# Amicus Curiae Brief — American Foreign Service Assn. v. Garfinkel

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1989
- **Citation:** 490 U.S. 153

## Text

Supreme Court, U.S,
FILED

DEC 29 1988

a

No. 87-2127

IN THE
Supreme Court of the United States

OCTOBER TERM, 1988

AMERICAN FOREIGN SERVICE ASSOCIATION, et al.,
Appellc nts,
v.

STEVEN GARFINKEL, et al.,
Appellees.

On Appeal from the United States District Court
for the District of Columbia

BRIEF FOR THE AMERICAN FEDERATION OF LABOR
AND CONGRESS OF INDUSTRIAL ORGANIZATIONS
AND THE AMERICAN FEDERATION OF
GOV ERNMENT EMPLOYEES, AFL-CIO AS
AMICI CURIAE SUPPORTING APPELLANTS

GEORGE KAUFMANN ROBERT M. WEINBERG

2101 L Street, N.W. 1000 Connecticut Avenue, N.W.
Washington, D.C. 20037 Washington, D.C. 20036

MARK ROTH WALTER KAMIAT

CHARLES A. HOBBIE LAURENCE GOLD

80 F Street, N.W. (Counsel of Record)
Washington, D.C. 20001 815 16th Street, N.W.

Washington, D.C. 20006
(202) 637-5390

WILSON - EPES PRINTING Co., INC. - 789-0096 - WASHINGTON, D.C. 20001

® QE 60

TABLE OF CONTENTS

DOD GS Qe sccticiteinncissanincinitscushiietia ii

INTEREST OF THE AMICI CURIAE |... 1

SE. cesscsrepvinnsscuvitenaiusscisiiaciabiisiitiaiiaaeiaiisda teat 2
Introduction and Summary of Argument ................. 2
SE eT A 7

OE BE iceneicscistted ete 2 7
b. The Scope of the Constitutional Dispute........ 11
2. The Powers of Congress ainicaianaastieiiivedicnt dicot at 12
3. The Powers of the President ...........00000000... 20

4. A Note on the Interdependence of the Legislative
and Executive Branches ..................................-0.-.. 27
PAI :scsnsinsievssicnsecninisemsiessiaicdlansiaunlaomueaaeaniadis 28

ii
TABLE OF AUTHORITIES

Cases Page
Bowsher v. Synar, 478 U.S. 714 (1986) -................. 2
Buckley v. Valeo, 424 U.S. 1 (1976) .................-......- 2
Bush v. Lucas, 462 U.S. 367 (1983) ......................... 10, 18
Chicago & Southern Air Lines, Inc. v. Waterman

Steamship Corp., 333 U.S. 103 (1948) -................ 4
Cincinnati Soap Co. v. U.S., 301 U.S. 308 (1937)... 15
Dames & Moore v. Regan, 453 U.S. 654 (1981) -....... 4
Department of Navy v. Egan, —— U.S. ——, 108

as aeasaeatihinienepenenenaerenenen 4
Eastland v. United States Servicemen’s Fund, 421

I i errcceeiatnipeencnmne 19
Embry v. United States, 100 U.S. 680 (1879) ........ 14
Haig v. Agee, 453 U.S. 280 (1981) ....................--.---- 5
Humphrey's Executor v. United States, 295 U.S.

CESS 17
INS v. Chadha, 462 U.S. 919 (1983) .................-....... 2
Kendall v. United States, 37 U.S. 524 (1837) -...... 18
Knote v. United States, 95 U.S. 149 (1877)........ 15
Little v. Barreme, 6 U.S. 170 (1804) ~................... 5
Morrison v. Olson, —— U.S. ——, 108 S.Ct. 2597

ase Ce an 17, 25
Myers v. United States, 272 U.S. 52 (1926) ............. 2
Nixon v. Administrator of General Services, 433

a aatipceemnesnacumeenl 4, 6, 24, 26
Nizon v. Fitzgerald, 457 U.S. 731 (1982) ................ 10
Reeside v. Walker, 52 U.S. 272 (1850) .................... 13
United States v. Curtiss-Wright Export Co., 299

I ee 4
United States v. Lovett, 328 U.S. 303 (1946) -....... 15, 16
United States v. Nixon, 418 U.S. 683 (1974) ........ 3
United States v. Perkins, 116 .S. 483 (1886) -....... 18
Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S.

SS ee 4,5, 27
Zemel v. Rusk, 381 U.S. 1 (1965) ............................ 4

Constitutional Provisions, Statutes and Regulations

U.S. Constitution

a ameensiniocion passim
LEI eo OO 13, 16

iii

TABLE OF AUTHORITIES—Continued

Page
EET (li seis dienes cieatisandasiesiedenibeestneseeness 14
Article III, § 1 ........ ESA ee 14
UIE cn sss ssesmssesnetebussonnessnessonanse 9
I canahipsinn 10
Treasury, Postal Service and General Appropria-
tions Act of 1989, § 619, Pub. L. No. 100-440,
102 Stat. 1721 (September 22, 1988) 000000. 2
Military Whistleblower Protection Act, Pub. L.
No. 100-456, § 846, 102 Stat. 2027 (September
ar seiueboenononas 10
Omnibus Continuing Resolution for Fiscal Year
1988, § 630, Pub. L. No. 100-202, 101 Stat. 1329
a ssnssuduessonbipetancvcenmel passim
32 C.F.R. § 2003.20 (h) (1) (i) once 11, 12
$2 C.F.R. § 7008.20(b) .....................0...2.....-eeeeeceee eens 11
II CIO cc ccececensncseccnsccscecsnnseccoccossoncccccocsence 11
Legislative History
Classified Information Nondisclosure Agreements:
Hearings before the House Subcomm. on Human
Resources of the Comm. on Post Office and Civil
Service, 100th Cong. 1st Sess. 8 (October 15,
ES Ea oe 9, 16
Congress and the Administration’s Secrecy
Pledges: Before a Subcomm. of the House
Comm. on Government Operations, 100th Cong.,
2d Sess. 169-171 (August 10, 1988) 0000000. 8, 10, 13
H. Conf. Rep. No. 100-398, 100th Cong., 1st Sess.
1179 (December 22, 1987) .. von 9
133 Cong. Rec. H11999 (Daily ed. “December 21,
EE A A 9
Books and Articles
Black, The Working Balance of the American
Political Departments, 1 Hast. Constit. L.Q.
(1974) ....... A SESE SaS TO aR RC RS oO 28
The Federalist No. 41 (J. Madison) (C. Rossiter
oes eccirimmenenonadennensomnenne a 23

_ iv
TABLE OF ATITHORITIES—Continued

The Federalist No. 51 (J. Madison) (C. Rossiter,
«RESEDA erates SER RE Ee
The Federalist No. 58 (J. Madison) (C. Rossiter,
Oe, Rn nn cencennanndiemnaeianaiananaaiaatios
The Federalist No. 64 (J. Jay) (C. Rossiter, ed.,
IED ssdcssiocshciesnienovicciiipuiiciciensabinitapintiaiatidstidiagsanadiianetneatantadine
The Federalist No. 73 (A. Hamilton) (C. Rossiter,
ERTS NSERC rernre onan s egy atee seen ms
H. Hallan, The Constitutional History of England
IT CII <ccccscomenncsaniscinseemessinninerensendidtateseendions
L. Henkin, Foreign Affairs and the Constitution 76
FERRARA ete re ere Rae rene caine” ae ETN ONY Een RD
Note, The War-Making Powers: The Intentions of
the Framers in the Light of Parliamentary His-
tory, 50 B.U.L. Rev. 5, 6-8 (1970) .......................-
Strauss, The Place of Agencies in Government:
Separation of Powers and the Fourth Branch,
84 Colum. L. Rev. 573, 667 (1984)........................
T. Tasswell-Langmead. English Constitutional
History 428-429 (11th ed., T. Plucknett, 1960) ..

Page

17

13

IN THE
Supreme Comet of the United States

OCTOBER TERM, 1988

No. 87-2127

AMERICAN FOREIGN SERVICE ASSOCIATION, et al.,

~ Appellants,

STEVEN GARFINKEL, et al.,
Appellees.

On Appeal from the United States District Court
for the District of Columbia

BRIEF FOR THE AMERICAN FEDERATION OF LABOR
AND CONGRESS OF INDUSTRIAL ORGANIZATIONS
AND THE AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, AFL-CIO AS
AMICI CURIAE SUPPORTING APPELLANTS

This brief amici curiae is filed with the consent of the
parties, as provided for in the Rules of the Court.

INTEREST OF THE AMICI CURIAE

The American Federation of Labor and Congress of
Industrial Organizations (“AFL-CIO”) is a federation
of 90 national and international unions with a total mem-
bership of approximately 13,000,000 working men and
women, many of whom are government employees di-
rectly affected by the statute at issue in this case. The
American Federation of Government Employees, AFL-
CIO (“AFGE”’), is the national union affiliated with the
AFL-CIO whick specializes in representing federal em-
ployees.

2
ARGUMENT

Introduction and Summary of Argument

This case turns on the constitutionality of an act of
Congress which prohibits the use of appropriated funds
for certain purposes: §630 of the Omnibus Con-
tinuing Resolution for Fiscal Year 1988, Pub. L. No.
100-202, 101 Stat. 1329 (Dee. 22, 1987) (hereinafter
““$ 630”).' More specifically, the question is whether the
constitutional doctrine of separation of powers denies
. Congress the power to enact § 630. Such a ruling would

be wholly unprecedented for the simple and compelling
reason that judicial invalidation of such an enactment
would be at odds with the most basic premises of our
constitutional scheme.

It is beyond doubt that the grant of legislative powers
to Congress in Article I of the Constitution on its face
authorizes the passage of § 630. As we discuss infra at
12-20, that authority is stated in a number of Article I’s
express provisions. It is equally plain that in this in-
stance Congress has not violated the separation of powers
scheme by attempting to participate directly in the func-
tion of executing the laws, see e.g., Bowsher v. Synar,
478 U.S. 714 (1986) ; Buckley v. Valeo, 424 U.S. 1, 109-
143 (1976); Myers v. United States, 272 U.S. 52, 161
(1926), or by attempting to circumvent the Constitu-
tion’s specific procedural requirements for proper legisla-
tive action, see, e.g., INS v. Chadha, 462 U.S. 919, 944-
959 (1983).

Rather, in § 630, Congress has, in order to accomplish
proper iegislative objectives, simply placed a straight-

1 As a provision relating to appropriations for Fiscal Year 1988,
$ 630 effectively expired at the end of that Fiscal Year. However,
Congress reenacted—and the President signed—an identical provi-
sion for Fiscal Year 19° See Treasury, Postal Service and Gen-
eral Appropriations Ac. . 1989, § 619, Pub. L. No. 100-440, 102
Stat. 1721 (September 22, 1988). For convenience, both of these
provisions will hereinafter be referred to as “§ 630.”

3

forward limit on the Executive’s uses of congressionally-
appropriaced funds: generally stated, that limit is de-
signed to facilitate the free flow of non-classified infor-
mation about the workings of our federal government,
and to eliminate procedural obstacles to Congress’ access
to both classified and nonclassified information that Con-
gress reasonably believes is necessary in carrying out
its constitutionally assigned functions.

In this context, to strike down § 630 as unconstitn-
tional, this Court would have to conclude that Congress’
established legislative power is overridden by a superior
power granted by the Constitution to the Executive.
Moreover, because the Constitution does not expressly
grant any such executive power, see infra at 23, the
Court would have to imply a superior executive power
that overrides the express powers granted to Congress in
the Constitution. Not surprisingly, in the twe centuries
of our constitutional history, this Court has never sought
to limit Congress’ role in that fashion.

The power of the President sought to be invoked in
this case as the base for overriding the power of Con-
gress to enact § 630 is the power to conduct foreign re-
lations and to protect national security. Specifically, the
Government argues that as an incident of this presi-
dential power, the Executive must—as a constitutional
matter—have a free hand to control the flow of certain
types of foreign relations and national security infor-
mation as the Executice chooses, without any interference
from Congress.”

2 The Government’s argument for the President’s exclusive and
inherent authority to control the flow of information in these areas
regardless of the will of Congress rests entirely on the assertion
that such authority is implicit in the foreign relations and national
security powers vested by the Constitution in the President. The
Government’s position is not based on the qualified privilege of con-
fidentiality for high level executive deliberations. See United States
v. Nixon, 418 U.S. 683, 705-707 (1974) (noting the qualified need

4

While this Court has from time to time alluded to an
“inherent” or “independent” presidential power to con-
duct foreign relations and to protect national security, the
~ context has always been presidential conduct pursuant to
congressional authorization or wholly compatible with
congressional enactments.*® It does not strain the con-
stitutional scheme one whit to recognize that in the area
of foreign policy only the Executive branch has the
power to execute—which means the power to conduct the
functions of international discourse, negetiation, and war-
making—and to recognize that Congress may, “in giving
the Executive authority over [these] matters[,] ... paint
with a brush broader than that it customarily wields in
domestic areas.” * And, it may well be the constitutional
plan with regard to foreign relations and national se-
curity to provide the Executive—at least in the absence
of relevant legislative acts—a somewhat greater power
of initiative in the formulation and implementation of
policy than with regard to wholly domestic matters.®

for confidentiality of high-level executive deliberations); see also
Nixon v. Administrator of General Services, 433 U.S. 425, 456-55
(1977) (discussing privilege and its qualified nature).

3 See, e.g., Chicago & Southern Air Lines, Inc. v. Waterman
Steamship Corp., 333 U.S. 103 (1948); United States v. Curtiss-
Wright Export Co., 299 U.S. 304 (1936). Accord, Youngstown
Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635 & n.2 (1952) (Jack-
son, J. concurring) (noting that Chicago & Southern Air Lines,
supra, and Curtiss-Wright were both cases in which the presidential
acts in question were “pursuant to an express or implied authoriza-
tion of Congress”). See also Department of Navy v. Egan,
U.S. ——, 108 S.Ct. 818 (1988) (noting broad presidential power
over national security information in case where congressional en-
actments were not intended to limit presidential power).

4 Zemel v. Rusk, 381 U.S. 1, 17 (1965); see also Dames & Moore
v. Regan, 453 U.S. 654, 677-679 (1981).

5 See, Department of Navy v. Egan, supra, 108 S.Ct. at 825
(“unless Congress specifically has provided otherwise, courts tradi-

5

But it in no way follows that the presidential power
to conduct foreign policy and to protect national security
is beyond regulation by Congress pursuant to the con-
gressional powers conferred by Article I. This Court has
never taken that quantum doctrinal leap—indeed, in the
past, has declined to do so*—yet it is just such a de-
parture in our constitutional jurisprudence that would be
required to strike down § 630.

In his seminal concurrence in Youngstown Sheet &
Tube Co. v. Sawyer, 343 U.S. 579, 637-638 (1952), Jus-
tice Jackson—analyzing an earlier presidential claim to
“inherent” national security powers that could operate
in the face of a contrary congressional will—put the is-
sue framed here in proper constitutional perspective:

When the President takes measures incompatible
with the expressed or implied will of Congress, his
power is at its lowest ebb, for then he can rely only
upon his own constitutional powers minus any con-
stitutional powers of Congress over the matter.
Courts can sustain exclusive presidential contre] in
such a case only by disabling the Congress from act-
ing upon the subject. Presidential claim to a power
at once so conclusive and preclusive must be scrutin-
ized with caution, for what is at stake is the equilib-
rium established by our constitutional system. [Jd.
(footnote omitted) ]

With regard to matters of the kind at issue here, the
Founders provided for the “equilibrium” to which Jus-
tice Jackson refers not by attempting te capture the

tionally have been reluctant to intrude upon the authority of the
Executive in military and national security affairs”); Haig v.
Agee, 453 U.S. 280, 291 (1981) (“in the areas of foreign policy
and national security . . . congressional silence is not te be equated
with congressional disapproval” ).

® See Little v. Barreme 6 U.S. 170 (1804) (Marshall, C.J.); see
also Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 660
(1952) (Clark, J. concurring).

acacia i

6

future by a set of rigid, definite rules for allocating
power, but by establishing a creative competitive tension
between Congress and the President that serves as the
means of “keeping each other in their proper places.”
The Federalist No. 51 (J. Madison) (C. Rossiter, ed.
1961) at 320. It is through this political process—using
the term political in its highest sense—that the shape of
our government at the levels below the President and
the shape of the policies of our Nation are to be formed.

The separation of powers concept most emphatically
“did not mean that [the branches] ought to have... no
controul over the acts of each other.” Nixon v. Admin-
istrator of General Services, supra, 433 U.S. at 442, m5
(quoting The Federalist No. 47 (J. Madison) (emphasis
in original) ). Any constitutional rule that would create
a significant area of federal policy-making where the
Executive has exclusive control, thereby truncating Con-
gress’ ability to exercise its express legislative powers, is

. far removed from the constitutional scheme. As long as
Congress is acting in a legislative capacity as defined in
Article I and the President is operating in an executive
capacity as defined in Article II, only the most extreme
circumstance could justify judicial intervention through
the separation of powers doctrine.

The present case most assuredly does not meet that
measure. As we show below, Congress in adopting £ 630
acted well within its constitutionally assigned sphere.
And, where Congress acts pursuant to its conferred powers,
by definition the legislature is not acting in an area exclu-
sively given to the President. As we further show, § 630
could not conceivably disrupt the ability of the President
to carry out his constitutionally assigned functions. In-
deed, § 630 does not even purport to alter the categories
of information that the Executive may “classify.” Nor
does $630 enlarge either the right of any government
employee to disclose classified information or the right

T

of Congress to receive such infurmation. The intended
effect of § 630 is simply to prevent the Executive from
chilling or obstructing the flow of information already
permitted by pre-existing laws.

1. Section 630

The parties and other amici curiae will set forth in
detail the legislative and administrative background to
the enactment here and its implementation. It is im-
portant, however, that these details not obscure the pur-
poses Congress sought to further in enacting $ 630 and
the precise scope of the constitutional dispute given the
present posture of the case.

a. Congress’ Purposes

Section 630, which was adopted as part of an omnibus
appropriations measure, is captioned, “Employee Dis-
closure Agreements,” and states as follows:

Sec. 630. No funds appropriated in this or any
other Act for fiscal year 1988 may be used to imple-
ment or enforce the agreements in Standard Forms
189 and 4193 of the Government or any other non-
disclosure policy, form or agreement if such policy,
form or agreement:

(1) concerns information other than that spe-
cifically marked as classified; vr, unmarked but
known by the employee to be classified: or unclassi-
fied but known by the employee to be in the process
of a classification determination;

(2) contains the term “classifiable”:

(3) directly or indirectly obstructs, by require-
ment of prior written authorization. limitation of
authorized disclosure, or otherwise, the right of any
individual to petition or communicate with Members
of Congress in a secure manner as provided by the
ruies and procedures of the Congress:

(4) interferes with the right of the Congress to
obtain executive branch information in a _ secure

8

manner as provided by the rules and procedures of
the Congress ;

- (5) imposes any obligations or invokes any reme-
dies inconsistent with statutory law; Provided, That
nothing in this section shall affect the enforcement
of those aspects of such nondisclosure policy, form
or agreement that do not fall within subsections (1)-
(5) of this section. [101 Stat. 1329; emphasis in
original. |

This provision was Congress’ response to the Execu-
tive’s recently-imposed requirements that persons with
access to any classified information sign an agreement
not to disclose classified or “classifiable” information,
and that persons with access to information that involves,
or is derived from, intelligence sources or methods sign
nondisclosure agreements that additionally require pre-
publication review and prior written authorization for
any disclosure relating to such intelligence information,
sources, or methods. In the few years following the Ex-
ecutive’s establishment of these nondisclosure agreement
policies, close to three million current and former federal!
employees have been required to sign these forms.’ These
executive policies raised two basic concerns that Congress
sought to allay in § 630.

7 Standard Form 189 was issued in September 1983 as a require-
ment for federal employees with access to classified information.
By December 1987, approximately 2.5 million current and former
employees had been required to sign this form. Form 4193 was
issued in 1981 as a requirement for federal employees with access
to information that relates to or is derived from intelligence sources
or methods. By December 1987, approximately 453,000 current and
former employees, excluding CIA employees, had been required to
sign this form or closely related forms. Congress and the Ad-
ministration’s Secrecy Pledges: Hearing Before a Subcomm. of
the House Comm. on Government Operations, 100th Cong. 2d Sess.
169-171 (August 10, 1988) ‘hereinafter “1988 Hearing”) (state-
ment of L. Rodrigues, Assoc. Dir., National Security and Interna-
tional Affairs Div., General Accounting Office).

9

First, Congress was concerned that use in the agice-
ments of the term “classifiable,” because of the vague
and indeterminate nature of the term, would chill the
free flow of non-classified information about the work-
ings of our government. Congress believed that the free-
flow of such information from those with the most inti-
mate knowledge of the day-to-day functioning of the
government is an important check on government abuses
and furthers the goal of efficient and productive gov-
ernment.’ Congress was particularly concerned that the
chill on disclosures emanating from use of the term
“classifiable” in these agreements would undermine the
effectiveness of the whistle blower protections enacted
as part of the Civil Service Reform Act of 1978. See 5
U.S.C. § 2302(b) (8) (prohibiting any reprisals by fed-
eral employers for an employee’s disclosures of law or
rule violations, instances of mismanagement or waste,
or of other federal abuses of authority).’

Subsections (1) and (2) of § 630 are designed to deal
with this concern, bv limiting the nondisclosure agree-
ments to classified in.ormation and to information in the
process of classification.

Second, Congress was concerned that the prior author-
ization requirement might be used to deny individual
lower-level government employees direct access to Con-
gress. Over the years, Congress has concluded that ef-
fective legislative oversight of the vast federal bureauc-
racy, particularly the defense bureaucracy, cannot be

8 See, e.g., H. Conf. Rep. No. 100-498, 100th Cong. Ist Sess. 1179
December 22, 1987) (hereinafter “1987 Conference Report”) ;
Classified Information Nondisclosure Agreements: Hearing before
the House Subcomm. on Human Resources of the Comm. on Post
Office and Civil Service, 100th Cong., Ist Sess. 8 (October 15,
1987) (hereinafter “1987 Fearing”) (statement of Sen. Grassley) ;
id. at 26 (statement of Rep. Brooks); 1988 Hearing, supra at 4
statement of Sen. Proxmire).

® See, e.g., 133 Cong. Rec. H 11999 (Daily ed. December 21, 1987)
Rep. Brooks); 1987 Hearing, supra at 8 (statement of Sen. Grass-
ley ) ; id. at 14-15 (statement of Rep. Boxer).

10

wholly reliant on information provided in the institu-
tionalized responses of the executive departments. Con-
gress has recognized the natural tendency for any ad-
ministration to disclose information to Congress in a
selective and self-serving manner, as well as more cal-
culated efforts by executive officers to suppress evidence
that would be embarrassing to the administration. Be-
cause Congress may not on its own initiative and infor-
mation know what to investigate or whom to subpoena,
the Legislature has become increasingly dependent on
disclosures volunteered directly by lower-level govern-
ment employees, who may have intimate knowledge of
abuses occurring in government and a willingness to dis-
close them. See, e.g., Nixon v. Fitzgerald, 457 U.S. 731,
733-734 (1982). Indeed, Congress—to facilitate such
disclosures—has enacted a number of statutes that en-
courage and protect these employees’ access to Congress."”
In § 630, Congress acted out of concern that the Execu-
tive’s employee disclosure policy, and particularly the
prior authorization requirement, might serve as a deter-
rent, a censor, or at least a filter with respect to the
transmittal of the information to Congress."

Subsections (3) and (4) of $630 are explicitly di-
rected to this concern. Congress’ method in these sub-
sections is not to define or expand the categories of in-
fo.mation that employees were already entitled to convey
directly to Congress but to prohibit the use of the prior
authorization requirement, or any similar impediment,

” See, €.g., Military Whistleblower Protection Act, Pub. L. No.
100-456, § 846, 102 Stat. 2027 (September 29, 1988); 5 U.S.C.
$ 2302\b) (whistleblower protection provisions of Civil Service
Reform Act of 1978); 5 U.S.C. $7211 (Lloyd-LaFollete Act of
1912). See generail, Bush v. Lucas, 462 U.S. 367, 389 & n.37
1983).

‘lt See, €.0., 1988 Hearing, supra at 5-6 ‘statement of Sen. Prox-
mire ; id. at 14-15 (statement of Rep. Boa); id. at 87-88 (state-
ment of Rep. Fascell); 1987 Hearing, supra at 8-9 (statement of
Sen. Grassley); id. at 14-15 (statement of Rep. Boxer); id. at 26
Statement of Rep. Brooks).

11

as a means of obstructing the pre-existing statutory and
constitutional “right{s]” of individuals to communicate
with members of Congress and of Congress to obtain
information directly from such individuals.

b. The Scope of the Constitutional Dispute

In the present posture of the case, the Executive is
no longer resisting § 630’s elimination of the term “class-
_ ifiable” from the nondisclosure forms. Indeed, the Execu-
tive has removed the term “classifiable” from the forms.
In their current form these agreements refer only to
classified information or information that meets the
standards for classification and is in the process of a
classification determination. See Motion to Affirm at 9,
12-13 & 18-19; see also 53 Fed. Reg. 38279; 32 CFR
§$ 2003.20(h) (1) (i).

Moreover, the Executive has issued regulations di-
recting that the term “classifiable” in outstanding pre-
viously executed agreements be interpreted as referring
only to “{u]nmarked classified information, including
oral communications; and . . . unclassified information
that meets the standards for classification and is in the
process of a classification determination.” Motion to Af-
firm at 6-7 (quoting 32 C.F.R. 2003.20(h) (1) (i) (em-
phasis in original) ).

The Execrtive has, in addition, given persons who
signed the ola forms the option of nullifying the prior
agreement and substituting a signed agreement on the
new form. 32 C.F.R. § 7003.20(b).™

Thus, the agreer~ t forms presently in use by the
Executive and the adm‘nistrative interpretation of the
old forms are in conformity with subsection (2) of § 630

“? Appellants claim that the Executive has not given those who
signed the old form agreements sufficient notice of the present in-
terpretation of “classifiable” or of the option of substituting the
new form agreement. The constitutionality of § 630 does not weigh
in the balance of that dispute; rather, the dispute goes to the ques-
tion of the Executive’s compliance with § 630.

12

and, to a large measure, in conformity with subsection
(1).

The Execu’ive, however, apparently continues to resist
the requirement in subsection (1) that as respects un-
marked information the nondisclosure form may only
apply to information “known by the employee to be in
the process of a classification determination” (emphasis
added). The Executive has issued regulations stating
that the forms will be interpreted to hold the employee
responsible if the employee either knows or reasonably
should know that the information is classified or is in
the process of a classification determination. 32 CFR
§ 2003.20 (h) (1) (i).

Assuming that subsection (1) of § 630 permits only
a subjective knowledge requirement in the form agree-
ments, the present dispute as to the validity of the first
two subsections of § 630 reduces to whether Congress
may limit the Executive’s ability to protect the confi-
dentiality of classified information through an objective
“should have known” standard.

The dispute concerning subsections (3) and (4) con-
cerns a question of procedure. These subsections do
not create any new substantive r'ghts of communication
between individual government <mployees and Congress.
Rather, $630 provides in this regard that where such
rights exist the Executive may not obstruct the indi-
vidual—by a prior authorization requirement or other
impediment—from communicating directly with Congress.

The issue with respect to these subsections is thus
whether § 630 is constitutionally invalid because the pro-
vision denies the Executive the right co auvance approval
of the communications in question.

2. The Powers of Congress

Enactment of § 630 is well within the powers expressly
given to Congress by Article I of the Constitution.

13

Because § 630 is drafted in the form of a prohibition
on the use of appropriated funds, it is proper to begin
with the appropriations power. Article I, §9 of the
Constitution, in unequivocal terms, confers exclusively
upon Congress the power to appropriate federal funds:
“No Money shall be drawn from the Treasury, but in
Consequence of Appropriations made by Law.”

This power is sweeping. “However much money may
be in the Treasury at any one time, not a dollar of it
can be used in the payment of anything not .. . pre-
viously sanctioned [by Congress].” Reeside v. Walker,
52 U.S. 272, 290 (1850).

The Founders were well aware of the significance of
the power thus given to Congress. The power of the
purse had afier all been the means by which the British
House of Commons had, in the 150 years prior to our
Constitution's adoption, achieved “continual triumph . . .
over the other branches of [British] government.” The
Federalist No. 58 (J. Madison) (C. Rossiter, ed., 1961)
at 359." Indeed, Madison pointed to the British exper-
ience as illustrating the point that the appropriations
power is the ultimate legislative check on the power of the
executive:

[T|he purse—that powerful instrument by which
we behold, in the history of the British Constitution,
an infant and humble representation of the people
gradually enlarging the sphere of its activity and
importance, and finally reducing, as far as it seems
to have wished, all the overgrown prerogatives of the
other branches of the government. [Jd.]

13 For reviews of this history, see H. Hallan, The Constitutional
History of England 533-534 (1873); T. Tasswell-Langmead, English
Constitutional Histo y 428-429 (11th ed., T. Plucknett, 1960);
Note, The War-Making Powers: The Intentions of the Framers
in the Light of Parliamentary History, 50 B.U.L. Rev. 5, 6-8 (1970) ;
1988 Hearing, supra at 149-152 (legal memo by Prof. M. J. Glennon).

14

Madison went on to state:

This power over the purse may, in fact, be regarded
as the most complete and effectual weapon with
which any constitution can arm the immediate repre-
sentatives of the people, for obtaining a redress of
every grievance, and for carrying into effect every
just and salutary measure. [/d.]

Indeed, so potentially powerful is the appropriations
weapon in the process of pull and haul between the
branches that the Framers felt constrained to put two
explicit limits on its use against the other branches. The
fair lesson of the narrow constraints chosen, however, is
that the Framers envisioned all but the most extreme
uses of the power to be valid. Thus, in Article , 8 4
the Constitution provides that the compensation of the
President may not_be diminished during his term. Hamil-
ton explained that:

It is evident that without proper attention to this
article, the separation of the executive from the leg-
islative department would be merely nominal and
nugatory. The legislature, with a discretionary
power over the salary and emoluments of the Chief
Magistrate, could render him as obsequious to their
will as they might think proper to make him. They
might, . . . reduce him by famine. . . to surrender
at discretion his judgment to their inclinations. [The
Federalist No. 73 (A. Hamilton) (C. Rossiter, ed.,
1961) at 441.]

A similar exception was made for members of the J udi-
cial Branch in Article III, § 1.

But there are no further express limits on Congress’
ability to diminish appropriations for use by the Execu-
tive branch. Cf. Embry v. United States, 100 U.S. 680,
685 (1879) (“Congress has full control of salaries, except
those of the President and the Judges .... The amount
fixed at any one time may be added to or taken from at
will.”’).

This Court has not strayed from the Founder’s con-
ception of the appropriations power as a potent legisla-

15

tive limit on executive power. Thus, in Knote v. United
States, 95 U.S. 149, 154 (1877), the Court stated:

Moneys once in the Treasury can only be withdrawn
by an appropriation by law. However, large, there-
fore, may be the power of pardon possessed by the
President, and however extended may be its applica-
tion, there is this limit-to it, as there is to all his
powers, it cannot touch moneys in the Treasury of
the United States, except expressly authorized by Act
of Congress. [ (Emphasis added) .]

And, in Cincinnati Soap Co. v. U.S., 301 U.S. 308, 321
(1937), the Court declared:

The provision . . . was intended as a restriction upon
the disbursing authority of the Executive depart-
ment .... it means simply that no money can be
paid out of the Treasury unless it has been appro-
priated by an act of Congress.

Section 630 is a classic exercise of the appropriations
power. Congress determined that no funds from the
Treasury should be spent on a program desired by the
Executive and opposed by Congress. The power to make
just such a determination is precisely what the appro-
priations clause gives to the Congress."

14 This Court has never held a congressional refusal to appro-
priate funds for the use of the Executive to be an unconstitutional
interference with executive power. Indeed, the only invalidation
of any congressional refusal to appropriate was United States v.
Loveti, 328 U.S. 303 (1945), where the Court found that, under the
guise of passing an appropriations measure, Congress had violated
an express limit on legislative power found in the Constitution.
Congress had accused certain named federal employees of dis-
loyalty, tried them before a subcommittee hearing, and then barred
them—by name—from any further receipt of their salaries from
the Treasury. The measure was declared unconstitutional on the
narrowest of grounds, that it was a bill of attainder, explicitly pro-
hibited by Article I, § 9—viz., “ ‘a legislative act which inflicts pun-

ishment without a judicial trial,’” id. at 315 (quoting Cummings v.
Missouri, 71 U.S. 277, 323 (1866) )—and as such, fell within those
“‘certain specified exceptions to the legislative authority.’” 328

U.S. at 314 (quoting The Federalist No. 78 (A. Hamilton)). Thus,

16

The appropriations power is authority enough for Con-
gress to have enacted § 630. But it should be under-
stood that § 630 could as well rest on other powers ex-
pressly granted to Congress in Article I of the Con-
stitution.

The correlative to the Article I, $9 Appropriations
Clause is the affirmative spending power set out in Ar-
ticle I, §8 which grants Congress the power to “pro-
vide for the common Defense and general Welfare.” The
spending power is instinct with the understanding that
Congress has a proper interest in every facet of govern-
ment requiring funds from the Treasury.

In fact, precisely that interest motivated Congress in
enacting § 630. Congress was concerned that the inhibi-
tions on the flow of information from lower-level em-
ployees with intimate knowledge of government spending
programs—particularly in defense spending programs—
would deprive Congress of information needed to make
sensible decisions as to which programs to fund and
at what levels. See, e.g., 1987 Hearing, supra at 14
(statement of Rep. Boxer) (noting need of House Armed
Services Committee for information from military and
civilian field personnel in its investigations of produc-
tion and quality problems, overpricing and waste in
weapons programs) ; see also notes 8 & 11 supra.

Closely related is Congress’ authority to create, de-
fine, structure and limit the powers, and duties of the
departments and offices of the Executive Branch. This
grant of power is found in tue “necessary and proper”
clause of Article I, $8, which follows the specific enum-
eration of the vast areas of Congress’ legislative powers
and grants Congress the additional power

nothing in Lovett comes near to suggesting that there is some im-
plied executive power that overrides Congress’ discretion to decline
to fund executive programs with which Congress d.sagrees.

17

To make all laws which shall be necessary and
proper for carrying into Execution the foregoing
Powers, and all other Powers vested by this Con-
stitution in the Government of the United States, or
in any department or Officer thereof.

A leading commentator explained this congressional
power to structure the government by noting that the
Constitution provides directly for only the three insti-
tutions at the apex of the federal government—the Con-
gress, the President, and the Supreme Court—and that

[t]he remainder of government was left undefined,
in the expectation that congressional judgments about
appropriate structure would serve so long as they
observed the two prescriptive judgments embodied in
the Constitution: that the work of law-administra-
tion be under the supervision of a unitary, politically
accountable chief executive; and that the structures
chosen permit, even encourage, the continuation of
rivalries and tensions among the three named heads
of government, in order that no one body become ir-
reversibly dominant and thus threaten to deprive the
people themselves of their voice and _ control.
(Strauss, The Place of Agencies in Government:
Separation of Powers and the Fourth Branch, 84
Colum. L. Rev. 573, 667 (1984).]

Pursuant to Article I § 8 Congress has in fact created,
defined and structured the departments and offices of the
Executive Branch, including those executive departments
and offices concerned with foreign affairs and national
security. And, of particular pertinence here, Congress
has often chosen. to create structures that leave the
President with less than complete control over the offi-
cers, employees, and resources of the Executive branch.
Congress has done so in order to further one or another
theory of sound governance in a ceaseless experiment to
determine which of the enumerable possible approaches
proves out in fact. See, e.g., Morrison v. Olson, US.

, 108 S.Ct. 2597 (1988); Humphrey’s Executor v.

18

United States, 295 U.S. 602 (1935); United States v.
Perkins. 116 U.S. 483 (1886); Kendal! v. United States,
37 U.S. 524, 610 (1838).

As we have seen, subsections (3) and (4) of § 630
reflect a congressional determination to structure the
flow of information from the executive departments so
that Congress would have direct access to communica-
tions from lower-level government employees and not be
wholly dependent upon the institutional communications
from the departments. It is well within Congress’ au-
thority to structure executive departments in this way so
that the departments will be amenable to effective legis-
lative oversight. As the Court stated in Bush v. Lucas,
supra, 462 at 389:

Congress has a special interest in informing itself
about the efficiency and morale of the Executive
Branch. In the past it has demonstrated its aware-
ness that lower-level Government employees are a
valuable source of information, and that supervisors
might improperly attempt to curtail their subordi-
nates’ freedom of expression. [ (Footnote omitted) }.

In addition to the general powers just discussed, Ar-
ticle I, $8 contains numerous specific powers relating
to foreign and national security affairs. Most prominent
among these are the powers to “Provide for the common
Defence,” “regulate Commerce with foreign Nations,”
“define and punish Piracies and Felonies committed on
the high Seas, and Offenses against the Law of Nations,”
“declare War, grant Letters of Marque and Reprisal, and
make Rules concerning Captures on Land and Water,”
“raise and support Armies,” “provide and maintain a
Navy.” and “make Rules for the Government and Reg-
ulation of the land and naval Forces.” Given these nu-
merous and broad powers, “there is surely no warrant for
confident assertion that there is any matter relating to
foreign affairs that is not subject to legislation by Con-

19

gress.” L. Henkin, Foreign Affairs and the Constitution
76 (1972).

These expressly delegated powers, in turn, provide ad-
ditional reasons for Congress to be interested in and
concerned about the substance of the information § 630
is intended to cover. Congress’ legitimate interest in in-
formation extends to all subjects where “legislation could
be had.” Eastland v. United States Servicemen’s Fund,
421 U.S. 491, 506 (1975). The powers, for example, to
“declare War” and to “raise and support Armies” are
among the most serious foreign relations and national
securities matters on which a government can act. Ar-
ticle I, in terms shows that Congress is entitled to obtain
for itself the information necessary for the Legislature
to carry out its constitutional responsibilities in these
regards in an informed manner.”

15 On the broad scope of Congress’ foreign relations and national
security policy powers, see generally L. Henkin, supra at 67-88.
Not mentioned in text but, of course, also a major area of con-
gressional foreign policy inteerst and authority is the Senate’s
responsibility to advise and consent on treaties. Art. II, $2.

16 The assertion that § 630 is an invalid interference by Congress
with some “exclusive” executive authority over national security
information is particularly puzzling given the Constitution’s ex-
plicit grant to Congress of the power to “make Rules for the Gov-
ernment and Regulation of the land and naval forces.” Article I,
$8. The employee disclosure agreements governed by § 630 cover
military, as well as civilian employees, see 1987 Hearing. supra at
62 (statement of S. Garfinkel), and accordingly Cengress’ authority
to make rules governing the former group-—such as those in § 630—
is unambiguously provided in the constitutional text. Moreover,
given that the text so clearly grants to Congress the authority to
regulate the governance of military personnel—a group that must,
by its nature, include many of those most intimately involved with
sensitive national security information—the assertion that Congress
must, as a general matter, be deemed constitutionally unqualified to
enact rules relating to oLhers exposed to national security informa-
tion is implausible.

20

Finally, as this case illustrates, there is a judgement
that our society must make as to how to balance the un-
questioned need for secrecy in certain foreign relations
and national security matters with the need for the
public and the legislature to be informed sufficiently so
that the democratie process may function. The Constitu-
tion does not make that judgment in terms nor does it
provide a source of law or a detailed blueprint of govern-
ment from which the judiciary may do so. For this is a
judgment as to how best to “provide for the . . . general
Welfare,” and the office of Article i, $8 is to enable
Congress to pass legislation making such judgments (sub-
ject of course to the President’s veto power). Section 630
is precisely the kind of law making Article [ § 8 contem-
plates. Out of the myriad of possibilities—each with its
merits and defects—Congress has determined to leave
undisturbed the President’s ability to classify informa-
tion, and has merely sought to facilitate the flow of non-
classified information to the public and to remove im-
pediments to communications with Congress that lower-
level employees were already entitled to make pursuant
to pre-existing laws. Making policy on this level through
the enactment of public laws is a quintessential congres-
sional role in the constitutional scheme.

3. The Powers of the President

Having thus established that Congress was acting pur-
suant to expressly delegated powers and within its con-
stitutionally assigned sphere in enacting § 630, what is
left to consider is whether some power of the President
overrides the congressional authority to enact that pro-
vision. See pp. 3-6, supra.

The district court in this case ruled that: “The statute
impermissibly restricts the President’s power to fulfill
obligations imposed upon him by his express constitu-
tional powers and the role of the Executive in foreign
relations.” 688 F. Supp. 671, 685. That ruling appears

21

to be premised on the belief that “the Constitution gives
the Executive a large degree of unshared power in the
conduct of foreign affairs and the maintenance of our
national defense.” 688 F. Supp. at 684 (quoting New
York Times Co. v. United States, 403 U.S. 713, 729
(1971) (Stewart, J. coneurring)). The district court
asserted that as an incident of that exclusive power
“congressional intrusion upon the President’s oversight
of national security information |is required to] be more
severely limited than might be required in matters
of purely domestic concern.” 688 F. Supp. at 685. That
court concluded that “|s|ection 630 cannot be construed
as consistent with this principle or with the President’s
recognized authority.” Id.

There is no precedent in this Court that provides a
predicate for the district court’s ruling. This Court has
never struck down an act of Congress as unconstitu-
tional on the ground that the act regulated in an area
of foreign relations or national security exclusively within
the domain of the President. See pp. 4-5, supra. And,
in our view, this case provides no occasion for a decision
of such profound implications. The district court’s de-
cision is wrong for two basic and far less controversial
and momentous reasons.

First, the premise that this case involves matters of
foreign relations and national security policy that are
exclusively within the realm of the Executive does not
bear analysis. Merely to invoke the phrases “foreign
relations” or “national security” does not tell us whether
or not matters within the scope of congressional author-
ity are involved. As we have seen, Congress has con-
siderable powers in the areas of foreign relations and
national security policy. In these areas, as in any other
enumerated area, the point of Article I is to grant to
Congress the power to legislate with respect to particular
subjects. By definition, as to subjects where the Con-

22

stitution provides that Congress has the power to act,
the President’s power is not exclusive.

Thus, for example, as to any matter involving an ex-
penditure of funds from the Treasury, the President’s
power cannot be exclusive. The President is Commander
in Chief, but if Congress does not appropriate the funds,
the President will have no army to command. Moreover,
the size and composition of the army of the United States,
the rules by which the army is governed and regulated,
and the weapons at its disposal, are by the express
terms of the Constitution for Congress to determine.
And, of course, the ultimate question of war or peace
also rests with Congress. How then can it be correct to
say that such critical national security matters as the
nature and extent of our armed forces and its weapons
are the exclusive concern of the Executive? The answer
is that the statement is plainly incorrect.

As a corollary, intelligence relating to weapons sys-
tems and to the military strengths and weaknesses of
foreign nations is relevant to Congress’ constitutionally
assigned tasks, as surely as this intelligence is relevant
to the tagks given to the President. For such intelli-
gence informs the Wetermination of what kind of army
to field, and what kinds of weapons to fund.

Indeed, the intelligence gathering capacity of this na-
tion is itself a concern of Congress. The President would
have little of the sensitive intelligence the Executive is
at such pains to protect if Congress did not appropriate
funds for the agencies and mechanisms that gather that
intelligence. In exercising its power to determine fund-
ing of the intelligence agencies, as with any other agency
of the federal government, Congress has a legitimate
need to know what those agencies are doing and what
tho-e -vencies -re pvo7ucing.

The question, then, whether the matters at issue in this
case are within the exclusive domain of the President is

23

answered simply by asking whether the Constitution ex-
pressly delegates to Congress the authority to deal with
those matters. As we have already shown, supra at 12-
20, Congress has ample constitutional authority to
deal with the matters addressed in § 630. That author-
ity necessarily negates any assertion that we are in a
zone that is exclusively the President’s.

This conclusion is reinforced by the fact that, on the
Executive’s side, the claim of authority to engage in the
formulation of foreign relations and national security
policy is one by implication rather than, as in Congress’
case, a claim by express grant. Article II expressly con-
fers upon the President the executive functions of the
government, including specifically the authority to make
treaties—with the advice and consent of the Senate—and
to serve as Commander in Chief. In our system, however,
executive functions do not necessarily include the sole or
the paramount responsibility for the formulation of broad
policy objectives, but normally only include the responsi-
bility to implement policies determined by the Legislature.

With regard to purely domestic issues, the broad poli-
cies of the United States are arrived at through legisla-
tive enactments, not through unilateral determinations of
the Executive. To be sure, in the areas of foreign rela-
tions and national security, we have implied a broader
role for the Executive in the determination of the Na-
tion’s policies. See p. 4, supra. But the very fact that
this role is is derived by implication from grants of au-
thority, stated in general terms weighs heavily against
too readily accepting assertions of presidential power that
would preclude the exercise by Congress of powers ex-
pressly given to the Legislature. See The Federalist No.
41 (J. Madison) (C. Rossiter, ed. 1961) at 263 (con-
demning methods of constitutional interpretation under
which “the more doubtful and indefinite terms !are!] re-
tained in their full extent, and the clear ard precise ex-
pressions [are] denied any signification whatsoever”).

24

This is not to say that in the area of foreign relations
and national security the legitimate authorities of the
President and Congress are congruent. There may well
be parts of the foreign relations power that are the
President’s exclusively. For example, as part of the exe-
cutive function, the President, and not Congress, is au-
thorized to speak for this country in the discourse that
takes place among nations. And, the Constitution specifi-
cally grants to the President the sole power to “make
treaties,” subject only to the later advice and consent by
the Senate. It is surely arguable from that sequential
plan that Congress lacks the power in the first instance
to require the President to make, or not to make, a
treaty. And, it may be that under certain circumstances
the Constitution should be understood as providing the
President exclusive control during the treaty negotiation
process of confidential diplomatic communications that
may come to him as part of that process and that may
require continued secrecy in order successfully to com-
plete the negotiations. Cf. The Federalist No. 64 (J.
Jay).

But the question whether there are some areas of ex-
clusive presidential control in foreign relations is a dis-
tinct question from whether the particular subject cov-
ered by § 630 is under exclusive presidential control.
Since for the reasons already given, the answer to the
second and narrow question is clearly “no,” it would be
improper to go so far afield to speculate on hypotheticals.

Second, even under the district court’s sweeping con-
ception of the presidential power involved here, it is dif-
ficult to understand how § 630 could be thought to “re-
strict the Presidert’s power to fulfill obligations imposed
upon him by his express constitutional powers and the
role of the Executive in foreign relations.” 688 F. Supp.
at AR5.

In Nixon v. Administrator of General Services, supra,
433 U.S. at 443 (1977), this Court stated the test that

25

must be met in order to strike down a statute on the
grounds that Congress has prevented the Executive from
carrying out its constitutionally assigned functions:

[I]n determining whether the Act disrupts the
proper balance between the coordinate branches, the
proper inquiry focuses on the extent to which it
prevents the Executive Branch from accomplishing
its constitutionally assigned functions .... Only
where the potential for disruption is present must
we then determine whether that impact is justified
by an overriding need to promote objectives within
the constitutional authority of Congress. [See also,
Morrison v. Olson, supra, 108 S.Ct. at 2621.]

With respect to § 630, the first prong of this test can-
not be met: § 630 does not in any realistic regard “pre-
vent” the Executive from performing its constitutional
responsibilities.

Section 630. we emphasize, does not diminish in any
respect the Executive’s ability to classify information
that the Executive believes must be kept secret. Nor does
§ 630 create—or even purport to create—any new right
or enlarge any existing right to disclose classified infor-
mation or information in the process of a classification
determination.

Section 630 does remove the chilling effect on the dis-
semination of mnon-classified information that resulted
from the Executive’s use of the term “classifiable” in
the old nondisclosure forms. The Executive has already
elimiated the term “classifiable” from the forms and by
so doing has implicitly acknowledged that use of that
term is not essential to the Executive’s ability to provide
for the national security. And, as to the remaining dis-
pute concerning the proper knowledge test for unmarked
material, the different consequences, in practical terms,
between an “objective” and a “subjective” standard are not
nearly sufficient to represent a real threat to the Execu-
tive’s ability either to provide for the national security
or to keep classified information confidential. (Indeed, it

26

is far from clear that § 630 is intended to preclude the
Executive from taking disciplinary action against an
employee who unknowingly but carelessly discloses un-
marked information in the process of a classification de-
termination.) And, in any event, § 630 in no way restricts
the Executive from marking any such written material
with a stamp stating that the material is in the process
of a classification determination or taking such other
steps as the Executive may deem appropriate to assure
that employees know of the classification status of the
information the employees are given.

Similarly, § 630 does remove procedural obstructions to
communications to Congress by individual government
employees. The communications affected by this part of
§ 630 are only those communications that individuals al-
ready have a right to make by virtue of pre-existing
laws. The extent to which such preexisting laws au-
thorize individual employees to disclose classified infor-
mation to Congress may be unclear. See note 10 supra
(citing statutes). But if the Executive’s problem is with
the scope of the communications authorized by other
laws, the answer is directly to challenge those other laws,
not to challenge § 630, which itself creates no right to
communicate any information but only facilitates the ex-
ercise of such rights.'’ Given the provision’s very limited
function there is simply no basis for believing that § 630
prevents the Executive from performing its constitution-
ally assigned function.

Under the Nixon v. GSA standard, then, § 630’s de-
minimis effects on the handling and disclosure of govern-
ment information hardly raise the kind of threat to the
proper functioning of the Executive necessary to strike

17 Of course, any such challenge to these other laws would have to
meet the burden of specifying the classes of information that the
Executive contends are immune from Congress’ powers and of pro-
viding reasons why those specific classes of information must be—
as a constitutional matter—under the exclusive control of the
Executive.

27

down an act of Congress on separation of powers
grounds.

4. A Note On The Interdependence Of The Legislative
And Executive Branches

By constitutional design, whether in foreign or domes-
tic affairs, the President and Congress are largely de-
pendent upon each other if the government—and the
Nation—are to accomplish anything of substance. Con-
gress can make laws but needs the President to execute
them. Congress can appropriate funds but needs the
President to spend those moneys. The President, in turn,
may be stymied if Congress refuses to appropriate funds
that he requests or to pass the legislation he needs. As
Justice Jackson noted, “Presidential powers are not fixed
but fluctuate, depending upon their disjunction or con-
junction with those of Congress.” Youngstown Sheet &
Tube Co. v. Sawyer, supra, 343 U.S. at 635 (Jackson,
J., concurring).

Each branch ultimately must employ its political pow-
ers to influence the other branch to take particular courses
of action. That is the nature of the “actual art of gov-
erning under our Constitution,” id., which “does not and
cannot conform to judicial definitions of the power of
any of its branches based on isolated clauses or even
single Articles torn from context,” id.

Within our broad constitutional structure, the Presi-
dent must provide Congress sufficient reason, through in-
formation, negotiation, argument, or political pressure to
convince Congress to make an appropriation, to pass leg-
islation, or to ratify an appointment or a treaty. The
political prosess will determine how much and what kinds
of inducements must be provided.

In turn, Congress, equally responsible for the nation’s
welfare, must place its reliance on the President in order
to attain its legislative goals. Congress, moreover, will
be held politically responsible for its failure to provide

28

the President with sufficient resources and support to
satisfy the nation’s needs.

In this regard, as in all others, the two political
branches of government have both legal (7.e., express con-
stitutional) and practical, structural strengths and weak-
nesses. See, e.g., Black, The Working Balance of the
American Political Departments, 1 Hast. Constit. L. Q.
13, 16-18 (1974). Two hundred years of experience dem-
onstrates that the two protagonists are sufficiently well-
matched that, at least so long as Congress acts as a
legislature and within the prescribed forms, their contest
produces the mix that the Founders envisioned of govern-
ment action that comes from the fusion of Legislative
and Executive powers and of individual liberty that comes
from the diffusion of government power.

All this being so, since Congress did no more than ex-
ercise the legislative powers expressly granted by the
Constitution, there is no occasion here for judicial altera-
tion of the result that the Legislature mandated.

CONCLUSION

For the foregoing reasons, the decision of the district
court in this case should be reversed.

Respectfully submitted,
GEORGE KAUFMANN ROBERT M. WEINBERG
2101 L Street, N.W. 1000 Connecticut Avenue, N.W.
Washingion, D.C. 20037 Washington, D.C. 20036
MARK ROTH WALTER KAMIAT
CHARLES A. HOBBIE LAURENCE GOLD
80 F Street, N.W. (Counsel of Record)
Washington, D.C. 20001 815 16th Street, N.W.

Washington, D.C. 20006
(202) 637-5390

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0382%3A09. Public record. Not legal advice.