William J. Brennan

“ As a threshold matter, we should first establish the standard of constitutional review by which Title I is to be judged. In the usual case, of course, legislation challenged in this Court benefits from a presumption of constitutionality. To survive judicial scrutiny, a statutory enactment need only have a reasonable relationship to the promotion of an objective which the Constitution does not independently forbid, unless the legislation trenches on fundamental constitutional rights. ”

“ In pursuit of that principle, executive power was vested in the President; no other offices in the Executive Branch, other than the Presidency and Vice Presidency, were mandated by the Constitution. Only two Executive Branch offices, therefore, are creatures of the Constitution; all other departments and agencies, from the State Department to the General Services Administration, are creatures of the Congress and owe their very existence to the Legislative Branch. ”

“ No one challenges Congress' power to provide for access to records of the Executive Departments which Congress itself created. But the Freedom of Information Act, the Privacy Act of 1974, and similar measures never contemplated mandatory production of Presidential papers. What is instructive, by contrast, is the nonmandatory, noncoercive manner in which Congress has previously legislated with respect to Presidential papers, by providing for Presidential libraries at the option of every former President. ”

“ To the extent Congress is empowered to coerce a former President, every future President is at risk of denial of a large measure of the autonomy and independence contemplated by the Constitution, and of the confidentiality attending it. ”

“ The Court's analytically void invocation of sheer numbers cannot mask the fact that the targets of the review are privileged papers, diaries, and conversations.
I agree that, under United States v. Nixon, the Presidential privilege is qualified. From that premise, however, the Court leaps to the conclusion that future regulations governing public access to the materials are sufficient to protect that qualified privilege. The Act does indeed provide for a number of safeguards before the public at large obtains access to the materials. ”

“ Accordingly, in passing on a statute compelling disclosure of political contributions, the Court, in Buckley v. Valeo, imposed the strict standard of "exacting scrutiny" because of the significant impact on First Amendment rights.
The fact that the former President was an important national and world political figure obviously does not diminish the traditional privacy interest in his papers. Forced disclosure of private information, even to Government officials, is by no means sanctioned by this Court's decisions, except for the most compelling reasons. ”

“ For this reason, that Convention, which passed the ordinance of government, laid its foundation on this basis, that the legislative, executive and judiciary departments should be separate and distinct, so that no person should exercise the powers of more than one of them at the same time. ”

“ Those who wrote our Constitution well knew the danger inherent in special legislative acts which take away the life, liberty, or property of particular named persons because the legislature thinks them guilty of conduct which deserves punishment. ”

“ The point is not that Congress is powerless to act as to exigencies arising during or in the immediate aftermath of a particular administration; rather, the point is that Congress cannot punish a particular individual on account of his "uniqueness." If Congress had declared forfeited appellant's retirement pay to which he otherwise would be entitled, instead of confiscating his Presidential materials, it would not avoid the bill of attainder prohibition to say that appellant was guilty of unprecedented actions setting him apart from his predecessors in office. ”

“ On the face of it, congressional regulation of the papers of a former President obviously will have less disruptive impact on the operations of an incumbent President than an effort at regulation or control over the same papers of an incumbent President. But this "remoteness" does not eliminate the separation of powers defects. First, the principle that a President must be free from coercion should apply to a former President, so long as Congress is inquiring or acting with respect to operations of the Government while the former President was in office. ”

“ The validity of one person's constitutional privilege does not depend on whether some other holder of the same privilege supports his claim. #F4/20 Footnote 4/20 The fact that an incumbent President has signed or supports a particular measure cannot defeat a former President's claim of privilege. If the Court is correct today, it was wrong one year ago in Buckley v. Valeo, when we unanimously held that Presidential approval of the Federal Election Campaign Act could not validate an unconstitutional invasion of Presidential appointing authority. ”

“ Title I fails to provide any procedural due process safeguards, either before or after seizure of the Presidential materials. There is no provision whatever permitting appellant to be heard in the decisionmaking process by which GSA employees will determine, with no statutory standards to guide them, whether particular materials have "general historical value." No time restraints are placed upon GSA's decisionmaking process, even though this Court has consistently recognized that, when dealing with First Amendment interests, the timing of governmental decisionmaking is crucial. ”

“ As to the Court's first consideration, its "quantity" test is fallacious. The intrusion in Stanford was unlawful not because the State had an interest in only part of many items in Stanford's home, but rather because the warrant failed to describe the objects of seizure with the "most scrupulous exactitude." Stanford is not a "numbers" test, the protection of which vanishes if unprotected materials outnumber protected materials; it is, rather, a test designed to ensure that protected materials are not seized at all. ”

“ Title I is an unprecedented departure from the constitutional tradition of noncompulsion. The statute commands the head of a legislatively created department to take and maintain custody of appellant's Presidential papers, including many purely personal papers wholly unrelated to any operations of the Government. Title I does not concern itself in any way with materials belonging to departments of the Executive Branch created and controlled by Congress. ”

“ That moments of great national distress give rise to passions reminds us why the three branches of Government were created as separate and coequal, each intended as a check, in turn, on possible excesses by one or both of the others. ”

“ Unlike the vast array of departments which the President oversees, the Presidency is in no sense a creature of the Legislature. The President's powers originate not from statute, but from the constitutional command to "take Care that the Laws be faithfully executed. ”

“ The fact that GSA initially secured possession of the Presidential papers through the agreement with the former President does not change the fact that the agency was commanded by Congress to take exclusive custody of and retain all Presidential historical materials. Moreover, everyone admits that the Act contemplates a careful screening process by Government agents. The fact that the governmental intrusion is noncriminal in nature does not, of course, render the Fourth Amendment's prohibitions inapplicable. ”

“ In contrast to Congress' purposes underlying the statute, this Act intrudes significantly on two areas of traditional privacy interests of Presidents. One embraces Presidential papers relating to his decisions, development of policies, appointments, and communications in his role as leader of a political party; the other encompasses purely private matters of family, property, investments, diaries, and intimate conversations. Both interests are of the highest order, with perhaps some primacy for family papers. ”

“ The Court, however, has now joined a Congress, in haste to "do something," and has invaded historic, fundamental principles of the separate powers of coequal branches of Government. To "punish" one person, Congress — and now the Court — tears into the fabric of our constitutional framework.
Any case in this Court calling upon principles of separation of powers, rights of privacy, and the prohibitions against bills of attainder, whether urged by a former President — or any citizen — is inevitably a major constitutional holding. Mr. ”

“ Some items, such as the originals of tape recordings of the former President's conversations, will never be returned to him under the Act.
I need not, and do not, inquire into the motives of Congress in imposing this deprivation on only one named person. Our cases plainly hold that retribution and vindictiveness are not requisite elements of a bill of attainder. The Court appears to overlook that Mr. Chief Justice Warren, in United States v. Brown, supra, concluded that retributive motives on the part of Congress were irrelevant to bill of attainder analysis. ”

“ Justice Miller observed for the Court that encroachments by Congress posed the greatest threat to the continued independence of the other branches. #F4/2 Footnote 4/2 Accordingly, he cautioned that the exercise of power by one branch directly affecting the potential independence of another "should be watched with vigilance, and, when called in question before any other tribunal . . . , should receive the most careful scrutiny." Ibid. (Emphasis supplied.) See also Buckley v. Valeo, [/us/424/1/case.html 424 U.S. 1] (1976) . ”

“ This "broad broom" statute provides virtually no standard at all to guide the Government agents combing through the papers; the agents are left to roam at large through confidential materials, something to which no other President and no Member of Congress or of the Judicial Branch has been subjected.
The Court, while recognizing that Government agents will necessarily be reviewing the most private kinds of communications covering a period of five and one-half years, tells us that Stanford is inapposite. ”

“ The legislative department derives a superiority in our governments from other circumstances. Its constitutional powers being at once more extensive and less susceptible of precise limits, it can, with the greater facility, mask, under complicated and indirect measures, the encroachments which it makes on the coordinate departments. ”

“ Second, the intrusion cannot be saved by the credentials, however impeccable, of the Government agents. The initial problem with this justification is that no one knows whether these agents are, as the federal appellees contend, uniformly discreet. Despite the lip service paid by the District Court and appellees to the record of archivists generally, there is nothing before us to justify the conclusion that each of the more than 100 persons who apparently will have access to, and will monitor and examine, the materials is indeed reliably discreet. ”

“ Indeed, in 1955, in testimony pertaining to this proposed legislation, the Archivist of the United States confirmed:
"The papers of the Presidents have always been considered to be their personal property, both during their incumbency and afterward. ”

“ That case, in short, was essentially a conflict between the Judicial Branch and the President, where the effective functioning of both branches demanded an accommodation, and where the prosecutorial and judicial demands upon the President were very narrowly restricted with great specificity "to a limited number of conversations . . ." ”

“ Nixon has been shown with respect to these Presidential papers. No one has suggested that Congress will find its own "core" functioning impaired by lack of the impounded papers, as we expressly found the judicial function would be impaired by lack of the material subpoenaed in United States v. ”

“ Its opinion candidly acknowledged that the personal privacy claim was the "most troublesome" point raised by this unique statute. #F4/21 Footnote 4/21 In addition to communications and memoranda reflecting the President's confidential deliberations, the District Court admitted that the materials subject to GSA review included highly personal communications.
"Among all of the papers and tape recordings falling within the Act, however, are some papers and materials containing extremely private communications between [Mr. Nixon] and, among others,. ”