As I start this post, news is breaking that President Obama has formally invoked executive privilege in his administration’s running battle with the House Oversight and Government Reform Committee over the latter’s investigation of – and demands for documents from – the Justice Department’s “Fast and Furious” southwest border gun-tracking (or rather not) operation.
Combined with the President’s immigration announcement last week—regarding his plan to cease deportation of (and issue work permits to) young immigrants brought into the country by their parents—this has set off accusations of executive fiat, dictatorship, and the like, augmented today by dark hints of cover-up. For the moment I would note only that neither action is particularly out of line with recent presidential history, and give a quick background on the doctrine of “executive privilege” (from the perspective of presidential power and interbranch relations, rather than from the purified air of legal doctrine.)
First point: there is no such thing, in the Constitution at least. So to say it is “formally invoked,” as I did above, is not quite right. However, in the famous Nixon tapes case, U.S. v Nixon, the Court did hold that such a privilege was constitutionally grounded. The president lost the battle, but the presidency might have won the war.