the right to rebel translated into practical terms, means the right to die under the superior 4 Jeff Rosen, Was the Flag Burning Amendment Unconstitutional, The Yale Law Journal 100 (1991): 1073-1092. 3

military force of the state. The right to religious conscience could potentially have a substantive effect by preventing the executive from transgressing on peoples right to worship or carry out religious acts. It is hard to define what is religious, however, and Supreme Court decisions like the one in Employment Division v. Smith (in which Justice Scalia famously argued that the court can no longer practically apply strict scrutiny standard for religious rights cases) have also made it much more difficult to successfully sue for violation of religious rights. Preserving Society If natural liberties cannot be the actual limits to presidential authority, then what can serve as those limits? I argue that the President can only use his or her executive privileges and immunities for the good of preserving members of the American republic. The key role of the executive for the Framers, who were especially influenced by Lockes political theory, is to preserve the members of society. The Framers, however, limited Lockes broad role for the executive by only allowing the executive to preserve members of society in a republican form of government. Evidence for this role of the executive can be found in the presidential oath and the Guarantee Clause in Article Four, which bind the president to preserve, protect, and defend the Constitution of the United States and the United States to guarantee to every State in this Union a Republican Form of Government respectively. The Presidents oath to defend the Constitution compels him to also defend the people who are the supreme authority over the Constitution. The duties of the president as the executive of the United States likewise requires him to provide a Republican form of government for the people living under the many states. The

presidents privileges and immunities, therefore, can only be derived from such power to preserve the Constitution, the Republic, and its constituents. One might wonder at this point about my use of the Guarantee Clause. Why limit presidential privileges and immunities under the Guarantee Clause? Why is the Presidents role not just preserving the members of a civil society as John Locke argues? How does adding in a republican form of government to the presidents duty to preserve society work in conjunction with Lockes theory? The requirement for the President to preserve society under the form of a republican government essentially limits the President to preserve society under a form of government explicitly chosen by the people. The central idea of Lockes social contract is that the executive governed only by the consent of the people. In this social contract framework, the President, therefore, derives his powers from the people who expect him not only to secure their livelihood but a livelihood in a specific type of society they want to live in (in this case, a republic). Therefore, the President does not have the power to preserve society by transforming it into another form of civil union the people did not assent to. This republican government requirement, for example, would not be compatible with a president who seeks to preserve society through an aristocratic government. Under such a transformed, non-Republican society, the president no longer has the backing of the people and therefore the constitutional rights to his privileges and immunities. Counterargument #1: Executive Privileges for Executing the Law Critics may question the validity of placing the authority of the presidential powers under the presidents main role to defend the Constitution. They could argue that the Presidents role of the executor of the law is the more direct and appropriate place to

derive the President privileges and immunities powers. The President, after all, needs certain privileges and immunities to be able to effectively carry out the law. Placing the Presidents privileges and immunities powers under the presidents role to execute the law would give the president too broad of a power. The President can cling to any privileges or immunities under the pretense of needing such power to effectively execute the law. For example, President X could argue that in order to effectively carry out the law he needs to withhold certain classified information that would implicate his son in a murder. Of course, such clear abuse of power by the president for self-gain would warrant an impeachment by Congress. However, consider another example: President X now argues that in order to effectively carry out the law, the White House needs to be repainted green because such color would suit his aging eyesight better. Is repainting the White House a misdemeanor considered to be an impeachable offense under the Constitution? No constitutional theorist would argue so. Therefore, such a ridiculous and historically damaging act would be wrongly available to the president if he were to derive his powers simply from his role as executor of the law. Counterargument #2: President, Protector or Executor? Critics could additionally argue that the role I assigned to the President as protector of the livelihood of people and the Republic would put him under so much pressure that he would not be able execute the law. In assessing the fitness of a particular president, Locke asserts that the President should see to it that as much as may be all the members of the society are to be preserved. Locke here asks the President to put his or her best effort towards preserving all the members of society. If this Lockean standard were the standard that the President must pursue to protect the members of society, the

President would have to devote all of his attention to helping the people. On this account, the President with his or her Lockean duty would be too overwhelmed to execute the law. This reading of Lockes quote paints the picture of the executive running around the country and saving lives as the most efficient means of preserving society. This picture is more than misleading; it is false. The fact that the President needs to protect the livelihood of people does not exclude him from executing the laws created by Congress. In fact, the most effective role the President can play, as the protector of members of society and protector of the Republic, is to execute the law as efficiently as possible. By executing the law, the President ensures the rule of law for the stability and survival of the Republic. For instance, by effectively punishing transgressors of laws, the President sends the signal for those who seek to destabilize society to yield from their plans. By carrying out economic legislation, the President also creates stability in the financial system that ensures the long-term survivability of society. In extreme circumstances, when the rule of law no longer works as hindrance against crimes against society, the President might have to focus more of his attention on directly protecting the people rather than executing the rule of law. In general, though, the Presidents role of protecting society is the basis for his role of executing the law. Counterargument #3: Not in the Constitution Finally, critics may claim that privileges and immunities are not constitutional at all. The framers might have substituted Lockes broad executive prerogative with clearly defined powers including the power to supersede the law through the pardon power. They have, however, left any explicit reference to the executive privilege and immunities out of the Constitution.

I do not believe this lack of explicit reference indicates that the Framers think that it is inappropriate for the president to possess privileges and immunities. I argue rather that the Framers realize that presidential privileges and immunities cannot be listed out because the appropriateness and extent of such powers are influenced so much by the circumstances of the day. In peacetime, for example, the scale of presidential privileges and immunities will be low. In wartime, however, the scale of presidential privileges and immunities will be high in order for the President to have the appropriate means to protect the country. Listing out the presidential privileges and immunities neutrally in the Constitution would be disastrous on both ends of emergency and non-emergency time. In non-emergency time, the President would have too broad of a power. In emergency time, he would have too narrow of a power. Not writing down specifics privileges and immunities is one method the Framers used to account for changes in circumstances. Critics can, however, still argue further. Even if the framers cannot jot down the specific privileges and immunities the president has, at least they could have mentioned something about them. The Framers did not mention how the president will have privileges and immunities specifically. However, the Framers also gave the president The Executive Power. Compared to Congress power herein granted, the executive power granted to the president is uneunmerated. The executive power is left largely undefined much like Lockes executive prerogative because the Framers realize that they cannot anticipate everything necessary to give the executive branch energy. Nonetheless, executive power includes the presidential privileges and immunities, which, as I have argued, allow the President to carry out his primary role of executing the law of nature. Therefore, the

Framers have already accounted for presidential privileges and immunities by giving the President all the executive power there is. Keeping the President in Check: the Preservation Test Having established how the Presidents privileges and immunities powers are limited as tools to only help the President preserve society, I now turn to a test the Supreme Court could use to determine whether the President is following such limitations in claiming his or her presidential privileges or immunities. The test is not simply whether the President is using his or her privileges or immunities to preserve the republic. Such a test would undoubtedly be too vague, as the Court must decide by itself what counts as preserving the republic. I argue rather that the President, when challenged by a suit regarding his or her privileges or immunities, must give the Court a rationale for claiming such powers based on the ideal of preserving the Republic. The court will then determine whether the Presidents rationale is valid. The big underlying question the Court must ask itself is: Can the President rationally claim the necessity of X presidential privileges and immunities to carry out his role in preserving the Republic? Five questions can then be asked by the Justices to help them decide the validity of this question: 1) Is the president claiming his or her powers in a situation of emergency? 2) Are the privileges or immunities involved in an area where the President would have more discretion about the safety of the Republic than the Justices or Congress? 3) How does the President claim to his or her powers fare under Justice Jacksons three-tier test for evaluating claims of presidential power in his concurring opinion in Youngstown Sheet & Tube Co. v. Sawyer?: 4) Is the use of X privilege or immunity necessary for the preservation of society? Could the President have used another method to pursue the

preservation of society instead? 5) Are the Presidents claims to his or her privileges or immunities consistent with protecting a republican form of government? The first three questions establish relevant background information to help answer the other two questions. I term the first three questions the Background Questions. On their own, the Background Questions do not provide the essential answers for the Justices to decide the case. In contrast, the last two questions are the "Key Questions the Justices must ask to decide the case. Any negative answer(s) to the Key Questions will automatically disqualify the Executives claim (the two questions, therefore, stand apart from each other). In contrast, if the answers to both of the questions are positive, the Justices must rule in favor of the executive. The Key Questions ask two questions in unique areas: the fourth question answers the question of necessity: whether the Presidents claim to privileges and immunities is necessary for his preservation role. The fifth question tests whether the Presidents claim is consist with the ideal of a republic. Chart 1: The Categories of the Preservation Test 1. Is the President claiming his powers in a situation of emergency 2. Is the presidential exercise of privilege or immunities within Background Questions the field where presidents would have more knowledge? 3. How does the Presidents claim to his or her powers fare under Justice Jacksons three-tier test? Question of Key Questions Necessity Question of 4. Is the Presidents claim to privileges and immunities necessary for him to preserve society? (Is there another method?) 5. Are the Presidents claims to his or her privileges or immunities

Republicanism consistent with protecting a republican form of government

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I will now proceed to explain all five questions in detail: Background Questions 1) Is the president claiming his powers in a situation of emergency? The first questions ask the Justices to determine the circumstances surrounding the Presidents claim to executive privileges or immunities. Because of the problematic nature of finding an all-covering definition for every state of emergency, I neither offer my own concrete guideline defining the state of emergency nor suggest the Supreme Court find one. Every situation pertaining to the executive claim to privilege needs to be studied and judged by the court case-by-case. I would think, however, that any attack or threat of attack by foreign nations on US soils would constitute a state of emergency (for example, if Russia were threatening to deploy a nuclear bomb against the United States). In contrast, as tragic as it is, a suicide attack killing American tourists would count as less of an emergency than a threat of a direct foreign attack on American soil, but still an emergency. The difference between the two hypothetical cases I offered suggests to me that the question of the state of emergency is not a yes or no but rather a question that requires answers falling in a spectrum. In general, I think that any actions that threaten the long-term survivability of the United States as a union of states should be placed on the more extreme end of the emergency spectrum. Regardless, the Supreme Court should determine how threatening the situation that prompts the president to use the executive privileges or immunities is to the United States. The answer to such question has a substantial barring on how the court answers the Key Questions. In a situation of emergency, the executive powers must expand to accommodate the need for energy to defend the country. The Supreme Court must give strong

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presumption for the rationale of the executives claim to his or her privileges or immunities. In a non-emergency time, the President would not gain the presumption; the President could still claim privilege or immunities but his or her case would be substantially weaker than during times of emergencies. (For example, the President could still claim secret documents privilege to monitor terrorist organizations even in nonemergencies). The difference in how the case should be decided in the two circumstances indicate that certain privileges or immunities are only active during time of emergency; just because the court grants the President authority to have certain privileges now does not mean that he or she retains them forever. The court must make note of this fact to the President. For example, the Court might allow the President the privilege of suspending Habeus Corpus but strongly note that this only applies for use under the so and so crisis. 2) Is the presidential exercise of privilege or immunities within the field where presidents would have more knowledge? The second question asks the Court to question its own abilities to judge the Presidents rationale for claiming certain privileges or immunities. By the nature of his executive office, the President has more knowledge in certain political areas than the judges of the judiciary branch. For example, through his or her duty to welcome ambassadors under Article II section 3 of the Constitution, the President typically has broad knowledge about foreign affairs. When dealing with cases that concern the use of presidential privileges and powers under areas of presidential expertise such as foreign affairs (for instance, suppose the President claims the privilege to withheld classified information on Syria), the Justices should strongly weigh the Presidents rationale in his or favor. It is important to note here that the strong weigh given to the Presidents rationale for use of privileges or immunities does not necessary

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mean that the Court will always rule in favor of the President. As we will shortly see in United States v Nixon, the Supreme Court can still correctly rule against the President despite his or her claim to expertise in the area under judicial scrutiny. In contrast, in cases where the Presidents claim to privileges and immunities lies in an area where he or she does not traditionally have a special expertise in, the Court should look primarily to Congress to provide support for or against the validity of the Presidents claim to the executive powers. (The Court can still look for guidance from Congress even in cases where the President has a claim to knowledge, but strong presumption will be given to the Presidents claim). The Supreme Court should look for guidance in Congress to decide the case because the Court as a judicial body has inadequate knowledge of legislative issues. The President, by claiming special executive privileges and immunities, is, after all, overriding the rule of law created by Congress. 3) How does the president claim to his or her powers fare under Justice Jacksons three-tier test? Justice Jackson, in his concurrence in Youngstown Sheet & Tube Co. v. Sawyer, came up with a three-category test to determine the validity of presidential actions in relation to congressional authority. If Congress gives authority to the Presidents use of power, the Court will consider the case in question strongly in the Presidents favor. If the President defies congressional will, however, the Court will consider the case strongly against him or her. In cases where Congress does not give any clear opinions on the validity of the Presidents action (what Jackson termed the Twilight Zone), the court must use other means to decide the case in question. Justice Jacksons three-category test is a useful tool to decide cases considering presidential privileges and immunities. By their very nature, privileges and immunities

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stand in opposition to the rule of law voted to be in effect by Congress. This opposition to the rule of law, however, does not automatically make presidential claims to privileges and immunities against the will of Congress and therefore make the Court lean unfavorably against the Presidents action. In order for the Court to actually determine that the President is acting against the will of Congress, Congress must collectively channel their views of the Presidential claims to his or her powers through some kind of action that explicitly or implicitly shows that they are against the Presidents claims. For example, Congress could pass legislation that, in effect, cancels, the Presidents privilege to X. The opposite holds true if Congress wants to support the Presidents claim to his or her privileges or immunities. Key Questions 4) Is the use of X privilege or immunity necessary for the preservation of society? Could the president have used another methodology to preserve the republic? The fourth question is the first of the Key Question. It asks the Justices to use their own judgments to determine whether the Presidents claim to privileges or immunities is the only action available to preserve the Republic. Secondarily, since the question hinges on the Presidents role in preserving the Republic, the question also asks whether the President is using his claim to privileges or immunities to preserve the Republic at all. Because the question asks the Justices to investigate into areas of law they might not be familiar with, the question must be used carefully in conjunction with the Background Questions, especially the questions about the Presidents expertise in the area and congressional approval of the Presidents action. I would even claim that unless there is a clear and equally (or more) effective option that the President could have used instead to pursue the

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desired action, the Court should almost always rule in favor of the executive for this question. For example, if instead of simply using the pardon power assigned to him by the Constitution the President personally breaks someone out of jail and claims immunities against such criminal action, the Court would have adequate reason to rule against him. However, if the President claims in an emergency that he needs Privilege X to immediately help save the nation but the Court has some reason to believe that the President could have instead used the slower but more legal power Y that was assigned to him, the Court should not rule against the President for this question. To recap, question four must be decided with all of the Background Questions in mind. If the President is claiming privileges or immunities in an area where he has expertise and also has the approval of Congress to back up his claim, the Court should give the strongest presumption to the President. The opposite holds true if the resident does not have the expertise or the approval of Congress. Additionally, in situation of emergency (especially one with time constraint), the Court must give the President a degree of leeway even if he or she, with the gift of hindsight, could have used another methodology to preserve the Republic. 5) Are the presidents claims to his or her privileges or immunities consistent with protecting a republican form of government? The previous question deal with question of whether it was necessary for the President to exercise privileges or immunities to preserve society in general. The final question, however, deals with a topic I have touched on earlier in the essay: preserving society under the confines of a republican form of government. This question ensures that the President through the exercise of his or her privilege and immunities does not alter the republican form of government that the

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people choose to live in. By a republican form of government, I mean a government in which the governmental officials carry out their constitutionally assigned powers as direct representatives of the people. The key word here is representative. Representative does not mean hereditary aristocrats or any other similarly elitist groups who exercise their governing power without the consent of the people. Rather, representatives mean government officials who derive their power to govern through the votes of the people and remain accountable to the people during their time in office. The Supreme Court should explicitly rule against a president who the Court suspects to be claiming privileges or immunities in ways that would fundamentally change the composition of the American Republic. For example, a president who seeks to use his or her privileges or immunities to promote slavery in the name of preserving society (think back to the Civil War) would not actually have such powers granted to him or her by the Constitution. Even if the President was acting under the situation of emergency with the support of Congress, promoting slavery means promoting the subjection of a certain group of people to bondage without a form of political representation in the government, incompatible with the ideal of a republic. Promoting slavery by itself, therefore, violates the presidential duty of guaranteeing a republican form of government for the citizens, canceling the Presidents claim to any privilege or immunities in the area. Unlike question four, question five should only be decided with one of the Background Questions in mind: the question of congressional approval. Congressional approval of the Presidents claim makes the Presidents claim more in tune with the ideal of a republic; his or her claim is now more representative to the people who also voted in

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members of Congress. In the case of Congressional approval, the Court should therefore give the President a presumption that he or she is acting in line with the presidential duty under the Guarantee Clause. However, if Congress does not approve of the Presidents action, the opposite holds true; the Presidents claim would be less in line with the ideal of a republic. Therefore, the Court should place an additional burden on the President to actually prove that he or she is actually acting in line with the ideal of a republic.

Chart 2: Background Questions that have bearing on each Key Questions Situation of Emergency (Q1) Question of Necessity (Q4) Presidential Expertise (Q2) Congressional Approval (Q3) Question of Republicanism (Q5) Congressional Approval (Q3)

Having now explained the five questions the Court should be asking to determine whether the President could rationally claim the necessity of certain privileges and immunities to carry out the presidential role in preserving the republic, I will now move to address two counterarguments to the test arising under the political question doctrine. Counterargument #1: Political Question and the Guarantee Clause The Court has historically ruled the Guarantee Clause to be a non-judiciable clause under the political question doctrine. In Luther v. Borden, the Supreme Court found that only Congress can decide whether a government is republican in its form or not: it rests with Congress to decide what government is the established one in a State ...

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as well as its republican character.5 Additionally, in Baker v. Carr, the Court ruled that the Guarantee Clause is not a source of "judicially manageable standards, which a court could utilize independently in order to identify a State's lawful government."6 Given the courts historical deference of the clause to Congress and this lack of judicially discoverable and manageable standards for resolving a case, critics could argue that the Guarantee Clause should not have been the basis for the fifth question of my testand, to a greater extent, even as a part of my argument for the presidents role to preserve a republican form of government. I disagree with the Courts ruling in both Luther v. Borden and Baker v. Carr. First, Congress is not the sole interpreter of the Guarantee Clause as the Court claimed in Luther v. Borden. The Guarantee Clause does not state that Congress shall guarantee to every State in this Union a Republican Form of Government ; it states that the United States shall guarantee. The United States refers to the federal government, which not only includes Congress but the Supreme Court. Therefore, the Supreme Court also has a role in interpreting what the Guarantee Clause means. Secondly, the Guarantee Clause presents a judicially manageable standard for resolving constitutional law cases unlike what was said by the Court in Baker v. Carr. As I have previously shown, the Guarantee Clause asks the United States to provide a republican form of government to the people. The Supreme Court, therefore, should establish the standard of the guarantee clause as the standard of what constitutes a republic. As I have mentioned, a republic is a government in which the governmental officials carry out their constitutionally assigned powers as direct representatives of the people. The Court should therefore set up a 5 Luther v. Borden 48 U.S. 1 (1849) 6 Baker v. Carr, 369 U.S. 186, 223 (1962). 18

standard questioning whether the president is carrying out his or her constitutionally assigned powers as a direct representative of the people. Under such a test, presidential privileges or immunities that significantly prevent the people from voicing their opinions through their representatives are unconstitutional. For example, the President could not claim a privilege that permanently prevents a certain group from having voting rights. Counterargument #2: Lack of respect for the Executive Branch Critics could additionally argue that question four (Question of Necessity) of my test also falls under the political question doctrine. In Baker v. Carr, the court lists one characteristic of a political question as the impossibility for a court's independent resolution without expressing a lack of respect for a coordinate branch of the government. 7 By second-guessing how the President could have used another methodology aside from the claim to privilege and immunities to carry out the role of preserving the republic, the fourth question of my test might be said to disrespect the political judgment of the executive branch and falls under the non-judiciable category of a political question. As I mentioned in my analysis of question four, the Court should be very hesitant to find a case against the Presidents claim of executive privileges and immunities through this question. There needs to be a clear and equally (or more) effective means the President could have used instead of the presidential privileges in order for the Court to rule against him or her. Essentially, the clear and effective means test must provide evidence that the President could rationally be presumed to have knowledge about a certain means to X power but chose instead to claim such power through presidential 7 Baker v. Carr, 369 U.S. 186, 217 (1962). 19

privileges. Additionally, question four should not be taken out of the context of a fivequestion test. By asking question one, two, and three (emergency, executive expertise, congressional approval) in order come to conclusion with the additional support of question four, the Court would have already acted with due respect to the different branches of the government. We can see how this five-question process works as I now move on to my next section: analyzing how my preservation test would be used in real law cases. United States v Nixon In United States v Nixon, President Nixon claims an executive privilege of safeguarding audiotapes of conversation he recorded in the Oval Office from judicial review by the Court. The Court rules against Nixon, arguing that Nixon must hand over the tapes for the due process of law to be preserved. I agree with their decision, but offer my own reasoning for how the Court should have decided the case. The fundamental question under my preservation test for this case is: Can president Nixon rationally claim the necessity of withholding the tapes as a presidential privilege to carry out his role in preserving the Republic? Nixon could claim that the tapes contain important foreign affairs information that when handed out to the public would pose grave dangers to national security. With the help of the five questions checks, I conclude that Nixon does not have any rational basis under the preservation test to withhold the tapes. The Background Questions: 1) The United States was not in a heightened state of emergency when Nixon claimed his privilege. 2) The information Nixon safeguards falls

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under the key presidential area of military and foreign affairs. 3) Congress has expressed strong disapproval for Nixons action by opening an impeachment hearing against him.8 Question of Necessity: 4a) Is the President withholding information from the Court to preserve the Republic? It could be rationally assumed so; the information withheld by Nixon could contain matters of grave national security. 4b) Is there another methodology for the president to preserve society without withholding information from the Court? The Background Questions could help illuminate the Courts decision. 1. Nixon is not acting in a situation of emergency, but the nature of Nixons claim does not require the situation to be an emergency for him to claim the privilege to withhold the information. The information released could be a catalyst for an actual emergency. 2. The President is acting in his presidential area of foreign affairs. Therefore strong presumption must be given to the President; if there is another method to pursue the Presidents role of preserving society within the area of foreign affairs, the President must have known about it. 3. Finally, by setting up a committee to impeach him, Congress does not approve of the Presidents action in general. This general disapproval, therefore, has less bearing on the Necessity Question than the Presidents specific claim of knowledge in his area of foreign affairs. Given the strong presumption the Court offers to the President who is working in his area of foreign affairs and the general lack of any clear second methodology for the situation, the Court should find the Question of Necessity in the Presidents favor. Question of Republicanism: 5) Does the Presidents ability to protect himself against investigation by the Court violate the guarantee of a republican form of
The House Judiciary Committee, opened impeachment hearings against the President on May 9, 1974, prior to the Courts actual decision on the case.
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government? The question of congressional approval in the Background Questions has a strong bearing in answering this question. The House of Representatives clearly disapproves of the Presidents action by setting up a committee to impeach him. Congress believes that Nixon is guilty of a high crime and is using claiming presidential privileges to withhold information from the court to protect himself. Congresss claim is valid. Nixon, by blocking the Court from information that could be used in a lawsuit against him, not only obstructs justice but also acts as an elitist figure, against the ideal of accountability as a representative to the people in a republican form of government. By claiming presidential privilege to withhold information against a judicial review from which he himself will benefits, Nixon betrays accountability to the people and betrays the republican form of government. Even if Nixons claim that withholding the information is necessary for the preservation of society is true, he is not preserving the required form of government: a republic. Therefore, the Court should rule against Nixon in this question and in this case. Nixon v. Fizgerald In Nixon v Fitzgerald, an ex-officer filed suit against Nixon claiming that the President was responsible for unfairly firing him. The Court rules against the officer, holding that the President, due to the unique nature of his office, is entitled to immunity from civil damages based on his official actions. The Court reason that the immunity would not leave the President unaccountable for his actions: there are formal and informal checks on the Presidents actions based on the separation of powers structure in the Constitution and the nature of the office to be scrutinized. I agree with the Courts decision, but believe that their reasoning is entirely inadequate. I offer my own reasoning

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for how the Court should have decided the case in the following paragraphs. The fundamental question under my preservation test for this case is: Can Nixon rationally claim the necessity of presidential immunity from civil damages for the preservation of the republic? Nixon could claim that he needs to be able to fire officers who threaten the stability of the republic (Fitzgerald testified negatively against the United States Air Force) without the risk of a civil suit. With the help of the five questions checks I conclude under the preservation test that Nixon has immunity from civil suit in this case. Therefore, I would rule against the Plaintiff. The Background Questions: 1) The United States was not in a state of emergency when Nixon took responsibility to fire Fitzgerald. 2) Nixons claim of immunity has direct link to one of his key presidential area of knowledge: the military. (Fitzgerald previously worked for the United States Air Force). 3) Congress expresses an indirect disapproval of the Presidents action. Through the Pendleton Civil Service Reform Act, Congress created the United States Civil Service Commission, an independent agency that found Nixons dismissal of Fitzgerald to be unjust. Question of Necessity: 4a) Is the President claiming immunity from civil suits for his role in preserving the republic? Yes; the President could rationally claim that he needs to be able to fire officers who he deemed to threaten the stability of the republic. 4b) Is there another methodology for the President to preserve society without claiming immunity? The Background Questions helps the court decide. 1. Nixon is not acting in a situation of emergency, but Nixons claim to immunity still applies to help preserve the Republic even in non-emergency time. 2. The President is acting in his presidential area of the military. Hence, the Court must give strong presumption to the President claiming

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the necessity of the immunities. 3. Through the decision of an independent agency, Congress indirectly disapproves of the Presidents action. Because it is indirect, congressional disapproval has weak bearing on the Necessity Question. Because the President claims immunity in his presidential area of the military and the fact that there is again no clear second methodology that can be used to address the situation, the Court should find the Necessity Question in the Presidents favor. Question of Republicanism: 5) Does the Presidents claim to immunity against civil suits violate the ideal of a republican form of government? Again, the question of congressional approval in the Background Questions has a strong bearing in answering this question. Congress indirectly disapproves of the Presidents action through the action of an independent agency. The Civil Service Commission, which Congress created under the Pendleton Civil Service Reform Act, concludes that Fitzgerald dismissal was unjust. The indirect nature of Congresss claim puts the Court in a peculiar position. On one hand, the Court could be tempted to discount Congresss claim through the Civil Service Commission, as independent agencies are by their autonomous nature contrary to the ideals of a republic. On the other hand, however, the Court could not simply dismiss the fact that Congress is expressing its disapproval of the executive action. Ultimately, I would argue for a compromise: the Court should keep Congresss disapproval in mind but only with a critical eye when making its decision for the case in question. What finally swings the case in favor of the President is not the indirect nature of Congresss disapproval but the fact that the President is not actually violating the ideal of republicanism by firing executive officers assigned by the government to do work. In fact, the President is acting in parallel with the ideals of a republic by firing the executive

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officer who acts contrary to his will. Let me explain: The President by nature of his executive office is tasked by the people to carry out the law as an indirect representative of the people. As a representative of the people, the President, while in office, must execute the laws with regards to how those who voted for the President during the election campaign expected him or her to do so. In order to execute the laws with regards to the voters, the President must be able to arbitrarily fire any executive officers he or she deems to incompatible with how the President wants to govern society. Therefore, President Nixon actually acts in congruence with the ideals of a republic by claiming immunity against suit that targets his ability to subjectively fire executive officers. Another way to look at this issue of republicanism in this case is to compare the current case to United States v. Nixon. In United States v. Nixon, Nixon claims privilege against a law that targets him as a person, which is against the ideal of a republic. In this case, however, Nixon defend himself against a suit that targets the execute offices ability to execute the law, a defense in favor of republicanism. Considering the fact that Congress, contrary to the ideals of a republic, issues its disapproval of the Presidents action through an independent agency and the fact that the President acts in favor of republicanism by defending the Oval office right to arbitrarily fire executive officers, the Court should rule in favor of the Plaintiff. Society, Government, and Rights Before I end this essay, I want to touch back on the main conflict underlying presidential claim to privileges and immunity: the conflict of rights and authority. In the last example (Nixon v. Fitzgerald), the President claims an immunity against civil suits that infringes on the defendants right to fair employment and right to file suit. This

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immunity stems from the presidents special authority to preserve the republic. Often times (as is the case in Nixon v. Fitzgerald), the authority of the president wins over the right of the citizen. Constitutional theorist in the liberal tradition would squirm at this presidential "authority to violate rights. To them, a rights-based approach is needed for questions about presidential privileges. I hope I have shown in this essay how this approach would be flawed. The approach places great importance on civil rights, almost assuming that they are inviolable. On the contrary, given the circumstances, rights can and should be violated. The survivability of society, for example, provides a legitimate claim to violation of rights. I have, additionally, put in the republican question to keep the President in line with the knowledge that the citizen are the supreme authors of the Constitution and of his officea principle in the tradition of the social contract theory which I think should be preserved even when civil rights in general can be violated. Nonetheless, in times of anarchy, preserving any form of society in general should be held over rights and the republican principle. Such preservation would of course be unconstitutional under the guise of the current constitution, but, by then, the President would be preserving a new society no longer governed by the same rule of law. To sum up, I have argued in this essay for the origin and limitations of the presidential privileges and immunities as tools to only be used to preserve the republic. I have also detailed and defended a Preservation Test with five questions to help the Justices determined the constitutionality of the Presidents claim to privileges and immunities. Finally, as an argument for practicality, I have shown how the Preservation Test would work in two real law cases.

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