Executive Power and Privilege

1789Washington Takes Presidential Oath

George Washington, as the young nation’s first president, swears to preserve, protect and defend the Constitution. Washington takes the presidential oath on the balcony of Federal Hall in New York City. Because there are as yet no U.S. Supreme Court justices, Washington is sworn in by Chancellor Robert R. Livingston, New York’s highest ranking judge. A crowd of onlookers fills the street below, bellowing, “Long live George Washington,” at the conclusion of the brief ceremony.

1926President Has Power to Dismiss Executive Officers

Myers v. United States stems from President Woodrow Wilson’s decision to remove postmaster Frank Myers without seeking Senate approval as required in an 1876 law. Chief Justice William Howard Taft, a former president, writes that the restriction is unconstitutional and that the president has the power to remove officers whom he has appointed.

1936Court: President Has Discretion In Foreign Affairs

The expanse of executive and legislative powers enumerated in the Constitution comes before the U.S. Supreme Court in U.S. v. Curtiss-Wright Export Corp. The company had conspired to sell machine guns to Bolivia. The sale would have violated a joint resolution of Congress and a proclamation by President Franklin Roosevelt. Curtiss-Wright argues that Congress has unconstitutionally delegated legislative powers to the president. The Court disagrees. Justice George Sutherland writes that foreign trade and relations are inherent powers afforded to the executive under Article II of the Constitution. He says the president, as a representative of a nation, has a degree of discretion in handling external matters.

1953Court Accepts Executive Privilege On National Security

In United States v. Reynolds, executive privilege is invoked in a civil case involving a plane crash that occurred when the government was testing secret electronic equipment. The widows of three civilians on the flight sue and demand details of the Air Force’s investigation into the crash. The government argues that full disclosure would breach national security. The U.S. Supreme Court holds that the need to protect national security is greater than the need to provide information pertinent to the plaintiff’s case.

1954Eisenhower Invokes Executive Privilege

President Dwight Eisenhower sets presidential precedent when he invokes executive privilege and refuses to turn over notes of his meetings with Army officials to Sen. Joseph McCarthy, who is seeking to expose communists in the Army. Saying that national security might be breached, Eisenhower also refuses to allow officials in his administration to testify under oath at the Army-McCarthy hearings.

1974Court Finds Executive Privilege Not Absolute

In United States v. Nixon, President Richard Nixon argues on the grounds of executive privilege that he does not have to turn over Oval Office tapes and other records subpoenaed by the special prosecutor investigating the Watergate scandal. While acknowledging the need to keep some Oval Office communication private, the U.S. Supreme Court finds that in the Watergate case, Nixon asserted only a general need for confidentiality. That need, the Court says, must yield to the interests of the government and the prosecution. The Court orders Nixon to turn over the information. He does so and resigns shortly after.

1985Court Clarifies Congressional Powers

Congress, through the Gramm-Rudman-Hollings Act of 1985, gives the comptroller general of the United States the right to make budget cuts to control the budget deficit for the years 1986-1991. The U.S. Supreme Court holds that these vested powers are unconstitutional and a violation of the doctrine of separation of powers. It determines that Congress has allowed the comptroller general to intrude on the power of the executive branch.

1998Clinton’s Executive Privilege Claim Rejected

President Bill Clinton tries to use executive privilege to keep two of his aides from testifying before a grand jury investigating the Monica Lewinsky scandal. A federal judge denies the claim, saying the need for the information outweighs the need for confidentiality. Clinton does not appeal to the U.S. Supreme Court, leaving the aides free to testify.