Nixon v. Administrator of General Services – Case Brief – Nixon Tapes

Summary of Nixon v. Administrator of General Services, 433 U.S. 425, 97 S. Ct. 2777, 53 L. Ed. 2d 867 (1977).

Facts: The Presidential Recordings and Materials Preservation Act directed the Administrator of General Services (D) to take custody of former president Richard Nixon’s (P) presidential papers and tape recordings. The Act further directed that the seized materials were to be screened by Government archivists. Materials deemed personal and private in nature were to be returned to Nixon and those with historic value were to be preserved. The Act further directed that the seized materials be made available for use in judicial proceedings subject to any rights, defenses, or privileges of the government or any person.

The Act also directed the General Services Administration (GSA) to promulgate regulations regarding the release of the materials to the public. The Act required that the regulations must protect the opportunity of any person to assert any legal or constitutional right or privilege, and must provide for the return of personal and private materials to Nixon.

The day after President Gerald Ford signed the Act into law, Nixon filed this lawsuit in federal district court. Nixon sought an injunction against enforcement of the Act and a declaratory judgment that the Act was unconstitutional on the grounds that it violated: (1) the principle of separation of powers; (2) the Presidential privilege; (3) Nixon’s privacy interests; (4) his First Amendment right of association; and (5) the Bill of Attainder Clause.

None of the public access regulations had become effective by the time this case was pending in the courts. The district court therefore concluded that questions going to the possibility of future public release were not ripe for review, and held that it could only consider the injury to Nixon’s constitutionally protected interests allegedly caused by the taking and screening of the materials. The district court held that Nixon’s constitutional challenges were without merit and dismissed the complaint and the Supreme Court granted certiorari.

Issue: Does Congress have the power to pass an act directing the seizure and disposition, within the control of the Executive Branch, of the papers and tapes of a former president?

Holding and Rule (Brennan): Yes. Congress has the power to pass an act directing the seizure and disposition, within the control of the Executive Branch, of the papers and tapes of a former president.

1) The Act does not violate the principle of separation of powers.

The Executive Branch became a party to the Act’s regulation when President Ford signed the Act into law and the Solicitor General under the Carter administration urged affirmance of the District Court’s judgment. Moreover, the function remains in the Executive Branch in that the Administrator of General Services and the archivists are employees of that branch.

In determining whether the Act violates the separation of powers principle, the proper inquiry requires analysis of the extent to which the Act prevents the Executive Branch from accomplishing its constitutionally assigned functions. Only where the potential for disruption is present must it then be determined whether that impact is justified by an overriding need to promote objectives within Congress’ constitutional authority.

There is nothing in the Act rendering it unduly disruptive of the Executive Branch since that branch remains in full control of the materials. The Act was designed to ensure that the materials can be released only when release is not barred by privileges of the Executive Branch.

2) The Act does not violate the Presidential privilege of confidentiality.

In view of the specific directions to the Administrator of General Services to take into account the need to protect any party’s opportunity to assert any constitutionally based right or privilege, and the need to return private materials, there is no reason to believe that the restrictions on public access ultimately established by regulation will not be adequate to preserve executive confidentiality.

The mere screening of the materials by Government archivists, who have previously performed the identical task for other former Presidents without any suggestion that such activity in any way interfered with executive confidentiality, will not impermissibly interfere with candid communication of views by Presidential advisers, and will be no more of an intrusion into Presidential confidentiality than the in camera inspection by the District Court approved in United States v. Nixon.

Claims of executive privilege must yield to the important congressional purposes of preserving appellant’s Presidential materials and maintaining access to them for lawful governmental and historical purposes.

3) The Act does not unconstitutionally invade Nixon’s right of privacy.

While Nixon has a legitimate expectation of privacy in his personal communications, the constitutionality of the Act must be viewed in the context of the limited intrusion of the screening process, of appellant’s status as a public figure, his lack of expectation of privacy in the overwhelming majority of the materials, and the virtual impossibility of segregating the apparently small quantity of private materials without comprehensive screening. Nixon’s privacy claim has no merit in light of the Act’s sensitivity to his legitimate privacy interests.

4) The Act does not significantly interfere with or chill Nixon’s First Amendment associational rights.

Nixon’s First Amendment claim is outweighed by the compelling governmental interests promoted by the Act in preserving the materials. Since archival screening is the least restrictive means of identifying the materials to be returned to appellant, the burden of that screening is the measure of the First Amendment claim, and any such burden is speculative in light of the Act’s provisions protecting appellant from improper public disclosures and guaranteeing him full judicial review before any public access is permitted.

5) The Act does not violate the Bill of Attainder Clause.

The Bill of Attainder Clause was not intended to serve as a variant of the Equal Protection Clause, invalidating every Act by Congress or the States that burdens some persons or groups but not all other plausible individuals. While the Bill of Attainder Clause serves as an important bulwark against tyranny, it does not do so by limiting Congress to the choice of legislating for the universe, or legislating only benefits, or not legislating at all.

The Act’s specificity in referring to Nixon by name does not automatically offend the Bill of Attainder Clause. Congress was only concerned with the preservation of Nixon’s materials because the papers of other former Presidents were already housed in libraries. Nixon therefore constituted a legitimate class of one, and this alone can justify Congress’ decision to proceed with dispatch with respect to his materials while accepting the status of his predecessors’ papers and ordering in the Public Documents Act the further consideration of generalized standards to govern his successors.

Congress, by lodging appellant’s materials in the Administrator of General Services’ custody pending screening and the promulgation of further regulations, did not inflict punishment within the historical meaning of bills of attainder. Evaluated in terms of Congress’ asserted proper purposes of the Act to preserve the availability of judicial evidence and historically relevant materials, the Act is one of nonpunitive legislative policymaking, and there is no evidence in the legislative history or in the provisions of the Act showing a congressional intent to punish appellant.

Disposition: Affirmed.

Notes: The Nixon tapes at issue in this case included the controversial Watergate Tapes. The concern of Congress in enacting this legislation was that Nixon was not a reliable custodian of the materials. This case is also cited as Nixon v. GSA. See Lawrence v. Texas for a constitutional law case brief of a landmark opinion which the Supreme Court held that the right to privacy is the right of an individual to be free from unwarranted governmental intrusion into matters that affect a person fundamentally.

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