The power to privilege.

• Author: Sohon, Mila
• Position: III. Delegating Privilege through Conclusion, with footnotes, p. 524-555

3. DELEGATING PRIVILEGE

   The above discussion has sought to demonstrate why entrusting administrative agencies with delegations of the power to privilege would further the goals of effective enforcement of the law and efficient coordination between agencies. Taken alone, these are undoubtedly benefits; it lies in the public interest for agencies to enforce federal laws effectively and to coordinate their activities efficiently. But, as this Part explains, these benefits would be bought at a substantial price.

   First, agencies are likely to use regulatory privileges to insulate themselves from accountability in courts and to the public. Second, agencies are likely to craft regulatory privileges that will preempt state laws that further important state policy interests. Third, agencies that promulgate regulatory evidentiary privileges covering the communications of state agents from disclosure will create the expressive and accountability harms that the anticommandeering doctrine seeks to prevent.

   1. Accountability

      Establishing adequate oversight of the administrative state is a besetting problem of modern administrative law: "[o]ne of administrative law's anxieties is the problem of authority delegated from more politically accountable actors to the unelected ones within administrative agencies." (167) The problem of government gave rise to the solution of delegation, but the solution of delegation gave rise to the problem of the unchecked delegate.

      To mitigate the problem of the unchecked delegate, Congress in the late 1960s and 1970s hardwired mechanisms for making agencies transparent and accountable into the basic structure of the administrative state. It is not for nothing that FOIA was codified in the sections of the U.S. Code immediately preceding the rulemaking and adjudication provisions of the Administrative Procedure Act (APA). (168) In exchange for the ongoing privilege of wielding broad delegated power, agencies were required to be accountable to the courts and to the public. (169)

      Privilege delegations will unsettle this bargain. It is a simple matter of foxes and henhouses. (170) An agency delegated the power to promulgate rules of privilege has every incentive to specify that the regulatory evidentiary privilege be applicable to communications that might expose the agency to criticism or second-guessing if disclosed. Agencies have an interest in the existence of evidentiary privileges that generously protect government officials and government information. (171)

      Of course, the risk of regulatory self-dealing is omnipresent in the administrative state. EPA officials drive cars. Consumer Products Safety Commission officials buy cribs. Social Security Administration officials will one day retire. They all write rules that, to some extent, will affect their own lives. As a rule, however, we do not place limits on agency power out of fear that agencies will craft special self-serving rules that selectively benefit their own officials and employees. Why, then, should any special concern attach to the prospect of agencies writing the rules of privilege that will apply to agency officials and agency communications?

      The short answer is that experience should make us cautious about letting the executive branch wield too much authority over the power to protect its own information. (172) The most obvious examples come from the sphere of national security. Consider executive use of classification power. The number of classified documents continues its relentless rise. (173) Even many government officials will admit that the apparatus of classification is running amok. (174) The scholarly response to this situation has been notable for its uniformity; it is not much of an exaggeration to say that today there is no literature on classification but only a literature on overclassification.

      The state secrets privilege offers a starker instance. This privilege is not a creature of statute; (175) it has a common law pedigree. (176) The federal courts therefore control the conditions under which the state secrets privilege can be invoked, but judicial controls on this area are lax. (177) Sometimes the executive's invocation of the state secrets privilege cannot even be challenged in court--because the executive has invoked the state secrets privilege. (178) When wielding this broad de facto authority to resist disclosure, has the executive used this power with prudence and circumspection? The consensus answer is no. (179)

      Those who defend broad executive power to withhold information by classification or state secrets uniformly do so by basing their arguments on the national security interest at stake. (180) But privilege delegations--section 6607 is a clear example--need not implicate national security at all. As a functional matter, privilege delegations would essentially take the degree of latitude concerning disclosure that exists in the national security context and extend it to the sphere of ordinary domestic administrative law.

      This is a prospect that ought to give anyone pause. Executive practice with respect to open government laws demonstrates why. Open government laws such as FOIA are mechanisms by which Congress checks the executive branch by requiring that executive branch information be accessible to review by the public. But as a thick literature attests, executive agencies evade the requirements of open government laws with dismaying frequency: "[T]hose who request information under the various freedom of information and 'sunshine' statutes regularly face delays and blanket denials.... [A]gencies engaged in law enforcement, defense, and national security consider open government laws to be at best a burden and, at worst, a threat to their work."181 Agencies are more often censoring documents or outright denying access to them. (182)

      The executive branch is also becoming more aggressive in invoking privileges that shield government deliberations from the public. Perhaps the most relevant metric of this tendency is the executive's increasing invocation of the deliberative process privilege. (183) The number of invocations of this privilege has risen to record highs. (184) In recent cases, the Justice Department has invoked the privilege to shield documents reflecting agency deliberations over how to respond to press articles covering the agency's projects. (185)

      A distinct concern arises from authorizing agencies to resist disclosure of inter-agency communications. Consider an aspect of an issue that has been in the news lately: "parallel construction." This term refers to one agency "remaking" a case that another agency has already made but using differently sourced information, in order to obscure the fact that its investigation drew on information gathered by the other agency. For example, recent reports have shown that domestic law enforcement agencies, such as the Drug Enforcement Agency (DEA), have used intelligence gathered by the National Security Agency (NSA) to further their criminal investigations. (186) These revelations are disturbing because it has been generally assumed that legal and practical constraints prevent foreign intelligence and surveillance agencies from conducting or assisting domestic law enforcement efforts. (187) But it is not merely in the spheres of national security or foreign intelligence that such restrictions exist. There are walls that restrict inter-agency cooperation within domestic law as well, such as the rules that regulate the joint conduct of criminal and civil investigations. (188)

      This is the dark side of agency cooperation--the zone in which agency cooperation exacts a toll upon important, even constitutional, values. It is true that there is substantial disagreement about what precise rules restrict inter-agency coordination and about how stringently courts can and will enforce these rules. But to the extent these restraints have any vigor at all, it is important to recognize how they would be vitiated by a regime in which agencies prohibited from sharing information could create and then invoke a privilege that shields inter-agency communications from disclosure in court. (189) As a functional matter, the already substantial obstacles to external monitoring of prohibited inter-agency coordination would be rendered virtually insurmountable.

      Agency accountability should be more than a buzzword; it should be both an attribute and an aspiration of administrative government. But achieving that goal requires a functional web of rules and structures that renders agency action and communications open to disclosure and that restricts the ability of agencies to engage in strategic self-insulation. Delegations of the power to privilege would let executive agencies tear holes in this complex web. As the next sections explain, privilege delegations will also have repercussions on another fundamental aspect of the federal administrative state--its interactions with state laws and state officials.

   2. Preemption

      "Preemption of state regulatory authority by national law is the central federalism issue of our time." (190) Across a wide spectrum of substantive areas--immigration, tort reform, banking regulation, family law, and others--a single issue dominates: the propriety of displacing the laws of the states with federal regulations. (191) Until now, the question of how agency preemption should interact with the law of privilege has not arisen. How would the landscape of American law change if the law of privilege came to be defined by preemptive federal regulations?

      As an initial matter, agencies may be more willing than courts or Congress to make new privileges. Courts are notably reluctant to expand privilege law. (192) And the creation of new privileges by legislation is constrained both by congressional reluctance to create new privileges and by the fact that courts have essentially imposed a clear statement rule on legislation that purports to create...