Making Executive Privilege Work: A Multi-Factor Test in an Age of Czars and Congressional Oversight

This Article begins in Part II by exploring a recent executive privilege case between the White House and Congress. Part III then explains the constitutional rationale for executive privilege by surveying the tension between Congress's Article I powers and the President's Article II powers. Part IV then explains modern executive privilege doctrine and the different forms of executive privilege, and also proposes a new multi-factor analysis to be incorporated into the current test. Part V moreover explains why the courts should reject both branches' arguments on these issues in favor of a third approach.

Part VI then ends with the long-term implications of executive privilege.