VOLUME 1981 FEBRUARY NUMBER 1 THE SEPARATION OF POWERS UNDER NIXON: REFLECTIONS ON CONSTITUTIONAL LIBERTIES AND THE RULE OF LAW* PETER E. QUINT** I. INTRODUCTION ................................................ 2 II. EXECUTIVE ACTION UNDER PRESIDENT NIXON .................. 5 A. The War in Indochina ..................................... 5 B. The Pentagon Papers....................................... 9 C. PresidentialImpoundment .................................. 14 D. Warrantless Executive Surveillance ......................... 18 1. 'Wational Security" Wiretapping: The Keith Case ....... 18 2. PoliticalSurveillance by the Army ....................... 25 E. Executive Privilege ......................................... 29 III. Two TYPES OF EXECUTIVE ACTION ............................. 35 A. Dangers of Executive Lawmaking in the Form of General Rules or Policies........................................... 35 B. Dangers of Executive Action Against Specfc Individuals Without a GeneralRule .................................... 39 IV. SEPARATION OF POWERS AND THE PROTECTION OF CONSTITUTIONAL RIGHTS ...................................... 41 A. The Threat to ConstitutionalRights Posed by Executive Action Without Statutory Authorization ............................ 43 1. Threats to FirstAmendment Rights in Executive Action Without a GeneralRule ................................ 43 2. Threats to ConstitutionalRights in GeneralPosed by Executive Action Without a Statute ..................... 47 B. Legislative Rulemaking and the Protection of Constitutional Rights ..................................................... 52 V. THE REQUIREMENT OF EXPLICIT CONGRESSIONAL AUTHORIZATION ............................................... 63 VI. CONCLUSION ................................................... 70 * This article, in a somewhat different form, was originally delivered as a lecture at St. John's College, Annapolis, Maryland. ** Professor of Law, University of Maryland School of Law. A.B. 1961, LL.B. 1964, Harvard University; Dipl. in Law 1965, Oxford University. 2 DUKE LAWJOURN4L [Vol. 1981:1 I. INTRODUCTION Even now it seems too early to assess, with any assurance, the scope of the dangers posed by the Nixon administration. The flow of memoirs of the period continues, ' and an almost imponderable store of tape recordings and other "Presidential historical material" remains in- accessible to researchers. 2 Yet whatever judgments may ultimately be passed on the period as a whole, it is clear that the actions of the Nixon administration revealed extraordinary attempts to concentrate power in the executive branch at the expense of other organs of government. After the Watergate episode and the resignation of the President, the events of the Nixon period provoked a strong reaction against exec- utive power. This reaction now seems, however, to be giving way to a renewed tendency toward vigorous assertion of executive claims.3 In this current period of apparent counter-reaction, it is important to re- examine the assertions of executive power under President Nixon, both to analyze the forms that those executive assertions assumed and to inquire whether this analysis of recent history gives any further gui- 4 dance for the development of constitutional doctrine. Assertions of executive power under President Nixon did not rep- resent a sharp break from the immediate past. Fueled by years of for- eign emergencies and by the increasing centralization of the domestic economy, presidential power and pretensions increased sharply during the period following World War II. Under President Nixon this de- velopment reached its apogee, both in the realities of presidential power and also in the insouciance with which extensive claims of presi- 1. Memoirs already published include: J. DEAN, BLIND AMBITION: THE WHITE HOUSE YEARS (1976); H. HALDEMAN, THE ENDS OF POWER (1978); H. KISSINGER, THE WHITE HOUSE YEARS (1979); R. NIXON, THE MEMOIRS OF RICHARD NIXON (1978); J. SIRICA, To SET THE REc- ORD STRAIGHT: THE BREAK-IN, THE TAPES, THE CONSPIRATORS, THE PARDON (1979). 2. See Presidential Recordings and Materials Preservation Act of 1974, 44 U.S.C. § 2107 (1976); Note, Government Control of Richard Nixon's PresidentialMaterial, 87 YALE L.J. 1601 (1978). 3. Although renewed executive claims have appeared in many areas, those relating to the control of the Central Intelligence Agency have perhaps achieved the greatest prominence. See, eg., Szulc, Putting Back the Bite in the C.I4., N.Y. Times, Apr. 6, 1980, § 6 (Magazine), at 28, 33 ("Both Jimmy Carter and Ronald Reagan, almost in identical phrases, have publicly demanded that the agency be liberated from legislative constraints"); id at 62 (The Director of Central Intel- ligence argues that covert operations are within the province of the executive branch and "it is not proper to share that responsibility with the Congress"). 4. Cf. Berger, The Presidentandthe Constitution, 28 OKLA. L. REV. 97 (1975); Swindler, The Constitution 4fter Watergate, 28 OKLA. L. REv. 467 (1975) (evaluating the effects of the legislative and judicial events of 1973-1974 on the American constitutional system). 5. See Cox, Watergate and the Constitution of the United States, 26 U. TORONTO L.J. 125, 125-27 (1976). Vol. 1981:1] SEPARA4TION OFPO WERS dential authority were asserted.6 To the extent that the shift in power to the President and his per- sonal staff occurred at the expense of established cabinet offices, there was little effective resistance.7 Furthermore, Congress was reluctant to oppose many of the most important assertions of executive authority, until the Watergate episode brought legislators face to face with the problem of presidential power, framed not as an issue of political prin- ciple but as a simple question of criminal right and wrong. During the Watergate period, Congress enacted legislation to curb presidential claims of war-making authority and to limit the President's power to impound funds appropriated by Congress.8 Aside from such efforts, however, Congress as a body remained relatively passive on the issue of presidential power until the impeachment inquiry itself.9 But in po- litical life, as elsewhere, when important interests are affected, there 6. See H. COMMAGER, THE DEFEAT OF AMERICA 137 (1974); A. SCHLESINGER, THE IMPE- RIAL PRESIDENCY 187 (1973). 7. P. KURLAND, WATERGATE AND THE CONSTITUTION 198 (1978). For example, President Nixon sought to reorganize the federal government by placing major executive departments (in- cluding cabinet offices) under the control of presidential assistants. See J. SCHELL, THE TIME OF ILLUSION 296-98 (1976). At the beginning of his second term Nixon attempted to accomplish a fundamental reorganization of this type by executive order rather than by statute. See P. KUR- LAND, supra, at 198. A shift of power to presidential assistants at the expense of cabinet officers, though in form a shift of power within the executive branch, may in fact significantly reduce the legislature's ability to supervise executive action. See J. SCHELL, supra, at 107-08. Unlike cabinet officers, presiden- tial assistants are not confirmed by the Senate-a process that can result in the rejection of a nominated officer or, perhaps even more important, in the securing of concessions relating to an official's conduct in office. The confirmation of Elliot Richardson as Attorney General, for exam- ple, was expressly made contingent on his promise to appoint a special prosecutor to investigate the Watergate affair. P. KURLAND, supra, at 76. Furthermore, in contrast to the practice of cabi- net officers, presidential assistants have ordinarily refused to testify before congressional commit- tees even when the assistants have functions as important makers of policy. See, e.g., War Powers Legislation: Hearings on . 731, .J Res. 18, and S.J Res. 59 Before the Senate Comm. on Foreign Relations, 92d Cong., 1st Sess. 430-34 (1972) [hereinafter cited as War Powers Hearings] (noting the refusal of National Security Advisor Henry Kissinger to testify before the Senate Foreign Relations Committee). 8. See, ag., War Powers Resolution, Pub. L. No. 93-148, 87 Stat. 555 (1973) (codified at 50 U.S.C. §§ 1541-1548 (1976)); Congressional Budget and Impoundment Control Act of 1974, Pub. L. No. 93-344, 88 Stat. 297 (codified at 31 U.S.C. §§ 1301-1407 (1976)). See also note 19 infra. 9. Certain committees of Congress did seek to investigate issues raised by executive claims. The Senate Foreign Relations Committee, for example, probed executive actions relating to the Vietnam War. See, e.g., War PowersHearings, supra note 7, at 483-538. Also notable were com- mittee hearings concerning the doctrine of executive privilege, military surveillance of political dissidents, and related separation-of-powers problems. See, e.g., Executive Privilege: The With- holding of Information by the Executive: Hearings on S. 1125 Before the Subcomnm on Separation ofPowers of the Senate Comm of the Judiciary, 92d Cong., 1st Sess. (1971) [hereinafter cited as Executive Privilege Hearings];S. REP. No. 1227, 93d Cong., 2d Sess. 21-25 (1974) (detailing 1973- 1974 investigations by the Senate Subcommittee on Constitutional Rights concerning military sur- veillance of political dissidents). DUKE LAW JOURNM4L [Vol. 1981:1 seems to be a law of conservation of conflict. When Congress failed to take up the gauntlet, the focus of resistance moved to the federal courts and occasionally to the Supreme Court. In such cases the Government was not permitted