The Conflict Between Executive Privilege and Congress Oversight
Your final paper should be 10 pages in length (double-spaced, 12pt font, 1 in margins). Your paper must include the following sections: Introduction, Literature Review, Methods, Argument, and Conclusion. Your thesis statement must be in bold. Use headings and subheadings to mark each section. A references list must be included in addition to the 10 pages required for this paper.
Introduction
The American Constitution brought a new concept to an infant country-the separation of powers doctrine (Palmer, n.d.). The founding fathers’ objective in introducing the doctrine was creating the checks and balances system where the three branches will remain separate yet still coordinate among themselves. However, recent years have experienced an increase in conflicts between the different branches of government. The confrontation between Congress/ legislative branch and the Executive branch. During President’s Bush tenure, the constant conflict was evident with the President constantly asserting that he had the exclusive power to conduct its war on terror as allowed by the Constitution and as the Commander in Chief (Lobel, 2008). These powers would entail selecting the tactics that would be used to defeat the wartime enemies. On the other hand, Congress asserted its ultimate authority to decide on the war tactics to be used in the country. This was just one case of the Executive seeking to use the Executive Privilege availed by the Constitution while impeding the Congress’ oversight authority of obtaining any desired information on Executive’s activities (Palmer n.d.).
Notably, as the Executive obtains power, Congress’s capacity to get information on the power exercise is impeded yet very fundamental. The federal policy’s basic information is protected exclusively by the Executive branch, while respective offices have a minimal incentive for disclosure (Berman, 2009). The Executive branch has been depending on the “need to know ” basis in trying to ensure the information remains protected and distributed very sparingly. However, executive power’s tendency to increase with its concomitant secrecy is affecting the constitutional balance of power (Berman, 2009). The creators of the Constitution’s checks and balances wanted to limit each branch’s power so that none of them could have any “tyrannical” policies implemented at the expense of another branch. This research paper seeks to assess the conflict between Executive Privilege and Constitutional Oversight, specifically the factors that foster this situation. Executive privilege, which has brought in an expansion of power and secrecy, requires reform if the constitutional balance of power fostered by the “separation of powers” doctrine is restored. This would prevent further harms that could arise from a misalignment of the balances of powers.
Literature Review
The three branches’ founders put substantial efforts to prevent a rise in partisan factions, but the parties make up an essential American political practice component. The parties do have the interest to oppose one another as they compete for power (Peterson and Greene, n.d.). This is the same scenario between the Executive and Congress members, with their apparent party affiliations. The party and constituent interests will reinforce each other. While one party controls the legislative branch, another controls the Executive branch, which leads to partisan conflict. The partisan conflicts could become constitutional and vice versa. The Republican Executive may attack the indecision and corruption on Capitol Hill (Peterson and Greene, n.d.).
Conversely, the Democrats in Congress could arrange the Executive actions considering them to be autocratic, unconstitutional, and illegal. Therefore, it is evident that the American political system will constantly face intense partisan confrontations, making it impossible for the government branches to be practical (Peterson and Greene, n.d.). As different parties control a particular government branch, the conflict between the two is aggravated, which makes it impossible to have coherent and consistent policy making for proper governance.
Executive privilege is generally described as the implicit constitutional authority, while the Congressional legislative oversight authority is determined as the implicit constitutional authority by the Supreme Court (Shaub, 2019). This definition of the Executive privilege demonstrates a contingent and applicable immunity when the President has determined that a particular information release would lead to concrete identifiable Harmon national interests. This privilege has turned out to be deadly as it is invoked formally and informally, considering it has led to a highly effective means to nullify Congress’s investigatory function (Shaub, 2019). No logic, law, or practice could simultaneously assure an adequate legislative oversight power and the absolute executive discretion of withholding information. Undoubtedly, one side will need to give way to another, with the only issue remaining, which one needs to be dispensed. Notably, there is the need to establish the theoretical foundation of Executive privilege as it will be important in the restoration of constitutional balance between the branches in information disputes.
The Legislative and Executive branches run entirely differently and hold broadly incompatible perspectives of the constitutional scheme. Therefore, the Congress and Executive conducted themselves via the analogies of litigation and transactions, respectively. While Congress adopted the litigation model that could lead to criminal investigations, the Executive adopted negotiated transactions (Wright, 2014). The investigative model of oversight incorporated by Congress seeks to set up its superior position in the hierarchy and entitled to all the materials belonging to the Executive branch.
Conversely, the Executive is focused on in-branch equality and considers the interactions to be transactional instead of procedural. Beyond the constitutional theory, the different views explain the practical branch behaviors in every stage of the oversight interactions (Wright, 2014). The two branches have claimed compelling interests and brought forth valid concerns from the other’s perspective. Notably, in these interactions, it is prudent to note that the third branch, the Judiciary, disappearing first among equals, the Judiciary does have the jurisdiction to make decisions of the inter-branch oversight conflicts between the Executive and Congress to preserve order. The three branches do have the role of interpreting their roles within the constitutional scheme. Still, a non-routine involvement of the Judiciary needs to be incorporated to deal with the unending bickering political branches (Wright, 2014).
Levin and Bean (2018) is an article that discusses measuring the defectiveness of the congress, with its long lists of powers. According to the authors, the congress of several remarkable powers, for instance, can raise revenue, promote a country’s general welfare and enact the legislation. On the other hand, the power to conduct oversight investigation has been debited to date, especially concerning the confidentiality of organizational documents and interfering with the executive branch’s power. Congress, however, determines the need for new laws in case the existing laws are not effective enough (Levin and Bean, 2018). However, the article discusses the congress declaring war, primarily based on denial of freedom from the supreme court, and other issues, such as invasion of privacy, and confidentiality, by accessing the CRS reports. The tension between the congressional oversight and the executive privilege originates from access to the EPA documents during president Reagan’s administration. However, the house of subcommittee claimed that requesting the documents from the EPA was rightful, and the executive officials should not withhold the document that is necessary for Congress to undertake its operations.
Research Argument
Executive privilege refers to the immunity accorded to the President. It also limits the extent to which Congress can demand information in line with their authority to apply oversight (Shaub, 2019). Therefore, it is evident that Congress does not have the implied authority to demand that the President avails information in line with their oversight role. This privilege will not provide him with any authority to apply any dissemination of information widely, nor does it allow him to withhold information in an attempt to protect his rights as well as protect government interests, including deliberate information sharing and communication (Shaub, 2019).
The congress has been beneficial over the years, especially in uncovering corrupt, and insufficient actions of the government. However the supreme court has laid number of limitation on congress power, especially on “exclusive province” of the executive branch h. Other limitation includes the relation of the investigation power with the legislative task to prevent exposure. The limitation are the main cause of conflicts, since the congress are denied their freedom to determines the activities of the executive powers. On the other hand, the executive privilege raised a number of concerns since the end of seventeen century, on the disclosure of executive documents. According to the executive branch, the disclosure of documents would affect the constitutional responsibilities of the president powers, and affect the executive branch, which is an independent branch of the government.
To prevent the harm, the executive branch however raised the issue to the supreme court which took a couple of years to be recognized. The claims were recognized in the case of the united states V. Nixon, where the congress were urged to inquire about any documents to avoid interfering with the presidents powers. According to the executives, secrecy, and confidentiality is very important for the president to carry out responsibilities, and in making sound decisions. The main argument was the the impact of the executive on interfering with the judicial powers , such as the judicial ability in criminal prosecutions.
According to Laurence Tribe, the executive branch withhold the executive privilege to protect the military secretes , as well as prevent disclosure of the countries identity , as well as protection of the inter-governmental documents, which consist of information concerning the governments decisions, and policies. Based on Gorsuch dispute, the EPA file should be protected and held with great secrecy, because the documents consist of information concerning secret information of the government. However, in current situations, it is evident that the Executive branch has formulated a new protective privilege that will seldom need the President’s assertion while still rendering Congress virtually incapable of carrying out their oversight activities.
These actions, however, go against the Constitution’s intention of never granting the Executive the explicit power to withhold the information. The determination of the executive power scope needs to have the Constitution strictly read (Rozell, 2000). According to Attorney General William Rehnquist, the executive privilege has not given the President the authority to withhold Congress information. The disclosure could cause particular embarrassment to a particular element of the Executive branch. Instead, the privilege has been limited to situations with demonstrable justifications that the withholding will foster public interests. The Attorney also emphasized that the privilege to be asserted will need the exercise of the Judiciary’s judgment on whether the disclosure of the specific issues will harm national interests.
Therefore, it is prudent that executive privilege is extensively explored, especially in the historical context. History has indicated that history comprises minimal evidence that the country has suffered from wanting legal powers to compel the President to need Congress information demands in the Executive branch. The country will undoubtedly suffer from the lack of constraining the “want of legal power.” To this effect, the Executive privilege must be assessed historically based on the identified constitutional principles for the constitutional balance between the branches is restored fully as some of the ways to prevent future disputes between Congress and the president.
The courts must recognize how many levels of disclosure from Congress would affect the president’s duty to carry out daily constitutional duties. However, the court should come up with a procedural which protects the document and ensures Congress can access the documents without infringing the executive regulations and powers in article II. For instance, Congress can use several cameras that supervise the release of documents and inspect the documents that are released, the documents required for legislative duty a duty, and not documents that affect the presidency.
The judges, however, are supposed to sort documents to avoid confusion of interfering with the executive power and what documents are for Congress. The court can impose a policy that would maintain high levels of confidentiality on the documentary, making it easier for the judges and Congress; for instance, the court should promote secrecy in the executive branch and protect the integrity of administrative processes. On the other hand, Congress should prevent government deception and understand that their rights are limited; hence, they should respect the executive and the role of the president in making certain decisions. The court promotes the integrity of both branches to minimize disputes and preserve the boundaries and limitations of both powers.
Judicial resolution for addressing the dispute involves preparing the courts to compromise if the executive power and the Congress take their differences to court. Compromise has been an effective method over the years. However, Congress has potent political weapons that influence disclosure of information, for instance, control of the legislation, appropriations, and demands media attention compared to the executive branch. On the other hand, Congress has the power to insight the media against the public, obtain information for prosecution, and provide contempt citations.
The judiciary, however, is supposed to intervene, although the intervention raised questions on whether the court can be able to solve the disputes. According to most doctrines, the dispute is more political than judicial; hence it should be solved by the body politic instead of judicial review. A framework for solving future disputes can be developed to solve differences between the executive branch and Congress through ensuring both exercises their powers, and the authorities are asserted appropriately.

Conclusion
The Executive Privilege and Congressional oversight have conflicted for the longest time, with presidents asserting the former to prevent the latter from obtaining information on particular matters. The re-curring problem has been caused by the collision between the congressional rights of secrecy for instance, the secrecy of the infra-departmental communications, and that of law enforcement records. Over years, the congress power has been used as a constitutional grant or permission of the legislative power.
The need for confidentiality, and secrecy by the executive previllage, and that of the congressional oversight is the cause of conflict, since both doctrines have no absolute secrecy. However, the Executive branch has experienced an increase in power and the want of legal power to reach risky positions where Congress could get to a point where it cannot conduct proper oversight. It is prudent that the privilege is properly assessed to ensure that it is constrained for proper Congress oversight and the ultimate constitutional balance between all the branches. On the other hand, the two branches should first solve the dispute between themselves before taking the matter to court .

Bibliography
Berman, Emily. 2009. “Executive Privilege: A Legislative Remedy.” SSRN Electronic Journal.
Levin, C., & Bean, E. J. (2018). Defining Congressional Oversight and Measuring Its Effectiveness. Wayne L. Rev., 64, 1.
Lobel, Jules. 2008. “Conflicts Between The Commander In Chief And Congress: Concurrent Power Over The Conduct Of War.” 69. https://core.ac.uk/download/pdf/159578938.pdf (16 April 2021).
Palmer, Robert. (n.d.). The Confrontation of the Legislative and Executive Branches: An Examination of the Constitutional Balance of Powers and the Attorney General’s Role, 11 Pepp. L. Rev. 2. Available at http://digitalcommons.pepperdine.edu/plr/vol11/iss2/2
Peterson, Paul and Greene, Jay, n.d. Why Executive­Legislative Conflict in the United States is Dwindling. British Journal of Political Science, 24, pp 33­55 doi:10.1017/S0007123400006773
ROZELL, MARK J. 2000. “Restoring Balance to the Debate over Executive Privilege: A Response to Berger”, 8 Wm. & Mary Bill Rts. J. 541.
Shaub, Jonathan David. 2019. “The Executive’s Privilege.” SSRN Electronic Journal.
Shaub, Jonathan. 2019. “The Executive’S Privilege: Rethinking The President’S Power To Withhold Information.” Lawfare. https://www.lawfareblog.com/executives-privilege-rethinking-presidents-power-withhold-information (16 April 2021).
Wright, Andrew McCance. 2014. “Constitutional Conflict And Congressional Oversight.” SSRN Electronic Journal.

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