DOJ Opinion Deems Presidential Records Act Unconstitutional

The U.S. Department of Justice has issued an opinion declaring the Presidential Records Act of 1978 unconstitutional, a move that could allow presidents to retain official documents after leaving office rather than transferring them to the National Archives. The nonbinding memorandum, released this week by the department's Office of Legal Counsel, argues that the law exceeds Congress's authority and undermines the executive branch's independence under Article II of the Constitution.

Assistant Attorney General T. Elliot Gaiser, who signed the 52-page opinion, wrote that the act "exceeds Congress's enumerated and implied powers and aggrandizes the Legislative Branch at the expense of the constitutional independence and autonomy of the Executive." He compared it to an unconstitutional attempt by Congress to seize papers from Supreme Court justices, stating, "Just as Congress could not constitutionally invade the independence of the Supreme Court and expropriate the papers of the Chief Justice or Associate Justices, Congress cannot invade the independence of the President and expropriate the papers of the Chief Executive." Gaiser concluded that the law establishes a "permanent and...