Monday, June 16, 2008

Score One for the Unitary Executive

You may remember that in summer/fall 2007 the Bush Administration decided that the Office of Administration would retroactively stop responding to Freedom of Information Act requests. Now a court decision has validated that action. Citizens for Responsibility and Ethics in Washington, the paintiffs, explain the tortured logic of the decision:

In May 2007, CREW sued OA for records regarding missing White House e-mail and the office’s assessment of the scope of the problem. After initially agreeing to provide records, OA changed course and claimed it was not an agency and, therefore, had no obligation to comply with the FOIA. OA made this claim despite the fact that even the White House’s own website described OA as an agency and included regulations for processing FOIA requests.


OA has admitted that it functioned as an agency and processed FOIA requests until August 2007. Although CREW filed its FOIA request in April 2007 – four months before OA changed its position – the court found that OA had no duty to respond to CREW’s FOIA request because OA was never an agency in the first place.

The court found that the Office of Administation does not have "substantial independent authority" and exists solely to "advise and assist" the President. The intent of "advise and assist" is supposed to protect sensitive Presidential conversations, but in this case it was applied quite loosley:

Instead, OA’s charter documents and President Carter’s message to Congress make clear that OA’s function is to support, i.e., assist, the President indirectly [emph. in original] by providing efficient, centralized administrative services to the components within EOP.

This is a win for the theory of the Unitary Executive on two fronts. First it waters down the meaning of "advise and assist", divorcing it from its original intent. Second it further validates the notion that something that looks and acts as an agency, and is generally understood to be an agency even by its own employees, may not actually be one and can have its status changed at any time for the sake of convenience. (Or malfeasance).

According to the theory of the Unitary Executive the President is directly or indirectly in charge of the entire executive branch. Under that interpretation executive branch agencies are extensions of the President and no agency operates with "substantial independent authority" apart from the President. Currently the Department of Justice responds to FOIA requests, but if the "U.S. attorneys are emanations of a president's will" then presumably the DOJ can stop responding to FOIA requests at any time. If you accept the notion that executive agencies are merely appendages of the President then all of them can argue for exemption from the Freedom of Information Act.

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