The Volokh Conspiracy

Responding to press questions about the IRS scandal, White House spokesperson Jay Carney claimed that the IRS is an “independent agency.” At the Federalist Society’s new Executive Branch Review blog, former Assistant Attorney General Eileen O’Connor, who oversaw the Justice Department’s Tax Division, explains that Carney was quite wrong on this point.

Most Executive Branch departments are headed by a Cabinet Secretary (except for the Department of Justice, which is headed by the Attorney General of the United States) who is nominated by the President and confirmed by the Senate. Within the Departments are agencies that carry out the various responsibilities of the Department. They, too, are headed by Senate-confirmed Presidential appointees. An “independent agency” is an agency of the federal government that is not part of an Executive Branch department. These are generally boards and commissions, like the National Labor Relations Board and the Federal Communications Commission.

But just as the Federal Bureau of Investigation is part of the Department of Justice, the Internal Revenue Service is part of the Department of Treasury. As with other federal agencies, each is headed by a Senate-confirmed Presidential appointee. Neither of these is an “independent agency.”

Ammon Simon offers more on this point here.

Not only is the IRS not an “independent” agency, but it appears that the substantial bonuses received by the head of the IRS tax-exempt division when the targeting of conservative groups occurred would have been approved by the White House because they exceeded $25,000. This official is now in charge of the IRS’ Affordable Care Act office.

The AP reports:

The Justice Department secretly obtained two months of telephone records of reporters and editors for The Associated Press in what the news cooperative’s top executive called a “massive and unprecedented intrusion” into how news organizations gather the news.

The records obtained by the Justice Department listed outgoing calls for the work and personal phone numbers of individual reporters, for general AP office numbers in New York, Washington and Hartford, Conn., and for the main number for the AP in the House of Representatives press gallery, according to attorneys for the AP. It was not clear if the records also included incoming calls or the duration of the calls.

In all, the government seized the records for more than 20 separate telephone lines assigned to AP and its journalists in April and May of 2012. The exact number of journalists who used the phone lines during that period is unknown, but more than 100 journalists work in the offices where phone records were targeted, on a wide array of stories about government and other matters.

The Justice Department notified the AP on Friday.  More reporting from The Hill and ThinkProgress explains why DoJ wanted these records.

UPDATE: More from BLT here. It’s important to note that this is not the first time the federal government has obtained phone records in this manner.  It is, however, one of the few (if only times) the seizing of such records has become public.

UPDATE: And be sure to see Orin’s post above.

The Federalist Society recently unveiled its new Executive Branch Review Blog, which focuses on legal and constitutional issues involving – you guessed it – the executive branch.

One of the regular bloggers there will be my wife Alison Somin, who serves as a special assistant/counsel with the US Commission on Civil Rights. Yesterday, she put up her first post, which focuses on the EEOC’s efforts to curb employers’ use of criminal background checks in hiring on the grounds that such checks might have a disproportionate negative effect on minority job-seekers:

The Equal Employment Opportunity Commission... is making a particular effort to restrict allegedly discriminatory use by employers of criminal background checks. Because African-Americans and Hispanics are more likely to be arrested or convicted of crimes than members of other racial and ethnic groups, the EEOC’s thinking goes, an employer policy that excludes job applicants based on past arrests or convictions will have a disparate impact on African-Americans and Hispanics and, if not job-related and justified by business necessity, may violate Title VII of the Civil Rights Act of 1964.

In April 2012, the EEOC issued a new Enforcement Guidance regarding such employer criminal background checks. Some civil rights advocacy groups praised the document, stating that it will help “remove unfair barriers for people who have moved beyond their pasts” and discourage employers from discriminating against employees who have paid their debt to society.”

But critics raised both substantive and procedural concerns about the new guidance. Substantively, critics noted that the new policy does not do enough to make clear in what circumstances an employer may use a background check; it notably contains no “safe harbors” and may chill some lawful use of checks....

The EEOC appears committed to rigorous enforcement of the new Guidance. At a Chamber of Commerce luncheon, EEOC member Victoria Lipnic emphasized the EEOC’s commitment to pursuing these cases, noting that “Criminal background checks are ripe for the picking.”

Although the EEOC does not ordinarily make investigations public until a case has been filed, news stories about recent targets of EEOC investigation suggest that the agency is setting a fairly high bar for “business necessity.” Such investigations include a probe into the use of checks at a company that provides security services, and also an unnamed firearms retailer, although the employer believes that federal law requires him as a federal firearms licensee to conduct such checks.

[NOTE: I have not copied the numerous links in the original post].

Paul Thacker writes that the Obama Administration has “failed miserably” to fulfill its promises of more open and transparent government. What’s changed, however, is that the press and self-appointed good-government watchdogs are less interested in covering such questions.

Whether it’s responding to Congress, media questions, or FOIA requests, this administration is no better than its predecessor. The big difference: Obama is a Democrat. And because he is a Democrat, he’s gotten a pass from many of the civil liberty and good-government groups who spent years watching President Bush’s every move like a hawk. . . .

the administration was able to make cosmetic changes and neutralize harsh disapproval with a classic Washington maneuver—inviting potential critics to the White House for meetings. The administration understood that many of these groups would be satisfied by getting meetings with the ethics czar, and would calculate that if they became too critical of the president that their newfound “access” would be in peril. So the watchdogs have scampered up to the White House time and again, hopeful that maybe with the next election, the next initiative, maybe even the next meeting, something would change.

We shouldn’t expect better from any administration — Republican and democratic administrations alike withhold pertinent information, abuse FOIA and resist disinfecting sunlight — but we should expect better from the self-appointed guardians of government transparency and accountability.

As his Election Law Blog Rick Hasen has a fairly thorough summary of the just-released Justice Department Inspector General’s report on the politicization of the Civil Rights division. The bottom line: liberal and conservative employees of the division did not play well with one another. The IG largely absolves attorneys within the division of engaging in improper conduct but (as Hasen notes) there are some close calls. In most cases, however, it appears that what one side considered improper conduct was simply the other side pursuing its vision of how the division should operate, and that such decisions are within the discretion of each administration and its political appointees.

BLT has more on the report here.

The release by NBC News of a confidential “white paper” outlining the basis upon which the Obama Administration justifies the use of drones to conduct targeted killings of suspected terrorists, including American citizens, has prompted a substantial amount of commentary — mostly negative. Among other things, critics note the expansive notion of what constitutes an “imminent” threat. So, for instance, the memo provides:

the condition that an operational leader present an “imminent” threat of violent attack against the United States does not require the United States to have clear evidence that a specific attack on U.S. persons will take place in the immediate future.

Conor Friedersdorf sees echoes of the early Bush Administration in this rationale (as does Charles at Popehat), and Glenn Greenwald finds it “chilling.” Patterico worries about the slippery slope and Jacob Sullum finds the memo disturbing. But don’t worry. White House spokesman Jay Carney assures us there’s nothing problematic about the administration’s position.

On the academic side of things, Greg McNeal notes “six key points” on the white paper. Kevin Jon Heller comments on the memo’s “confused approach to imminence (and capture)” and its mishandling of al Qaida’s organizational structure.

In the Washington Post Jack Goldsmith argues the white paper highlights the need for a new “rulebook” for the war on terror, preferably a statute debated and adopted by Congress (a step Gerard Magliocca urges as well), and his colleagues at the Lawfare blog have several more posts on the issue.

UPDATE: John Bolton and Senator Lindsey Graham defend the Obama Administration’s use of drones.  According to Bolton, the current policy is a reasonable extension of the Bush Administration’s anti-terror policies.

Today the President issued a signing statement regarding H.R. 4310, the “National Defense Authorization Act for Fiscal Year 2013.”

I haven’t written much on President Obama’s constitutional signing statements recently (those suffering from insomnia, see here , here,  here, here, here, and here for examples from 2009-2011), but today’s installment is such a classic of the genre that  I thought it warranted brief comment.

The signing statement is noteworthy in a few respects.  It runs 1,173 words, and by my count mentions 21 provisions, which is a goodly number.  That is pretty long as far as signing statements go, but it probably reflects in part the length of the bill he was signing.  Things with names like “National Defense Authorization Act” tend to be long, and this was no exception–the bill ran 680 pages.

The signing statement also explained in unusual detail why he signed a bill he obviously considers flawed:

Our Constitution does not afford the President the opportunity to approve or reject statutory sections one by one. I am empowered either to sign the bill, or reject it, as a whole. In this case, though I continue to oppose certain sections of the Act, the need to renew critical defense authorities and funding was too great to ignore.

He then goes category by category explaining his constitutional (and practical) concerns with various provisions.

The thing I found most noteworthy is that the statement makes what would be classified as a “unitary executive” objection–basically, the legislation interferes with the President’s ability to direct the exercise of discretion by officials within the Executive Branch.  But perhaps prudently, it avoids using that phrase, which tends to provoke a strong visceral reaction among some people:

Certain provisions in the Act threaten to interfere with my constitutional duty to supervise the executive branch. Specifically, sections 827, 828, and 3164 could be interpreted in a manner that would interfere with my authority to manage and direct executive branch officials. As my Administration previously informed the Congress, I will interpret those sections consistent with my authority to direct the heads of executive departments to supervise, control, and correct employees’ communications with the Congress in cases where such communications would be unlawful or would reveal information that is properly privileged or otherwise confidential. Additionally, section 1034 would require a subordinate to submit materials directly to the Congress without change, and thereby obstructs the traditional chain of command. I will implement this provision in a manner consistent with my authority as the Commander in Chief of the Armed Forces and the head of the executive branch.

This is more developed than his last “unitary executive” objection (“The President has well-established authority to supervise and oversee the executive branch, and to obtain advice in furtherance of this supervisory authority.”), which can be found here.

The entire signing statement can be found here.  For a fuller (and, I think, generally sensible) discussion of the use of presidential signing statements, see here.

National Security Law in the News: A Guide for Journalists, Scholars, and Policymakers is a new book published by the ABA’s Standing Committee on Law and National Security and Northwestern’s Medill School of Journalism. Despite the title, the book should be of interest to a general audience, as it offers a concise, broad plain-language overview of the many timely issues at the intersection of domestic and international law. I wrote the chapter on piracy. Congratulations to the editors, Paul Rosenzweig, Timothy J. McNulty, and Ellen Shearer.

Here is the overview:

Written by seasoned experts, each chapter contains a summary of legal and policy issues of significance and is accompanied by an annotated bibliography for further reading. The book is divided into four parts:
Part I provides an overview of the basic issues of constitutional and international law including discussion of the scope of the president’s authority, the meaning and effect of the First Amendment, and the role of international law in American courts.
Part II turns the focus to the military and explores questions about military organization and operations.
Part III looks at the world of domestic law enforcement and counterterrorism.
Part IV covers homeland security issues.
An added bonus: a list of experts to contact for additional background information is included in chapter.

Some early journo reactions:

Every reporter on the national security beat should keep this book within reach.”

– Jane Mayer, Staff Writer, The New Yorker Magazine

Finally, we now have a clear-eyed primer on national security law that can serve as an essential reference for journalists as they try to cut through the spin and get to the truth.”

– James Risen, author, State of War: The Secret History of the CIA and the Bush Administration

With my firm’s CFIUS experts, I put together a fuller analysis of the potentially significant CFIUS lawsuit I blogged earlier this month.  For those just tuning in now: the U.S. government’s Committee on Foreign Investment in the United States issued an order that blocked a Chinese-owned developer from proceeding with four wind-farm projects in Oregon; the developer sued, challenging not only the lack of transparency in CFIUS’s procedures and decision making, but also CFIUS’s authority to block  or unwind the transaction.

There have been a few noteworthy developments in the case.  First, just hours before the government was due to file its opposition to Ralls’ motion for a TRO, Ralls withdrew the motion after reaching an agreement with the government that allowed it to resume  preliminary construction at the wind-farm site while the suit is pending; the CFIUS order previously directed Ralls to “cease all [c]onstruction and [o]perations at the site.”  Although correlation does not imply causation, it suggests that the suit has improved Ralls’ position with respect to CFIUS.

Second, although correlation still does not imply causation, the day after the suit was filed, CFIUS sent a report to the President describing its assessment of the risks; by statute, once CFIUS sends such a report, the President has 15 days to  decide whether to take action (e.g., to block or mitigate the transaction).  The deadline runs tomorrow.

Because the  Foreign Investment and National Security Act of 2007 provides that the President’s actions and supporting findings “shall not be subject to judicial review,” there would be a question whether the President’s own actions (if any) would moot the lawsuit.  Ralls has a response (that the suit could continue under the “capable of repetition but evading review” exception to mootness doctrine. as CFIUS reviews each transaction in the first instance).  But  at a minimum, presidential action will be another factor the judge will have to consider as the case proceeds.

It will be interesting to see how things shape up.  For an insightful discussion of the matter, see China Hearsay.

If you deal regularly with the federal government, there are more candidates for the “most important government office that you’ve never heard of” than you can count.  My post tonight concerns not an office, but a federal interagency committee: the Committee on Foreign Investment in the United States, known by its acronym CFIUS, which is undeniably powerful, but sufficiently obscure that even the hardcore law nerds of the Volokh Conspiracy have mentioned it only once before.

On Wednesday, a Chinese-owned wind-farm developer sued CFIUS to seek review of recent CFIUS orders that effectively require the developer to unwind its purchase of four wind-farm projects in Oregon.  The suit is a rarity in a field that has seen virtually no efforts to obtain judicial review.  Even partial success by the plaintiff in obtaining review of CFIUS’s decision could have major implications for foreign direct investment in the United States and increase the transparency of a historically opaque government approval process.  More after the jump. Continue reading ‘Landmark Foreign-Investment Suit Filed’ »

The Prologue to my book No More Wacos: What’s Wrong with Federal Law Enforcement and How to Fix it, includes a section on the Ruby Ridge case. Much more on Waco and Ruby Ridge is available on the Waco page on my website.

New York Times columnist Ross Douthat has an interesting column describing some of President Obama’s evolving positions on executive power. He now engages in many of the same practices that he and numerous other liberal Democrats denounced as unconstitutional in the days of the Bush Administration:

When George W. Bush was president of the United States, it was an article of faith among liberals that many of his policies were not just misguided but unconstitutional as well....

Obama campaigned as a consistent critic of the Bush administration’s understanding of executive power — and a critic with a background in constitutional law, no less. But apart from his disavowal of waterboarding (an interrogation practice the Bush White House had already abandoned), almost the entire Bush-era wartime architecture has endured: rendition is still with us, the Guantánamo detention center is still open, drone strikes have escalated dramatically, and the Obama White House has claimed the right — and, in the case of Anwar al-Awlaki, followed through on it — to assassinate American citizens without trial.

These moves have met some principled opposition from the left. But the president’s liberal critics are usually academics, journalists and (occasionally) cable-TV hosts, with no real mass constituency behind them.

The majority of Democrats, polls suggest, have followed roughly the same path as the former Yale Law School dean Harold Koh, a staunch critic of Bush’s wartime policies who now serves as a legal adviser to the State Department, supplying constitutional justifications for Obama’s drone campaigns. What was outrageous under a Republican has become executive branch business-as-usual under a Democrat.

Douthat does not mention what was perhaps Obama’s biggest reversal on executive power. The man who in 2007 wrote that “[t]he President does not have power under the Constitution to unilaterally authorize a military attack in a situation that does not involve stopping an actual or imminent threat to the nation,” last year waged a war against Libya without any congressional authorization. Even Bush never went that far.

Like Douthat, I don’t believe that all of Obama’s reversals were for the worse. In some of these cases, I think the president’s new position is more correct than his old one. That said, it is unfortunate that Obama has adopted such an extraordinarily broad view of executive power, and that Democratic partisans have largely accepted it. In fairness, their unprincipled behavior is little different from that of many Republicans when the GOP controls the White House. But that hardly justifies it.

For those who want to argue that I myself only turned against a broad view of executive power when Obama got into the White House, I refer you to my January 2007 Federalist Society debate on wartime executive power with John Yoo and others, and this post.

UPDATE: I have revised the last paragraph of this post for stylistic reasons.

Charles Krauthammer has a column today taking President Obama to task for his recent decision to “lift the shadow of deportation” from otherwise law-abiding undocumented aliens who came to the U.S. as children and allow them to “request temporary relief from deportations and apply for work authorization.”  (For DHS’s page on the program, see here.)  He argues that it’s impermissible to exercise discretion categorically:  rather, he says it requires review on a “case-by-case basis on considerations of extreme and extenuating circumstances.” I’m a big fan of the good doctor, but I’m not so sure he’s right about whether the exercise of discretion has to be individualized, at least not as a general matter. I think it requires a closer look at the specific statutes at issue.

It’s a background principle of administrative law that, “[a]bsent statutory language to the contrary, agencies are free to decide whether to implement a grant of discretion by means of rules, which provide prospective standards of behavior, or by means of case-by-case decisionmaking (or adjudication).” Agency Rules as Constraints on the Exercise of an Agency’s Statutory Discretion, 7 Op. OLC 39, 44 (1983) (AAG Ted Olson); cf. NAACP v. Fed. Power Comm’n, 425 U.S. 662, 668 (1976) (“As a general proposition it is clear that the Commission has the discretion to decide whether to approach these problems through the process of rulemaking, individual adjudication, or a combination of the two procedures.”). So the question then becomes whether the specific provisions of the immigration laws allow the Secretary of Homeland Security to exercise her discretion by rule in this manner.

I’d love to take a more careful look at the immigration laws and determine for myself whether I think they authorize the President’s action, but (1) I have actual paying clients to tend to, and (2) it’s well known that prolonged exposure to the hyper-reticulated Immigration and Nationality Act can actually cause your brain to melt.  Here’s what I do know:

Continue reading ‘President Obama’s Deferred Action on Immigration (and OLC)’ »

Last week, President Obama issued new guidelines allowing immigrants who illegally entered the United States as children to remain here so long as they are under the age of 30, have not been convicted of any crimes, and have either graduated from a US high school, are currently enrolled in school, or have served in the military. Obama lacks the legal authority to legalize their presence in the US; but he has in effect assured these people that they will not be prosecuted or deported for so long as his new policy remains in place.

This reform strikes me as a major step in the right direction. It allows some 800,000 people to live their lives in peace without the fear of being deported to a life of poverty and oppression in the Third World. It strikes a blow against the grave injustice of current immigration restrictions. All the standard objections to illegal immigration don’t apply here. For example, critics cannot argue that we are letting guilty people off the hook here, since these individuals came to the US as children and were not legally responsible for their actions at the time. Similarly, it is unlikely that these people will become burdens on the welfare state, given their educational credentials. In any event, increased immigration tends to reduce political support for welfare spending rather than raise it.

I do disagree with claims that this decision by Obama is especially bold or politically brave. Polls show that 84% of Americans – including even 79% of Republicans – believe that illegal immigrants who were brought to the United States as children and are either enrolled in college or serving in the military should be allowed to remain (49% believe they should be granted citizenship). Obama’s policy differs from the one described in the poll, but only modestly. The small minority who oppose this move are unlikely to vote for Obama anyway. But regardless of his motives, Obama made the right decision. This policy ranks high on the list of issues where Obama and I agree.

Some critics, such as John Yoo and Arnold Kling, attack the president’s decision not on the merits, but on the grounds that he lacks legal authority to choose not to enforce the law in this case.

This criticism runs afoul of the reality that the federal government already chooses not to enforce its laws against the vast majority of those who violate them. Current federal criminal law is so expansive that the majority of Americans are probably federal criminals. That includes whole categories of people who get away with violating federal law because the president and the Justice Department believe that going after them isn’t worth the effort, and possibly morally dubious. For example, the feds almost never go after the hundreds of thousands of college students who are guilty of using illegal drugs in their dorms. The last three presidents of the United States all have reason to be grateful for this restraint.

Yoo contends that there is a difference between using “prosecutorial discretion” to “choose priorities and prosecute cases that are the most important” and “refusing to enforce laws because of disagreements over policy.” I don’t think the distinction holds water. Policy considerations are inevitably among the criteria by which presidents and prosecutors “choose priorities” and decide which cases are “the most important.” One reason why the federal government has not launched a crackdown on illegal drug use in college dorms is precisely because they think it would be bad policy, and probably unjust to boot. That, of course, is very similar to Obama’s decision here.

Finally, Yoo also argues that prosecutorial discretion does not allow the president to refuse to enforce an “entire law,” as opposed to merely doing so in specific cases. But Obama has not in fact refused to enforce the entire relevant law requiring deportation of illegal immigrants. He has simply chosen to do so with respect to people who fit certain specified criteria that the vast majority of illegal immigrants do not meet. Even if the president did choose to forego enforcement of an entire law, it’s not clear to me that that is outside the scope of prosecutorial discretion. A president who uses his discretion to “choose priorities” could reasonably conclude that enforcement of federal laws A, B, and C is so much more valuable than enforcement of D that no resources should be devoted to the latter if they could possibly be used for the former.

UPDATE: A more recent poll shows that 64% of likely voters support the president’s policy.

UPDATE #2: At the Originalism blog, Michael Ramsey comments on this post as follows:

These are all fair points, though I’m left with two questions:

(1) Where would Professor Somin draw the line between permissible non-enforcement and violation of the take care clause? Could the President, if unable to persuade Congress to enact a middle-class tax cut, announce that henceforth people making below a specified income level will not be punished for failing to pay taxes? I’d be surprised if many people think he could do that, but I’m having some trouble seeing how the present policy is different.

(2) Is it true that all of the President’s policy can be explained simply as a decision not to enforce the law? Professor Somin assumes so, but my limited understanding was that the policy conveys affirmative benefits.

On Ramsey’s first question, I would say that the president could indeed choose not to prosecute people making below a specified income for tax evasion. I think that is an inevitable result of a system of separation of powers where prosecutorial discretion is lodged in an executive separate from the legislature. The constraint on this kind of abuse of power is primarily political. A president who takes discretion too far risks a backlash by Congress and the public. Notice that the same scenario could arise from the use of the president’s pardon power. The president could announce that he will pardon anyone who is convicted of tax evasion if their annual income is below a certain level. No one doubts that the Constitution gives him such authority, and that the relevant constraint on it is mostly political. In reality, president’s are unlikely to massively abuse prosecutorial discretion for much the same reason as they are unlikely to pardon anyone who violates a federal law they disagree with.

Regarding the second question, I am not aware of any “affirmative benefits” attached to Obama’s decision, other than those that are inevitably attached to being able to remain in the US. If there are such benefits, they may indeed raise legal issues that go beyond the issue of prosecutorial discretion.

UPDATE #3: Ramsey responds further in an update to his post:

Wow, so the President can lower everyone’s tax rates by executive order? Why then did President Bush work so hard in 2001 to encourage Congress to enact the “Bush tax cuts” when he could have just announced that anyone who paid at the rate he specified wouldn’t be prosecuted? Relatedly, does that mean the President can in effect adopt a (temporary) flat tax by saying that anyone who pays, say, 10% of income in taxes doesn’t need to worry about enforcement?

More seriously, it seems to me that we face here two conflicting constitutional rules: the President’s Article II, Section 3, obligation to take care that the laws are faithfully executed and the President’s Article II, Section 1, executive power to decide how to enforce the law. The challenge is to explain how they interact. Professor Somin’s response seems instead simply to ignore one of them. In posing my hypothetical, I was trying to draw out his explanation of the take care clause. But perhaps he thinks that the President does not have an obligation to enforce the laws. I’m not sure how that could be reconciled with the Constitution’s text, but I’m also not sure what other conclusion to draw from his response.

On Ramsey’s first point, I would say that the reason why Bush worked to get Congress to pass his tax cuts is that, otherwise, any executive decision not to prosecute people could be overruled by the next president. Taxpayers would have no guarantee that the new Bush rates would not be suddenly changed by the president. Also, such a decision would have resulted in severe political damage to his administration. One can just as readily ask why Bush didn’t announce that he would pardon anyone convicted of failing to pay taxes above the rate Bush considered appropriate.

As for the Take Care Clause, I don’t think it requires the president to enforce every law to the hilt. If it did, every single president in our history would have been in violation. In my view, what the Clause means is that the president (as opposed to Congress or the courts) is the official tasked with enforcing the laws and that he must make a good faith effort to decide on the best law enforcement strategy he can, given all relevant circumstances. That is not a perfect interpretation, but I think it’s preferable to the available alternatives.

From Charlie Savage’s NYT report on President Obama’s assertion of Executive Privilege as the basis for the Justice Department’s refusal to turn over internal agency documents concerning the “Fast and Furious” scandal to a house oversight committee:

The invocation of executive privilege by Mr. Obama added a new element to the drama. While there is little dispute that the privilege covers communications made directly to the president and among his White House advisers, it is far less clear that the privilege trumps Congress’s right to subpoena internal communications within an agency. . .

A White House spokesman cited several examples of Republican presidents asserting executive privilege to withhold agency documents not involving presidential communications.

Still, Mr. Obama appeared to adopt a narrower view of executive privilege during the 2008 campaign. Then a senator, Mr. Obama was asked by The Boston Globe whether he believed that executive privilege covered documents about decision-making within the executive branch not involving confidential advice communicated to the president.

He replied: “With respect to the ‘core’ of executive privilege, the Supreme Court has not resolved this question, and reasonable people have debated it. My view is that executive privilege generally depends on the involvement of the president and the White House.”

House Republicans adopted a more limited view of executive privilege as requiring White House involvement, suggesting it was a victory for their side either way.

For more background on recent assertions of Executive Privilege and those few cases in which courts have wrestled with the doctrine, some may be interested in this this CRS report from 2008.

UPDATE: At Monkey Cage, Andrew Rudalevige summarizes the development and use of Executive Privilege in recent administrations.