William & Mary Bill of Rights Journal


Mark J. Rozell


In this Essay, Professor Rozell responds to Raoul Berger 's Executive Privilege: A Constitutional Myth. Berger's work claims that executive privilege does not have a constitutional basis. Addressing Berger's textual, historical, and structural arguments, Professor Rozell argues contrarily that executive privilege is a legitimate power when exercised properly and that to view executive privilege as a constitutional absolute is improper. As such, Professor Rozell recognizes the limits of executive privilege and suggests that it may be subject to a balancing test when weighed against demands for information. He argues that presidents should not use this power to protect information that is merely embarrassing or politically damaging but rather should reserve this power for the most compelling reasons-such as protecting certain national security needs or preserving White House confidentiality when it is in the public interest to do so. Professor Rozell argues that the separation of powers doctrine can resolve executive privilege dilemmas, as the political branches settle informational disputes between themselves, with limited judicial intervention. Finally, he proposes that each administration should adopt guidelines that provide members of the executive branch with formal procedures for handling and resolving executive privilege issues.