Executive Privilege Isn’t the Problem—the Administrative State Is

Every few years Washington stages the same constitutional drama. A president invokes executive privilege. Congressional committees rattle subpoenas. Legal commentators fill the airwaves. Each side insists that the privilege itself is the main event. I want to make a different argument. Executive privilege is not the disease. It is a symptom. The disease is the collapse of the separation of powers into a permanent administrative state.

The Constitution never uses the phrase "executive privilege." That is not an oversight. It is the point. Article II vests "the executive Power" in the President, not in a committee, not in an agency, and not in a congressional oversight subcommittee. The President cannot faithfully execute the laws or conduct foreign policy if his closest advisers fear that every candid memo will end up in a hearing room. As the Supreme Court recognized in United States v. Nixon, the privilege is "fundamental to the operation of Government and inextricably rooted in the separation of powers under the Constitution."

But notice what that reasoning actually protects. It protects the President's ability to get honest advice. That is a narrow, constitutional function. It was never meant to shield the permanent bureaucracy from accountability.

The real reason privilege fights have exploded

Here is the argument most people skip. Executive privilege has become a political bomb because Congress has surrendered its lawmaking power to the executive branch. Under Article I, Section 1, "All legislative Powers herein granted shall be vested in a Congress." That means Congress writes the laws, not agencies. But for decades, Congress has passed vague, aspirational statutes. Agencies write the real rules. They set the actual standards. They decide what compliance looks like.

When Congress demands agency documents, it is not merely exercising oversight of executive action. It is fighting over the legislative record of laws that Congress itself never debated, voted on, or signed. The agency's internal deliberations are the closest thing we have to committee reports and floor debates. No wonder presidents resist. No wonder the fights are ugly. We have built a system where the executive branch makes law and then claims privilege over the record of that lawmaking.

Consider a typical environmental statute. Congress does not pass a specific bill setting an exact emissions standard. It passes a broad instruction telling an agency to regulate as appropriate. The real decisions, the economic assumptions, the model inputs, the cost-benefit trade-offs, are hashed out in agency email threads and draft analyses. If a congressional committee wants to understand why the final rule looks the way it does, it has to subpoena the internal record. That is not constitutional oversight of executive discretion. That is a fight over the legislative history of a law that was never actually legislated.

If Congress actually legislated, if it introduced specific bills, held hearings, and voted yes or no, there would be no need to subpoena an agency scientist's email about the cost of a rule. That rule would have been written by elected representatives, in public, with a record. Executive privilege would return to its original, narrow purpose: protecting candid advice on foreign affairs, military decisions, pardons, and enforcement priorities.

The bureaucracy has borrowed a presidential shield

There is a second, more corrosive problem. The constitutional privilege belongs to the President, not to the Department of Whatever. It exists to protect the President's constitutional advisers, the Cabinet, the White House counsel, the national security team. It does not exist to protect the internal musings of a career civil servant drafting a regulation that will bind millions of Americans.

Yet in practice, agencies routinely withhold documents under a mishmash of "deliberative process privilege" and claims of executive privilege by extension. This is a perversion. A GS-15 at the Department of Labor is not the President's adviser. A staff attorney at the Securities and Exchange Commission is not the President's confidant. They are employees of the administrative state, exercising delegated legislative power. Their work product should be subject to far more public scrutiny, not less.

The more power agencies have to make law, the more they hide the reasoning. The people who are most insulated from elections are the ones making the most consequential decisions. That is the opposite of republican government.

None of this means the privilege is absolute. In United States v. Nixon, the Supreme Court held that a president's generalized claim of confidentiality must yield to a specific, demonstrated need for evidence in a criminal prosecution. That is the correct balance. The privilege protects candid advice. It does not license a cover-up. A president who hides evidence of a crime is not exercising executive privilege. He is abusing it. The remedy for a lawless president is impeachment, not the evisceration of the separation of powers.

What Madison would say

James Madison warned in Federalist No. 47 that "the accumulation of all powers, legislative, executive, and judiciary, in the same hands… may justly be pronounced the very definition of tyranny." The modern agency is that accumulation. It writes rules, which is legislative power. It enforces them, which is executive power. It adjudicates disputes over them, which is judicial power. Then it claims privilege to shield the whole process from public view.

This is not the republic the Founders designed.

The fix is not endless congressional subpoenas or better compliance from presidents. The fix is structural: restore the nondelegation doctrine, require Congress to pass actual laws, and return agency rulemaking to the elected legislature. The Supreme Court's 2019 decision in Gundy v. United States showed that a meaningful bloc of justices is ready to revisit the nondelegation doctrine. That is a start. But the real work belongs to voters who must demand a smaller government that does fewer things, openly.

When government does less, there are fewer secrets. When Congress writes the laws, there is no need to pry lawmaking records out of bureaucrats. And when executive privilege is rare and narrow, it can again serve its legitimate purpose: protecting the President's ability to govern, not hiding a fourth branch from the people it rules.

The ordinary citizen pays the price for this constitutional mess. He gets rules written by anonymous staff, enforced by unaccountable bureaucrats, and adjudicated by agency judges. Then he is told the record is privileged. That is not self-government. That is rule by the administrative state. Restore Congress to lawmaking, shrink the fourth branch, and executive privilege can go back to being what it was always meant to be: a narrow shield for the President's most sensitive decisions, not a wall around unaccountable power.

That is the fight we ought to be having. Everything else is noise.