119 The Commission is not accurate, however, in characterizing Congress' remaining power over elections as other than ordinary legislative power. That power is the power to make laws with respect to elections and is no broader than its power to make laws with respect to the common defense, the issuance of coin and currency, or the regulation of commerce. The power to make laws with respect to these subjectsand many more-is textually committed to Congress. But what is textually committed is the power to make laws, not the power to enforce them, and an especially broad subject-matter grant of law-making power does not lead to any conclusion about the scope of Congress' law enforcement power. To argue, as the Commission apparently does, that because Congress has both broad law-making power and a special interest in the subject matter of elections, it therefore possesses some manner of law-enforcement power, is a simple non-sequitur. 3. The Commission, acting as an arm of Congress, has no greater authority than does Congress to enforce the laws Congress has made. If Congress itself cannot execute the laws, or make rules binding on those who execute the laws, then it cannot deputize a legislative agency to exercise. such powers in its stead." Congress cannot bestow 76 Congress can, of course, make "rules" binding on the executive. But it can make such rules only in the form of law, over which the President has the power of veto. The "rules" made by the Commission are not subject to Presidential veto, and its rules therefore cannot be analogized to laws. 120 upon its subordinates powers it does not possess. "Legislative power, as distinguished from executive power, is the authority to make laws, but not to enforce them or appoint agents charged with the duty of such enforcement. The latter are executive functions" "[I]t may be stated as a general rule inherent in the American constitutional system, that, unless otherwise expressly provided or incidental to the powers conferred, the legislature can * * executive * * * * power * not exercise Springer v. Philippine Islands, 277 U.S. 189, 201, 202. Springer is the paradigm for Congress' creation of the Commission. Congress, which itself lacks the power to enforce the laws, has attempted to "appoint the agents charged with the duty of such enforcement" (id. at 202). It is not entitled to do so." In sum, law enforcement and interpretation are integral parts of the executive power to execute the laws. Congress is entitled to legislate but not to execute the laws, and Congress has no power to appoint others to execute the laws when Congress cannot do so itself. It follows that the Commission cannot exercise the three executive powers granted to it by FECA.78 77 See also Washington v. Clark, 84 F. Supp. 964, 966 (D.D.C.). 78 Intervening defendant Common Cause filed a separate brief in the court of appeals addressed to the question of the Commission's powers. In supporting the constitutionality of FECA's provisions, Common Cause drew upon two analogies -suits by private attorneys general and suits by independent 121 CONCLUSION The position of the Attorney General as a party to this case, and of the United States, is that the court of appeals' judgment with respect to certified question 8 should be affirmed. The United States as amicus curiae takes no position with respect to the remaining portions of the court of appeals' judgment. regulatory agencies-to demonstrate that the powers entrusted to the Commission are constitutional. These analogies do not support Common Cause's argument. Private citizens can be plaintiffs in qui tam actions and sometimes can act as "private attorneys general." But it is one thing to allow private individuals to share a right of suit enjoyed by the executive, and quite another for Congress to take the right of enforcement to itself. It is still a third thing for Congress both to exclude the executive and to include itself in the business of enforcement. The first is no precedent for the third. The separation of powers and checks and balances built into our Constitution establish the method by which two inherently antagonistic centers of power share in the governance of the country. These delicate sharings and checks upon power are not disturbed by private suits. They are disturbed, to a considerable degree, if Congress appropriates to itself a power the Constitution places in a coordinate branch. As to the analogy to independent regulatory agencies, the argument ignores a decisive difference: the members of the independent regulatory commissions are "Officers of the United States" within the meaning of Article II, Section 2 of the Constitution. They are appointed by the President and are confirmed by the Senate. In consequence, they can share, much as cabinet officers share, in the power granted by Article II to execute the laws. Members of the Commission are not "Officers of the United States" and, in consequence, possess no power under Article II. Exhibit 20 (Justice Department Amicus Brief in Watergate Committee case) In the United States Court of Appeals for the District of Columbia Circuit (No. 74-1258) SENATE SELECT COMMITTEE ON PRESIDENTIAL CAMPAIGN ACTIVITIES, SUING IN ITS OWN NAME AND IN THE NAME OF THE UNITED STATES, AND SAM J. ERVIN, JR.; HOWARD H. BAKER, JR.; HERMAN E. TALMADGE; DANIEL K. INOUYE; JOSEPH M. MONTOYA; EDWARD J. GURNEY; AND LOWELL P. WEICKER, JR.; AS UNITED STATES SENATORS WHO ARE MEMBERS OF THE SENATE SELECT COMMITTEE ON PRESIDENTIAL CAMPAIGN ACTIVITIES, APPELLANTS v. RICHARD M. NIXON, INDIVIDUALLY AND AS PRESIDENT OF THE UNITED STATES, APPELLEE. ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE Brief for the United States as Amicus Curiae Interest of the United States The appellants, by this suit, seek an order directing President to comply with a subpoena duces tecum requiring production of certain tape recordings. In response to that subpoena duces tecum, the President declined to produce the documents on the basis of Executive privilege (App. 162). The United States has an overriding interest in the proper application of the doctrine of Executive privilege, as well as protection of the integrity of the criminal justice system. Question Presented Whether the district court properly refused to enforce the subpoena of the Senate Select Committee. Statement In response to a request of the district court, the President, by letter of February 6, 1974, specified the grounds upon which he declined to produce the five taped conservations in issue here (App. 162). In that letter, the President stated that "the disclosure of [the taped conversations] would not be in the national interest" because (1) "the publication of all of these tapes to the world at large would seriously infringe upon the principle of confidentiality" and (2) there would be "possible adverse effects upon ongoing and forthcoming criminal proceedings should the contents of these subpoenaed conversations be made public at an inappropriate time" (App. 162). In considering this claim, the district court concluded that "it becomes the duty of the Court to weigh the public interests protected by the President's claim of privilege against the public interests that would be served by disclosure to the Committee in this particular instance" (App. 165). The court concluded that, because the appellants had not shown a pressing need for the tapes, disclosure should be denied in order to protect the integrity of the criminal justice system (App. 166–170). Argument The District Court Properly Refused to Enforce the Subpoena of the Senate Select Committee Appellants contend on this appeal that the district court did not base its decision upon a claim of Executive privilege and that under those circumstances the mere expression by the Committee of its need for the material suffices to require an order compelling production of the tapes (Brief, p. 9). It is clear, however, that the President's letter of February 6, 1974, invoked Executive privilege to prevent pre-trial publicity in criminal matters, as well as to protect the confidentiality of Executive conversations. When the district court weighed the need to prevent unfair pre-trial publicity, it properly recognized that that interest constituted a basis for refusing to enforce the subpoena of the Committee. In refusing to enforce the subpoena, the district court applied a balancing of interests test in evaluating that claim of privilege. See Kilbourn v. Thompson, 103 U.S. 168 (1880); Watkins v. United States, 354 U.S. 178 (1957). Under the rule of Nixon v. Sirica, U.S. App. D.C. 487 F. 2d 700, 716 (1973), the court correctly found that the need to safeguard pending criminal prosecutions from the possibly prejudicial effect of pre-trial publicity, outweighed any need shown by the Committee. Certainly, the Committee can make no substantial showing that it needs the tape recordings in order to enact general legislation relating to Presidential elections. Nor, as the district court recognized (App. 168), can production of the tape recordings be justified on the ground that the public interest requires public disclosure by the Committee. On the other hand, there is a clear and obvious need to protect pending and prospective criminal proceedings from pre-trial publicity. See Delaney v. United States, 199 F. 2d 107 (C.A. 1, 1952). Accordingly, the district court was correct in ruling that the Committee had not established by a preponderance of the evidence that it was entitled to an injunction directing the President to comply with the subpoena for the five tape recordings. In addition, the interest of the President in protecting the confidentiality of Presidential communications in this case also outweighs the needs of the Committee. The President must preserve a climate in which his staff and the public can communicate freely with him, in which he and they can examine problems and alternative solutions candidly, uninhibited by the fear that later disclosure may bring bitterness and harassment from affected interest groups or a violent public opinion informed by the wisdom of hindsight. In Nixon v. Sirica, supra, 487 F. 2d at 717, this Court recognized that such conversations were presumptively privileged, but that the claim of privilege had to fail in that case because of "the uniquely powerful showing" made by the Special Prosecutor. In this case, however, no such showing has been made. Therefore, the district court's decision declining to enforce the Committee's subpoena can also be sustained on the grounds of confidentiality of Presidential communications. Conclusion For the foregoing reasons, the judgment of the district court should be affirmed. Respectfully submitted, WILLIAM B. SAXBE, Attorney General, IRVING JAFFE, Acting Assistant Attorney General, ROBERT E. KOPP, THOMAS G. WILSON, Attorneys, Department of Justice. Exhibit 21 JUSTICE DEPARTMENT LETTER REGARDING UNITED STATES SERVICEMEN'S FUND v. EASTLAND SEPTEMBER 11, 1973. Re United States Servicemen's Fund et al. v. James O. Eastland, et al., Nos. 2,279; 24,412 and 71-2034, USCA for the District of Columbia Circuit. Hon. RICHARD H. ICHORD, Chairman, Committee on Internal Security of the United States House of Representatives, Washington, D.C. DEAR CHAIRMAN ICHORD: As your staff was orally informed on August 30, 1973, the Court of Appeals, on that date, issued its opinion and judgment in the above cited case. This case is, of course, a companion case to similar cases |