White House hides behind executive privilege

By Michael Stebbins, originally published at Scientists and Engineers for America Action Fund

Last month I wrote about the White Houseâs apparent involvement in the denial of Californiaâs request for exemption from the Clean Air Act to set their own guidelines for the regulation of auto emissions standards. Now the House Oversight and Government Reform Committee has been forced to postpone a vote to hold EPA Administrator Stephen Johnson and Office of Information and Regulatory Affairs Administrator Susan Dudley in contempt for not turning over documents relating to the role of the White House because the administration is claiming executive privilege.

Under the law, California is the only state that can set their own standards for auto emissions, but it has to have a waiver by the EPA to do so. If granted, other states are permitted to adopt either the federal standard or the California standard.

Executive Privilege:

The most significant definition of the boundries of executive privilege came during the investigation of Nixon where the Supreme Court found that âthe valid need for protection of communications between high Government officials and those who advise and assist them in the performance of their manifold duties.â

Further, it supposed that â[h]uman experience teaches that those who expect public dissemination of their remarks may well temper candor with a concern for appearances and for their own interests to the detriment of the decision making process.â Fair enough, right?

However, they also warned against capricious use of the privilege, finding that ââTo read the Article II powers of the President as providing an absolute privilege as against a subpoena essential to enforcement of criminal statutes on no more than a generalized claim of the public interest in confidentiality of nonmilitary and nondiplomatic discussions would upset the constitutional balance of âa workable governmentâ and gravely impair the role of the courts under Article III.â

So, how can the committee ever investigate executive branch decisions if the Administration claims executive privilege whenever they are being investigated? Keep in mind, the EPA had not rejected any of the over 40 previous requests by California.

According to the committee website, âEPA career staff unanimously supported granting Californiaâs request for a waiver to enforce its greenhouse gas emissions standards for cars and trucks. EPA Administrator Stephen Johnson also supported granting the petition, at least in part, until he communicated with the White House.â So there is clear grounds for examining the process that went into the decision because it at least appears as if the decision was made based on political grounds rather than economic or scientific reasons.

It appears on the surface tha the White House is just stalling the investigation until they are out of office. We can only hope the courts find otherwise as the investigation is surelyheaded that way.