‘This Is a Case About the Separation of Powers’

Excerpts from Tuesday’s Supreme Court oral arguments, as transcribed by Alderson Reporting Co.:

Solicitor Gen. Theodore B. Olson: This is a case about the separation of powers. The Constitution explicitly commits to the president’s discretion the authority to obtain the opinions of subordinates and to formulate recommendations for legislation. Congress may neither intrude on the president’s ability to perform these functions nor authorize private litigants to use the courts to do so....

Justice Anthony M. Kennedy: Well, you know better than most the dynamics -- than most attorneys -- the dynamics of the discovery system. I hear in your argument echoes of every discovery dispute I’ve ever listened to.

Olson: Yes. There are several differences, Justice Kennedy. As I said at the very beginning, this discovery dispute involves bringing the president and the vice president of the United States into court to defend themselves with respect to textually committed obligations and responsibilities that they have under the Constitution.

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Justice Antonin Scalia: I think executive privilege means whenever the president feels that he is threatened, he can simply refuse to comply with a court order. And the same thing with Congress. And it ends up in a, you know, a struggle of the two branches. I don’t view that as some legal doctrine that enables him to withhold certain documents.

He is, he has the power as an independent branch to say: “No, this intrudes too much upon my powers. I will not do it.” And after that, it’s a, it’s a struggle between two branches. And if you view executive privilege that way, forcing him to assert executive privilege is really pushing things to an extreme that should not very often occur in this republic.

Sierra Club lawyer Alan Morrison: We don’t have to get to that issue in this case.

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Justice Stephen G. Breyer: Why isn’t the court of appeals wrong on that. The argument being that this is not a discovery statute. This is not an ex parte communications statute. This is not a Freedom of Information Act statute. This is a blue-ribbon committee statute.

Morrison: No, your honor.

Breyer: And if you turn it into the latter you will stop ... every lower-level official in government when he is creating legislative policy from getting on the phone and calling up whoever he pleases. You understand that argument. I want your response.

Morrison: All right. Two responses. First, to some extent it is an open government statute ... second is that this statute does not apply, except to committees.